G.R. No. 231658/G.R. No. 231771/G.R. No. 231774, July 4, 2017,
♦ Decision, Del Castillo, [J]
♦ Dissenting Opinion, Sereno, [CJ], Carpio, [J], Leonen, [J], Caguioa, [J]
♦ Separate Concurring Opinion, Velasco Jr., [J], Leonardo-De Castro, [J], Peralta, [J], Mendoza, [J], Reyes, [J], Tijam, [J]
♦ Separate Opinion, Bersamin Jr., [J], Perlas-Bernabe, [J], Jardeleza, [J], Martires, [J]

DISSENTING OPINION

SERENO, CJ.:

The President was unable to lay down sufficient factual basis to declare martial law and suspend the privilege of the writ of habeas corpus in the entire islands group of Mindanao in Proclamation No. 216.1 Neither was he able to accomplish that in his Report to Congress dated 25 May 2017. At most, he was able to establish the existence of actual rebellion, and the danger to public safety, in Marawi City.

Thus, the position taken by Justice Antonio T. Carpio that martial law2 is valid only in Marawi City is correct, considering that respondents, who bear the burden of proving the existence of sufficient facts to justify the declaration of martial law, were unable to do so. However, I took one unique aspect of this case into consideration, and as a result, concluded that it is valid not only in the city of Marawi, but in the entire province of Lanao del Sur of which Marawi is a part, and in the provinces of Maguindanao and Sulu as well.

It must be borne in mind that this is the first post-Marcos examination of martial law that this Court will be undertaking under the 1987 Constitution. Neither rules nor jurisprudence exist to sufficiently guide the President on the declarative pronouncements and the evidentiary threshold that must be met for a martial law declaration to pass the test of constitutionality. A significant amount of interpretation and drawing up from analogous rules was therefore rendered necessary during the Court's handling of this proceeding.

Thus, this opinion takes a more permissive approach in weighing and admitting evidence or drawing from interpretative sources, simply because this Court had no time to vet the same for precision, accuracy, and comprehensiveness.

This is but fair to the President and his security and military officials. It is difficult to conclude that on 23 May 2017 when they had to urgently respond to the violent resistance by the Maute and Hapilon group of supporters, that the President and his officials should have also foreseen the possibility that they would be required by this Court to state in both the proclamation order and the report to Congress, all the acts constituting rebellion that form the basis to declare martial law. The circumstances of this case compel me to accept the explanation subsequently made to this Court by the Defense Secretary and the AFP3 Chief of Staff, as evidence to clarify Proclamation No. 216 and the President's Report to Congress.

The sworn statements of Secretary Delfin M. Lorenzana and General Eduardo M. Año were submitted to the Court on the 19 June 2017; no examination of the two thereafter could be undertaken under the timeline of this Court. Shorn of the ability to further question the two on their affidavits, this opinion has drawn from sources that are publicly available to understand the context of some of their material claims.

The approach taken in this opinion, like the sui generis proceeding under Article VII, Section 18, is also a "one-off' or pro hac vice approach, i.e., applicable only for these petitions, considering the paucity of rules and jurisprudence to guide the procedural, especially the evidentiary, aspects of the same. I have sought out what was procedurally fair to both sides in the present situation where the rules are not clear. And what do fairness and procedural due process require in such a situation?

Due process has never been and perhaps can never be precisely defined. It is not a technical conception with a fixed content unrelated to time, place and circumstances. The phrase expresses the requirement of fundamental fairness, a requisite whose meaning can be as opaque as its importance is lofty. In determining what fundamental fairness consists of in a particular situation, relevant precedents must be considered and the interests that are at stake; private interests, as well as the interests of the government must be assessed.4

As examples, the Court refused in two decisions, to apply retroactively what purported to be the rules governing agrarian courts and the DARAB5 rules of procedure. In Land Bank of the Phils. v. De Leon,6 we emphasized that our ruling on the novel issue concerning proper procedure for appeals of decisions of Special Agrarian Courts must only be applied prospectively. We explained that prior to that case, there was no authoritative guideline on the matter and the Court of Appeals has, in fact, rendered conflicting decisions on that issue. Consequently, a prospective application of the ruling was necessitated by equity and fair play.

The same underlying principle was also applied in Limkaichong v. Land Bank of the Philippines7 to justify our refusal to retroactively apply the 15-day period for appeal provided in the DARAB Rules of Procedure. The Court recognized that the "jurisprudential conundrum" involving the applicability of those provisions was only made clear after the institution of the suit;8 hence, the new rule could not be fairly applied in that case.

In addition to the effort to be fair to the President and his officials, the second reason this permissive approach to the evidence is being adopted is to demonstrate that with enough effort, even if we were deprived of the ability to ask interrogatory questions to Secretary Lorenzana and General Afio in relation to their affidavits, the Court should still have undertaken a factual review of the coverage of martial law. Instead, in refusing to make such effort, the majority has effectively given a carte blanche to the President to exclusively determine this matter. Validating a Mindanao-wide coverage is indeed convenient for the Court, but it is not right. If, to use the words of the ponencia, the most important objective of Article VII, Section 18 is to "curtail the extent of the power of the President," then this Court has miserably failed.

After all, both the phraseology of the Constitution and jurisprudence require us to undertake a review of "where" martial law will be declared.

This opinion will demonstrate that the Court could have avoided defaulting on its duty to fully review the action of the President. Instead, the majority emaciated the power of judicial review by giving excessive leeway to the President, resulting in the absurdity of martial law in places as terrorism and rebellion-free as Dinagat Islands or Camiguin. The military has said as much: there are places in Mindanao where the Mautes will never gain a foothold.9 If this is so, why declare martial law over the whole of Mindanao?

The military admitted it succeeded repelling the Abu Sayyaf in Bohol without martial law,10 should the fact that they can repeat the attempt mean that martial law can be imposed in Bohol?

What Proclamation No. 216 and the
President's Report Contain

Proclamation No. 216 enumerates the following acts of the Maute group as follows:

... today, 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic States of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion;

The President's Report, on the other hand, attempts to detail facts supporting his claim of rebellion - on pages 4 and 5 - but again, falls short of claiming any other act committed by any other group in any other place in Mindanao other than in Marawi City.

No amount of strained reading of the two presidential documents comes close to a claim that rebellion is taking place anywhere else outside of Marawi City. Neither does the recitation of facts by the Office of the Solicitor General (OSG) in its Comment, add anything to the conclusion. The ponencia has already narrated all the events that happened in Marawi City in concluding that actual rebellion took place, so I will not repeat them here.

In addition, allow me to summarize the arguments of Justice Carpio, for brevity's sake, on why martial law is valid only in Marawi City: a) the Proclamation and Report contains no evidence of actual rebellion outside of Marawi City; b) they keep on referring to the Maute group's intent to remove from the Republic only "this part of Mindanao"; and c) the plan of the group was to wage the rebellion first in Marawi as a prelude to waging war in the rest of Mindanao, which means rebellion has not actually taken place in any other part.

What Lorenzana and Año Testified to

As earlier explained, I took the additional step of examining the evidence more closely with a view to actually understanding what the correct description of the realities in Mindanao should have been, beyond what has been described in Proclamation No. 216, the President's Report and the OSG's Comment.

During the Court's examination of General Año, it was clear that he believed that the military was doing its best within all available legitimate means, to bring peace and order to Mindanao and to crush the lawless violence that was taking place in its various parts. However, when further prodded, he stressed that the matter of declaring martial law was the sole prerogative of the President to which the AFP fully defers.

I have chosen to examine the totality of the President's claim that the whole of Mindanao is vulnerable to the ISIS-inspired rebellion led by the Maute group. I have listened very carefully to what the Secretary of Defense and the Chief of Staff of the Armed Forces of the Philippines (AFP) had to say about the realities on the ground.

It is true, what they said, that hundreds of violent incidents have wracked Mindanao. However, a large majority of them are unrelated to the alleged ISIS-inspired rebellion. They may have been committed by the MNLF, the MILF, or the NP A/NDF, but there is no causal nor factual nexus between those acts and the acts of rebellion alleged in the presidential proclamation.

Unless the President is saying that the publicly-announced peace negotiations being conducted with the MNLF, the MILF, and the NP A/NDF are being completely abandoned, acts attributable to these three rebel groups cannot serve as the factual basis for Proclamation No. 216.

Note that the justification presented by the President in Proclamation No. 216 is only the actual rebellion being waged in Marawi City by the Maute group and its capability to sow terror, and cause damage and death to property not only in Lanao del Sur but also in other parts of Mindanao.

In his Report, the President said:

Considering the network of alliance-building activities among terrorist groups, local criminals and lawless armed men, the siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control over the entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of the Filipino people and preserve our national integrity.

All the claims of violence and networking in the President's Report refer solely to those perpetrated and nurtured by the Maute Group and its claimed ally, the Abu Sayyaf. The nexus therefore, must be demonstrated to these two groups' alleged alliance to establish an ISIS wilayat to justify coverage under Proclamation No. 216.

It is important to explain that martial law is not, under our Constitution, justifiable by the presence of violence alone. The unconstitutionality of Proclamation No. 216 in the entire islands group of Mindanao arises not because there is no violence in other parts of Mindanao; there is. It is not because the dangers posed by the Maute fighters are not serious; they are. Rather, it is because in parts of Mindanao other than in Lanao del Sur, Maguindanao, and Sulu, the requisites for a valid declaration of martial law have not been proven.

Our military and law enforcement establishments have always treated responses to the incidents in Mindanao as law enforcement or military actions against lawless violence. In response to this Court's questions, the military maintains that with or without martial law, it will perform its duty to quell rebellion, stop lawless violence, and preserve the territorial integrity of this country. This stance goes directly into the question of necessity; whether indeed, the military needed martial law in the entire islands group of Mindanao to restore order in Marawi City. Or is the armed conflict in Marawi City the only allowable purview of martial law under the present circumstances?

Should the Court allow the President to use martial law to solve all the problems in Mindanao as he himself has intimated, or should the Court remind him that martial law is a measure employable only when there is actual rebellion, and only when public safety requires the imposition of martial law? The President cannot broaden its use to solve other social ills.

The danger of misusing martial law is related to the need to protect the military from returning to its misshapen role during Marcos' Martial Law. Contrary to the sentiment of the ponencia, it is not fear and bias that animates magistrates of this Court when they seek to faithfully apply the words of the Constitution in the review of Proclamation No. 216; rather, it is the need to zealously protect the institutions of law and governance that have been very carefully designed by the Constitution. Of course, the Court is unanimous that all safeguards of constitutional rights must be kept in place as well.

I must emphasize that since 2005, the military establishment has taken institutional steps to professionalize its ranks in accordance with its constitutional role.11 It is of utmost importance therefore, that this Court not derail the reform efforts of the military to remove themselves from adventurism or from being unconstitutionally misdirected.

Further, this Court must ensure that any decision it will render does not unwittingly give the Maute gang of criminals a legal status higher than that of common local criminals or terrorists, or give them international notoriety that will facilitate financial and moral support from like-minded criminals. I agree with the caution being aired by Justice Marvic M.V.F. Leonen that any action this Court or the President takes may have international repercussions.

Points of Disagreement with the
Ponencia's Arguments

I wish to diverge from the arguments in the ponencia on several points:

1) The duty of the Court to inquire into the necessity of declaring martial law to protect public safety logically and inevitably requires the determination of proportionality of the powers sought to be exercised by the President. As pointed out by the ponencia, the exercise of the powers of the President under Section 18, Article VII "can be resorted to only under specified conditions."12 This means that greater powers are needed only when other less intrusive measures appear to be ineffective. When it is deemed that the power exercised is disproportional to what is required by the exigencies of the situation, any excess therefore is deemed not required to protect public safety, and should be invalidated.

2) The duty of the Court to inquire into the necessity of declaring martial law to protect public safety logically and inevitably requires the definition of the metes and bounds of the areas to be validly covered by martial law. This is another aspect of proportionality. Put differently, if martial law is not necessary to protect public safety in a certain locality, then that locality cannot be included in the coverage of martial law. If it were otherwise, then this Court would be rendering nugatory the requirements of the Constitution that martial law can only be declared in case of an invasion or rebellion, and when the public safety requires it. This much was clarified by Lansang.

3) Contrary to the thinking of the ponencia, it is possible and feasible to define the territorial boundaries of martial law. No less than Section 18, Article VII provides that the President can place the entire country "or any part thereof' under martial law. For example, if the province is the largest administrative unit for law enforcement that covers the area of actual conflict, then that unit can be used. This opinion actually recognizes that the areas for a valid martial law operation cover much more than the actual area of combat. As will be shown below, there are only a handful of violent incidents in specific localities in which the elements of publicly taking up of arms against the government and endangerment to public safety are alleged by respondents.

4) When the Court makes a determination on the area coverage of martial law in accordance with the necessity of public safety test, the Court does not substitute its wisdom for that of the President, nor its expertise (actually, non-expertise) in military strategy or technical matters for that of the military's. The Court has to rely on the allegations put forward by the President and his subalterns and on that basis apply a trial judge's reasonable mind and common sense on whether the sufficiency and necessity tests are satisfied. The Court cannot be defending vigorously its review power at the beginning, with respect to the sufficiency-of-factual basis question, then be in default when required to address the questions of necessity, proportionality, and coverage. Such luxury is not allowed this Court by express directive of the Constitution. Such position is no different from ducking one's head under the cover of the political question doctrine. But we have already unanimously declared that Section 18, Article VII does not allow government a political' question defense. When the military states that present powers are sufficient to resolve a particular violent situation, then the Court must deem them as sufficient, and thus martial law should be deemed as not necessary.

Sufficiency of the Factual Basis for
Proclamation No. 216

a. Actual Rebellion

The Court is unanimous that there must be an actual invasion or rebellion, and that public safety calls for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus, in order that the declaration or suspension can be constitutional.

Article 134 of the Revised Penal Code defines rebellion as the act of rising publicly and taking arms against the government for the purpose of removing, from allegiance to that government or its laws, the territory of the Republic of the Philippines or any part thereof - any body of land, naval or other armed forces; or for the purpose of depriving the Chief Executive or the Legislature, wholly or partially, of any of its powers or prerogatives.

Since the Court is unanimous in affirming that only actual rebellion and not the imminence of rebellion is required for the declaration of martial law, then it follows as a matter of course that martial law can only be declared where the actual rebellion is taking place.

To construe otherwise is to validate martial law in any place where there is mere presence, actual or potential, of rebel forces or their supporters. It is to allow a limitless exercise of the President's power under Section 18, Article VII since there have always been rebellion in parts of the country from the 1920's.

It has only been in Marawi City where the element of rebellion that consists in the culpable purpose "of removing, from allegiance to that government or its laws, the territory of the Republic of the Philippines or any part thereof - any body of land, naval or other armed forces; or for the purpose of depriving the Chief Executive or the Legislature, wholly or partially, of any of its powers or prerogatives" has been indisputably proven in the record.

For reasons already explained, I have stretched the limits of the allowable coverage of Proclamation No. 216 to areas which are the nesting grounds of human, financial, and logistical support to the Maute fighters that launched the actual rebellion in Marawi, and where actual acts of rebellion, even if not mentioned by Proclamation No. 216 and the President's Report, are described with sufficient specificity by the AFP Chief of Staff in his sworn statement. The same does not hold true with respect to supply corridors, or spillover arenas for as long as they remain only as potential, and not actual, areas of combat amounting to rebellion. Ordinary military blockades and other modes of interdiction are sufficient to address spillover and supply corridor situations as impressed upon us during the closed door session.

b. When Public Safety Requires It

Public safety has been said to be the objective of martial law. However, unlike the traditional concept of martial law, the 1987 Constitution removes from the military the power to replace civilian government except in an area of combat where the civilian government is unable to function. Attention must be paid to the categorical unction of the Constitution that legislative assemblies and civil courts must continue to function even in a state of martial law. It is only when civil courts are unable to function that military courts and agencies can conceivably acquire jurisdiction over civilians. Such is not the case here as civil courts in Marawi City continue to function from their temporary location in Iligan City. I will use excerpts from American jurists cited by Fr. Joaquin Bernas in describing martial law:

In the language of Justice Black, it authorizes "the military to act vigorously for the maintenance of an orderly civil government." Or in the language of Chief Justice Stone, it is

the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety ... It is the law of necessity to be prescribed and administered by the executive power. Its object, the preservation of the public safety and good order, defines the scope which will vary the circumstances and necessities of the case. The exercise of the power may not extend beyond what is required by the exigency which calls it forth ...13

c. Sufficiency and necessity test requires calibration and delimitation of the coverage of martial law

The Court's statements in Lansang must be admired for their prescience. It pronounced that the suspension of the privilege of the writ of habeas corpus is a) judicially reviewable; b) such suspension is not covered by the political question exception; and c) its necessity for public safety must be reviewed according to the intensity of the rebellion, its location and time. In response to the question of the extent of review that the Court must undertake, the ponencia of Chief Justice Roberto Concepcion said:

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended .... " It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" - or, under Art. VII of the Constitution, "imminent danger thereof' - "when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." For from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.14 (emphasis supplied)

Indeed, the Court had described instances of actual rebellion and the corresponding declaration of martial law as being often limited in geographical scope.

This [referring to the area of actual rebellion] is apparent from the very provision of the Revised Penal Code defining the crime of rebellion, which may be limited in its scope to "any part" of the Philippines, and, also, from paragraph (14) of section 1, Article III of the Constitution, authorizing the suspension of the privilege of the writ "wherever" - in case of rebellion - "the necessity for such suspension shall exist." In fact, the case of Barcelon v. Baker referred to a proclamation suspending the privilege in the provinces of Cavite and Batangas only. The case of In re Boyle involved a valid proclamation suspending the privilege in a smaller area - a county of the state of Idaho.

The magnitude of the rebellion has a bearing on the second condition essential to the validity of the suspension of the privilege - namely, that the suspension be required by public safety.15

While Lansang recognized that actual rebellion can be limited in geographical area, it nevertheless upheld the nationwide suspension of the privilege of the writ of habeas corpus because the evidence that the Court detailed in the Decision spoke of a nationwide spread of acts of rebellion and anarchy.

The only conclusion from the Court's pronouncements in Lansang is that this Court is required not only to determine the existence of actual rebellion, but also, the time for and the place over which martial law can be declared. The intensity of the rebellion, the areas over which it is being waged are matters that the Court must carefully examine.

Let us recall the relevant portions of the martial law provision in the Constitution in Article VII:

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 pla,ce the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extends such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

xxx

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

The phraseology of the Constitution is purposive and directed. Martial law can only be declared: a) when there is actual invasion or rebellion; b) when public safety requires it; and c) over the entire Philippines or any part thereof. This Court cannot render inutile the second sentence of Article VII, section 18 by refusing to review the presidential decision on the coverage of martial law vis-a-vis the place where actual rebellion is taking place, and the necessity to public safety of declaring martial law in such places. The use of the phrase "when public safety requires it" can only mean that the Court must ask whether the powers being invoked is proportional to the state of the rebellion, and corresponds with its place of occurrence.

d. Terrorism and Rebellion

A question has been asked on the distinction between terrorism and rebellion and whether acts of terrorism can serve as factual basis for declaring martial law. People v. Hernandez16 describes the various means by which rebellion may be committed, namely: "resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake - except that, very often, it is worse than war in the international sense, for it involves internal struggle, a fight between brothers, with a bitterness and passion or ruthlessness seldom found in a contest between strangers."17 Hence, rebellion encompasses the entire portfolio of acts that a rebel group may commit in furtherance thereof and can include terrorism.

Republic Act No. (R.A.) 9372 (Human Security Act) defines terrorism as any punishable act that sows or creates a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand.18 Among the punishable acts enumerated in the definition of terrorism are those that may also fall under rebellion. It would thus appear that the crime of terrorism covers an even larger universe of crimes. Apparently, while terrorism does not always amount to a rebellion, acts of terrorism may be committed in furtherance of a rebellion.

Significantly, the Court in Lansang had the luxury of information on the ideology and methodologies utilized by the rebels in pursuance of their beliefs. Thus, bombing incidents, assassinations, attacks on the civilian population, violent demonstrations, the paralyzation of basic utilities, and even the establishment of front organizations were conclusively acknowledged as acts done in furtherance of rebellion.

That, however, is not the situation here.

Unlike the Lansang Court that was not constitutionally constrained to issue its Decision within a 30-day period from the filing of a petition questioning the factual basis for the declaration of martial law, this Court, because of the time limit, has not been able to vet evidence that were sought to be submitted by respondents to support a finding of the existence of the rebellious purpose behind the public taking up of arms.

At this point, I have chosen to rely on the Affidavit of General Eduardo M. Año dated 17 June 2017 in which he attested to the culpable political purpose of the rebels. According to Año, sometime in 2016, Isnilon Hapilon, head of the Abu Sayyaf Group in Basilan, was appointed emir or governor of the forces of the Islamic State of Iraq and Syria (ISIS) in the Philippines.19 Hapilon's appointment started "the unification of the ISIS-linked rebel groups that have the common unified goal of establishing a wilayat, or Islamic province, in Mindanao."20

While it was ideal for the Court to have had the chance to examine General Año more closely, I am constrained to take at face value, that it was Hapilon's appointment as emir of ISIS in 2016 that is evidence of the culpable purpose of the ISIS-inspired Maute group's rebellion in Marawi City.

e. Existence of Rebellion and the Need
for Martial Law in the Three
Provinces

I have already expressed my agreement with the ponencia that the President has established the sufficiency of the factual basis for the declaration of martial law and suspension of the privilege of the writ of habeas corpus in Marawi City.

Assuming the statement of General Año to be true, I believe that there is sufficient factual basis for the declaration of martial law and suspension of the privilege of the writ of habeas corpus in three provinces, including the one where Marawi City is situated.

I will enumerate below the following incidents alleged by General Año to have been orchestrated by ISIS-related groups that threaten the peace and security situation in other parts of Mindanao other than Marawi, after which I will analyze the same according to the tests earlier described:

Involving the Abu Sayyaf Group

1. Killing of 15 soldiers in a skirmish in Patikul, Sulu, on 29 August 201621

2. Kidnapping of three Indonesian crew members near the east of Bakungan Island, Taganak, Tawi-Tawi on 19 January 201722

3. Kidnapping of the six Vietnamese crew members of Giang Hai 05 in the north of Pearl Bank, Tawi-Tawi, on 19 February 201723

4. Beheading of German kidnap victim Juergen Gustav Kantner on 26 February in Sulu24

5. Kidnapping of Jose and Jessica Duterte on 3 March 201725

6. Kidnapping of Filipino crew members Laurencio Tiro and Aurelio Agac-Ac on 23 March 201726

7. Beheading of Filipino kidnap victim Noel Besconde on 13 April 201727

8. Kidnapping of Staff Sergeant (SSg) Anni Siraji of the Philippine Army (PA) on 20 April 2017 and his beheading on 23 April 201728

9. Kidnapping of Filipinos Alidznur Halis and Aljimar Ahari on 29 April 201729

10. Explosion of an improvised explosive device (IED) in Barangay Campo Uno, Lamitan City, Basilan, on 13 January 2017 resulting in the death of one civilian and the injury of another30

11. Explosion of an IED in Barangay Danapah, Albarka, Basilan, on 29 January 2017 causing the death of two civilians and the wounding of three others31

Involving the Maute Group

1. Attack against the 51st Infantry (INF) Battalion, PA, based in Barangay Bayabao, Butig, Lanao del Sur, on 20 February 201632

2. Kidnapping of six sawmill workers and the beheading of two of the victims on 4 and 11 April 2016, respectively33

3. Attack on the Lanao del Sur Provincial Jail in Marawi City on 27 August 2016 to free detained rebels34

4. IED attack on a night market in Roxas Avenue, Davao City, on 2 September 2016, leading to the death of 15 people and the injury of 67 others35

5. Siege in Butig, Lanao del Sur, from 26 November to 1 December 2016, resulting in skirmishes with government troops and the injury of 32 civilians36

6. Carnapping in Iligan City on 24 February 2017, which led to government pursuit operations that killed two members of the Maute Group, as well as the apprehension of one member in Tagaloan, Lanao del Norte, on the same day37

7. Kidnapping of Omera Lotao Madid in Saguiaran, Lanao del Sur, on 5 March 201 738

Involving the Bangsamoro Islamic Freedom Fighters (BIFF)

1. Liquidation by BIFF elements of Corporal (Cpl) Joarsin K Baliwan (INF, PA) in Barangay Tambunan, Guindulungan, Maguindanao, on 16 February 201739

2. Liquidation by BIFF elements of SSg Zaldy M Caliman (INF, PA) in Barangay Meta, Datu Unsay, Maguindanao, on 18 February 201740

3. Two IED attacks against a government security patrol in Brgy. Timbangan, Shariff Aguak, on 3 March 2017, which resulted in the wounding of a military personnel41

4. IED attack against a government security patrol along the national highway of Brgy. Labu-Labu, Datu Hoffer Ampatuan, Maguindanao, on 30 March 2017, which resulted in one wounded in action42

5. Harassment against government personnel in Brgy. Balanaken, Datu Piang, Maguindanao on 31 March 2017, which resulted in the killing of one Civil Aviation Authority personnel.43

6. IED explosion in front of the AFC eatery in Brgy. Poblacion 5, Midsayap, North Cotabato, on 1 April 2017, which resulted in the wounding of a civilian.44

7. Liquidation by BIFF elements of Cpl Tamana U. Macadatar, PA, in Barangay Tukanalipao, Mamasapano, Maguindanao, on 4 April 201745

8. Two IED explosions targeting the Dragon Gas Station in Tacurong City, Sultan Kudarat, on 17 April 2017, which resulted in the wounding of eight persons (1 AFP, 1 Philippine National Police (PNP), and 6 civilians)46

9. IED attack on NGCP Tower #68 in Barangay Pagangan II, Aleosan, North Cotabato, on 18 April 201747

10. IED explosion in Maitumaig Elementary School in Barangay Maitumaig, Datu Unsay, Maguindanao, on 5 May 201748

11. Harassment of military detachments in Barangay Pagatin, Datu Salibo, Maguindanao, on 6 May 2017, which resulted in the wounding of seven military personnel49

12. IED attack targeting a PNP vehicle in Brgy. Mamasapano, Mamasapano, Maguindanao, on 9 May 2017 resulting in four wounded PNP personnel50

13. IED explosion while government troops were conducting a route security patrol in Barangay Timbangan, Shariff Aguak, Maguindanao, on 18 May 2017 resulting in one government personnel killed and another wounded51

14. IED explosion in Isulan Public Market, Isulan, Sultan Kudarat, on 22 May 201752

All of the above incidents are acts of lawless violence directed against either civilians or government forces. Not only did they cause disturbance of the peace in the areas where they were committed; they were all criminal acts punishable under our laws to begin with.

Analysis of the Incidents Committed by the
Abu Sayyaf Group

There can be no definitive conclusion that the welfare and general protection of the community are endangered by the kidnapping of foreigners in Tawi-Tawi and Sulu. The two incidents in Tawi-Tawi involved foreign crew members whose capture might have been perpetrated for various reasons, including illegal fishing. The killing of the German kidnap victim was absolutely deplorable. Nevertheless, as they were directed against tourists in the area, the kidnappings may be considered isolated incidents that have limited effect on the public safety of civilians in the community of course and cannot be counted as acts of rebellion.

The four cases of kidnapping of Filipinos committed by the Abu Sayyaf Group are a different matter, however. As the victims are members of the community, their kidnapping hits closer to home and creates a chilling effect on the people who may feel that their welfare is endangered. While public safety is endangered, it is not clear whether the kidnappings were committed for business or were in furtherance of a rebellion.

The two incidents involving IED explosions in Basilan that caused the death of civilians have absolutely created fear in the community. However, because this is not being related to an ongoing rebellion, we can only characterize them for now as acts of terrorism.

While the kidnapping and killing of SSg Anni Siraji (PA) may not necessarily endanger the public safety of the people, as the incident is directed against a member of government forces, it is definitely a form of publicly taking up arms against the government - an element of rebellion.

But it is the killing of 15 soldiers in Patikul, Sulu, upon which the element of publicly taking up arms against the government and the endangerment of public safety converge. The attack was directed against government forces. Considering the nature of a skirmish, which is not a respecter of time or place, the civilian population in the area could have been caught in the crossfire. It is also of common knowledge that the attacks on the soldiers are part of the ongoing campaign in Sulu to rid its islands of the Abu Sayyaf terrorist-rebel groups.

This is part of the continuous perpetration of attacks by the rebel group throughout the province of Sulu, wherein it is known to primarily operate.53 Aside from the encounters between the rebels and the army, such as that which occurred just last April 2017,54 there had been numerous assassinations of members of the armed forces and police in the province.55 Further, many of its high-profile kidnappings have taken place in Sulu, specifically that of American missionary Charles Watson in 14 November 1993;56 that of television evangelist Wilde Almeda in July 2000;57 and that of American Jeffrey Schilling in 28 August 2000.58 The protracted violence caused by the Abu Sayyaf group has affected the civilians in the community as well, as when members of the rebel group fired on two passenger jeepneys in Talipao, Sulu, killing 21 persons and wounding 11 in July 2014.59

To view and understand the killing of the soldiers in Patikul, Sulu within the foregoing context of protracted violence being perpetrated by the group in the entire province, would confirm the conclusion that the requirements for the declaration of martial law and suspension of the privilege of the writ are present in Sulu.

Analysis of the Incidents Committed by the
Maute Group

The incidents of kidnapping of Filipinos and beheading of two of them, as well as the IED explosion in Davao City, endangered the public safety of the community. The same is true with regard to the incident of carjacking in Iligan City. However, while government forces were involved in the incident that led to the killing of two Maute Group members and the apprehension of another, the element of publicly taking up arms against the government has not been established. This is because the involvement of the government forces may have resulted from their pursuit of the perpetrators.

The element of publicly taking up arms against the government was present in the ambush of military elements in Marawi City, although it might not have necessarily endangered the public because the target of the ambush was government forces.

The rest of the incidents orchestrated by the Maute Group involved both the element of publicly taking up arms against the government and public safety endangerment.

The attack on the 51st Infantry Battalion and the siege that resulted in skirmishes, both in Butig, Lanao del Sur, were directed at government forces. The attack necessarily created fear in the community, considering that such a brazen act could be directed at an armed government facility. The siege resulted in the injury of 32 civilians caught in the crossfire.

The attack on the Lanao del Sur Provincial Jail endangered the welfare of the community as a result of the escape of jailed rebels, among others. It may also be considered an act of publicly taking up arms against the government.

The context of the killing of Cpl Joarsin K Baliwan (INF, PA), SSg Zaldy M Caliman (INF, PA), and Cpl Tamana U Macadatar (PA) has not been established. It is unclear whether the element of publicly taking up arms against the government was present. The lack of more information also militates against a finding on whether the incident endangered the safety of the community.

The welfare of the community was endangered by the IED explosions in Midsayap, North Cotabato; Tacurong City, Sultan Kudarat; and Isulan, Sultan Kudarat. In fact, two of these explosions resulted in the wounding of civilians. However, other aspects of these incidents are unclear.

The IED attacks on a tower of the National Grid Corporation of the Philippines and on an elementary school in Datu Unsay, Maguindanao also endangered the welfare of the community, especially since one of these attacks was directed against a children's school. However, the element of publicly taking up arms against the government was not established, because the government facilities attacked were civilian in nature.

Neither was the element of publicly taking up arms against the government established in the IED attacks against a government security patrol in Datu Hoffer Ampatuan, Maguindanao; and against a PNP vehicle in Mamasapano, Maguindanao. In these cases, the government personnel attacked were also civilians. The same is true with regard to the harassment committed against government personnel in Datu Piang, Maguindanao. It is clear however, that these incidents endangered the welfare and safety of the community.

The two IED attacks against a government security patrol in Barangay Timbangan, Sharif Aguak, which resulted in the wounding of one military personnel, may be considered publicly taking up arms against the government because of the target, the number of attacks and the casualty.

Two incidents show the concurrence of the element of publicly taking up arms against the government and the endangerment of public safety: the harassment of military detachments in Datu Salibo, Maguindanao, which resulted in the wounding of seven military personnel; and the IED explosion directed against government troops in Sharif Aguak, Maguindanao, resulting in the death of one personnel and the wounding of another.

About 100 BIFF members were reportedly closing in on the military detachment in Barangay Gadong, Datu Salibo, on 4 May 2017 but government forces used air strikes to drive them away.60 Reinforcements sent to the government soldiers manning the detachment became the target of a roadside improvised bomb. Meanwhile, another roadside bomb was set off about 15 kilometers away to divert the attention of the government forces. On 6 May 2017, elements of the 57th Infantry Battalion were on their way as reinforcements to the detachment in Barangay Pagatin, Datu Salibo, when they were ambushed by rocket-propelled grenades, injuring seven of them.61

The IED in Sharif Aguak was planted along the route of the 40th Infantry Battalion patrolling Barangay Timbangan.62 It was detonated with the use of a cellular phone.

These attacks against government forces were clearly deliberate. The use of diversionary tactics and the attacks on reinforcements betrayed the clear intent of the BIFF members to take over the military detachment in Datu Salibo, Maguindanao. On the other hand, there was premeditation in the planting and detonation of the IED along the patrol route of the government forces.

In contrast, the other incidents perpetrated by the BIFF satisfy only one of the two elements of publicly taking up of arms against the government and endangerment to public safety. In others still, it is unclear whether any of the two are present.

Significantly, respondents have not cited any incident anywhere in Mindanao committed by Ansarul Khilafah Philippines (also known as "The Maguid Group"), which hails from Saranggani and Sultan Kudarat.

Based on the foregoing, actual rebellion and the endangerment of public safety took place and may still be taking place in three provinces: Sulu, Lanao del Sur, and Maguindanao.

Parenthetically, the Maute Group originated from Lanao del Sur, while the BIFF is from Maguindanao. Abu Sayyaf members largely come from Sulu.63

Thus, the declaration of martial law and the suspension of the privilege of the writ of habeas corpus appear to have sufficient factual basis in the following three provinces: Lanao del Sur, Maguindanao, and Sulu. Other than these provinces, the respondents have not alleged any other incident reasonably related to the Maute attack in Marawi City.

It is no coincidence that the acts of rebellion alleged by the AFP occurred in the nesting grounds of the combined Maute-Abu Sayyaf and BIFF forces. Such extension is not unwarranted, especially considering that these are forces who, at the same time, do not seek peace with government. Such would not be the case if the New People's Army (NPA), Moro National Liberation Front (MNLF), and Moro Islamic Liberation Front (MILF) forces were involved. Another analytical lens, this time involving the ongoing peace negotiations must then be employed.

Parameters for the Implementation of
Martial Law and the Suspension of the
Privilege of the Writ of Habeas Corpus

During the oral arguments, it became evident that there is a variety of ideas on what additional powers martial law provides. This question was not definitively settled in the ponencia. It also became evident that there were serious concerns on whether constitutional rights will deteriorate in a martial law setting. One way of answering these questions is to provide the parameters for the valid implementation of martial law and the accompanying suspension of the privilege of the writ of habeas corpus.

The validity of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in the three provinces specified above does not vest the President and his officials with unhampered discretion to wield his powers in any way and whichever direction he desires. Their actions must meet legal standards even in a martial law setting. These standards ensure that Marcosian martial law does not happen again and the foundations of a just and humane society envisioned by the Constitution remain intact. At the very core, the bedrock of these standards is the fourth paragraph of Section 18, Article VII of the Constitution:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

From the foregoing provision springs a series of inhibitions in existing laws that are imposed on the government during martial law. It behooves this Court, as the guardian of the Constitution and protector of the constitutional rights of the citizens, to specify these limitations. It is this Court's duty, upon recognizing government's own difficulty with the concept of martial law, to sufficiently outline the legal framework upon which the implementation of martial law depends; and to ensure that the power to declare martial law is discharged in full accordance with this framework. To shirk from this duty would be a disservice to our men and women in uniform who, at this very moment, are rendering sacrificial service in the field as implementors of martial law. Ultimately, it would be a disservice to the Filipino people.

The following discussion outlines the salient aspects of a martial law declaration that is accompanied by the suspension of the privilege of the writ of habeas corpus and what these mean to martial law implementors.

a. Ability to Legislate

The Constitution specifically provides that a state of martial law does not supplant the functioning of the legislative assemblies. Therefore, as reflected in the deliberations of the framers,64 the President is not automatically vested with plenary legislative powers. Ordinary legislation continues to belong to the national and local legislative bodies even during martial law.65 This necessarily connotes the continued operation of all statutes, even during a state of martial rule.

It has been opined that the martial law administrator has the authority to issue orders that have the effect of law, but strictly only within the theater of war66 - an area that is not necessarily the same as the entire territorial scope of the martial law declaration. Should it happen that this opinion is upheld by this Court, it must however be noted that this does not give the administrator plenary legislative powers, since the orders issued must still be in accordance with the Constitution, especially the Bill of Rights. But outside the so-called theater of war, the operative law is ordinary law.67

b. Operation of Civil and Military Courts

The rule under the Constitution is that the civil courts cannot be supplanted by military courts.68 Therefore, the civil courts remain open and fully functioning, and the Rules of Court continue to be applicable.

It seems to be implied that in an actual theater of war where the civil courts are closed and unable to function, military courts shall have jurisdiction even over civilians in that area. It must be emphasized that all courts, including that in Marawi City are functioning, albeit in a nearby municipality.

c. Ability to Effect Arrests

i. Crime of Rebellion

As in the conduct of searches, the continued operation of the Constitution during martial law necessarily connotes that the constitutional guarantee against arbitrary arrests under the Bill of Rights remains in full effect. As a general rule, a warrant of arrest is necessary before an arrest can by validly affected as provided in Section 2, Article III of the Constitution.

However, because rebellion, conspiracy, or proposal to commit rebellion and crimes or offenses committed in furtherance thereof constitute direct assaults against the State, they are in the nature of continuing crimes.69 As such, arrests without warrant of persons involved in rebellion are justified because they are essentially committing an offense when arrested.70 The interest of the state in the arrest of persons involved in rebellion is explained in Parong v. Enrile:71

The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities.72

The arrest of persons involved in rebellion is thus synonymous with a valid warrantless arrest of a person committing a crime in the presence of the arresting officer.

Since the privilege of the writ of habeas corpus is suspended under Proclamation No. 216, Section 18, Article VII of the Constitution mandates that all persons arrested or detained for rebellion or offenses directly connected with invasion shall be judicially charged within three days; otherwise they shall be released.

ii. Crime of Terrorism

Arrests of persons charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism may be made without judicial warrant only upon authority in writing by the Anti-Terrorism Council.73 Immediately after taking custody, the arresting officers shall notify in writing the judge of the court nearest the place of apprehension or arrest.

The officer is allowed to detain the person for a period not exceeding three days from the moment the latter has been taken into custody.74

Within three days, the arresting officers shall present the person suspected of the crime of terrorism before any judge of the place where the arrest took place at any time of the day or night. Judges shall ascertain the identity of the arresting officers and the persons presented and inquire as to the reasons for the arrest. They shall also determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture. They shall submit a written report within three calendar days to the proper court that has jurisdiction over the case of the person thus arrested.75

iii. Other Crimes

Because the civil courts remain open and fully functional during martial rule, warrants of arrest can be issued only by a judge on the basis of probable cause. The regular operation of the courts necessarily maintains the applicability of the Rules of Court; thus, the procedure under Rule 112 of the Rules of Court on the issuance of an arrest order must be followed.

As in the case of searches, there can be instances of valid arrests without a warrant. The exceptions the Court recognizes that allow law enforcers or private persons to effect an arrest without a warrant are the following:

1. When, in their presence, the persons to be arrested have committed, are actually committing, or are attempting to commit an offense.76 This arrest is also called an in flagrante delicto arrest, which is an exception that requires the concurrence of two elements for it to apply: (1) the person to be arrested must execute an overt act indicating that they have just committed, are actually committing, or are attempting to commit a crime; and (2) the overt act is done in the presence or within the view of the arresting officers.77

2. When an offense has just been committed and the officers have probable cause to believe based on their personal knowledge of facts or circumstances, that the persons to be arrested have committed it.78 There are two elements for this exception to apply: (1) an offense has just been committed; and (2) the arresting officers have probable cause to believe, based on personal knowledge of facts or circumstances, that the persons to be arrested have committed it.79 It is a precondition that, more than suspicion or hearsay,80 the arresting officers know for a fact that a crime has just been committed.81

Too, this Court held in Pestilos v. Generoso82 that the elements that "the offense has just been committed" and ''personal knowledge of facts and circumstances that the person to be arrested committed it" depends on the particular circumstances of the case. Nevertheless, the Court clarified that the determination of probable cause and the gathering of facts or circumstances should be made immediately after the commission of the crime in order to comply with the element of immediacy.83

3. When the persons to be arrested are prisoners who have escaped from a penal establishment or place where they are serving final judgment, or are temporarily confined while their cases are pending, or have escaped while being transferred from one place of confinement to another.84

4. If the persons lawfully arrested escape or are rescued.85

5. If the accused who are released on bail attempt to depart from the Philippines without permission of the court where the case is pending.86

The manner of the arrest, with or without a warrant, must be in a accordance with Sections 787 and 8,88 Rule 113 of the Rules of Court.

Once a valid arrest has been affected, the procedure laid down in Section 3, Rule 113, shall be followed - the person arrested shall be delivered to the nearest police station or jail without unnecessary delay.89 If it is a case of warrantless arrest under exception nos. 1 and 2 above, the arrested person shall be proceeded against in accordance with Section 6 (formerly section 7) of Rule 112, or through inquest proceedings.90 If there is a warrant of arrest, it must be executed within 10 days from its receipt, after which the officer executing it shall make a report to the judge issuing the warrant within 10 days after its expiration.91

In view of the regular operation of the courts, the rules on arraignment and plea under Rule 116 of the Rules of Court would have to be followed after the arrested person has been judicially charged.

d. Period of Detention

The allowable periods of detention in cases of valid warrantless arrests are based on the laws prescribing the period of time within which the arrested person must be judicially charged. These laws apply even during martial law, in view of the provision mandating the continued operation of the civil courts and applicability of the Rules of Court. Detained persons ought to be charged for acts and omissions punished by the Revised Penal Code and other special penal laws. It must be remembered that the theory that a person may be detained indefinitely without any charges and that the courts cannot inquire into the legality of the restraint not only goes against the spirit and letter of the Constitution, but also does violence to the basic precepts of human rights and a democratic society.92

i. Crime of Rebellion

Since the privilege of the writ of habeas corpus has been suspended, Section 18, Article VII of the Constitution mandates that that the arrested persons shall be judicially charged within three days from the arrest. Otherwise they shall be released.

ii. Crime of Terrorism

In case of a valid warrantless detention under the Human Security Act, the officer is allowed to detain the person arrested for terrorism or conspiracy to commit terrorism for a period not exceeding three days from the moment the latter has been taken into custody by the law enforcement personnel.93

In case the warrantless arrest was made during an actual or imminent terrorist attack, the arrested suspect may be detained for more than three days provided that arresting officer is able to secure the written approval of a municipal, city, provincial, or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest.94

If the arrest was made during Saturdays, Sundays, holidays, or after office hours, the arresting police or law enforcement personnel shall bring the arrested suspect to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. It is necessary, however, that the approval in writing of any of the said officials be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned.

The arrested individuals whose connection with the terror attack or threat is not established, shall be released immediately and within three days after the detention.

The Human Security Act penalizes the law enforcers who shall fail to deliver the arrested suspects to the proper judicial authorities within three days.95

iii. Other Crimes

In case of a warrantless arrest for a legal ground involving other crimes, the period of detention allowed under the Revised Penal Code shall apply. The detained person must be judicially charged within

a. 12 hours for crimes or offenses punishable with light penalties, or their equivalent;

b. 18 hours for crimes or offenses punishable with correctional penalties, or their equivalent;

c. 36 hours for crimes or offenses punishable with afflictive or capital penalties, or their equivalent.96

Failure to judicially charge within the prescribed period renders the public officer effecting the arrest liable for the crime of delay in the delivery of detained persons under Article 125 of the Revised Penal Code.97 Further, if the warrantless arrest was without any legal ground, the arresting officers become liable for arbitrary detention under Article 124.98 However, if the arresting officers are not among those whose official duty gives them the authority to arrest, they become liable for illegal detention under Article 267 or 268.99 If the arrest is for the purpose of delivering the person arrested to the proper authorities, but it is done without any reasonable ground or any of the circumstances for a valid warrantless arrest, the arresting persons become liable for unlawful arrest under Article 269.100

e. Treatment During Detention

The rights of a person arrested or detained must be respected at all costs, even during martial law. The main source of these rights is Section 12, paragraphs 1 and 2, Article III of the Constitution, which provide as follows:

(1) Any person under investigation for the commission of ,an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

Section 19(2), Article III of the Constitution further provides:

The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.101

These rights are further spelled out in R.A. 7438:102

1. The right to be assisted by counsel at all times;103

2. The right to remain silent;104

3. The right to be informed of the above rights;105

4. The right to be visited by the immediate members of their family, by their counsel, or by any nongovernmental organization, whether national or international.106

R.A. 7438 likewise includes persons under custodial investigation within the ambit of its protection. The concept of custodial investigation was expanded by the law to include the practice of issuing an "invitation" to persons who are investigated in connection with an offense they are suspected to have committed.107

R.A. 7438 further requires any extrajudicial confession made by persons arrested, detained, or under custodial investigation to be in writing and signed by these persons in the presence of their counsel or, in the latter's absence, upon a valid waiver; and in the presence of any of their parents, elder brothers or sisters, their spouse, the municipal mayor, the municipal judge, the district school supervisor, or a priest or minister of the gospel chosen by them. Otherwise, the extrajudicial confession shall be inadmissible as evidence in any proceeding.108

The law provides that any waiver by persons arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by these persons in the presence of their counsel. Otherwise, the waiver shall be null and void and of no effect.109

The rights of persons detained for the crime of terrorism or conspiracy to commit terrorism are addressed and specifically provided for in the Human Security Act. These rights are the following:110

1. The right to be informed of the nature and cause of their arrest;

2. The right to remain silent;

3. The right to have competent and independent counsel;

4. The right to be informed of the cause or causes of their detention in the presence of their legal counsel;

5. The right to communicate freely with their legal counsel and to confer with them at any time without restriction;

6. The right to communicate freely and privately without restrictions with the members of their family or with their nearest relatives and to be visited by them;

7. The right to freely avail themselves of the service of a physician or physicians of choice; and

8. The right to be informed of the above rights.

R.A. 9745 (Anti-Torture Act of 2009) strengthens the right of an arrested person not to be subjected to physical or mental torture111 while under detention. This law provides that, the freedom from torture and other cruel, inhuman, and degrading treatment and punishment is an absolute right, even during a public emergency.112 Further, an "order of battle" cannot be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment.113 As in R.A. 7438, any confession, admission, or statement obtained as a result of torture shall be inadmissible in evidence in any proceeding, except if the same is used as evidence against a person or persons accused of committing torture.114

The Human Security Act also protects those detained, who are under investigation for the crime of terrorism or conspiracy to commit terrorism, from any form of torture.115 However, while the Anti-Torture Act allows evidence obtained as a result of torture to be used against the person or persons accused of committing torture, the Human Security Act absolutely prohibits the admissibility of that evidence in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.116

f. Ability to Conduct Searches

Pursuant to the provision that the Constitution remains operational during martial law, the constitutional guarantee against unreasonable searches under the Bill of Rights continues to accord the people its mantle of protection. Further, as previously discussed, the regular operation of the courts even under martial rule, necessarily maintains the applicability of the Rules of Court.

The rule is that the Constitution bars State intrusions upon a person's body, personal effects or residence, except if conducted by virtue of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the Rules of Court.117 Specifically, "no search warrant xxx shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched."118 Rule 126 of the Rules of Court, in turn, lays down the procedure for the issuance of a valid search warrant.

It must be emphasized that the requirement of probable cause before a search warrant can be issued is mandatory and must be complied with; a search warrant not based on probable cause is a nullity or is void; and the issuance thereof is, in legal contemplation, arbitrary.119 Further, any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding.120

Nevertheless, the interdiction against warrantless searches and seizures is not absolute, as there are exceptions known as valid warrantless searches. The following are the instances of valid warrantless searches:121

1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court, and by prevailing jurisprudence. In searches incident to a lawful arrest, the arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search.122

2. Seizure of evidence in ''plain view. "Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence. The plain view doctrine applies when the following requisites concur: (1) law enforcement officers in search of evidence have a prior justification for an intrusion or are in a position from which they can view a particular area; (2) the discovery of the evidence in plain view is inadvertent; and (3) it is immediately apparent to the officers that the item they observed may be evidence of a crime, a contraband or is otherwise subject to seizure.123

3. Search of a moving vehicle. The rules governing search of a moving vehicle have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant can be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge - a requirement that borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity.124 Further, a warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant is sought. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause; still and all, the important thing is that there is probable cause to conduct the warrantless search.125

4. Consented warrantless search. It is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) the person involved had knowledge, either actual or constructive, of the existence of this right; and (3) that person had an actual intention to relinquish the right.126

5. Customs search. It has been traditionally understood that persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws.127

6. Stop and Frisk. A "stop and frisk" situation, also known as the Terry search, refers to a case in which a police officer approaches a person who is acting suspiciously for the purpose of investigating possible criminal behavior, in line with the general interest of effective crime prevention and detection.128 The objective of a stop and frisk search is either to determine the identity of a suspicious individual or to maintain the status quo momentarily while the police officer seeks to obtain more information. A basic criterion is that the police officers, with their personal knowledge, must observe the facts leading to the suspicion of an illicit act. The concept of "suspiciousness" must be present in the situation in which the police officers find themselves in.129

7. Exigent and Emergency Circumstances. The doctrine of "exigent circumstance" was applied in People v. De Gracia130 which was decided during a time of general chaos and disorder brought about by the coup d'etat attempts of certain rightist elements. Appellant was convicted of illegal possession of firearms in furtherance of rebellion. He was arrested during a warrantless raid conducted by the military operatives inside the Eurocar building, wherein they were able to find and confiscate high-powered bombs, firearms, and other ammunition. According to the military, they were not able to secure a search warrant due to ongoing disorder, with Camp Aguinaldo being "mopped up" by the rebel forces and the simultaneous firing within the vicinity of the Eurocar building, aside from the fact that the courts were consequently closed.

Admittedly, the absence of a search warrant was not squarely put into issue. Nevertheless, the Court proceeded to delve into the legality of the raid due to the gravity of the offense involved. The Court then analyzed the context, taking into consideration the following facts: (1) the raid was precipitated by intelligence reports and surveillance on the ongoing rebel activities in the building; (2) the presence of an unusual quantity of high-powered firearms and explosives in a automobile sales office could not be justified; (3) there was an ongoing chaos at that time because of the simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces; and (4) the courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted.

The Court ruled that the "case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was closed. Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with."131

It is under this rare situation that a valid warrantless search or raid may be conducted in times of ongoing conflict, as when there is an ongoing fighting between rebels and the armed forces. However, great care must be observed before this exception can apply. The searching officers must take into consideration: (1) the urgency and exigency of the situation, (2) the attendant circumstances of chaos or disorder, and (3) the availability of the courts. It bears reiteration that all courts in the country are currently functioning.

Law enforcers may avail themselves of these exceptions, provided the requisites for their application are present. It must be emphasized that these exceptions do not give searching officers license to declare a "field day." The essential requisite of probable cause must always be satisfied before any warrantless search and seizure can be lawfully conducted.132

g. Ability to Enter Private Properties

The ability to enter private properties is closely related to the conduct of searches, so it must be exercised under the authority of a search warrant, unless it falls under any of the exceptions discussed above. This constitutional guarantee likewise finds its roots in Section 2, Article III of the Constitution, whose main purpose is to protect the sanctity and privacy of the home. This principle was affirmed as early as 1904 in US. v. Arceo:133

The inviolability of the home is one of the most fundamental of all the individual rights declared and recognized in the political codes of civilized nations. No one can enter into the home of another without the consent of its owners or occupants.

The privacy of the home - the place of abode, the place where man with his family may dwell in peace and enjoy the companionship of his wife and children unmolested by anyone, even the king, except in rare cases - has always been regarded by civilized nations as one of the most sacred personal rights to whom men are entitled. Both the common and the civil law guaranteed to man the right to absolute protection to the privacy of his home. The king was powerful; he was clothed with majesty; his will was the law, but, with few exceptions, the humblest citizen or subject might shut the door of his humble cottage in the face of the monarch and defend his intrusion into that privacy which was regarded as sacred as any of the kingly prerogatives xxx.

'A man's house is his castle,' has become a maxim among the civilized peoples of the earth. His protection therein has become a matter of constitutional protection in England, America, and Spain, as well as in other countries.134

The limitations on the manner in which the search warrant shall be secured and implemented can be found in the Revised Penal Code, specifically as follows:

1. If public officers procure a search warrant without a just cause or, having legally procured the warrant, they exceed their authority or use unnecessary severity in executing the search, they shall be liable under Article 129 of the Revised Penal Code;

2. If public officers authorized to implement a search warrant or warrant of arrest (1) enter any dwelling against the will of the owner thereof; (2) search papers or other effects found therein without the prior consent of the owner; or (3) having surreptitiously entered the dwelling, and being required to leave the premises, shall refuse to do so, they shall be liable for violation of domicile under Article 128 of the Revised Penal Code.

h. Military Blockades

The ability to set up military blockades around the affected areas is related to the people's constitutionally protected freedom of movement, specifically the liberty of abode and right to travel. The limitations on this ability are found in Section 6, Article III of the Constitution, which provides as follows:

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

Under the first paragraph, the liberty of abode and of changing it may be impaired only "upon lawful order of the court" as guided by the "limits prescribed by law."135 The clear intent is to proscribe "hamletting" or the herding of people into a militarily-quarantined sanctuary within rebel areas as was done during the Marcos regime.136 Therefore, the restrictive type of military blockade is not countenanced by law.

The impairment of the right to travel under the second paragraph can be done even without court order. However, the limitations can be imposed only on the basis of "national security, public safety, or public health, as may be provided by law."

Under the Human Security Act, the liberty of abode and right to travel of a person charged with terrorism may be restricted as follows:

Section 26. Restriction on Travel. - In cases where evidence of guilt is not strong, and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety, consistent with Article III, Section 6 of the Constitution. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court.

He/she may also be placed under house arrest by order of the court at his or her usual place of residence.

While under house arrest, he or she may not use telephones, cellphones, e-mails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court.

The restrictions abovementioned shall be terminated upon the acquittal of the accused or of the dismissal of the case filed against him or earlier upon the discretion of the court on motion of the prosecutor or of the accused.137

An allowable and "less restrictive" version of a military blockades is the setting up of police or military checkpoints, which has been ruled by this Court as not illegal per se.138 Checkpoints are allowed for as long as they are warranted by the exigencies of public order and are conducted in a manner least intrusive to motorists.139 As explained by this Court in Caballes v. Court of Appeals:140

A checkpoint may either be a mere routine inspection or it may involve an extensive search.

Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the car's doors; (4) where the occupants are not subjected to a physical or body search; (5) where the inspection of the vehicles is limited to a visual search or visual inspection; and (6) where the routine check is conducted in a fixed area.141

However, subjecting a vehicle to an extensive search, as opposed to a mere routine inspection, has been held to be valid only for as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality, or evidence pertaining to a crime, in the vehicle to be searched.142

1. Ability to Conduct Surveillance

As provided in the Bill of Rights, the privacy of communication and correspondence shall be inviolable, except upon a lawful order of the court, or when public safety or order requires otherwise as prescribed by law.143 Since the Constitution and the laws remain in effect during martial law, government authorities must comply with the following procedure for the conduct of a valid surveillance.

Under R.A. 4200 (Anti-Wire Tapping Law), the tapping of any wire or cable; or the use of any other device or arrangement to secretly overhear, intercept, or record communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder - or however described otherwise - shall be allowed only upon a written order of the Regional Trial Court (RTC) for cases involving the following crimes:

1. Treason,

2. Espionage,

3. Provoking war and disloyalty in case of war,

4. Piracy,

5. Mutiny in the high seas,

6. Rebellion,

7. Conspiracy and proposal to commit rebellion,

8. Inciting to rebellion,

9. Sedition,

10. Conspiracy to commit sedition,

11. Inciting to sedition,

12. Kidnapping as defined by the Revised Penal Code, and

13. Violations of Commonwealth Act No. 616, which punishes espionage and other offenses against national security.144

The written order of the RTC shall only be issued or granted upon a written application and the examination, under oath or affirmation, of the applicants and the witnesses they may produce, as well as a showing

1. that there are reasonable grounds to believe that any of the crimes enumerated above has been committed or is being committed or is about to be committed: Provided, however, that in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or act of sedition, as the case may be, have actually been or are being committed;

2. that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or towards the solution, or the prevention of, any of those crimes; and

3. that there are no other means readily available for obtaining the evidence.145

The recordings made under court authorization shall be deposited with the court in a sealed envelope or sealed package within 48 hours after the expiration of the period fixed in the order. The envelope must be accompanied by an affidavit of the peace officer who was granted that authority, stating the number of recordings made; the dates and times covered by each recording; the number of tapes, discs, or records included in the deposit and certifying that no duplicates or copies of the whole or any part thereof have been made or, if made, that all those duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened; or the recordings replayed or used in evidence; or their contents revealed, except upon order of the court. The court order shall not be made except upon motion, with due notice and opportunity to be heard afforded to the person or persons whose conversations or communications have been recorded.146

If the subjects of the surveillance are members of a judicially declared and outlawed terrorist organization, association, or group of persons, or is any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the provisions of the Human Security Act shall apply. Under that law, the interception and recording of communications of terrorists are allowed upon a written order of the Court of Appeals.147 Any organization, association, or group of persons may be declared a terrorist and outlawed organization, association, or group of persons by the RTC upon application of the Department of Justice.148

j. Ability to Examine Bank Deposits, Accounts, and Records and to Freeze Properties or Funds

In Subido Pagente Certeza Mendoza and Binay Law Offices v. Court of Appeals,149 the Court ruled that that the source of the right to privacy governing bank deposits is statutory, not constitutional. Nevertheless, the regular operation of the legislative assemblies and civil courts even under martial rule necessarily maintains the applicability of the statutes and the Rules of Court. Therefore, there is a mandate to comply with the procedure existing in our laws with respect to the investigation and freezing of bank accounts and other properties.

Under the Human Security Act, only upon a written order of the Court of Appeals may there be an examination and gathering of any relevant information on the deposits, placements, trust accounts, assets, and records in a bank or financial institution of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism; or of a judicially declared and outlawed terrorist organization, association, or group of persons; or of a member of such judicially declared and outlawed organization, association, or group of persons.150 The bank or financial institution concerned cannot refuse to allow the examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.151

The financing of terrorism was more specifically dealt with under R.A. 10168 (Terrorism Financing Prevention and Suppression Act).152 Under this law, the Anti-Money Laundering Council (AMLC), either upon its own initiative or at the request of the Anti-Terrorism Council (ATC), is authorized to investigate (a) any property or funds that are in any way related to financing of terrorism or acts of terrorism; (b) property or funds of any person or persons in relation to whom there is probable cause to believe that such person or persons are committing or attempting or conspiring to commit, or participating in or facilitating the financing of terrorism or acts of terrorism as defined in the law.153 For purposes of the foregoing investigation, the AMLC is authorized to inquire into or examine deposits and investments in any banking institution or non-bank financial institution without a court order.154

R.A. 10168 further authorizes the AMLC, either upon its own initiative or at the request of the A TC, to issue an ex parte order to freeze, without delay, (a) property or funds that are in any way related to the financing of terrorism or acts of terrorism; or (b) property or funds of any person, group of persons, terrorist organization, or association, in relation to which there is probable cause to believe that it is committing or attempting or conspiring to commit, or is participating in or facilitating the commission of the financing of terrorism or acts of terrorism.155

The freeze order shall be effective for a period not exceeding 20 days, which may be extended up to a period not exceeding six months upon a petition filed by the AMLC with the Court of Appeals before the expiration of the period.156

However, if it is necessary to comply with binding terrorism-related resolutions, including Resolution No. 1373 of the UN Security Council pursuant to Article 41 of the Charter of the UN, the AMLC shall be authorized to issue a freeze order with respect to the property or funds of a designated organization, association, group, or any individual. The freeze order shall be effective until the basis for its issuance shall have been lifted. During the effectivity of the freeze order, an aggrieved party may file with the Court of Appeals a petition to determine the basis of the freeze order within 20 days from its issuance.157

If the property or funds, subject of the freeze order, are found to be in any way related to the financing of terrorism or acts of terrorism committed within the jurisdiction of the Philippines, the property or funds shall be the subject of civil forfeiture proceedings as provided in R.A. 10168.158

k. Media Restrictions

The Bill of Rights guarantees that no law shall be passed abridging the freedom of speech, of expression, or of the press.159 Under this guarantee, all forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause.160 This proscription applies during martial law. To restrict media coverage and publication during a state of martial rule constitutes prior restraint, which is prohibited by the Constitution.

Nevertheless, there are exceptions under which expression may be subject to prior restraint. In this jurisdiction, prior restraint may be applied to four categories of expression, namely: pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security.161

Ultimately, the test for limitations on freedom of expression continues to be the clear and present danger rule - that words used in those circumstances are of such nature as to create a clear and present danger that they would bring about the substantive evils that the lawmaker has a right to prevent. As this Court ruled in Eastern Broadcasting Corp. v. Dans, Jr.,162 the government has a right to be protected against broadcasts that incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising.163 During a state of martial law, media restrictions may be countenanced, provided there is a danger to national security as justified by the clear and present danger rule.

I. Treatment of civilians and non-combatants

The obligations under the International Humanitarian Law (IHL) continue to be effective even during a state of martial law. R.A. 9851 (The Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity) continues to impose obligations on those who implement martial law.

If the declaration of martial law was precipitated by an armed conflict,164 whether international165 or non-international,166 the parties thereto are obligated to protect persons who are not, or are no longer, participating in hostilities. Otherwise, the commission of any of the prohibited acts under the law as enumerated below will render the responsible person liable.

Specifically, in case of an international armed conflict, the following acts constitute "war crimes" and shall be penalized under R.A. 9851:

1. Willful killing;

2. Torture or inhuman treatment, including biological experiments;

3. Willfully causing great suffering or serious injury to body or health;

4. Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly;

5. Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; and

6. Arbitrary deportation or forcible transfer of population or unlawful confinement.167

In case of a non-international armed conflict, any of the following acts committed against persons taking no active part in the hostilities - including members of the armed forces who have laid down their arms and those placed hors de combat168 by sickness, wounds, detention or any other cause - is considered a war crime and is penalized by the law:

1. Violence to life and person - in particular, willful killing, mutilation, cruel treatment and torture;

2. Outrages committed against personal dignity - in particular, humiliating and degrading treatment;

3. Taking of hostages; and

4. Passing of sentences and carrying out of executions without any previous judgment pronounced by a regularly constituted court, which affords all judicial guarantees which are generally recognized as indispensable.169

Whether international or non-international, the following serious violations of the laws and customs applicable to an armed conflict within the established framework of international law are likewise considered war crimes and penalized by R.A. 9851:

1. Intentionally directing attacks against the civilian population as such or against individual civilians not taking a direct part in hostilities;

2. Intentionally directing attacks against civilian objects, that is, against those that are not military objectives;

3. Intentionally directing attacks against buildings, materiel, medical units and modes of transport, and personnel using the distinctive emblems of the Geneva Conventions or Additional Protocol III in conformity with international law;

4. Intentionally directing attacks against personnel, installations, materiel, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

5. Launching an attack in the knowledge that the attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment, which would be excessive in relation to the concrete and direct military advantage anticipated;

6. Launching an attack against works or installations containing dangerous forces in the knowledge that the attack will cause excessive loss of life, injury to civilians or damage to civilian objects, and cause death or serious injury to body or health;

7. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings that are undefended and are not military objectives, or making non-defended localities or demilitarized zones the objects of attack;

8. Killing or wounding persons in the knowledge that they are hors de combat, including combatants who, having laid down their arms, or no longer having any means of defense, have surrendered at discretion;

9. Making improper use of a flag of truce, of the flag or the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions or other protective signs under International Humanitarian Law, resulting in death, serious personal injury or capture;

10. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. In case of doubt whether a building or place has been used to make an effective contribution to military action, it shall be presumed not to have been so used;

11. Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind, or to removal of tissue or organs for transplantation, which are neither justified by the medical, dental or hospital treatment of the persons concerned nor carried out in their interest, and which cause death to or seriously endanger the health of those persons;

12. Killing, wounding or capturing an adversary by resort to perfidy;

13. Declaring that no quarter will be given;

14. Destroying or seizing the enemy's property unless the destruction or seizure is imperatively demanded by the necessities of war;

15. Pillaging a town or place, even when it is taken by assault;

16. Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians is involved, or imperative military reasons so demand;

17. Transferring, directly or indirectly by the occupying power, of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

18. Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;

19. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of common Article 3 to the Geneva Conventions;

20. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

21. Intentionally using the starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided under the Geneva Conventions and their Additional Protocols;

22. In an international armed conflict, compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;

23. In an international armed conflict, declaring that the rights and actions of the nationals of the hostile party are abolished, suspended or inadmissible in a court of law;

24. Committing any of the following acts;

a. Conscripting, enlisting or recruiting children under the age of 15 years into the national armed forces;

b. Conscripting, enlisting or recruiting children under the age of 18 years into an armed force or group other than the national armed forces; and

c. Using children under the age of 18 years as active participants in hostilities; and

25. Employing means of warfare that are prohibited under international law, such as

a. poison or poisoned weapons;

b. asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

c. bullets that expand or flatten easily in the human body, such as bullets with hard envelopes that do not entirely cover the core or are pierced with incisions; and

d. weapons, projectiles and material and methods of warfare that are of such nature as to cause superfluous injury or unnecessary suffering, or that are inherently indiscriminate in violation of the international law of armed conflict.170

R.A. 9851 prohibits and penalizes genocide or any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other similar stable and permanent group as such, as well as directly and publicly incite others to commit genocide:

1. Killing members of the group;

2. Causing serious bodily or mental harm to members of the group;

3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4. Imposing measures intended to prevent births within the group; and

5. Forcibly transferring children of the group to another group.171

Lastly, "other crimes against humanity" or any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, are penalized by R.A. 9851:

1. Willful killing;

2. Extermination;

3. Enslavement;

4. Arbitrary deportation or forcible transfer of population;

5. Imprisonment or other severe deprivation of physical liberty m violation of fundamental rules of international law;

6. Torture;

7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law;

9. Enforced or involuntary disappearance of persons;

10. Apartheid; and

11. Other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.172

It must be emphasized that the crimes defined and penalized under R.A. 9851, their prosecution, and the execution of sentences imposed on their account, are not subject to any period of prescription.173

Further, the law specifically provides for the irrelevance of official capacity, so that it shall apply equally to all persons without any distinction based on official capacity, subject to the conditions specified therein.174

Lastly, the fact that a crime under R.A. 9851 has been committed by a person pursuant to an order of a government or a superior, whether military or civilian, shall not relieve that person of criminal responsibility, unless all of the following elements concur:

1. The person was under a legal obligation to obey the orders of the government or the superior in question.

2. The person did not know that the order was unlawful.

3. The order was not manifestly unlawful.175

Implication in International Law

As a final point, I believe that it is necessary to clarify the international law implications of a declaration by this Court that there is rebellion in Marawi, in particular, its impact on the obligations of the Philippines under international humanitarian law (IHL). I submit that the characterization of the situation in Marawi is a crucial matter because it determines the applicable legal regime not only under domestic statutes, but also under international law.

As a state party to the 1949 Geneva Conventions and their Additional Protocols, the Philippines is bound to observe the laws and customs of war, in the course of its involvement in an international or non-international armed conflict. The existence of an armed conflict, and the exact nature thereof, determines the status, protections, rights, and obligations of both our armed forces and the opposing groups. In the case of an international armed conflict, i.e., the existence of war or armed hostilities between two or more states,176 we are obligated to comply with the provisions of the four Geneva Conventions,177 Additional Protocol I,178 and relevant customary law.179 On the other hand, a non-international armed conflict, i.e. the occurrence of "protracted armed violence between governmental authorities and organised armed groups or between such groups within a State,"180 would bring into effect the provisions of Additional Protocol 11181 and norms of customary law applicable to such internal conflicts.182

The question now arises - would a declaration by this Court that there is actual rebellion in Marawi be tantamount to a recognition that there is an armed conflict that brings IHL into operation? I submit that it need not be.

Although both determinations are rooted in factual circumstances and evidence of a similar tenor, the factors that must be examined to reach a conclusion under domestic and international law are distinct. As earlier discussed, the existence of rebellion domestically is determined by looking at two elements: (a) the taking up of arms against the government; and (b) the purpose for which the acts are committed. In contrast, the determination of whether there is an armed conflict under IHL entails an examination of completely different factors, such as the parties involved, i.e., whether they are states or non-state entities; the level of organization of the parties to the conflict, for instance, whether they are organized armed groups or dissident armed forces; the intensity of the violence, and even the length of time that the conflict has been ongoing.183 These factors are particularly important in making a distinction between a non-international armed conflict and mere internal disturbances or domestic tensions.

In this case, I submit that our recognition that there is rebellion in Marawi and that the circumstances are sufficient to warrant the declaration of Martial Law does not automatically mean that there is an armed conflict that warrants the application of IHL. However, should the President or this Court characterize the Marawi conflict as an international one, then complications may set in.

Thus, I believe that a word of caution is necessary. As is evident from the foregoing discussion, the characterization of the conflict in Marawi is exceptionally significant with respect to our obligations under IHL. It is therefore important for this Court, the President, the military and other government officials to exercise the utmost prudence in characterizing the Maute group and describing the nature of the ongoing conflict. Lack of precision in this regard may trigger the provisions of IHL and unwittingly elevate the status of the members of the Maute group from common criminals to combatants or fighters under IHL. This would only invite further complications for the country.

Conclusion

Martial law is an extraordinary measure necessitating the exercise of extraordinary powers. Nevertheless, the President, in the exercise of his commander-in-chief powers, does not have unbridled discretion as to when, where, and how martial law is to be declared.

This is apparent in the parameters clearly set forth in the Constitution. The Supreme Court, as the guardian of the Constitution, has the obligation to see to it that these parameters are complied with. The Constitution itself makes this a mandate of this Court by removing the matter of sufficiency of the factual basis of the declaration of martial law from the untouchable arena of political questions.

Further, the manner as to how martial law is implemented is not subject to the plenary discretion of the President. There are clear legal standards dictating what he can and cannot do. The Court, as the vanguard of the rule of law, must see to it that the rule of law is upheld.

By engaging in the foregoing tasks, the Supreme Court realizes the fullness of its existence as envisioned in our Constitution.

Accordingly, I vote to declare that the President had sufficient factual basis for the issuance of Proclamation No. 216 only insofar as it covers the following provinces: Lanao del Sur, Maguindanao, and Sulu.

Proclamation No. 216 should be struck down insofar as it covers the following provinces and cities: Agusan del Norte, Agusan del Sur, Basilan, Bukidnon, Butuan City, Cagayan de Oro City, Camiguin, City of Isabela, Compostela Valley, Cotabato City, Davao City, Davao del Norte, Davao del Sur, Davao Occidental, Davao Orienta], Dinagat Islands, General Santos City, Iligan City, Lanao del Norte, Misamis Occidental, Misamis Oriental, North Cotabato, Sarangani, South Cotabato, Sultan Kudarat, Surigao del Norte, Surigao del Sur, Tawi-Tawi, Zamboanga City, Zamboanga del Norte, Zamboanga del Sur, and Zamboanga Sibugay.

The Petitions are hereby accordingly PARTLY GRANTED.

MARIA LOURDES P.A. SERENO
Chief Justice


Footnotes

1 Entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" dated 23 May 2017.

2 Unless the context otherwise indicates, I refer to the declaration of martial law here by President Rodrigo Roa Duterte to refer also to his suspension of the privilege of the writ of habeas corpus, both of which are contained in Proclamation No. 216.

3 Armed Forces of the Philippines

4 People v. Lacson, 459 Phil. 330 (2003) and Lassiter v. Department of Social Service of Durham City, 452U.S.18, 101 S.Ct.2153,2158,68L.Ed.2d640(U.S.1981).

5 Department of Agrarian Reform Adjudicative Board.

6 447 Phil. 495 (2003).

7 G.R. No. 158464, 2 August 2016.

8 Id.

9 JUSTICE LEONEN:

If they go to Dinagat, they will stick out like a sore tongue [thumb]?

GENERAL PURISIMA:

Yes, Your Honor

JUSTICE LEONEN:

They do not have pintakasi there?

GENERAL PURISIMA:

Yes, Your Honor.

JUSTICE LEONEN:

They do not have relations there, correct? So, why is it extended to Dinagat?

GENERAL PURISIMA:

Sir, the declaration of martial law is the whole of Mindanao that means, as I said before, the military is implementing martial law in the whole of Mindanao and we shall implement martial law if there is a necessity. For example, a group of Maute/ISIS escaped from Marawi and they go to Siargao or Dinagat then we can use the special power of martial law in order to get those people immediately. But if you go there, there is no semblance of martial law there even in other areas of Mindanao.

JUSTICE LEONEN:

I understand.

GENERAL PURISIMA:

We just implemented curfew and checkpoint in key areas, selected areas that we believe might have connection with the Marawi uprising, Your Honor.

10 JUSTICE LEONEN:

Let me be more specific by a concrete example. Abu Sayyaf went to Bohol?

GENERAL PURISIMA:

Yes, Your Honor.

JUSTICE LEONEN:

And martial law was not in place but you were able to quell the intrusion of the fighters in Bohol?

GENERAL PURISIMA:

Yes, Your Honor.

11 See Philippine Military Academy Roadmap 2015 (2005); Philippine Navy Strategic Sail Plan 2020 (2006); Army Transformation Roadmap 2028 (2010); AFP Transformation Roadmap 2028 (2012).

12 Decision, p. 31.

13 JOAQUIN G. BERNAS, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, p. 901-902 (2009).

14 In re: Lansang v. Garcia, supra note 4, at 586.

15 Id. at 591-592

16 99 Phil. 1956 (1956).

17 Id. at 521

18 R.A. 9372, Sec. 3.

19 Memorandum of the OSG, Annex 2 (Affidavit of General Eduardo M. Año), p. 5.

20 Id.

21 Proclamation No. 55 dated 4 September 2016 (Declaring a State of National Emergency on Account of Lawless Violence in Mindanao).

22 Memorandum of the Office of the Solicitor General (OSG), Annex 9 (Significant Atrocities in Mindanao Prior to the Marawi Incident), p. 1.

23 Id.

24 Id.

25 Id.

26 Id.

27 Id.

28 Id.

29 Id.

30 Id.

31 Id.

32 Id. at Annex 2 (Affidavit of General Eduardo M. Año), p. 4.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 Id. at p. 5.

39 Id. at Annex 9 (Significant Atrocities in Mindanao Prior to the Marawi Incident), p. 2.

40 Id.

41 Id.

42 Id.

43 Id.

44 Id.

45 Id.

46 Id.

47 Id.

48 Id. at p. 3.

49 Id.

50 Id.

51 Id.

52 Id.

53 Garrett Atkinson, Abu Sayyaf: The Father of the Swordsman, A review of the rise of lslamic insurgency in the southern Philippines, American Security Project, March 2012, Available: <https ://www.americansecurityproject.org/wp-content/up loads/2012/03 I A bu-Sayyaf-The-Father-of-the- S wordsman. pdf> (Accessed: 4 July 2017).

54 Roel Pareno, 10 Abu Sayyaf Killed, 32 Soldiers Hurt in Sulu Encounter, Available: http://www.philstar.com/nation/2017/04/03/1687306/ 1 O-abu-sayyaf-killed-32-soldiers-hurt-sulu-encounter (Acccessed: 4 July 2017).

55 Victor Taylor, Terrorist Activities of the Abu Sayyaf, The Mackenzie Institute, Available: http://mackenzieinstitute.com/terrorist-activities-abu-sayyaf/#reference-l (Accessed: 4 July 2017).

56 Zachary Abuza, Balik-Terrorism: The Return of the Abu Sayyaf, 4 (2005): Available:<https://ssi.armywarcollege.edu/pdffiles/PUB625.pdf> (Accessed: 4 July 2017).

57 Abu Sayyaf Kidnappings, Bombings, and Other Attacks, Available: <http://www.gmanetwork.com/news/news/ content/ 154 797 /abu-sayyaf-kidnappings-bombings-and-otherattacks/ story />(Accessed: 4 July 2017).

58 Abu Sayyaf Kidnappings, Bombings, and Bther Attacks, Available: <http://www.gmanetwork.com/news/news/ content/ 154 797 /abu-sayyaf-kidnappings-bombings-and-otherattacks/ story /> (Accessed: 4 July 2017).

59 Julie S. Alipala, Abu Sayyaf Gunmen Kill 21 in Sulu attack, Available: <http://newsinfo.inquirer.net/62413 7 /abu-sayyaf-gunmen-kill-at-least-16-villagers#ixzz4 lr5CQ lb4> (Accessed: 4 July 2017).

60 http://newsinfo.inquirer.net/895173/biff-sub-Jeader-killed-in-maguindanao-clash-with-soldiers. (Last accessed 4 July 2017).

61 Id.

62 http://www.philstar.com/nation/2017/05/18/1701212/2-soldiers-hurt-ied-blast-maguindanao. The news report stated that the casualty of the incident were two wounded soldiers. (Last accessed 4 July 2017)

63 Memorandum of the OSG, Annex 2 (Affidavit of General Eduardo M. Año), p. 3

64 FATHER BERNAS: A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies ...

The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case Aquino vs. COMELEC where the Supreme Court said that in times of martial law, the President automatically has legislative power. So these two clauses denied that. A state of martial law does not suspend the operation of the Constitution; therefore, it does not suspend the principle of separation of powers. (II Record, CONSTITUTIONAL COMMISSION 398 ([29 July 1986]).

65 BERNAS, supra note 12 at 920.

66 FATHER BERNAS: The question now is: During martial law, can the President issue decrees? The answer we gave to that question in the Committee was: During martial law, the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theatre of war, not in the situation we had during the period of martial law. In other words, there is an effort here to return to the traditional concept of martial law as it was developed especially in American jurisprudence, where martial law has reference to the theatre of war. (II Record, CONSTITUTIONAL COMMISSION 398 [29 July 1986]).

67 BERNAS, supra note 12 at 920.

68 Constitution, Article VII, Sec. 18.

69 Umil v. Ramos, 265 Phil. 325 (1990).

70 Id.

71 206 Phil. 392 (1983).

72 Id. at 417.

73 R.A. 9372, Sec. 18.

74 SECTION 18. Period of Detention Without Judicial Warrant of Arrest. - The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act.

The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter's residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. The judge shall forthwith submit his/her report within three calendar days from the time the suspect was brought to his/her residence or office.

Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest: Provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested.

The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify and judge as Provided in the preceding paragraph.

SECTION 19. Period of Detention in the Event of an Actual or Imminent Terrorist Attack. - Jn the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned: Provided, however, That within three days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately.

SECTION 20. Penalty for Failure to Deliver Suspect to the Proper Judicial Authority within Three Days. -The penalty often (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any police or law enforcement personnel who has apprehended or arrested, detained and taken custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism and fails to deliver such charged or suspected person to the proper judicial authority within the period of three days. (R.A. 9372)

75 Id.

76 Rules of Court, Rule 113, Sec. 5(a).

77 People v. Chua, 444 Phil. 757 (2003).

78 Rules of Court, Rule 113, Sec. 5(b).

79 Pestilos v. Generoso, G.R. No. 182601, 10 November 2014.

80 Pestilos v. Generoso, supra.

81 Sindac v. People, G.R. No. 220732, 6 September 2016.

82 Pestilos v. Generoso, supra note 69.

83 Pestilos v. Generoso, supra note 69.

84 RULES OF COURT, Rule I 13, Sec. 5(c).

85 RULES OF COURT, Rule I 13, Sec. 13.

86 RULES OF COURT, Rule 114, Sec. 23.

87 RULES OF COURT, Rule 113, Sec. 7.

Section 7. Method of arrest by officer by virtue of warrant. - When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

88 RULES OF COURT, Rule 113, Sec. 8:

Section 8. Method of arrest by officer without warrant. - When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest.

89 RULES OF COURT, Rule 113, Sec. 5: "In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail"; Rule 113, Section 3, Rules of Court: "It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay"; Pestilos v. Generoso, G.R. No. 182601, 10 November 2014.

90 RULES OF COURT, Rule 113, Sec. 5.

91 RULES OF COURT, Rule 113, Sec. 4: Execution of warrant. -The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reasons therefor.

92 In Re: Saliba v. Warden, G.R. No. 197597, 8 April 2015, 755 SCRA 296.

93 SECTION 18. Period of Detention Without Judicial Warrant of Arrest. -The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act.

The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter's residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or Jaw enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. The judge shall forthwith submit his/her report within three calendar days from the time the suspect was brought to his/her residence or office.

Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest: Provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested.

The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or Jaw enforcement personnel who fails to notify and judge as Provided in the preceding paragraph.

x x x x

SECTION 20. Penalty for Failure to Deliver Suspect to the Proper Judicial Authority within Three Days. - The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any police or Jaw enforcement personnel who has apprehended or arrested, detained and taken custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism and fails to deliver such charged or suspected person to the proper judicial authority within the period of three days.

94 SECTION 19. Period of Detention in the Event of an Actual or Imminent Terrorist Attack. - In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned: Provided, however, That within three days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately.

95 SECTION 20. Penalty for Failure to Deliver Suspect to the Proper Judicial Authority within Three Days. - The penalty often (10) years and one day to twelve (12) years of imprisonment shall be imposed upon any police or law enforcement personnel who has apprehended or arrested, detained and taken custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism and fails to deliver such charged or suspected person to the proper judicial authority within the period of three days.

96 REVISED PENAL CODE, Art. 125: Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent.

97 Id.

98 Art. 124. Arbitrary detention. - Any public officer or employee who, without legal grounds, detains a person, shall suffer;

1. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, ifthe detention has not exceeded three days;

2. The penalty of prision correccional in its medium and maximum periods, if the detention has continued more than three but not more than fifteen days;

3. The penalty of prision mayor, ifthe detention has continued for more than fifteen days but not more than six months; and

4. That of reclusion temporal, if the detention shall have exceeded six months.

The commission of a crime, or violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital, shall be considered legal grounds for the detention of any person.

99 Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.

Art. 268. Slight illegal detention. - The penalty of reclusion temporal shall be imposed upon any private

individual who shall commit the crimes described in the next preceding article without the attendance of

any of circumstances enumerated therein.

The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime.

If the offender shall voluntarily release the person so kidnapped or detained within three days from the commencement of the detention, without having attained the purpose intended, and before the institution of criminal proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a fine not exceeding seven hundred pesos.

100 Art. 269. Unlawful arrest. - The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who, in any case other than those authorized by law, or without reasonable ground therefor, shall arrest or detain another for the purpose of delivering him to the proper authorities.

101 CONSTITUTION, Art. III, Sec. 19(2),

102 An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers, and Providing Penalties for Violations Thereof.

103 R.A. 7438, Sec. 2(a).

104 R.A. 7438, Sec. 2(b).

105 Id.

106 R.A. 7438, Sec. 2(t).

107 R.A. 7438, Sec. 2.

108 R.A. 7838, Sec. 2(d).

109 R.A. 7838, Sec. 2(e).

110 R.A. 9372, Sec. 21: Rights of a Person under Custodial Detention. - The moment a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed, by the arresting police or law enforcement officers or by the police or law enforcement officers to whose custody the person concerned is brought, of his or her right: (a) to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his choice. If the person cannot afford the services of counsel of his or her choice, the police or law enforcement officers concerned shall immediately contact the free legal assistance unit of the Integrated Bar of the Philippines (IBP) or the Public Attorney's Office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO thus contacted to immediately visit the person(s) detained and provide him or her with legal assistance. These rights cannot be waived except in writing and in the presence of the counsel of choice; (b) informed of the cause or causes of his detention in the presence of his legal counsel; (c) allowed to communicate freely with his legal counsel and to confer with them at any time without restriction; (d) allowed to communicate freely and privately without restrictions with the members of his family or with his nearest relatives and to be visited by them; and, (e) allowed freely to avail of the service of a physician or physicians of choice.

111 Republic Act No. (R.A.) 9745 (Anti-Torture Act of 2009) defines torture as an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Sec. 3[a]).

112 R.A. 9745, Sec. 6: Freedom from Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, an Absolute Right. - Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment.

113 Id.

114 R.A. 9745, Sec. 8.

115 R.A. 9372 (Human Security Act of2007), Sec. 24. Section 24. No Torture or Coercion in Investigation and Interrogation. - No threat, intimidation, or coercion, and no act which will inflict any form of physical pain or torment, or mental, moral, or psychological pressure, on the detained person, which shall vitiate his free-will, shall be employed in his investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism; otherwise, the evidence obtained from said detained person resulting from such threat, intimidation, or coercion, or from such inflicted physical pain or torment, or mental, moral, or psychological pressure, shall be, in its entirety, absolutely not admissible and usable as evidence in any judicial, quasi-judicial, legislative, or administrative, investigation, inquiry, proceeding, or hearing.

116 Id.

117 People v. Canton, 442 Phil. 743 (2002).

118 CONSTITUTION, Art. Ill, Sec. 2.

119 Columbia Pictures, Inc. v. Court of Appeals, 329 Phil. 875 (1996).

120 Miclat, Jr. y Cerbo v. People, 672 Phil. 191 (2011).

121 People v. Aruta, 351 Phil. 868 (1998).

122 Sy v. People, 671 Phil. 164 (2011).

123 Sanchez v. People, 747 Phil. 552 (2014).

124 People v. Lo Ho Wing, 271 Phil. 120 (1991).

125 Caballes v. Court ofAppeals, 424 Phil. 263 (2002).

126 Dela Cruz v. People, G.R. No. 209387, 11January2016.

127 Papa v. Mago, 130 Phil. 886 (1968).

128 People v. Canton, supra note 7.

129 People v. Cogaed, 740 Phil. 212 (2014).

130 304 Phil. 118 (1994).

131 Id. at 113.

132 People v. Aruta, supra note 111.

133 3 Phil. 381, 384 (1904).

134 Id. at 384.

135 BERNAS, supra note 12 at 375-376.

136 BERNAS, supra note 12 at 376.

137 R.A. 9372, Sec. 26.

138 People v, Manago, G.R. No. 212340, 17 August 2016; Caballes v. Court of Appeals, 424 Phil. 263 (2002).

139 Caballes v. Court of Appeals, supra note 115.

140 Caballes y Taiflo v. Court of Appeals, supra.

141 Id. at 280.

142 People v. Manago y Acut, supra note 124.

143 CONSTITUTION Article III, Section 3(1).

144 R.A. 4200, Sec. 3.

145 Id.

146 Id.

147 R.A. 9372, Sec. 7: Surveillance of Suspects and Interception and Recording of Communications. The provisions of Republic Act No. 4200 (Anti-Wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

148 Id. at Sec. 17: Proscription of Terrorist Organizations, Association, or Group of Persons. - Any organization, association, or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.

149 G.R. No. 216914, 6 December 2016.

150 R.A. 9372, Sec. 27: Judicial Authorization Required to Examine Bank Deposits, Accounts, and Records. - The provisions of Republic Act No. 1405 as amended, to the contrary notwithstanding, the justices of the Court of Appeals designated as a special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that: (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association, or group of persons; and (3) of a member of such judicially declared and outlawed organization, association, or group of persons, may authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the anti-terrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and (b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution concerned shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.

151 Id.

152 Promulgated on 18 June 2012.

153 R.A. 10168, Sec. JO.

154 Id.

155 R.A. 10168, Sec. 11.

156 Id.

151 Id.

158 Id.

159 CONSTITUTION, Article III, Sec. 4.

160 Eastern Broadcasting Corp. v. Dans, Jr., 222 Phil. 151 (1985).

161 Concurring Opinion of J. Carpio, Chavez v. Gonzales, 569 Phil. 155 (2008).

162 Eastern Broadcasting Corp. v. Dans, Jr., supra note 150. l631d.

164 R.A. 9851, Sec. 3(c): "Armed conflict" means any use of force or armed violence between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Provided, That such force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949, including their common Article 3, apply.

165 R.A. 9851, Sec. 3(c): Armed conflict may be international, that is, between two (2) or more States, including belligerent occupation.

166 R.A. 9851, Sec. 3(c): Armed conflict may be non-international, that is, between governmental authorities and organized armed groups or between such groups within a State. It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

167 R.A. 9851, Sec. 4.

168 R.A. 9851, Sec. 3(k): "Hors de combat" means a person who: (1) is in the power of an adverse party; (2) has clearly expressed an intention to surrender; or (3) has been rendered unconscious or otherwise incapacitated by wounds or sickness and therefore is incapable of defending himself: Provided, That in any of these cases, the person abstains from any hostile act and does not attempt to escape.

169 R.A. 9851, Sec. 4.

170 R.A. 9851, Sec. 4.

171 R.A. 9851, Sec. 5.

172 R.A. 9851, Sec. 6.

173 R.A. 9851, Sec. 11.

174 R.A. 9851, Sec. 9.

175 R.A. 9851, Sec. 12.

176 Common Article 2 to the 1949 Geneva Conventions provides:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

177 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31 ; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85; Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135; Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287.

178 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3.

179 See HENCKAERTS, J.M., STUDY ON CUSTOMARY INTERNATIONAL HUMANITARIAN LAW, INTERNATIONAL REVIEW OF THE RED CROSS, Volume 87 Number 857, pp. 198-212, March 2005; International Committee of the Red Cross, Customary IHL Database, Available at: <https://www.icrc.org/eng/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf.>, accessed on 30 June 2017.

180 The Prosecutor v. Dusko Tadic, International Criminal Tribunal for the Former Yugoslavia, IT-94-1- AR72, Appeals Chamber Decision, 2 October 1995.

181 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-lntemational Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.

182 See Henckaerts, supra note 169.

183 See International Committee of the Red Cross, How is the Term 'Armed Conflict' Defined in International Humanitarian Law? (Opinion Paper), March 2008.


The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CARPIO, J.:

The Case

These consolidated petitions are filed under the Court's power to review the sufficiency of the factual basis of the proclamation of martial law and suspension of the privilege of the writ of habeas corpus (writ) under paragraph 3, Section 18, Article VII of the 1987 Constitution. These petitions challenge the constitutionality of Presidential Proclamation No. 216 dated 23 May 201 7 (Proclamation No. 216),1 which declared a state of martial law and suspended the privilege of the writ in the whole Mindanao group of islands.

The Antecedent Facts

In its Consolidated Comment dated 12 June 2017, the Office of the Solicitor General (OSG), representing public respondents, narrated the events that unfolded prior to the issuance of Proclamation No. 216:

11. On April 2016, the [Islamic State of Iraq and Syria's] weekly newsletter, Al Naba, announced the appointment of Abu Sayyaf leader [Isnilon] Hapilon as the emir or leader of all ISIS forces in the Philippines. xxx.

x x x x

20. On 22 to 25 April 2017, the rebel group, led by Hapilon, engaged in armed offensives against the military in Piagapo, Lanao del Sur. The government offensives, which involved a combination of ground assaults and airstrikes, forced the rebel group to flee to Marawi City.

21. Military forces spotted Hapilon in Marawi City sometime in early May 2017. Specifically, on 18 May 2017, intelligence reports revealed that the ISIS-inspired local rebel groups were planning to raise the ISIS flag at the provincial capitol. x x x.

22. On 23 May 2017, Hapilon was seen at the safe house of the ISIS-inspired local rebel groups in Barangay Basak Malutlut, Marawi City. A joint military and police operation to serve a warrant of arrest and to capture Hapilon and the Maute Group operational leaders for kidnapping for ransom was initiated. The focused military operation started with an encounter at about 1:30 in the afternoon between government forces and ISIS-inspired local rebel group members. This was followed by a series of encounters throughout the day in different parts of Marawi City.

x x x x

24. The rebel groups launched an overwhelming and unexpected offensive against government troops. Multitudes numbering about five hundred (500) armed men marched along the mair streets of Marawi and swiftly occupied strategic positions throughout the city. Snipers positioned themselves atop buildings and began shooting at government troops. The ISIS-inspired local rebel groups were also equipped with rocket-propelled grenades ("RPG") and ammunition for high-powered assault rifles.

25. The ISIS-inspired local rebel groups occupied the Philhealth Office and Salam Hospital in Barangay Lilod. They burned three (3) buildings: the Marawi City Jail, Landbank Moncado Branch, and Senator Ninoy Aquino Foundation College. They also kidnapped and killed innocent civilians. In their rampage, the rebel groups brandished the black ISIS flag and hoisted it in the locations that they occupied.2

On the night of 23 May 2017, President Rodrigo Roa Duterte (President Duterte) issued Proclamation No. 216, declaring a state of martial law and suspending the privilege of the writ in the whole of Mindanao. The full text of Proclamation No. 2 l 6, signed by President Duterte and attested by Executive Secretary Salvador C. Medialdea reads:

PROCLAMATION NO. 216

DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO

WHEREAS, 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 201 7, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down ·Certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion; and

WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim as follows:

SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not exceeding sixty days, effective as of the date hereof.

SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.

DONE, in the Russian Federation, this 23rd day of May in the year of our Lord[,] Two Thousand and Seventeen.3

On 25 May 201 7, President Duterte submitted his Report to Congress in accordance with Section 18, Article VII of the 1987 Constitution, which states in part that "[w]ithin forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress." In his Report, President Duterte presented the following justifications for imposing martial law and suspending the privilege of the writ in the whole of Mindanao:

Pursuant to Section 18, Article VII of the 1987 Constitution, I am submitting hereunder the Report relative to Proclamation No. 216 dated 23 May 2017 entitled, "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao," after finding that lawless armed groups have taken up arms and committed public uprising against the duly constituted government and against the people of Mindanao, for the purpose of removing Mindanao - starting with the City of Marawi, Lanao del Sur - from its allegiance to the Government and its laws and depriving the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, to the great damage, prejudice, and detriment of the people therein and the nation as a whole. The text of Proclamation No. 216 reads:

x x x x

Mindanao has been the hotbed of violent extremism and a brewing rebellion for decades. In more recent years, we have witnessed the perpetration of numerous acts of violence challenging the authority of the duly constituted authorities, i.e., the Zamboanga siege, the Davao bombing, the Mamasapano carnage, and the bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. Two armed groups have figured prominently in all these, namely, the Abu Sayyaf Group (ASG) and the ISIS-backed Maute Group.

On 23 May 2017, a government operation to capture Isnilon Hapilon, senior leader of the ASG, and Maute Group operational leaders, Abdullah and Omarkhayam Maute, was confronted with armed resistance which escalated into open hostility against the government. Through these groups' armed siege and acts of violence directed towards civilians and government authorities, institutions and establishments, they were able to take control of major social, economic, and political foundations of Marawi City which led to its paralysis. This sudden taking of control was intended to lay the groundwork for the eventual establishment of a DAESH4 wilayat or province in Mindanao.

Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted of around two hundred sixty-three (263) members, fully armed and prepared to wage combat in furtherance of its aims. The group chiefly operates in the province of Lanao del Sur, but has extensive networks and linkages with foreign and local armed groups such as the Jemaah Islamiyah, Mujahidin Indonesia Timur and the ASG. It adheres to the ideals being espoused by DAESH, as evidenced by, among others, its publication of a video footage declaring its 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.

- At 1400H members of the Maute Group and ASG, along with their sympathizers, commenced their attack on various facilities - government and privately owned - in the City of Marawi.

- At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being managed by the Bureau of Jail Management and Penology (BJMP).

- The Maute Group forcibly entered the jail facilities, destroyed its main gate, and assaulted on-duty" personnel. BJMP personnel were disarmed, tied, and/or locked inside the cells.

- The group took cellphones, personnel-issued firearms, and vehicles (i.e., two [2] prisoner vans and private vehicles).

- By 1630H, the supply of power into Marawi City had been interrupted, and sporadic gunfights were heard and felt everywhere. By evening, the power outage had spread citywide. (As of 24 May 2017, Marawi City's electric supply was still cut off, plunging the city into total black-out.)

- From 1800 to 1900H, the same members of the Maute Group ambushed and burned the Marawi Police Station. A patrol car of the Police Station was also taken.

- A member of the Provincial Drug Enforcement Unit was killed during the takeover of the Marawi City Jail. The Maute Group facilitated the escape of at least sixty-eight (68) inmates of the City Jail.

- The BJMP directed its personnel at the Marawi City and other affected areas to evacuate.

- By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, fell under the control of these groups. They threatened to bomb the bridges to pre-empt military reinforcement.

- As of 2222H, persons connected with the Maute group had occupied several areas in Marawi City, including Naga Street, Bangolo Street, Mapandi, and Camp Keithly, as well as the following barangays: Basak Malutlot, Mapandi, Saduc, Lilod Maday, Bangon, Saber, Bubong, Marantao, Caloocan, Banggolo, Barionaga, and Abubakar.

- These lawless armed groups had likewise set up road blockades and checkpoints at the Iligan City-Marawi City junction.

- Later in the evening, the Maute Group burned Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nun's quarters in the church, and the Shia Masjid Moncada Colony. Hostages were taken from the church.

- About five (5) faculty members of Dansalan College Foundation had been reportedly killed by the lawless groups.

- Other educational institutions were also burned, namely, Senator Ninoy Aquino College Foundation and the Marawi Central Elementary Pilot School.

- The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH flag there, among other several locations. As of 0600H of 24 May 201 7, members of the Maute Group were seen guarding the entry gates of the Amai Pakpak Hospital. They held hostage the employees of the Hospital and took over the Phil-Health office located thereat.

- The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital, which they later set ablaze.

- Lawless armed groups likewise ransacked the Landbank of the Philippines and commandeered one its armored vehicles.

- Latest information indicated that about seventy-five percent (75%) of Marawi City has been infiltrated by lawless armed groups composed of members of the Maute Group and the ASG. As of the time of this Report, eleven (11) members of the Armed Forces and the Philippine National Police have been killed in action, while thirty-five (35) others have been seriously wounded.

- There are reports that these lawless armed groups are searching for Christian communities in Marawi City to execute Christians. They are also preventing Maranaos from leaving their homes and forcing young male Muslims to join their groups.

- Based on various verified intelligence reports from the AFP and the PNP, there exists a strategic mass action of lawless armed groups in Marawi City, seizing public and private facilities, perpetrating killings of government personnel, and committing armed uprising against and open defiance of the government.

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.

The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand their ranks and strengthen their force; the armed consolidation of their members throughout Marawi City; the decimation of a segment of the city population who resist; and the brazen display of DAESH flags constitute a clear, pronounced, and unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the Government.

There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority, and prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, in an attempt to undermine his control over executive departments, bureaus, and offices in said area; defeat his mandate to ensure that all laws are faithfully executed; and remove his supervisory powers over local governments.

Law enforcement and other government agencies now face pronounced difficulty sending their reports to the Chief Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from performing their functions. Through the attack and occupation of several hospitals, medical services in Marawi City have been adversely affected. The bridge and road blockades set up by the groups effectively deprive the government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered, preventing the government from restoring peace and order in the area. Movement by both civilians and government personnel to and from the city is likewise hindered.

The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based terrorists and illegal drug money, and their blatant acts of defiance which embolden other armed groups in Mindanao, have resulted in the deterioration of public order and safety in Marawi City; they have likewise compromised the security of the entire island of Mindanao.

The groups' occupation of Marawi City fulfills a strategic objective because of its terrain and the easy access it provides to other parts of Mindanao. Lawless armed groups have historically used provinces adjoining Marawi City as escape routes, supply lines, and backdoor passages.

Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless armed men, the siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control over the entirety of Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of the Filipino people and preserve our national integrity

While the government is presently conducting legitimate operations to address the on-going rebellion, if not the seeds of invasion, public safety necessitates the continued implementation of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the rebellion is completely quelled.5

These petitions impugn the constitutionality of Proclamation No. 216.

The Issue

The threshold issue before the Court is whether there is sufficient factual basis for the issuance of Proclamation No. 216 based on the stringent requirements set forth in Section 18, Article VII of the 1987 Constitution.

Discussion

Before proceeding to the substantive issues, I shall first discuss the procedural issues in this case.

The "appropriate proceeding" under paragraph 3,
Section 18, Article VII of the 1987 Constitution
is a
sui generis petition not falling under any of
the actions or proceedings under the Rules of
Court.

According to the OSG, Section 18, Article VII of the 1987 Constitution must be construed in conjunction with the power of judicial review, and the original jurisdiction in petitions for certiorari, of the Court as defined under Sections 1 and 5, respectively, of Article VIII of the 1987 Constitution. For this reason, the OSG concludes that the "appropriate proceeding" referred to in Section 18, Article VII of the 1987 Constitution is a special civil action for certiorari under Rule 65 of the Rules of Court.6

I disagree.

Paragraph 3, Section 18, Article VII of the 1987 Constitution reads:

Sec. 18. x x x.

x x x x

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Emphasis supplied)

Based on this constitutional provision, the "appropriate proceeding" referred to is a sui generis petition not falling under any of the actions or proceedings in the Rules of Court for the following three reasons.

First, any citizen can be a petitioner. As discussed in the deliberations of the Constitutional Commission, the "citizen" who can challenge the declaration of martial law need not be a taxpayer,7 or a resident of the l9cality where martial law is declared, or even directly or personally prejudiced by the declaration. This was deliberately designed to arrest, without further delay, the grave effects of an illegal declaration of martial law or suspension of the privilege of the writ wherever it may be imposed, and to provide immediate relief to the entire nation.

Second, the Court is vested by the 1987 Constitution with the power to determine the "sufficiency of the factual basis" of the declaration of martial law or suspension of the privilege of the writ. Indeed, the Court is expressly authorized and tasked under paragraph 3, Section 18, Article VII of the 1987 Constitution to be a trier of facts in the review petition. Moreover, the standard of "sufficiency of factual basis" is a unique standard applicable only to a review of the constitutionality of the declaration of martial law or suspension of the privilege of the writ.

Third, the Court must decide the case within 30 days from the date of filing of the petition. In contrast, all other cases brought to the Court shall be resolved within 24 months, which period shall be reckoned from the date of submission for resolution rather than the date of filing.8

Contrary to the position of the OSG, the proceeding under paragraph 3, Section 18, Article VII of the 1987 Constitution cannot possibly refer to a petition for certiorari. Section 1, Rule 65 of the Rules of Court defines a petition for certiorari in this wise:

Sec. 1. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis supplied)

What is assailed in a petition for certiorari under Rule 65 of the Rules of Court are acts of government officials or tribunals exercising judicial or quasi-judicial functions. In contrast, what is assailed in a proceeding under paragraph 3, Section 18, Article VII of the 1987 Constitution is an executive act of the President not involving judicial or quasi-judicial functions.

More importantly, certiorari is an extraordinary remedy designed for .the· correction of errors of jurisdiction.9 What is at issue in the present petitions, however, is not the jurisdiction of the President to declare martial law or suspend the privilege of the writ for the 1987 Constitution expressly grants him these powers. Rather, what is at issue is the sufficiency of his factual basis when he exercised these powers. Simply put, the petition under paragraph 3, Section 18, Article VII of the 1987 Constitution does not involve jurisdictional but factual issues.

Under paragraph 2, Section 1, Article VIII of the Constitution, the Court exercises its expanded certiorari jurisdiction to review acts constituting "grave abuse of discretion amounting to lack or excess of jurisdiction" by any branch or instrumentality of Government. However, this expanded certiorari power is not applicable to the declaration of martial law or suspension of the privilege of the writ. Grave abuse of discretion generally refers to "capricious or whimsical exercise of judgment that is equivalent to lack or absence of jurisdiction."10 The abuse of discretion must be so patent and so gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.11

However, paragraph 3, Section 18, Article VII of the 1987 Constitution uses the phrase "sufficiency of the factual basis," which means that the declaration must not only have factual basis, but the factual basis must also be sufficient. This rules out the "grave abuse of discretion amounting to lack or excess of jurisdiction" standard as the latter requires absence of factual basis. Under the "sufficiency of the factual basis" standard, there may be factual basis, but the same may not be sufficient to justify the imposition of martial law or the suspension of the privilege of the writ. Under the "grave abuse of discretion" standard, there must be no factual basis whatsoever, which is clearly not the letter and intent of paragraph 3, Section 18, Article VII of the 1987 Constitution prescribing the review of the declaration of martial law or suspension of the privilege of the writ. Thus, the "sufficiency of the factual basis" standard, which applies exclusively to the review of the imposition of martial law or suspension of the privilege of the writ, is separate and distinct from the "grave abuse of discretion" standard.

The cases cited by the OSG12 are also not in point.

Integrated Bar of the Philippines (IBP) v. Zamora,13 which employed arbitrariness as the standard of review, involved the calling out power of the President, which is not subject to the "sufficiency of the factual basis" standard. As the Court explained in IBP, the "sufficiency of the factual basis" standard is applicable only to the declaration of martial law or the suspension of the privilege of the writ:

x x x Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President's action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. x x x.14 (Emphasis supplied)

Neither is the case of Lansang v. Garcia15 applicable because it was decided under the 1935 Constitution, which had no provision similar to the "sufficiency of the factual basis" standard under the 1987 Constitution. Section 11 (2), Article VII of the 1935 Constitution reads:

Sec. 11. (1) x x x.

(2) The President shall be commander-in-chief of all armed forces of the Philippines, and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.

Nowhere in the 1935 Constitution did it state that any citizen could ask the Court to review the "sufficiency of the factual basis" of the President's suspension of the privilege of the writ. In Lansang,16 the Court used its ordinary certiorari power to review the constitutionality of the suspension of the privilege of the writ as the 1935 Constitution neither contained the expanded certiorari power of the Court nor the "sufficiency of the factual basis" standard now found in the 1987 Constitution. This is not the situation in the present case. Applying the ordinary certiorari power the Court used in Lansang to the present petitions is to erase from the 1987 Constitution the "sufficiency of the ·factual basis" standard expressly written in paragraph 3, Section 18, Article VII of the 1987 Constitution, a standard specifically applicable to the review of the imposition of martial law or the suspension of the privilege of the writ. Applying the ordinary certiorari review power in Lansang to the present petitions is to drastically revise paragraph 3, Section 18, Article VII of the 1987 Constitution, an act obviously beyond the power of the Court to do.

The burden of proof to show the sufficiency of
the factual basis of the declaration of martial law
is on the government.

As to who bears the burden of proof, the OSG argues that petitioners must show proof of the sufficiency of the factual basis, being the parties who allege.17 Moreover, the OSG argues that the presumption of regularity accorded to acts of the President18 likewise puts the burden of proof on petitioners.

I disagree.

Being a sui generis petition intended as a checking mechanism against the abusive imposition of martial law or suspension of the privilege of the writ, the proceeding under paragraph 3, Section 18, Article VII of the 1987 Constitution places the burden of proof on the Government. , It is the Government that must justify the resort to extraordinary powers that are subject to the extraordinary review mechanisms under the Constitution. This is only logical because it is the Government that is in possession of facts and intelligence reports justifying the declaration of martial law or suspension of the privilege of the writ. Ordinary citizens are not expected to be in possession of such facts and reports. Hence, to place the burden of proof on petitioners pursuant to the doctrine of "he who alleges must prove" is to make this Constitutional checking mechanism a futile and empty exercise. The Court cannot interpret or apply a provision of the Constitution as to make the provision inutile or meaningless. This is especially true to a constitutional provision designed to check the abusive use of emergency powers that could lead to the curtailment of the cherished Bill of Rights of the people.

The Court, in reviewing the sufficiency of the factual basis of the declaration of martial law or suspension of the privilege of the writ, can rely on evidence from the Government such as the Proclamation and Report issued by the President himself, General Orders and Implementing Orders issued pursuant to the Proclamation, the Comment of the Solicitor General in defense of the Proclamation, and briefings made by defense and military officials before the Court.

Similarly, in Lansang,19 the Court relied on the pleadings, oral arguments and memoranda of respondents in ruling that the suspension of the privilege of the writ was justified. Other documents relied on were the Letter of the President to the Secretary of National Defense, Communications of the Chief Constabulary to all units of his command, a memorandum of the Department of National Defense, and other intelligence findings, all of which were in the possession of the Government.

The Court cannot simply trust blindly the President when he declares martial law or suspends the privilege of the writ. While the 1987 Constitution vests the totality of executive power in one person only, the same Constitution also specifically empowers the Court to "review" the "sufficiency of the factual basis" of the President's declaration of martial law or suspension of the privilege of the writ if it is subsequently questioned by any citizen. To "review" the "sufficiency of the factual basis" for the declaration of martial law or suspension of the privilege of the writ means: (1) to make a finding of fact that there is or there is no actual rebellion or invasion, and if there is, (2) to determine whether public safety requires the declaration of martial law or suspension of the privilege of the writ to suppress the rebellion or invasion.

Applying these two elements, the Court's review power is to determine whether there are sufficient facts establishing rebellion and requiring, for the protection of public safety, the imposition of martial law or the suspension of the privilege of the writ. The Court is tasked by the 1987 Constitution to review an executive act of the President, an act that involves discretion because the President has the prerogative to decide how to deal with the rebellion - whether only to call out the armed forces to suppress the rebellion, or to declare martial law - with or without the suspension of the privilege of the writ. If the President decides only to call out the armed forces, the review power of the Court under the "sufficiency of the factual basis" standard does not apply because this standard, as paragraph 3, Section 18, Article VII of the 1987 Constitution itself states, applies only in case martial law is imposed or the privilege of the writ is suspended.

However, the expanded certiorari review power of the Court under the "grave abuse of discretion" standard will apply in the exercise of the President's calling out power to suppress rebellion. This standard requires total absence of factual basis of rebellion for the Court to invalidate the President's exercise of the calling out power.

Thus, for the constitutional exercise by the President of his power to impose martial law or suspend the privilege of the writ, a more stringent review by the Court is required by the 1987 Constitution as embodied in the "sufficiency of the factual basis" standard. For the constitutional exercise of the calling out power by the President, a less stringent review by the Court is required by the 1987 Constitution as embodied in the "grave abuse of discretion" standard under the expanded certiorari power of the Court.

That the intent of the 1987 Constitution is exactly what its letter says is explained in the deliberations of the Constitutional Commission, to wit:

FR. BERNAS. x x x. When he (the President) judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. x x x.20 (Emphasis supplied)

Justices of the Court took an oath to ·preserve and defend the Constitution. Their oath of office does not state that they must trust the President when he declares martial law or suspends the privilege of the writ. On the contrary, paragraph 3, Section 18, Article VII of the 1987 Constitution expressly authorizes and specifically tasks the Court to review the judgment of the President as one of the two checking mechanisms on the President's power to declare martial law or suspend the privilege of the writ. The 1987 Constitution would not have entrusted this specific review power to the Court if it intended the Justices to simply trust the judgment or wisdom of the President. Such obeisance to the President by the Court is an abject abdication of a solemn duty imposed by the Constitution.

Similarly, the power of the Court to review under paragraph 3, Section 18, Article VII of the 1987 Constitution is separate and independent of any action taken by Congress. In case of conflict, the decision of the Court, being the ultimate arbiter of constitutional issues, prevails over the decision of Congress.

The quantum of evidence required is probable
cause.21

While the 1987 Constitution expressly provides strict safeguards against any potential abuse of the President's emergency powers, the 1987 Constitution does not compel the President to examine or produce such amount of proof as to unduly burden and effectively incapacitate him from exercising such powers.

The President need not gather proof beyond reasonable doubt, the highest quantum of evidence, which is the standard required for convicting an accused charged with a criminal offense under Section 2, Rule 133 of the Rules of Court.22 To require the President to establish the existence of rebellion or invasion with such amount of proof before declaring martial law or suspending the privilege of the writ constitutes an excessive restriction on "the President's power to act as to practically tie (his) hands and disable (him) from effectively protecting the nation .against threats to public safety."23

The standard of clear and convincing evidence, which is employed in either criminal or civil cases, is also not required for a lawful declaration of martial law or suspension of the privilege of the writ. This amount of proof likewise unduly restrains the President in exercising his emergency powers, as it requires proof greater than preponderance of evidence although not beyond reasonable doubt.24

Not even preponderance of evidence under Section 1, Rule 133 of the Rules of Court,25 which is the degree of proof necessary in civil cases, is demanded for a lawful declaration of martial law or suspension of the privilege of the writ. Preponderance of evidence is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.26 This quantum of evidence likewise curtails the President's emergency powers because he has to weigh the superiority of the evidence on hand, from at least two opposing sides, before he can act and impose martial law or suspend the privilege of the writ.

Similarly, substantial evidence constitutes an unnecessary restriction on the President's use of his emergency powers. Substantial evidence is the amount of proof required in administrative or quasi-judicial cases, or that amount of relevant evidence that a reasonable mind might accept as adequate to justify a conclusion.27

Probable cause of the existence of either rebellion or invasion suffices and satisfies the standard of proof for a valid declaration of martial law or suspension of the privilege of the writ.

Probable cause is the same amount of proof required for the filing of a criminal information by the prosecutor and for the issuance of an arrest warrant by a judge. Probable cause has been defined as a "set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested."28 In Viudez II v. Court of Appeals,29 the Court explained:

x x x. In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. x x x.30 (Emphasis supplied)

The requirement of probable cause is consistent with Section 18, Article VII of the 1987 Constitution. It is only upon the existence of probable cause that a person can be "judicially charged" under the last two paragraphs of Section 18, Article VII of the 1987 Constitution, to wit:

Sec. 18. x x x.

x x x x

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (Emphasis supplied)

The standard of "reasonable belief'' advanced by the OSG31 is essentially the same as probable cause. The Court has held in several cases that probable cause does not mean "actual and positive cause" nor does it import absolute certainty. Rather, probable cause is merely based on opinion and reasonable belief that the act or omission complained of constitutes the offense charged.32 The facts and circumstances surrounding the case must be such as to excite reasonable belief in the mind of the person charging.33

Probable cause, basically premised on common sense, is the most reasonable, most practical, and most expedient standard by which the President can fully ascertain the existence or non-existence of rebellion necessary for a declaration of martial law or suspension of the privilege of the writ. Lacking probable cause of the existence of rebellion, a declaration of martial law or suspension of the privilege of the writ is without any basis and thus, unconstitutional.

However, the sufficiency of the factual basis of martial law must be determined at the time of its proclamation. Immediately preceding or contemporaneous events must establish probable cause for the existence of the factual basis. Subsequent events that immediately take place, however, can be considered to confirm the existence of the factual basis.

Having addressed the procedural aspects of this case, I shall now proceed to the substantive issues raised by the parties.

Under the 1987 Constitution, the declaration of
martial law or suspension of the privilege of the
writ requires the concurrence of two elements:
(1) the existence of actual rebellion or invasion;
and
(2) public safety requires the declaration.

The power of the President to declare martial law or to suspend the privilege of the writ is anchored on Section 18, Article VII of the 1987 Constitution, 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.

In exercising his Commander-in-Chief power to declare martial law or suspend the privilege of the writ, the 1987 Constitution requires that the President establish the following: (1) the existence of actual rebellion or invasion; and (2) public safety requires the declaration of martial law or suspension of the privilege of the writ to suppress the rebellion or invasion. Needless to say, the absence of either element will not authorize the President, who is sworn to defend the Constitution, from exercising his Commander-in-Chief power to declare martial law or suspend the privilege of the writ.

The term "rebellion" in Section 18, Article VII of the 1987 Constitution refers to the crime of rebellion as defined by the Revised Penal Code.34 In fact, when President Duterte issued Proclamation No. 216, he expressly cited the definition of rebellion under the Revised Penal Code.35

Article 134 of the Revised Penal Code, as amended by Republic Act No. 6968,36 defines the crime of rebellion:

Article 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

Based on its statutory definition, the crime of rebellion has the following elements: (1) there is a (a) public uprising and (b) taking arms against the Government; and (2) the purpose of the uprising is either (a) to remove from the allegiance to the Government or its laws: (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.37

To clarify, mass or crowd action is not a requisite for rebellion. Nowhere in the Revised Penal Code does it say that rebellion can be committed only by mass action, or that masses or multitudes of people are a requirement to constitute the crime of rebellion.· Therefore, a single armed fighter could on his own commit the crime of rebellion.

Moreover, imminent danger or threat of rebellion or invasion is not sufficient. The 1987 Constitution requires the existence of actual rebellion or actual invasion. "Imminent danger" as a ground to declare martial law or suspend the privilege of the writ, which was present in both the 1935 and 1973 Constitutions, was intentionally removed in the 1987 Constitution.38 By the intentional deletion of the words "imminent danger" in the 1987 Constitution, the President can no longer use imminent danger of rebellion or invasion as a ground to declare martial law or suspend the privilege of the writ. Thus, the President cannot proclaim martial law or suspend the privilege of the writ absent an actual rebellion or actual invasion. This is the clear, indisputable letter and intent of the 1987 Constitution.

However, the existence of actual rebellion or invasion alone would not justify the declaration of martial law or suspension of the privilege of the writ. Another requisite must be satisfied, that is, public safety requires the declaration of martial law or suspension of the privilege of the writ to suppress rebellion or invasion. The 1987 Constitution mandates that the President must establish that the gravity of the rebellion or invasion is such that public safety requires the imposition of martial law or suspension of the privilege of the writ to suppress the rebellion or invasion. If a single armed fighter takes up arms against the Government for the purpose of removing a part of the Philippines from allegiance to the Government, public safety would not justify the President's imposition of martial law or suspension of the privilege of the writ. Although a single armed fighter can commit rebellion, public safety is certainly not endangered to require the imposition of martial law or suspension of the privilege of the writ in suppressing such rebellion.

In sum, the twin requirements of actual rebellion or actual invasion, and public safety, must both be complied with before the President, acting as Commander-in-Chief, is authorized by the 1987 Constitution to impose martial law or suspend the privilege of the writ in any part, or in the entirety, of the Philippines.

Consequently, in exercising its constitutional duty to "review" the "sufficiency of the factual basis" for the declaration of martial law or suspension of the privilege of the writ, the Court has a two-fold duty: (1) to make a finding of fact that there is or there is no actual rebellion or invasion, and if there is, (2) to determine whether public safety requires the declaration of martial law or suspension of the privilege of the writ to suppress the rebellion or invasion. If there is actual rebellion or invasion, and the declaration of martial law or suspension of the privilege of the writ is necessary to suppress the rebellion or invasion, then the Court must validate the declaration as constitutional. On the other hand, if there is no actual rebellion or invasion, or even if there is, but the declaration of martial law or suspension of the privilege of the writ is not necessary to suppress the rebellion or invasion, then the Court must strike down the proclamation for being unconstitutional.

This is the specific review power that the framers of the 1987 Constitution and the people who ratified the 1987 Constitution expressly tasked the Court as a checking mechanism to any abusive use by the President of his Commander-in-Chief power to declare martial law or suspend the privilege of the writ. Needless to say, the Court has no option but to perform its solemn constitutional duty in the present petitions.

Probable cause exists that there is actual
rebellion and that public safety requires the
declaration of martial law and suspension of the
privilege of the writ in Marawi City, but not
elsewhere.

Applying the evidentiary threshold required in a proceeding challenging the sufficiency of the factual basis of a declaration of martial law and suspension of the privilege of the writ, I find that probable cause exists that there is actual rebellion in Marawi City and that public safety requires the declaration of martial law and suspension of the privilege of the writ in Marawi City to suppress the rebellion.

The armed and public uprising in Marawi City by 400 to 500 MauteHapilon armed fighters, with the announced intention to impose Shariah Law in Marawi City and make it an Islamic State, is concrete and indisputable evidence of actual rebellion. The OSG cites People v. Geronimo,39 People v. Lovedioro,40 and Ladlad v. Velasco41 in support of its position that rebellion is a crime of masses and multitudes. However, the Maute-Hapilon armed fighters in Marawi City, numbering no more than 500, do not constitute masses or multitudes. Neither do they command masses or multitudes of followers in Marawi City. Nevertheless, rebellion may be committed even by a single armed fighter who publicly takes up arms against the government to remove a certain territory from allegiance to the Government. Rebellion is not necessarily a crime of masses or multitudes.

Proclamation No. 216 likewise enumerates the belligerent acts of the Maute-Hapilon armed fighters within Marawi City on 23 May 2017. Among these are the following: (1) hostile takeover of a hospital; (2) establishment of several checkpoints around the city; (3) burning down of certain government and private facilities; (4) inflicting of casualties on Government forces; and (5) waving of the ISIS flag in several areas. In addition, President Duterte in his Report to Congress disclosed the following hostile acts committed by the Maute-Hapilon armed fighters: (1) ambushed and burned the Marawi Police Station; (2) cut off vital lines for transportation and electricity; (3) burned several educational institutions; (4) displayed DAESH flags, and (5) killed the segment of the population of Marawi City who resisted the Maute-Hapilon group.

Without question, the widespread killing of both government forces and innocent civilians, coupled with the destruction of government and private facilities, thereby depriving the whole population in Marawi City of basic necessities and services, endangered the public safety in the whole of Marawi City. Hence, with the concurrence of an actual rebellion and requirement of public safety, the President lawfully exercised his Commander-in-Chief powers to declare martial law and suspend the privilege of the writ in Marawi City.

However, the same does not apply to the rest of Mindanao. Proclamation No. 216 and the President's Report to Congress do not contain any evidence whatsoever of actual rebellion outside of Marawi City. In fact, the Proclamation itself states that the Maute-Hapilon armed fighters in Marawi City intended to remove "this part of Mindanao," referring to Marawi City, from Philippine sovereignty. The Proclamation itself admits that only "this part of Mindanao" is the subject of separation from Philippine sovereignty by the rebels. The President's Report did not mention any other city, province or territory in Mindanao, other than Marawi City, that had a similar public uprising by a rebel group, an element of actual rebellion. Thus, the President's Report concludes that "based on various verified intelligence reports from the AFP and the PNP, there exists a strategic mass action of lawless armed groups in Marawi City."

The President's Report expressly states that the Maute-Hapilon armed fighters were waging rebellion first in Marawi City as a prelude or "precedent" to waging rebellion in the rest of Mindanao. This is a clear admission that the rebellion was only in Marawi City and had yet to spread to the rest of Mindanao. The President's Report declares:

There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority, and prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, in an attempt to undermine his control over executive departments, bureaus and offices in said area; defeat his mandate to ensure that all laws are faithfully executed; and remove his supervisory powers over local governments. (Emphasis supplied)

Neither did the OSG present any evidence of a Maute-Hapilon-led rebellion in Camiguin Province, Dinagat Province, Bukidnon Province, the Misamis, Agusan, Davao, Zamboanga, Pagadian, Cotabato, Surigao, General Santos, and the other islands and parts of Mindanao.

Likewise, in an interview, the Maute-Hapilon group's spokesperson, Abu Hafs, himself announced publicly over a radio station in Marawi City that the rebels intended to implement Shariah Law in "Marawi City." Other areas of Mindanao, outside of Marawi City, were not mentioned. Abu Hafs said that the Maute-Hapilon group wanted the people of Marawi to sacrifice lives and property for "the total implementation of Shariah Law."42 It is clear from the interview that other areas of Mindanao outside of Marawi City would not be subjected to the imposition of Shariah Law. Clearly, the scope of the actual rebellion is only in Marawi City.

Proclamation No. 216 also attempts to justify the declaration of martial law and suspension of the privilege of. the writ in the whole of Mindanao by citing the capability of the Maute-Hapilon group and other rebel groups to sow terror, and cause death and damage to property, not only in Marawi City but also in other parts of Mindanao. Of the same tenor, the President's Report considers the siege of Marawi City as a precedent or starting point to the spread of control by the Maute-Hapilon group over the entire Mindanao.

This clearly violates the 1987 Constitution.

Capability to rebel, absent an actual rebellion or invasion, is not a ground to declare martial law or suspend the privilege of the writ under the 1987 Constitution. Respondents cannot rely on the Maute-Hapilon group's intention to establish an Islamic State in the whole of Mindanao or even on its capability to deprive duly constituted authorities of their powers as a justification to the imposition of martial law or suspension of the writ in the other areas of Mindanao where there is in fact no actual rebellion. The fear that the rebellion in Marawi City will spread to other areas in Mindanao is a mere danger or threat and may not even amount to an imminent danger or threat. In any event, to allow martial law outside Marawi City on the basis of an imminent danger or threat would unlawfully reinstate the ground of "imminent danger" of rebellion or invasion, a ground that was intentionally removed from the 1987 Constitution. Allowing a state of martial law or suspension of the privilege of the writ in the rest of Mindanao where there is no actual rebellion is a gross violation of the clear letter and intent of the 1987 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 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 in Article 135. x x x.43 (Emphasis supplied)

The argument that martial law is justified in the whole of Mindanao since the rebels in Marawi City could easily flee or escape to other areas of Mindanao is also wrong.

When the Court ruled in People v. Geronimo44 and People v. Lovedioro45 that rebellion "cannot be confined a priori within predetermined bounds," the Court was referring to the crimes that may or may not be absorbed in rebellion depending on the absence or presence of political motive for the commission of the crimes attending the commission of rebellion. In other words, the reference to non-confinement to "predetermined bounds" does not refer to geographical boundaries, but to the scope of the attending crimes and circumstances. The Court in Lovedioro explained:

The gravamen of the crime of rebellion is an armed public uprising against the government. By its very nature, rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot be confined a priori within predetermined bounds. One aspect noteworthy in the commission of rebellion is that other acts committed in its pursuance are, by law, absorbed in the crime itself because they acquire a political character. This peculiarity was underscored in the case of People v. Hernandez, thus:

In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance to the Government the territory of the Philippine Islands or any part thereof, then it becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.

Divested of its common complexion therefore, any ordinary act, however grave, assumes a different color by being absorbed in the crime of rebellion, which carries a lighter penalty than the crime of murder. In deciding if the crime committed is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated. (Emphasis supplied)

To repeat, Lovedioro never declared that rebellion cannot be confined to geographical boundaries. Lovedioro referred to the many crimes that are absorbed in rebellion when it stated that that "rebellion x x x cannot be confined a priori within predetermined bounds."

The rebels who escape Marawi City may be issued a warrant of arrest anywhere within the Philippines without the need to declare martial law or suspend the privilege of the writ outside of Marawi City. The rebels may even be arrested by a civilian pursuant to the provision on warrantless arrests under the Rules of Court. To allow martial law in the whole of Mindanao on the sole basis of securing the arrest of rebels who escape Marawi City would not only violate the 1987 Constitution, but also render useless the provisions of the Revised Penal Code and the Rules of Court. The act of the rebels in fleeing or escaping to other territories outside of the place of rebellion will certainly not constitute armed public uprising for the purpose of removing from allegiance to the Philippines the territory where the rebels flee or escape to.

Moreover, sporadic bombings in other areas of Mindanao outside of Marawi City, in the absence of an armed public uprising against the Government and sans an intent to remove from allegiance to the Government the areas where the bombings take place, cannot constitute actual rebellion. Such bombings constitute terrorism,46 but certainly not rebellion as understood in the 1987 Constitution and as defined in the Revised Penal Code. Otherwise, a few bombings in Metro Manila, even without any armed public uprising in Metro Manila, would justify the imposition of martial law in Metro Manila.

Proclamation No. 216, having been issued by the President in the absence of an actual rebellion outside of Marawi City, was issued without sufficient factual basis, contrary to the express requirement under Section 18, Article VII of the 1987 Constitution, with respect to areas outside ofMarawi City.

Consequences of a proclamation of a state of
martial law.

Counsel for petitioners and the OSG share the view that martial law under the 1987 Constitution does not significantly give the President additional powers.

Indeed, there are only incremental accretions of power that automatically attach under a state of martial law. The significant additional powers that the President can exercise under a state of martial law require laws to be enacted by Congress.

First, a state of martial law facilitates the speedy apprehension of suspected rebels, and when the privilege of the writ is likewise suspended, allows a longer detention of suspected rebels under arrest before they are judicially charged.

Under Philippine law, rebellion is a continuing crime. In Umil v. Ramos,47 the Court explained that rebellion constitutes a direct assault against the State for which reason it is considered a continuing crime, to wit:

However, Rolando Dural was arrested for· being a member of the New People's Army (NPA), an outlawed subversive organization. Subversion, being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. x x x48 (Emphasis supplied)

Considering that rebellion is a continuing crime in our jurisdiction, any suspected rebel can be the subject of a warrantless arrest within Philippine territory wherever he or she goes. Under the Rules of Criminal Procedure, any person who has committed, is actually committing, or is attempting to commit an offense in the presence of the arresting officer can be arrested without warrant; or if it be an offense which had just been committed, that the police officer making the arrest has personal knowledge of facts or circumstances that the person to be arrested has committed it.49 Once there is a rebellion, any rebel is deemed to be continuously committing the crime of rebellion wherever he or she may be in the Philippines, even if the rebel has hidden his or her firearm to avoid arrest. In short, with or without a state of martial law, a suspected rebel of a known rebellion such as the present communist CCP-NPA rebellion, can be arrested anywhere in the Philippines, with or without a warrant. Trial courts can take judicial notice of the ongoing communist rebellion in the country.

The difference lies, however, when there is actual rebellion by a new rebel group in a specific locality. The rebels can still be arrested anywhere. However, in a state of martial law, trial courts can take judicial notice of the rebellion for the purpose of applying the continuing crime doctrine under Umil v. Ramos. In contrast, without a declaration of martial law, the prosecution will have to prove the fact of rebellion to justify the arrest on the ground of continuing rebellion; trial courts cannot take judicial notice of the new rebellion for the purpose of automatically applying the continuing rebellion doctrine.

Another difference is the period of detention. In a state of martial law where the privilege of the writ is suspended, those arrested of rebellion must be judicially charged within three days from arrest. In other words, they can be lawfully detained for three days without need to file an Information before the court. In contrast, absent a declaration of martial law, the rebel arrested must be charged judicially within 36 hours as prescribed under Article 125 of the Revised Penal Code. Without martial law, the suspected rebel, absent any criminal charge, can only be lawfully detained for 36 hours.

Second, with the declaration of martial law or suspension of the privilege of the writ, the right to privacy of communication and the freedom to travel can be legitimately restricted on the ground of public safety, provided there is a law enacted by Congress specifically authorizing such restriction.

Under Section 18, Article VII of the 1987 Constitution, "[a] state of martial law does not suspend the operation of the Constitution," including Article III on the Bill of Rights. However, these rights are not absolute and their continued enjoyment is subject to certain limitations, as may be prescribed by law. Among these are the right to privacy of communication and the freedom to travel, both of which can be restricted through a law when public safety requires it. Article III, or the Bill of Rights, of the 1987 Constitution provides:

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

x x x x

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. (Emphasis supplied)

The existence of the twin requirements for the imposition of martial law - actual rebellion or invasion and the need to protect public safety- may lead to a valid restriction on the privacy of communication and correspondence as well as on the freedom to travel, provided there is an existing law specifically authorizing such restrictions.

Republic Act No. 4200, otherwise known as the Anti-Wiretapping Act, allows any peace officer, upon court authorization in cases involving rebellion, "to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described."50 Similarly, Republic Act No. 10173, or the Data Privacy Act of 2012, sanctions the "collection, recording, x x x [and] use"51 of one's personal information, even without the consent of the data subject, whenever "necessary in order to respond to national emergency, to comply with the requirements of public order and safety, or to fulfill functions of public authority which necessarily includes the processing of personal data for the fulfillment of (the National Privacy Commission's) mandate."52 Further, Section 4 of Republic Act No. 8239, or the Philippine Passport Act of 1996, authorizes the Secretary of Foreign Affairs to cancel the passport of a citizen for cause after due hearing in the interest of national security or public safety.53

Third, with the declaration of martial law, Congress may by law delegate to the President emergency powers such as the takeover of privately-owned public utilities or businesses affected with public interest.

Section 23, Article VI of the 1987 Constitution authorizes Congress to delegate by law powers to the President in times of "national emergency":

Sec. 23. (1) x x x.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (Emphasis supplied)

Of course, such time-bound delegation of emergency powers to the President must be embodied in a law enacted by Congress.

In David v. Macapagal-Arroyo,54 this Court held that the term "emergency" in the above-quoted constitutional provision includes rebellion, to wit:

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in the definition are the elements of intensity, variety, and perception. Emergencies, as perceived by legislature or executive in the United States since 1933, have been occasioned by a wide range of situations, classifiable under three (3) principal heads: a) economic, b) natural disaster, and c) national security.

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. This is evident in the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committee's definition of 'national emergency' which appears in Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term 'national emergency.'

MR. BENGZON. Unless they are of such proportions such that they would paralyze government service.

x x x x x x xxx

MR. TINGSON. May I ask the committee if 'national emergency' refers to military national

emergency or could this be economic emergency?

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.55 (Emphasis supplied)

As to what emergency powers can by law be delegated by Congress to the President, Section 17, Article XII of the 1987 Constitution reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. (Emphasis supplied)

In David v. Macapagal-Arroyo, the Court expressly held that the takeover of privately owned public utilities or businesses affected with public interest is one of the emergency powers that Congress can validly delegate by law to the President, thus:

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: x x x

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest," it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. x x x.

x x x x

Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress.56 (Emphasis supplied)

To illustrate, in 1989, Congress enacted Republic Act No. 6826 delegating emergency powers to former President Corazon C. Aquino on account of "a rebellion committed by certain elements of the Armed Forces of the Philippines aided and abetted by civilians (giving) rise to an emergency of national proportions."57 Among the emergency powers granted to former President Corazon C. Aquino was the takeover of privately-owned public utilities or businesses affected with public interest, thus:

Sec. 3. Authorized Powers. - Pursuant to Article VI, Section 23 (2) of the Constitution, and to implement the declared national policy, the President is hereby authorized to issue such rules and regulations as may be necessary to carry out any or all of the following powers:

x x x x

(3) To temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest that violates the herein declared national policy: Provided, however, That to the extent feasible, management shall be retained, under the direction and supervision of the President or her duly designated representative who shall render a full accounting to the President of the operations of the utility or business taken over: Provided, further, That whenever the President shall determine that the further use or operation by the Government of any such public service or enterprise is no longer necessary under existing conditions, the same shall be restored to the person entitled to the possession thereof;

Notably, a perusal of the congressional franchises granted to radio and television operators, such as ABS-CBN Broadcasting Corporation and GMA Network, Inc., shows the following provision:

Sec. 5. Right of the Government. - A special right is hereby reserved to the President of the Philippines, in times of war, rebellion, public peril, calamity, emergency, disaster or serious disturbance of peace and order; to temporarily take over and operate the stations or facilities of the grantee; to temporarily suspend the operation of any station or facility in the interest of public safety, security and public welfare; or to authorize the temporary use and operation thereof by any agency of the government, upon due compensation to the grantee, for ,the use of the stations or facilities of the grantee during the period when these shall be so operated.58

The grant of franchise to the National Grid Corporation of the Philippines, a privately-owned corporation in charge of operating, maintaining and developing the country's state-owned power grid, is also subject to the takeover emergency power of the President in times of rebellion. Republic Act No. 9511 thus reads in pertinent part:

Sec. 5. Right of the Government. - A special right is hereby reserved to the President of the Philippines, in times of war, rebellion, public peril, calamity, emergency, disaster, or disturbance of peace and order, to temporarily take over and operate the transmission system, and/or the sub-transmission systems operated and maintained by the Grantee, to temporarily suspend the operation of any portion thereof, or the facility in the interest of public safety, security and public welfare, or to authorize the temporary use and operation thereof by any agency of the government upon due compensation to the Grantee for the use of the said transmission system, and sub transmission systems and any portion thereof during the period when they shall be so operated. (Emphasis supplied)

Similarly, Section 14 of Republic Act No. 8479, or the Downstream Oil Industry Deregulation Act of 1998, vests the Secretary of the Department of Energy, in times of national emergency and when the public interest so requires, with the power to take over or direct the operation of any business of importing, exporting, re-exporting, shipping, transporting, processing, refining, storing, distributing, marketing and/or selling crude oil, gasoline, diesel, liquefied petroleum gas, kerosene, and other petroleum products.59

The grant of transport service franchise to Cebu Air, Inc. is likewise subject to the takeover emergency power of the President. Republic Act No. 7151 thus reads:

Sec. 8. Right of Government. - In case of war, insurrection, domestic trouble, public calamity or national emergency, the Philippine Government, upon the order of the President, shall have the right to take over and operate the equipment of the grantee paying for its use or damages. (Emphasis supplied)

The franchise of Philippine Long Distance Telephone Company also authorizes the President to take over in times of "rebellion, x x x emergency, x x x or disturbance of peace and order." Act No. 3436, as amended by Republic Act No. 7082, thus reads:

Sec. 10. A special right is hereby reserved to the President of the Philippines in times of war, rebellion, public peril, calamity, emergency, disaster, or disturbance of peace and order to take over and operate the transmitting, receiving, and switching stations or to authorize the temporary use and operation thereof by any department of the Government upon due compensation to the grantee of said stations during the period when they shall be so operated. (Emphasis supplied)

Fourth, under paragraph 2, Section 18, Article VII of the Constitution, a state of martial law may "authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are not able to function."60 However, this also needs a law to be enacted by Congress since a state of martial law does not suspend the operation of the 1987 Constitution and it is Congress that is empowered by law "to define, prescribe, and apportion the jurisdiction of various courts."61 To date, no statute confers jurisdiction on military courts and agencies over civilians where civil courts are unable to function. On the contrary, Republic Act No. 705562 even strengthened civilian supremacy over the military by returning to the civil courts the jurisdiction over certain offenses involving members of the Armed Forces of the Philippines, other persons subject to military law, and the members of the Philippine National Police, repealing for the purpose certain presidential decrees promulgated during the Marcos dictatorship.

In short, the 1987 Constitution does not automatically vest significant additional powers to the President under a state of martial law or suspension of the privilege of the writ. However, a declaration of martial law or suspension of the privilege of the writ has a built-in trigger mechanism for the applicability of other constitutional provisions that may lawfully restrict the enjoyment of constitutional rights, provided there are existing laws specifically authorizing such restrictions.

A Final Word

Immediately after issuing Proclamation No. 216, President Duterte announced to the entire nation and to the world that his martial law "will not be any different from what Marcos did."63 The Court must take this public and official statement seriously for this is no trivial matter. When President Ferdinand Marcos declared martial law in 1972 under the 193 5 Constitution, he abolished Congress, shut down media, imprisoned leaders of the political opposition, packed the Supreme Court with his law school classmates and loyalists, and ruled by decree - thereby making himself a dictator for over 13 years until the people ousted him from power in 1986.

The review power of the Court, as well as of the Legislature, on the President’s exercise of his Commander-in-Chief powers was precisely written in the 1987 Constitution as a checking mechanism to prevent a recurrence of the martial law of Marcos. The 1987 Constitution further mandates that a state of martial law does not suspend the operation of the Constitution. It is apparent that President Duterte does not understand, or refuses to understand, this fundamental principle that forms part of the bedrock of our democracy under the 1987 Constitution, despite his having taken a solemn oath of office to "preserve and defend the (1987) Constitution."

The Court cannot simply gloss over this Presidential mindset that has been publicly broadcasted to the nation and to the world. Any sign of acquiescence by the Court to this Presidential mindset could be fatal to the survival of the 1987 Constitution and our democracy. The Court cannot play with the fire of martial law which could turn into ashes the very Constitution that members of the Court are sworn to preserve and defend, a tragic event that once befell the Court in 1972 and brought the Court to its lowest point in its history. The Court must never allow the 1972 debacle to be ever repeated again. With this wisdom from hindsight, the Court must now stand firm and apply the clear letter and intent of the 1987 Constitution without fear or favor, for the nation and history demand no less from every member of the Court.

The decision of the Court in the present petitions has far reaching ramifications on the future of our civil liberties and our democratic society under the rule of law. For in deciding the present petitions, the Court prescribes the fundamental rules governing the exercise of the Commander-in-Chief powers under the 1987 Constitution not only for the incumbent President but also for all future Presidents. The Court should not mercilessly inflict on the Filipino people the constant fear of a recurrence of the nightmarish martial law of Marcos.

Just hours after the Decision in the present petitions was announced on 4 July 2017, President Duterte told media that he declared a Mindanao-wide martial law to prevent a "spillover':

"Alam mo, iyong Central Mindanao if you look at the map is in Central Mindanao kaya nga central, sa gitna. You have the two Lanaos," he said.

"When you declare martial law, you have to use your coconut, the grey matter between your ears. It's easy to escape because there is no division in terms of land. You can go anywhere, there can be a spillover," he added.64

This only confirms that there is no actual rebellion outside of Marawi City. However, the President feared a "spillover" to other areas of Mindanao because "it is easy to escape" from Marawi City "because there is no division in terms of land."

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

ANTONIO T. CARPIO
Associate Justice


Footnotes

1 Annex "A" of Lagman Petition; Annex "A" of Cullamat Petition; Annex "A" of Mohamad Petition; Annex "10" of OSG Consolidated Comment.

2 OSG Consolidated Comment, pp. 6. 9-10; citations omitted.

3 Annex "A" of Lagman Petition; Annex "A" of Cullamat Petition; Annex "A" of Mohamad Petition; Annex "10" of OSG Consolidated Comment.

4 Acronym of a group's full Arabic name, al-Dawla al-lslamiya fi al-Iraq wa al-Sham, translated as "Islamic State in Iraq and Syria."

5 Annex "B" of Lagman Petition; Annex "B" of Mohamad Petition; Annex "11" of OSG Consolidated Comment.

6 OSG Consolidated Comment, pp. 20-22.

7 II RECORD, CONSTITUTIONAL COMMISSION 392 (July 29, 1986).

8 The first paragraph of Section 15, Article VIII of the 1987 Constitution reads:

Sec. 15. (I) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from the date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all lower courts. (Emphasis supplied)

9 Julie's Franchise Corp. v. Ruiz, 614 Phil. 108, 117 (2009), citing Soriano v. Ombudsman, 610 Phil. 75 (2009) & Castro v. People, 581 Phil. 639 (2008).

10 De Vera v. De Vera, 602 Phil. 886, 877 (2009).

11 Id.

12 OSG Consolidated Comment, pp. 23-26.

13 392 Phil. 618 (2000).

14 Id. at 642.

15 149 Phil. 547 (1971).

16 Id. at 592-594.

17 OSG Consolidated Comment, p. 27; OSG Memorandum, p. 45.

18 Id.

19 Supra.

20 II RECORD, supra note 7, at 409.

21 The following discussion on the quantum of evidence is taken from the Dissenting Opinion of Justice Antonio T. Carpio in Fortun v. Macapagal-Arroyo, 684 Phil. 526, 595-598 (2012).

22 Section 2, Rule 133 of the Rules of Court reads in its entirety:

Sec. 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is requited, or that degree of proof which produces conviction in an unprejudiced mind.

23 Fortun, supra, at 596, quoting from the Brief of Amicus Curiae Father Joaquin Bernas, S.J.

24 In Manalo v. Roldan-Confesor, 290 Phil 311, 323 (1992), the Court held:

Clear and convincing proof is "x x x more than mere preponderance, but not to the extent of such certainty as is required beyond reasonable doubt as in criminal cases xxx" while substantial evidence "x x x consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance x x x." Consequently, in the hierarchy of evidentiary values, We find proof beyond reasonable doubt at the highest level, followed by clear and convincing evidence, preponderance of evidence, and substantial evidence, in that order. (Citations omitted)

25 Section 1, Rule 133 of the Rules of Court reads in its entirety:

Sec. 1. Preponderance of evidence, how determined - In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of the evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

26 Raymundo v. Lunaria, 590 Phil 546, 553 (2008).

27 Section 5, Rule 133 of the Rules of Court provides:

Sec. 5. Substantial evidence. - In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

28 Santos v. Orda, Jr., 634 Phil 452, 461 (2010).

29 Viudez II v. Court of Appeals, 606 Phil. 337 (2009).

30 Id. at 349.

31 OSG Memorandum, pp. 49-51; TSN, 14 June 2017, pp. 210-211.

32 Aguilar v. Department of Justice, 717 Phil 789, 800 (2013).

33 People v. Court of Appeals, 361 Phil 401, 410-413 (1999).

34 The definition of rebellion under the Revised Penal Code is the only legal definition of rebellion known and understood by the Filipino people when they ratified the 1987 Constitution.

35 Proclamation No. 216 states in part:

"WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that "the crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or ay part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives"

36 An Act Punishing the Crime of Coup D'etat by Amending Articles 134, 135 and 136 of Chapter One, Title Three of Act Numbered Thirty-Eight Hundred and Fifteen, Otherwise Known as The Revised Penal Code, and for Other Purposes.

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

38 During the deliberations of the Constitutional Commission, Fr. Bernas clarified:

FR. BERNAS. Let me just say that when the Committee decided to remove that, it was for the reason that the phrase "OR IMMINENT DANGER THEREOF" could cover a multitude of sins and could be a tremendous amount of irresistible temptation. And so, to better protect the liberties of the people, we preferred to eliminate that. x x x (I RECORDS, CONSTITUTIONAL COMMISSION 773 (July 18, 1986).

39 100 Phil. 90 (1956).

40 320 Phil. 481 (1995).

41 Supra note 37, at 329.

42 Jeoffrey Mai tern, Broadcaster tells of encounter with Omar <http ://news info.inquirer. net/906440/broadcaster-te I Is-of-encounter-w ith-omar-maute> accessed June 22, 2017].

43 II RECORD, supra note 7, at 412.

44 Supra note 39, at 96.

45 Supra note 40, at 488.

46 Section 3 of R.A. No. 9372, otherwise known as the Human Security Act of 2007, defines terrorism in this wise:

Sec. 3. Terrorism. - Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: ·

a. x x x.

x x x x

d. Article 248 (Murder);

e. Article 267 (Kidnapping and Serious Illegal Detention);

f. Article 324 (Crimes Involving Destruction), or under

1. Presidential Decree No. 1613 (The Law on Arson);

2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);

x x x x

6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives) thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

Sec. 4. Conspiracy to Commit Terrorism. - Persons who conspire to commit the crime of terrorism shall suffer the penalty of forty (40) years of imprisonment.

47 265 Phil. 325 (1990).

48 Id. at 336.

49 RULES OF COURT, Rule 113, Sec. 5.

50 Section 3, R.A. No. 4200 reads in pertinent part:

Sec. 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (I) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence. (Emphasis supplied)

51 Sec. 3 (j), R.A. No. 10173.

52 Sec. 12 (e), R.A. No. 10173.

53 Section 4 of R.A. No. 8239 reads in pertinent part:

Sec. 4. Authority to Issue, Deny, Restrict or Cancel. - x x x.

x x x x

In the interest of national security, public safety and public health, the Secretary or any of the authorized consular officers may, after due hearing and in their proper discretion, refuse to issue a passport, or restrict its use or withdraw or cancel a passport: Provided, however, That such act shall not mean a loss or doubt on the person's citizenship: Provided, further, That the issuance of a passport may not be denied if the safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal or cancellation of a passport would not prevent the issuance of a Travel Document to allow for a safe return journey by a Filipino to the Philippines.

54 522 Phil. 705 (2006).

55 Id. at 790-792.

56 Id. at 788-789, 793-794.

57 R.A. No. 6826, Sec. 1.

58 Sec. 5 of R.A. No. 7966, entitled An Act Granting the ABS-CBN Broadcasting Corporation a Franchise to Construct, Install, Operate and Maintain Television and Radio Broadcasting Stations in the Philippines, and for Other Purposes, effective March 30, 1995; Sec. I of R.A. No. 10925, entitled An Act Renewing for Another Twenty-Five (25) Years the Franchise Granted to Republic Broadcasting System, Inc., Presently Known as GMA Network, Inc., Amending for the Purpose Republic Act No. 7252, Entitled "An Act Granting the Republic Broadcasting System, Inc. a Franchise to Construct, Install, Operate and Maintain Radio and Television Broadcasting Stations in the Philippines," effective April 21, 2017; Sec. 5 of R.A. No. 10818, entitled An Act Renewing the Franchise Granted to the Radio Mindanao Network, Inc. for Another Twenty-Five (25) Years or a Term that Shall Take Effect on April 18, 2016, effective May 18, 2016; Sec. 5 of R.A. No. 10753, entitled An Act Renewing the Franchise Granted to the Interactive Broadcast Media, Inc. to Another Twenty-Five (25) Years that Shall Take Effect on September 5, 2021, effective March 7, 2016; Sec. 1 of R.A. No. 10790, entitled An Act Amending the Franchise of Aliw Broadcasting Corporation and Renewing/Extending the Term Thereof to Another Twenty-Five (25) Years that Shall Take Effect on April 13, 2017, effective May 3, 2016; Sec. 5 of R.A. No. 10794, entitled An Act Renewing for Another Twenty-Five (25) Years and Expanding to Radio/Television Broadcasting, National in Scope, Throughout the Philippines, the Franchise Granted to Mabuhay Broadcasting System, Inc. under Republic Act No. 7395, Entitled "An Act Granting the Mabuhay Broadcasting System, Inc., a Franchise to Construct, Install, Operate and Maintain Radio Broadcasting Stations in the Island of Luzon and for Other Purposes," effective May 10, 2016; Sec. I of R.A. No. 10887, entitled An Act Amending the Franchise Granted to Byers Communications, Inc. under Republic Act No. 8107, Expanding Its Scope into National Coverage, and Renewing Its Term for Another Twenty-Five (25) Years, effective July 17, 2016.

59 Section 14 of R.A. No. 8479 reads in pertinent part:

Sec. 14. Monitoring. - a) x x x

x x x x

e) In times of national emergency, when the public interest so requires, the DOE may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any person or entity engaged in the Industry.

60 Section 18, Article VII of the 1987 Constitution reads in pertinent part:

Sec. 18. x x x.

x x x x

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

61 CONSTITUTION, Art. VIII, Sec. 2.

62 Entitled "An Act Strengthening Civilian Supremacy over the Military Returning to the Civil Courts the Jurisdiction over Certain Offenses Involving Members of the Armed Forces of the Philippines, Other Persons Subject to Military Law, and the Members of the Philippine National Police, Repealing for the Purpose Certain Presidential Decrees," effective June 20, 1991.

63 See InterAksyon, Duterte praises Marcos' iron-fisted rule, eyes declaring martial law nationwide <http: //www. i nteraksyon. com/ d uterte-prai ses-marcos-iron-fi sted-rul e-eyes-dec lari ng-martial-lawnati onw i de/> [last updated May 26, 2017]; John Paolo Bencito, Rody: Martial law in entire PH if.. <http://manilastandard.net/news/top-stories/237568/rody-martial-law-in-entire-ph-if-.htm!> [published May 25, 2017]; Audrey Modra!lo, Duterte praises Marcos' Martial law as 'very good' <http://www.philstar.com/headlines/2017 /05/24/1703241 /drawing-parallels-marcos-duterte-saysmartial- law-period-good> [last updated May 25, 2017]; Michael Peel & Grace Ramos, Philippines' Duterte declares martial law on Mindanao home island <https://www.ft.com/content/ 67736a20-3fd6- l l e7-82b6-896b95f30f58?mhq5j=e3> [published May 24, 2017]; Duterte threatens martial law for all of Philippines <http://www.japantimes.co.jp/news/20 l 7 /05/25/asiapacific/ duterte-threatens-martial-law-philippines/#. WVuL07wQgUO> [published May 25, 2017]; Philippines' Duterte warns of harsh measures as civilians flea fighting <http://www.channelnewsasia.com/news/asiapacific/philippines-duterte-warns-terrorists-i-!l-beharsh- 8878082> [last updated May 24, 2107]), attached as Annexes "A" to "A-5," respectively, of Lagman Memorandum.

64 Trisha Macas, Duterte on SC decL~ion: Mindanao-wide martial law really needed to prevent s p ii lover <http: //www. gma network.co m/n ews/n ews/n a tio n/616846/ du terte-o n-sc-decis ionm a rtial-la w-rea II y-n eeded-to-prevent-spillover/story/> [last accessed July 5, 2017]. See also Sandy Araneta, Macon Ramos-Araneta & Marice! V. Cruz, Duterte, allies, foes give mixed reactions <http://manilastandard.net/news/top-stories/241072/d uterte-allies-foes-give-m ixedreactions. htm I> [last accessed July 5, 2017]; Dharel Placido, Duterte says he was right to place entire Mindanao under martial law <http://news.abs-cbn.com/news/07/04/17 /duterte-says-hewas- right-to-place-entire-mindanao-under-martial-law> [last accessed July 5, 2017]; Nestor Corrales, Duterte: I respect dissenting opzntons on Mindanao martial law <http ://newsin fo. inquirer. n et/910896/ d uterte-i-res pect-d issentin g-o pinions-on-min da naoma rtia 1-la w> [last accessed July 5, 2017].


The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

LEONEN, J.:

I dissent.

I cannot agree to granting the President undefined powers of martial law over the entire Mindanao region. My reading of the Constitution is that we should be stricter, more precise, and more vigilant of the fundamental rights of our people.

Terrorism merits calibrated legal and political responses executed by the decisive and professional actions of our coercive forces. The Constitution, properly read in the context of all its provisions and in the light of our history, does not allow a vague declaration of martial law which contains no indication as to who it actually empowers and what fundamental rights will be suspended or bargained. Terrorism does not merit a vague declaration of martial law and in a wide undefined geographical area containing other localities where no act of terrorism exists.

Terrorists will win when we suspend the meaning of our Constitution due to our fears. This happens when through judicial interpretation, we accord undue and unconstitutional deference to the findings of facts made by the President or give him a blank check in so far as the implementation of martial law within the whole of Mindanao.

The group committing atrocities in Marawi are terrorists. They are not rebels. They are committing acts of terrorism. They are not engaged in political acts of rebellion. They do not have the numbers nor do they have the sophistication to be able to hold ground. Their ideology of a nihilist apocalyptic future inspired by the extremist views of Salafi Jihadism will sway no community especially among Muslims.

The armed hostilities were precipitated by government's actions to serve a judicial warrant on known terrorist personalities. Many of them already had pending warrants of arrests for the commission of common crimes. They resisted, fought back, and together with their followers, are continuing to violently evade arrest.

The timely action of government, with a judicially issued warrant, disrupted their plans.

In order to establish their terrorist credentials and to sow fear, theycommit acts which amount to murder, mutilation, arson, and use and possession of illegal firearms, ammunition, and explosives among others. They are also able to magnify our basest fears through two means. First, they project themselves as capable of doing barbaric acts in the name of misguided religious fervor founded on a nihilistic apocalyptic future. Second, when they succeed in creating an aura of invisibility either by our unquestioned acceptance of their claim of community support or simply because law enforcement has not been professional or sophisticated enough to meet the demands of these terrorist threats.

The actual acts of the criminal elements in Marawi are designed to slow down the advance of government forces and facilitate their escape. They are not designed to actually control seats of governance. The provincial and city governments are existing and are operating as best as they could under the circumstances. They are not rendered inutile such that there is now a necessity for the military to take over all aspects of governance. Civilians are also helping recover other civilians caught in the crossfire as well as attend to the wounded and the thousands displaced. Even as we decide this case, a masterplan for the rehabilitation of Marawi is in the works.

At no time was there any doubt that our armed forces would be able to quell the lawlessness in Marawi.

There is no rebellion that justifies martial law. There is terrorism that requires more thoughtful action.

The Constitution does not only require that government alleges facts, it must show that the facts are sufficient. The facts are sufficient when (a) it is based on credible intelligence and (b) taken collectively establishes that there is actual rebellion and that public safety requires the suspension of the privilege of the writ of Habeas Corpus and the exercise of defined powers within the rubric of martial law. We cannot use the quantum of evidence that is used by a prosecutor or a judge. We have to assume what a reasonable President would do given the circumstances.

The facts presented are not sufficient to reasonably conclude that the armed hostilities and lawless violence happening in Marawi City is "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, or of depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives."1

Based on the facts inferred by the respondents from their intelligence sources, the perpetrators of the atrocities are not numerous or have sufficient resources or even community support to hold any territory. Extremist beliefs by those who adhere to Salafist Jihadism are alien to most cultures in Mindanao. It is a bastardization of Islam as this is understood.

Neither do the facts show convincingly that "public safety" requires martial law. Respondents did not show how the available legal tools magnified by the call out of the armed forces would not be sufficient. Public safety is always the aim of the constitutional concept of police power. Respondents failed to show what martial law would add.

Martial law is not the constitutionally allowed solution to terrorism. It is an emergency grant of power in cases where civilian authority has been overrun due to actual hostilities motivated by a demonstrable purpose of actually seizing government. As an emergency measure, the capability and commitment of the lawless group must also be shown.

Martial law in the past has been used as a legal shortcut: in the guise of perceived chaos, to install a strongman undermining the very principle of our Constitutional order. The Constitution allows us now to take pause through judicial review and not be beguiled by authoritarianism due to our frustrations of government.

Unlike the previous versions, the present Constitution provides for the limitations for the declaration of martial law. Therefore, any declaration must clearly articulate the powers that would be exercised by the President as Commander-in-Chief. It cannot now just be a declaration of a state of Martial Law. Otherwise, it would be unconstitutionally vague. It would not be possible to assess the sufficiency of the facts used as basis to determine "when public safety requires it." "It" refers to the powers that are intended to be exercised by the President under martial law.

The scope of Martial law as contained in Proclamation No. 216 issued last May 23, 2017 expands with every new issuance from its administrators. Proclamation No. 1081 of 1972, which ironically was more specific, evolved similarly. Martial law as proclaimed is vague, thus unconstitutional.

General Order No. 1 issued by the President expands martial law by instructing the Armed Forces of the Philippines to "undertake all measures to prevent and suppress all acts of rebellion and lawless violence in the whole of Mindanao, including any and all acts in relation thereto, in connection therewith, or in furtherance thereof." All acts of lawless violence throughout Mindanao, even if unrelated to the ongoing hostilities in Marawi, have been included in the General Order.

The second paragraph of Article 3 of General Order No. 1 orders the Armed Forces' "arrest of persons and/or groups who have committed, are committing, or attempting to commit" both rebellion and any other kind of lawless violence.

The vagueness of Proclamation No. 216 hides its real intent. Thus, Operational Directive for the Implementation of martial law issued by the Chief of Staff of the Armed Forces of the Philippines orders his forces to: "dismantle the NPA, other terror-linked private armed groups, illegal drug syndicates, peace spoilers and other lawless armed groups."

Arresting illegal drug syndicates and "peace spoilers" under martial law also unduly expands Proclamation No. 216. The factual bases for the declaration of Martial Law as presented by the respondents do not cover these illegal acts as rationale for its proclamation. They do not also fall within the concept of "rebellion." It is made possible by a vague and overly broad Proclamation.

Due to the lack of guidance from Proclamation No. 216, the Armed Forces of the Philippines as implementor of martial law defines it as the taking over of civilian government:

"Martial Law. The imposition of the highest-ranking military officer (the President being the Commander-in-Chief) as the military governor or as the head of the government. It is usually imposed temporarily when the government or civilian authorities fail to function effectively or when either there is near-violent civil unrest or in cases of major natural disasters or during conflicts or cases of occupations, where the absence of any other civil government provides for the unstable population."2 (Emphasis supplied)

Even by their own definition, the armed forces do not seem to believe martial law to be necessary. Certainly, no civilian government in Mindanao is failing to function.

The presentation of facts made by the respondents who bear the burden in these cases was wanting. Many of the facts presented by the respondents are simply allegations. Most are based on inference contradicted by the documents presented by the respondents themselves.

Respondents did not exert any effort to either show their sources or the cogent analysis of intelligence information that led to their present level of confidence with respect to the cogency of their interpretation. Even the sources of the respondents show the lack of credibility of some of their conclusions.

Even with a charitable view that all the bases of the factual allegations are credible, the facts as presented by the parties are still not sufficient to justify the conclusion that martial law, as provided in Proclamation No. 216, General Order No. 1, and in the Operational Directive of the Chief of Staff of the Armed Forces of the Philippines (AFP), should be declared and that it cover the entire Mindanao Region. None of the directives also specifies which island or island groups belong to Mindanao.

Elevating the acts of a lawless criminal group which uses terrorism as tactic to the constitutional concept of rebellion acknowledges them as a political group. Rebellion is a political crime. We have acknowledged that if rebels are able to capture government, their rebellion, no matter how brutal, will be justified.

Also, by acknowledging them as rebels, we elevate their inhuman barbarism as an "armed conflict of a non-international character" protected by International Humanitarian Law. We will be known worldwide as the only country that acknowledges them, not as criminals, but as rebels entitled to protection under international law.

Hostilities and lawless violence and their consequences can be addressed by many of the prerogatives of the President as Chief Executive and Commander-in-Chief. In my view, there is no showing that martial law has become necessary for the safety of entire Mindanao.

Martial law creates a false sense of security. Terrorism cannot be rooted out with military force alone. Military rule, authoritarianism, and an iron hand do not substitute for precision, sophistication, and professionalism in our law enforcement. The false sense of security will disappoint. It is that disappointment that will foster the creation of more terrorists and more chaos.

For these reasons, Proclamation No. 216 issued in Russia on May 23, 2017 along with all other issuances made pursuant to this declaration should be declared unconstitutional.

The declaration that Proclamation No. 216 as unconstitutional will notaffect the ongoing military operations in Marawi pursuant to Proclamation No. 55. The latter proclamation is not an issue in this case and the proportionate response to the violence being committed by the criminals would be to use the appropriate force.

There is no doubt that even without martial law, legal tools already exist to quell the hostilities in Marawi and to address terrorism.

Upholding Proclamation No. 216 is based on extravagant and misleading characterizations of the events fraught with many dangers to our liberties.

I

The present petitions are justiciable. I concur that the petitions are the "appropriate proceedings" filed by "any citizen" which appropriately invokes sui generis judicial review contained in the Constitution. However, in addition to the remedy available in Article VII, Section 18 of the Constitution, any proper party may also file a Petition invoking Article VIII, section 1. The remedies are not exclusive of each other. Neither does one subsume the other.

Furthermore, the context and history of the provisions on judicial review point to a more heightened scrutiny when the Commander-in-Chief provision is used.

As the Commander-in-Chief provision, Article VII, Section 18 of the 1987 Constitution establishes the parameters of the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus. It prescribes limited instances when the President may resort to these extraordinary remedies. Section 18 likewise gives the two (2) other branches their respective roles to counterbalance the President's enormous power as Commander-in-Chief:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

The Government posits that the "appropriate proceeding" referred to in Article VII, Section 18 is a petition for certiorari as evidenced by Article VIII, Section 1, which states:3

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 actua1 controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The Government further argues that by correlating Section 1 and Section 5(1)4 of Article VIII, a petition for certiorari becomes the sole "appropriate remedy" referred to under Article VII, Section 18 as it is the only "logical, natural and only recourse."5

I concur with the ponencia in holding that respondents are mistaken.

The power of judicial review is the Court's authority to strike down acts of the executive and legislative which are contrary to the Constitution. This is inherent in all courts, being part of their power of judicial review.6 Article VIII, Section 1 includes, but does not limit, judicial power to the duty of the courts to settle actual controversies and determine whether or not any branch or instrumentality of the Government has committed grave abuse of discretion.

Traditionally, Angara v. Electoral Commission7 clarifies that judicial review is not an assertion of the superiority of the judiciary over other departments. Rather, it is the judiciary's promotion of the superiority of the Constitution:

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed ''judicial supremacy" which properly is the power of judicial review under the Constitution.8

The traditional concept of judicial review or "that the declaration of the unconstitutionality of a law or act of government must be within the context of an actual case or controversy brought before the courts,"9 calls for compliance with the following requisites before a court may take cognizance of a case:

(1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.10

Despite adherence to its traditional jurisdiction, the Court has also embraced and acted on a more articulated jurisdiction provided for under Article VIII, Section 1 of the 1987 Constitution.11 In emphasizing the Court's jurisdiction, the 1987 Constitution broadened the Court's power of judicial review from settling actual controversies involving legally demandable and enforceable rights, to determining if a Government branch or instrumentality has committed grave abuse of discretion amounting to lack or excess of jurisdiction.12 By deliberately increasing the Court's power of judicial review, the framers of the 1987 Constitution intended to prevent courts from seeking refuge behind the political question doctrine to avoid resolving controversies involving acts of the Executive and Legislative branches, as what happened during martial law under President Ferdinand Marcos.13

The Constitution further provides for a stricter type of judicial review in Article VII, Section 18. It mandates the Supreme Court to review "in an appropriate proceeding the sufficiency of the factual basis of the proclamation of martial law or the suspension of the writ of habeas corpus or the extension thereof."14

The "appropriate proceeding" referred to under Article VII, Section 18 cannot simply be classified under the established types of judicial power, since it does not possess any of the usual characteristics associated with either traditional or expanded powers of judicial review.

"Appropriate proceeding" under the martial law provision is a sui generis proceeding or in a class by itself, as seen by how it is treated by the 1987 Constitution and the special mandate handed down to the Supreme Court in response to the President's declaration of martial law or the suspension of the privilege of the writ of habeas corpus.

An indicator that the Court's authority under the martial law provision is distinct from its more recognized power of judicial review is that it can be found in Article VII (Executive) and not Article VIII (Judiciary) of the 1987 Constitution. It emphasizes the additional role of the Supreme Court which should assume a vigilant stance when- it comes to reviewing the factual basis of the President's declaration of martial law or suspension of the privilege of the writ of habeas corpus. A similar though not identical role is vested on Congress in the same Commander-in-Chief provision. The Constitution expects both Houses to check on the wisdom of the President's proclamation since they have been given a blanket authority to revoke the proclamation or suspension.

Traditionally, the Court is not a trier of facts.15 However, under Article VII, Section 18, the Court is tasked to review the sufficiency of the factual basis for the President's proclamation of martial law within thirty (30) days from the time the petition is filed.

The rule on standing is also significantly relaxed when the provision allows "any citizen" to question the proclamation of martial law. This is in stark contrast with the requirement under the Rules of Court that "every action must be prosecuted or defended in the name of the real party in interest."16 Justice Antonio Carpio asserted in his dissent in Fortun v. Macapagal-Arroyo17 that the deliberate relaxation of locus standi was designed to provide immediate relief from the possible evils and danger of an illegal declaration of martial law or suspension of the writ:

It is clear that the Constitution explicitly clothes "any citizen" with the legal standing to challenge the constitutionality of the declaration of martial law or suspension of the writ. The Constitution does not make any distinction as to who can bring such an action. As discussed in the deliberations of the Constitutional Commission, the "citizen" who can challenge the declaration of martial law or suspension of the writ need not even be a taxpayer. This was deliberately designed to arrest, without further delay, the grave effects of an illegal declaration of martial law or suspension of the writ, and to provide immediate relief to those aggrieved by the same. Accordingly, petitioners, being Filipino citizens, possess legal standing to file the present petitions assailing the sufficiency of the factual basis of Proclamation No. 1959.18 (Emphasis in the original)

The jurisprudential principle respecting the hierarchy of courts19 does not apply. The provision allows any petitioner to seek refuge directly with this Court. Nonetheless, the hierarchy of courts doctrine is not an iron-clad rule.20

It is true that Article VIII, Section 5 provided for instances when the Court exercises original jurisdiction:

Section 5. The Supreme Court shall have the following powers: 1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

However, the enumeration in Article VII (Section 5 is far from exclusive as the Court was also endowed with original jurisdiction under Section 1 of the same article and over the sui generis proceeding under Article VII, Section 18.

Notwithstanding the sui generis proceeding, a resort to a petition for certiorari pursuant to the Court's jurisdiction under Article VIII, Section 1 or Rule 65 is also proper to question the properiety of any declaration or implementation of the suspension of the writ of Habeas Corpus or martial law.

The jurisdiction of the Court in Article VIII, section 1 was meant "to ensure the potency of the power of judicial review to curb grave abuse of discretion by 'any branch or instrumentalities of govemment[.]"'21 It was a reaction to the abuses of martial law under President Marcos, ensuring that the courts will not evade their duty on the ground. of non-justiciability for being a political question.22 Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association23 instructed that in a petition for certiorari filed directly with the Court, the petition must reflect a prima facie showing of grave abuse of discretion in order to trigger this Court's jurisdiction to determine whether a government agency or instrumentality committed grave abuse of discretion.24

Grave abuse of discretion is present "when an act is (1) done contrary to the Constitution, law, or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will, or personal bias."25

However, Article VII, Section 18 provides specific requirements for the President to exercise his Commander-in-Chief powers and declare martial law. Absent those requirements, it is beyond question that the assailed proclamation should be stricken down for being constitutionally infirm.

II

The text as well as the evolution of doctrines corrected by the text of the Constitutional provision reveals an approach which shows a demonstrable mandate for the Supreme Court not to give full deference to the discretion exercised by the Commander in Chief. The provision requires a heightened and stricter mode of review.

As a mere spectator and silent witness, the Court has been given limited participation as an active participant when it comes to determining the sufficiency of the factual basis for the proclamation of martial law and suspension of the privilege of the writ of habeas corpus.

Even before the 1935 Constitution, the Court in Barcelon v. Baker26 has already been faced with the question of whether the President's exercise of the Commander-in-Chief powers is subject to judicial review. Section 5, paragraph 7 of the Philippine Bill of 1902 stated:

That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion, insurrection, or invasion the public safety may require it, in either of which events the same may be suspended by the President, or by the Governor, with the approval of the Philippine Commission, whenever during such period the necessity for such suspension shall exist.

In Barcelon v. Baker,27 the Court limited its review of the suspension of the privilege of the writ of habeas corpus in Batangas to two (2)questions: (1) whether Congress was authorized to confer upon the President or the Governor-General the authority to suspend the privilege of the writ of habeas corpus and if the authority was indeed conferred; and (2) whether the Governor-General and the Philippine Commission acted within the authority conferred upon them.28

Barcelon ruled that the factual basis upon which the Governor-General and Philippine Commission suspended the privilege of the writ was beyond judicial review being exclusively political in nature:

In short, the status of the country as to peace or war is legally determined by the political (department of the Government) and not by the judicial department. When the decision is made the courts are concluded thereby, and bound to apply the legal rules which belong to that condition. The same power which determines the existence of war or insurrection must also decide when hostilities have ceased - that is, when peace is restored. In a legal sense the state of war or peace is not a question in pa is for courts to determine. It is a legal fact, ascertainable only from the decision of the political department.29

The Court in Barcelon reasoned out that each branch of government is presumed to be properly dispensing its distinct function and role within the framework of government, thus, "No presumption of an abuse of these discretionary powers by one department will be considered or entertained by another."30

After Barcelon came Montenegro v. Castaneda,31 where the President once again suspended the privilege of the writ of habeas corpus. This time, the 1935 Constitution was already in effect and Article VII, Section 10(2) of the 1935 Constitution stated:

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.

Montenegro served as a strong reiteration of the political question doctrine:

[I]n the light of the views of the United States Supreme Court thru, Marshall, Taney and Story quoted with approval in Barcelon vs. Baker (5 Phil., 87, pp. 98 and 100) the authority to decide whenever the exigency has arisen requiring the suspension belongs to the President and "his decision is final and conclusive" upon the courts and upon all other persons.32

The policy of non-interference in Barcelon, as repeated in Montenegro v. Castaneda,33 was reversed unanimously34 by the Court in In the Matter of the Petition for Habeas Corpus of Lansang v. Garcia.35 Lansang clarified that the Court "has the authority to inquire into the existence of said factual bases in order to determine the constitutional sufficiency therefor."36 The Court asserted that the President's power to suspend the privilege was limited and conditional, thus, the courts may inquire upon his adherence and compliance with the Constitution:

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended .. . " It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" - or, under Art . VII of the Constitution, "imminent danger thereof' - "when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." For from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.37

Nonetheless, the Court upheld President Marcos' suspension of the privilege of the writ of habeas corpus under Proclamation Nos. 889 and 889-A, ruling that the existence of a rebellion38 and that public safety39 necessitated the suspension of the privilege of the writ of habeas corpus were sufficiently proven by the Government.

A year after President Marcos suspended the writ, or on September 21, 1972, he proceeded to place the entire country under martial, law by virtue of Proclamation No. 1081. Portions of Proclamation No. 1081 read:

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 released by me or by my duly designated representative.40

On September 22, 1972, President Marcos issued General Order No. 2 and this became the basis for the arrest and detention of the petitioners in the consolidated petitions of In the Matter of the Petition for Habeas Corpus of Aquino et al v. Ponce Enrile.41 Petitioners in Aquino were arrested and detained "for being participants or having given aid and comfort in the conspiracy to seize political and state power in the country and to take over the Government by force."42

The majority in Aquino ruled that the constitutional sufficiency of the declaration of martial law was purely political in nature, therefore, not justiciable. The ponente, Chief Justice Makalintal, also added that the issue of justiciability was rendered moot43 by the affirmative result of the general referendum of July 27-28, 1973, which posed this question to the voters: "Under the (1973) Constitution, the President, if he so desires, can continue in office beyond 1973. Do you want President Marcos to continue beyond 1973 and finish the reforms he initiated under martial law?"44

While some of the members of the Court disagreed and insisted that the issue was justiciable, they nonetheless joined the majority in dismissing the petitions on the ground that President Marcos did not act arbitrarily when he declared martial law pursuant to the 1935 Constitution:

Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and Munoz Palma. They hold that the constitutional sufficiency of the proclamation may be inquired into by the Court, and would thus apply the principle laid down in Lansang although that case refers to the power of the President to suspend the privilege of the writ of habeas corpus. The recognition of justiciability accorded to the question in Lansang, it should be emphasized, is there expressly distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to ascertaining "merely whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." The test is not whether the President's decision is correct but whether, in suspending the writ, he did or did not act arbitrarily. Applying this test, the finding by the Justices just mentioned is that there was no arbitrariness in the President's proclamation of martial law pursuant to the 1935 Constitution; and I concur with them in that finding. The factual bases for the suspension of the privilege of the writ of habeas corpus, particularly in regard to the existence of a state of rebellion in the country, had not disappeared, indeed had been exacerbated, as events shortly before said proclamation clearly demonstrated. On this Point the Court is practically unanimous; Justice Teehankee merely refrained from discussing it.45

The President's Commander-in-Chief powers under the 1935 Constitution were merely repeated under the 1973 Constitution, particularly in Article VII, Section 11:

SEC. 11. The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.

Nine (9) years after the Aquino ruling, In the Issuance of the Writ of Habeas Corpus for Parong et al v. Enrile46 reverted to the ruling of political question and non-justiciability expounded on in Barcelon and Montenegro:

In times of war or national emergency, the legislature may surrender a part of its power of legislation to the President. Would it not be as proper and wholly acceptable to lay down the principle that during such crises, the judiciary should be less jealous of its power and more trusting of the Executive in the exercise of its emergency powers in recognition of the same necessity? Verily, the existence of the emergencies should be left to President's sole and unfettered determination. His exercise of the power to suspend the privilege of the writ of habeas corpus on the occasion thereof, should also be beyond judicial review. Arbitrariness, as a ground for judicial inquiry of presidential acts and decisions, sounds good in theory but impractical and unrealistic, considering how well-nigh impossible it is for the courts to contradict the finding of the President on the existence of the emergency that gives occasion for the exercise of the power to suspend the privilege of the writ. For the Court to insist on reviewing Presidential action on the ground of arbitrariness may only result in a violent collision of two jealous powers with tragic consequences, by all means to be avoided, in favor of adhering to the more desirable and long-tested doctrine of "political question" in reference to the power of judicial review.

Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the reexamination of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro vs. Castaneda.47

In his dissent, Justice Claudio Teehankee emphasized that Lansang recognized and deferred to the President's wisdom in determining the necessity of the suspension of the privilege of the writ of habeas corpus. Notwithstanding this recognition, the Court in Lansang acted within the scope of its power of judicial review when it established "the constitutional confines and limits of the President's power."48 The Court's exercise of judicial review was not meant to undermine the correctness or wisdom of the President's decision, but rather to ensure that "the President's decision to suspend the privilege not suffer from the constitutional infirmity of arbitrariness."49

However, barely six (6) days later, the Court promulgated In the Matter of the Petition for Habeas Corpus of Morales, Jr. v. Enrile50 which reiterated51 Lansang. Morales held that the power of judicial review necessitated that the Court must look into "every phase and aspect of petitioner's detention ... up to the moment the court passes upon the merits of the petition" because only then can the court be satisfied that there was no violation of the due process clause.52

The pliability of the past Courts under martial law as declared by Ferdinand E. Marcos through the convenient issues of justiciability or non-justiciability was finally laid to rest in the 1987 Constitution when the Court was directed by Article VII, Section 18 to review the sufficiency of the factual basis of the declaration or suspension, thus, making the issue justiciable and within the ambit of judicial review. Furthennore, the Court was mandated to promulgate its decision within thirty (30) days from the filing of an appropriate proceeding by any citizen.

David v. Senate Electoral Tribunal53 points out that legal provisions oftentimes result from the re-adoption or re-calibration of existing rules, with the resulting legal provisions meant to address the shortcomings of the previously existing rules:

Interpretation grounded on textual primacy likewise looks into how the text has evolved. Unless completely novel, legal provisions are the result of the re-adoption - often with accompanying re-calibration - of previously existing rules. Even when seemingly novel, provisions are often introduced as a means of addressing the inadequacies and excesses of previously existing rules.

One may trace the historical development of text: by comparing its current iteration with prior counterpart provisions, keenly taking note of changes in syntax, along with accounting for· more conspicuous substantive changes such as the addition and deletion of provisos or items in enumerations, shifting terminologies, the use of more emphatic or more moderate qualifiers, and the imposition of heavier penalties. The tension between consistency and change galvanizes meaning.54

The expansion of judicial review from 1905 all the way to 1987 shows the unmistakable intent of the Constitution for the Judiciary to play a more active role to check on possible abuses by the Executive. Furthermore, not only was the Court given an express grant to review the President's Commander-in-Chief powers, it was also denied the discretion to decline exercising its power of judicial review.55 Thus, as it stands, the Court is duty bound to carefully and with deliberate intention, scrutinize the President's exercise of his or her Commander-in-Chief powers. The express grant likewise implies that the Court is expected to step in when the minimum condition materializes (i.e. an appropriate proceeding filed by any citizen) and review the sufficiency of the factual basis which led to the declaration or suspension.

Unlike the Court which is empowered to strike out a proclamation of martial law or suspension of the privilege of the writ of habeas corpus only on the ground of lack of sufficient factual basis, the Congress is given a much wider latitude in its power to revoke the proclamation or suspension, with the President powerless to set aside or contest the said revocation.

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.

The Supreme Court cannot shirk from its responsibility drawn from a historical reading of the context of the provision of the Constitution through specious procedural devices. As experienced during the darker Marcos Martial Law years, even magistrates of the highest court were not immunefrom the significant powerful and coercive hegemony of an authoritarian. It is in this context that this Court should regard its power. While it does not substitute its own wisdom for that of the President, the sovereign has assigned it the delicate task of reviewing the reasons stated for the suspension of the writ of habeas corpus or the declaration of martial law. This Court thus must not be deferential. Its review is not a disrespect of a sitting President, it is rather its own Constitutional duty.

III

History shows that there can be many variants of martial law. Under the present constitution, the President must be clear as to which variant is encompassed in Proclamation No. 216. Otherwise it would be too vague that it will violate the fundamental right to due process as well as evading review under Article VII Section 18 of the Constitution.

The President is both the Chief Executive and the Commander-in-Chief. He is responsible for the preservation of peace and order, as well as the protection of the security of the sovereignty and the integrity of the national territory, and all the inherent powers necessary to fulfil said responsibilities reside in him.

As the Chief Executive, the President controls the police, and his role is civilian in character.56 Thus, as Chief Executive, the President's peace and order efforts are focused on preventing the commission of crimes, protecting life, liberty, and property, and arresting violators of laws.57

Article VII, Section 18 designates the President as the Commander-in-Chief of all the armed forces of the Philippines, and the command, control, and discipline of the armed forces are all under his authority. Relevant to this are several other provisions in the Constitution.

Article II, Section 3 of the Constitution provides:

Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

Article VII, Section 16 provides:

Section 16. The President shall nominate and, with the consent of theCommission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution ...

Article XVI, Section 4 provides:

Section 4. The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and serve, as may be provided by law. It shall keep a regular force necessary for the security of the State.1âwphi1

The President was called the "guardian of the Philippine archipelago" in Saguisag v. Ochoa, Jr.:58

The duty to protect the State and its people. must be carried out earnestly and effectively throughout the whole territory of the Philippines in accordance with the constitutional provision on national territory. Hence, the President of the Philippines, as the sole repository of executive power, is the guardian of the Philippine archipelago, including all the islands and waters embraced therein and all other territories over which it has sovereignty or jurisdiction. These territories consist of its terrestrial, fluvial, and aerial domains; including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas; and the waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions.1âwphi1

To carry out this important duty, the President is equipped with authority over the Armed Forces of the Philippines (AFP), which is the protector of the people and the state. The AFP's role is to secure the sovereignty of the State and the integrity of the national territory. In addition, the Executive is constitutionally empowered to maintain peace and order; protect life, liberty, and property; and promote the general welfare. In recognition of these powers, Congress has specified that the President must oversee, ensure, and reinforce our defensive capabilities against external and internal threats and, in the same vein, ensure that the country is adequately prepared for all national and local emergencies arising from natural and man-made disasters.59

While the President is both the Chief Executive and the Commander-in- Chief, the President's role as a civilian Commander-in-Chief was emphasized in Gudani v. Senga:60

The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial to the democratic way of life, to civilian supremacy over the military, and to the general stability of our representative system of government. The Constitution reposes final authority, control and supervision of the AFP to the President, a civilian who is not a member of the armed forces, and whose duties as commander-in-chief represent only a part of the organic duties imposed upon the office, the other functions being clearly civil in nature. Civilian supremacy over the military also countermands the notion that the military may bypass civilian authorities, such as civil courts, on matters such as conducting warrantless searches and seizures.

Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated specific roles to the legislative and executive branches of government in relation to military affairs. Military appropriations, as with all other appropriations, are determined by Congress, as is the power to declare the existence of a state of war. Congress is also empowered to revoke a proclamation of martial law or the suspension of the writ of habeas corpus. The approval of the Commission on Appointments is also required before the President can promote military officers from the rank of colonel or naval captain. Otherwise, on the particulars of civilian dominance and administration over the military, the Constitution is silent, except for the commander-in-chief clause which is fertile in meaning and implication as to whatever inherent martial authority the President may possess.

The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins with the simple declaration that "[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines ... " Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the commander-in- chief clause vests on the President, as commander-in-chief, absolute authority over the persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict the travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law.61

The President exercises the powers inherent to the positions of Chief Executive and Commander-in-Chief at all times. As a general principle, his execution of these powers is not subject to review. However, the powers provided under Article VII, Section 18, are extraordinary powers, to be exercised in extraordinary times, when the ordinary powers as Commanderin7Chief and Chief Executive will not suffice to maintain peace and order. Article VII, Section 18 constitutionalized the actions the President can take to respond to cases of invasion, rebellion, and lawless violence, but these are exceptions to the ordinary rule of law.

These powers have been characterized as having a graduated sequence, from the most benign, to the harshest. The most benign of these extraordinary powers is the calling out power, whereby the President recedes as Chief Executive and law enforcement functions take a back seat to the urgent matter of addressing the matter of lawless violence, invasion, or rebellion. As the most benign of the powers, it is the power that the President may exercise with the greatest leeway; he may exercise it at his sole discretion. The distinctions between the amount of presidential discretion and the great leeway accorded to the President's calling out power of the army, were elaborated upon in Kulayan v. Tan:62

The power to declare a state of martial law is subject to the Supreme Court's authority to review the factual basis thereof. By constitutional fiat, the calling-out powers, which is of lesser gravity than the power to declare martial law, is bestowed upon the President alone. As noted in Villena, "(t)here are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial law[.]["]

Indeed, while the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation's supreme military leader. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his. As Commander-in-Chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual.

In the case of Integrated Bar of the Philippines v. Zamora, the Court had occasion to rule that the calling-out powers belong solely to the President as commander-in-chief:

When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President's wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis.

There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power.

Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President's action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification.

That the power to call upon the armed forces is discretionary on the president is clear from the deliberation of the Constitutional Commission:

FR. BERNAS.

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.

. . . .

MR. REGALADO.

That does not require any concurrence by the legislature nor is it subject to judicial review.

The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court.

... Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion.

In the more recent case of Constantino, Jr. v. Cuisia, the Court characterized these powers as exclusive to the President, precisely because they are of exceptional import:

These distinctions hold true to this day as they remain embodied in our fundamental law. There are certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government. The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power, notwithstanding the judicial determination of guilt of the accused, all fall within this special class that demands the exclusive exercise by the President of the constitutionally vested power. The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import.63 (Emphasis in the original, citations omitted)

The other two extraordinary powers may be reviewed by Congress and the Judiciary, as they involve the curtailment and suppression of basic civil rights and individual freedoms.

The writ of habeas corpus was devised as a remedy to ensure the constitutional protection against deprivation of liberty without due process. It is issued to command the production of the body of the person allegedly restrained of his or her liberty.

The suspension of the privilege of the writ of habeas corpus is simply a suspension of a remedy. The suspension of the privilege does not make lawful otherwise unlawful arrests, such that all detentions, regardless of circumstance, are legal. Rather, the suspension only deprives a detainee of the remedy to question the legality of his detention.

In In re Saliba v. Warden,64 this Court explained that while the privilege may be suspended, the writ itself could not be suspended.

Called the "great writ of liberty[,]" the writ of habeas corpus "was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom." The remedy of habeas corpus is extraordinary and summary in nature, consistent with the law's "zealous regard for personal liberty."

Under Rule 102, Section 1 of the Rules of Court, the writ of habeas corpus "shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." The primary purpose of the writ "is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal." "Any restraint which will preclude freedom of action is sufficient."

The nature of the restraint of liberty need not be related to any offense so as to entitle a person to the efficient remedy of habeas corpus. It may be availed of as a post-conviction remedy or when there is an alleged violation of the liberty of abode. In other words, habeas corpus effectively substantiates the implied autonomy of citizens constitutionally protected in the right to liberty in Article III, Section 1 of the Constitution. Habeas corpus being a remedy for a constitutional right, courts must apply a conscientious and deliberate level of scrutiny so that the substantive right to liberty will not be further curtailed in the labyrinth of other processes.

In Gumabon, et al. v. Director of the Bureau of Prisons, Mario Gumabon (Gumabon), Blas Bagolbagol (Bagolbagol), Gaudencio Agapito (Agapito ), Epifanio Padua (Padua), and Paterno Palmares (Palmares) were convicted of the complex crime of rebellion with murder. They commenced serving their respective sentences of reclusion perpetua.

While Gumabon, Bagolbagol, Agapito, Padua, and Palmares were serving their sentences, this court promulgated People v. Hernandez in 1956, ruling that the complex crime of rebellion with murder does not exist.

Based on the Hernandez ruling, Gumabon, Bagolbagol, Agapito, Padua, and Palmares filed a Petition for Habeas Corpus. They prayed for their release from incarceration and argued that the Hernandez doctrine must retroactively apply to them.

This court ruled that Gumabon, Bagolbagol, Agapito, Padua, and Palmares properly availed of a petition for habeas corpus. Citing Harris v. Nelson, this court said:

[T]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action .... The scope and flexibility of the writ - its capacity to reach all manner of illegal detention - its ability to cut through barriers of form and procedural mazes - have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.

In Rubi v. Provincial Board of Mindoro, the Provincial Board of Mindoro issued Resolution No. 25, Series of 1917. The Resolution ordered the Mangyans removed from their native habitat and compelled them to permanently settle in an 800-hectare reservation in Tigbao. Under the Resolution, Mangyans who refused to establish themselves in the Tigbao reservation were imprisoned.

An application for habeas corpus was filed before this court on behalf of Rubi and all the other Mangyans being held in the reservation. Since the application questioned the legality of deprivation of liberty of Rubi and the other Mangyans, this court issued a Writ of Habeas Corpus and ordered the Provincial Board of Mindoro to make a Return of the Writ.

A Writ of Habeas Corpus was likewise issued in Villavicencio v. Lukban. "[T]o exterminate vice," Mayor Justo Lukban of Manila ordered the brothels in Manila closed. The female sex workers previously employed by these brothels were rounded up and placed in ships bound for Davao. The women were expelled from Manila and deported to Davao without their consent.

On application by relatives and friends of some of the deported women, this court issued a Writ of Habeas Corpus and ordered Mayor Justo Lukban, among others, to make a Return of the Writ. Mayor Justo Lukban, however, failed to make a Return, arguing that he did not have custody of the women.

This court cited Mayor Justo Lukban in contempt of court for failure to make a Return of the Writ. As to the legality of his acts, this court ruled that Mayor Justo Lukban illegally deprived the women he had deported to Davao of their liberty, specifically, of their privilege of domicile. It said that the women, "despite their being in a sense lepers of society[,] are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens[.]" The women had the right "to change their domicile from Manila to another locality."

The writ of habeas corpus is different from the final decision on the petition for the issuance of the writ. It is the writ that commands the production of the body of the person allegedly restrained of his or her liberty. On the other hand, it is in the final decision where a court determines the legality of the restraint.

Between the issuance of the writ and the final decision on the petition for its issuance, it is the issuance of the writ that is essential. The issuance of the writ sets in motion the speedy judicial inquiry on the legality of any deprivation of liberty. Courts shall liberally issue writs of habeas corpus even if the petition for its issuance "on [its] face [is] devoid of merit[.]" Although the privilege of the writ of habeas corpus may be suspended in cases of invasion, rebellion, or when the publicsafety requires it, the writ itself may not be suspended.65

The Constitution does not spell out what martial law is, or the powers that may be exercised under a martial law regime. It only states what martial law is not, and cannot accomplish. The concept does not have a precise meaning in this jurisdiction. We have no legal precedent because President Ferdinand Marcos created an aberration of martial law in 1972. Thus, a historical approach at the concept may be edifying.

The Early History of Martial Law in England from the Fourteenth Century to the Petition of Right66 discusses the beginnings of martial law in England from 1300 to 1628:

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-l 550s, 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 ...

In the American case of Duncan v. Kahanamoku,67 martial law was defined as the "exercise of the military power which resides in the Executive Branch of Government to preserve order, and insure the public safety in domestic territory in time of emergency, when other branches of the government are unable to function or their functioning would itself threaten the public safety."68 In Ex Parte Milligan,69 Justice Davis noted a limit on this power, that "martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction."70

Thus, martial law arises out of necessity, in extraordinary times, when the civilian government in an area is unable to maintain peace and order, such that the military must step in and govern the area until the civilian government can be restored. Its imposition is dependent on the inability of civil government agencies to function. It takes on different forms, as needed.

Prior to the martial law conceived under 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.71 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 tranquillity, make it imperative that the most severe and exemplary measures be taken to suppress at its inception an attempt as criminal as futile.72

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.73

The Philippines was 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.74 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 ofBulacan, 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 tern1inate upon proclamation of the President of the Republic of the Philippines.

The next day, Proclamation No. 30 was issued, which declared the existence of a state of war in the Philippines. The proclamation cited the attack by the United States and Great Britain in certain parts of thePhilippines in violation of the territorial integrity of the Republic, causing death or injury to its citizens and destruction or damage to their property.

The Proclamation also stated that the Republic entered into a Pact of Alliance75 with Japan, based on mutual respect of sovereignty and territories, to safeguard the territorial integrity and independence of the Philippines.76

The traditional concept of martial law changed in 1972. On September 21, 1972, the Philippines was again placed under martial law upon President Ferdinand Marcos' issuance of Proclamation No. 1081. It read:

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 released by me or by my duly designated representative.77 (Emphasis supplied)

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."78

General Order No. 2 ordered the arrest of several individuals.79 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:80

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.81

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.82

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 ... "83

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.84 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 President Marcos intended to exercise makes it abundantly clear that there was no public necessity that demanded the President be given those powers. Thus, the 1987 Constitution imposed safeguards in response to President Marcos' implementation of martial law, precisely to prevent similar abuses in the future and to ensure the focus on public safety requiring extraordinary powers be exercised under a state of martial law.

Martial law under President Marcos was an aberration. We must return to the original concept of martial law, arising from necessity, declared because civil governance is no longer possible in any way. 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 implicitly requires that the President provide the parameters himself, upon declaring martial law. The proclamation must contain the powers he intends to wield.

This Court has the power to determine the sufficiency of factual basis for determining that public safety requires the proclamation of martial law. The President evades review when he does not specify how martial law would be used.

It may be assumed that any rebellion or invasion will involve arms and hostility and, consequently, will pose some danger to civilians. It may also be assumed that, in any state of rebellion or invasion, the executive branch of government will have to take some action, exercise some power, to address the disturbance, via police or military force. For so long as the President does not declare martial law or suspend the privilege of the writ of habeas corpus to address a disturbance to the peace, this Courtdoes not have the power to look at whether public safety needs that action.

But if the President does declare martial law or suspends the privilege, this Court does have the power to question whether public safety requires the declaration or the suspension.

In conducting a review of the sufficiency of factual basis for the proclamation of martial law, this Court cannot be made to imagine what martial law is. The President's failure to outline the powers he will be exercising and the civil liberties that may be curtailed will make it impossible for this Court to assess whether public safety requires the exercise of those powers or the curtailment of those civil liberties.

It is not sufficient to declare "there is martial law." Because martial law can only be declared when public safety requires it, it is the burden of the President to state what powers public safety requires be exercised.

IV

I disagree with the proposed ponencia's view that the vagueness of a Presidential Proclamation on martial law can only be done on grounds of alleged violation of freedom of expression. Rather, the vagueness of a declaration of martial law is, in my view unconstitutional as it will evade review of the sufficiency of facts required by the constitutional provision.

We need to distinguish between our doctrines relating to acts being void for vagueness and those which are void due to overbreadth.

The doctrine of void for vagueness is a ground for invalidating a statute or a governmental regulation for being vague. The doctrine requires that a statute be sufficiently explicit as to inform those who are subject to it what conduct on their part will render them liable to its penalties.85 In Southern Hemisphere v. Anti-Terrorism Council:86

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.87

In People of the Philippines v. Piedra,88 the Court explained that the rationale behind the doctrine is to give a person of ordinary intelligence a fair notice that his or her contemplated conduct is forbidden by the statute or the regulation.89 Thus, a statute must be declared void and unconstitutional when it is so indefinite that it encourages arbitrary and erratic arrests and convictions.90

In Estrada v. Sandiganbayan,91 the Court limited the application of the doctrine in cases where the statute is "utterly vague on its face, i.e. that which cannot be clarified by a saving clause or construction."92 Thus, when a statute or act lacks comprehensible standards that men of common intelligence must necessarily guess its meaning and differ in its application, the doctrine may be invoked:93

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the .Government muscle. But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities. With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.94

In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,95 the Court clarified that the void for vagueness doctrine may only be invoked in as-applied cases. The Court explained:

found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant."96

However, in Disini v. Secretary of Justice,97 the Court extended the application of the doctrine even to facial challenges, ruling that "when a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable."98 Thus, by this pronouncement the void for vagueness doctrine may also now be invoked in facial challenges as long as what it involved is freedom of speech.

On the other hand, the void for overbreadth doctrine applies when the statute or the act "offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."99

In Adiong v. Commission on Elections,100 the Court applied the doctrine in relation to the Due Process Clause of the Constitution. Thus, in Adiong, the Commission on Elections issued a Resolution prohibiting the posting of decals and stickers not more than eight and one-half (8 ˝) inches in width and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas designated by the COMELEC. The Court characterized the regulation as void for being "so broad," thus:

Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides "that no person shall be deprived of his property without due process of law."

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property ... Property consists of the free use, enjoyment, and disposal of a person's acquisitions use, and dispose of it. The Constitution protects these essential attributes of property ... Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land.101 (Citations omitted)

In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,102 the Court held that the application of the overbreadth doctrine is limited only to free speech cases due to the rationale of a facial challenge. The Court explained:

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.103

The Court ruled that as regards the application of the overbreadth doctrine, it is limited only to "a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases."104

The Court's pronouncements in Disini v. Secretary of Justice105 is also premised on the same tenor. Thus, it held:

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no fundamental right to acquire another's personal data.

. . . .

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute. The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence.106 (Emphasis supplied, citations omitted)

It is true that in his Dissenting Opinion in Estrada v. Sandiganbayan,107 Justice V.V. Mendoza expressed the view that "the overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes."108

However, the Court already clarified in Southern Hemisphere Engagement Network, Inc., v. Anti-Terrorism Council,109 that the primary criterion in the application of the doctrine is not whether the case is a freedom of speech case, but rather, whether the case involves an as-applied or a facial challenge. The Court clarified:

The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.

. . . .

The allowance of a facial challenge in free speech cases is justified by the aim to avert the chilling effect on protected speech, the exercise of which should not at all times be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an in terrorem effect in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.110

The Court then concluded that due to the rationale of a facial challenge, the overbreadth doctrine is applicable only to free speech cases. Thus:

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.

. . . .

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment, and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words. In Virginia v. Hicks, it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of constitutionally protected expression."111 (Emphasis in the original)

As regards the application of the void for vagueness doctrine, the Court held that vagueness challenges must be examined in light of the specific facts of the case and not with regard to the statute's facial validity.112 Notably, the case need not be a freedom of speech case as the Court cited previous cases where the doctrine was applied:

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the constitutionality of criminal statutes. In at least three cases, the Court. brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132 (b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case.113

From these pronouncements, it is clear that what is relevant in the application of the void-for-vagueness doctrine is not whether it is a freedom of speech case, but rather whether it violates the Due Process Clause of the Constitution for failure to accord persons a fair notice of which conduct to avoid; and whether it leaves law enforcers unbridled discretion in carrying out their functions.

Proclamation No. 216 fails to accord persons a fair notice of which conduct to avoid and leaves law enforcers unbridled discretion in carrying out their functions.

Proclamation No. 216 only declared two (2) things, namely, the existence of a state of martial law and the suspension of the privilege of thewrit of habeas corpus:

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.

General Order No. 1 did not provide further guidelines as to what powers would be executed under the state of martial law.

The proclamation that the privilege of the writ of habeas corpus has been suspended is a clear act that needs no further explication. A declaration of a state of martial law is not so clear. It is comparable to congress passing a law that says, "Congress has passed a law," without providing the substance of the law itself. The nation is left at a loss as to how to respond to the proclamation and what conduct is expected from its citizens, and those implementing martial law are left unbridled discretion as to what to address, without any standards to follow. Indeed, it was so vague that the Operations Directive of the Armed Forces, for the implementation of martial law in Mindanao, includes as a key task the dismantling not only of rebel groups, but also illegal drug syndicates, among others.114 The dismantling of illegal drug syndicates has no . discernible relation to rebellion, but Proclamation No. 216 and General Order No. 1 had no guidelines or standards to follow for their implementation, leaving law enforcers unbridled discretion in carrying out their functions.

Worse, General Order No. 1 directs law enforcement agencies to arrest persons committing unspecified acts and impliedly imposes a gag order on media:

Section 3. Scope and Authority. The Armed Forces of the Philippines shall undertake all measures to prevent and suppress all acts of rebellion and lawless violence in the whole of Mindanao, including any and all acts in relation thereto, in connection therewith, or in furtherance thereof, to ensure national integrity and continuous exercise by the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety.

Further, the AFP and other law enforcement agencies are hereby ordered to immediately arrest or cause the arrest of persons and/or groups who have committed, are committing, or attempting to commit the abovementioned acts.

. . . .

Section 6. Role of Other Government Agencies and the Media. All other government agencies are hereby directed to provide full support and cooperation to attain the objectives of this Order.

The role of the media is vital in ensuring the timely dissemination of true and correct information to the public. Media practitioners are therefore requested to exercise prudence in the performance of their duties so as not to compromise the security and safety of the Armed Forces and law enforcement personnel, and enable them to effectively discharge their duties and functions under this Order.

Thus, it appears that Proclamation No. 216 and General Order No. 1 not only authorize, but command, law enforcers to immediately arrest persons who have committed, are committing, or attempting to commit, any and all acts in relation to rebellion and lawless violence in Mindanao, without any guidelines for the citizens to determine what conduct they may be arrested for.

Admittedly, an arrest pursuant to General Order No. 1 is not in issue here. In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,115 the Court held that the void for vagueness doctrine may only be invoked in as-applied cases. The Court explained:

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the law "on its face and in its entirety." It stressed that "statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant."116

However, in Disini v. Secretary of Justice,117 the Court extended the application of the doctrine even to facial challenges, in cases where a penal statute attempts to encroach on freedom of speech.118 Here, General Order No. 1 orders law enforcement agencies to immediately arrest persons who have committed, are committing, or are attempting to commit "any and all acts in relation" to "all acts of rebellion and lawless violence in the whole of Mindanao." This description of the acts meriting arrest under General Order No. 1 is so vague that it could easily be construed to cover any manner of speech. This renders an invocation of the void-for-vagueness doctrine proper, even in a facial challenge such as this.

Section 6 of General Order No. 1 is also void as prior restraint. In Chavez v. Gonzales,119 this Court explained the concept of prior restraint:

Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts.120

That General Order No. 1 does not explicitly punish any acts of media will not save it from being declared as prior restraint. In Babst v. National Intelligence Board,121 this Court recognized that under certain circumstances, suggestions from military officers have a more coercive nature than might be immediately apparent:

Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. Under certain circumstances, however, such an invitation can easily assume a different appearance. Thus, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the same can easily be taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril, especially where, as in the instant case, the invitation carries the ominous warning that "failure to appear ... shall be considered as a waiver . . . and this Committee will be constrained to proceed in accordance with law." Fortunately, the NIB director general and chairman saw the wisdom of terminating the proceedings and the unwelcome interrogation.

As in Babst v. National Intelligence Board,123 the "request" that media "exercise prudence in the performance of their duties so as not to compromise the security and safety of the Armed Forces and law enforcement personnel"124 can easily be taken as an authoritative command which one can defy only at his peril, particularly under a state of martial law, and especially where law enforcement personnel have been ordered to immediately arrest persons for committing undefined acts.

V

Additionally, the broad scope of a declaration of martial law is no longer allowed under the present Constitution. Article VII, section 18 requires that:

. . . .

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the Writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

While clear about what martial law does not include, it does not define what the President will want to actually do as a result of the proclamation. A broad declaration of martial law therefore will not be sufficient to inform. It will thus immediately violate due process of law.

Furthermore, it would be difficult if not impossible to determine the sufficiency of the facts to determine when "public safety requires" martial law if the powers of martial law are not clear.

The confusion about what the Court was reviewing was obvious during the oral arguments heard in this case. The Solicitor General was unable to clearly delineate the powers that the President wanted to exercise. Neither was this amply covered in his Memorandum. In truth, the scope of martial law is larger than what was presented in the pleadings.

The fallo in Proclamation No. 216 of May 23, 2017 simply provides:

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.

General Order No. 1 also issued by the President revises the scope of the Proclamation:

Section 3. Scope and Authority. The Armed Forces of the Philippines shall undertake all measures to prevent and suppress all acts of rebellion and lawless violence in the whole of Mindanao, including any and all acts in relation thereto, in connection therewith, or in furtherance thereof, to ensure national integrity and continuous exercise by the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety.

Further, the AFP and other law enforcement agencies are hereby ordered to immediately arrest or cause the arrest of persons and/or groups who have committed, are committing, or attempting to commit the abovementioned acts.

Section 4. Limits. The Martial Law Administrator, the Martial Law Implementor, the Armed Forces of the Philippines, and other law enforcement agencies shall implement this Order within the limits prescribed by the Constitution and existing laws, rules and regulations.

More specifically, a state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function. During the suspension of the privilege of the writ of habeas corpus, any person arrested or detained by virtue thereof shall be judicially charged within three days; otherwise he shall be released.

Section 5. Protection of Constitutional Rights. In the implementation of this Order, the constitutional rights of the Filipino people shall be respected and protected at all times. ·The Commission on Human Rights is hereby enjoined to zealously exercise its mandate under the 1987 Constitution, and to aid the Executive in ensuring the continued protection of the constitutional and human rights of all citizens.

The Departments of Social Welfare and Development, Education, and Health, among others, shall exert all efforts to ensure the safety and welfare of all displaced persons and families, especially the children.

Section 6. Role of Other Government Agencies and the Media. All other government agencies are hereby directed to provide full support and cooperation to attain the objectives of this Order:

The role of the media is vital in ensuring the timely dissemination of true and correct information to the public. Media practitioners are therefore requested to exercise prudence in the performance of their duties so as not to compromise the security and safety of the Armed Forces and law enforcement personnel, and enable them to effectively discharge their duties and functions under this Order.

Section 7. Guidelines. The Martial Law Administrator may issue further guidelines to implement the provisions of this Order, subject to the limits set forth in the Constitution and other relevant laws, rules, and regulations.

The General Order expands the scope of martial law to include lawless violence and is vague as to the other offense which are "in relation thereto, in connection therewith, or in furtherance thereof."

Disturbingly and perhaps pursuant to the President's General Order, the Chief of Staffs Operational Directive annexed in the OSG's Memoranda shows the true scope of martial law:

2. Mission:

The AFP enforces Martial Law effective 23 May 201 7 to destroy the Local Terrorist Groups (Maute, ASG, AKP and BIFF) and their support structures in order to crush the DAESH-inspired rebellion and to restore law and order in the whole of Mindanao within sixty (60) days.

3. Execution:

A. Commanders Intent:

The purpose of this operations is to ensure that normalcy is restored, and the security and safety of the people and communities are assured throughout Mindanao within sixty (60) days where civil authorities, government, non-government and private institutions are able to discharge their normal functions and the delivery of basic services are unhampered.

The following are the Key Tasks for this operation:

1) Destroy the Local Terrorist Groups (Maute, ASG, AKP and BIFF) and their support structures.

2) Dismantle the NPA, other terror/ inked private armed groups, illegal drug syndicates, peace spoilers and other lawless armed groups.

3) Arrest all target threat personalities and file appropriate cases within the prescribed time frame.

4) Degrade armed capabilities of the NPA to compel them to remain in the peace process.

5) Clear L TG-affected areas.

6) Enforce curfews, establish control checkpoints and validate identification of persons as necessary.

7) Insulate and secure unaffected areas from extremist violence.

8) Implement the Gun Ban and confiscate illegal firearms and disarm individuals not authorized by the government or by law to carry firearms.

9) Secure critical infrastructures and vital installations.

10) Dominate the information environment

11) Protect innocent civilians.

12) Restore government services.

In the implementation of Martial Law, AFP troops shall always adhere to the imperatives to the Rule of Law, respect for Human Rights and International Humanitarian Law.

At the end of this operation, the armed threat groups are defeated and rendered incapable of conducting further hostilities; the spread of extremist violence is prevented; their local and international support is severed; the AFP is postured to address other priority areas; and normalcy is restored wherein the government has full exercise of governance and delivery of basic services are unhampered.

B. Concept of Operations:

I will accomplish this by employing two (2) Unified Commands to conduct the decisive operations and other UCs to conduct the shaping operations. One (1) UC enforces Martial Law in Region 9 and ARMM to destroy the Local Terrorist Groups (Maute, ASG, AKP and BIFF) and their support structures in order to crush the DAESH-inspired rebellion and to restore law and order in the whole of Mindanao within sixty (60) days; and one (1) UC enforces Martial Law in Regions 10, 11, 12 and 13 to dismantle Local Terrorist Groups, private armed groups, illegal drug syndicates, peace spoilers and other lawless elements in order to maintain law and order and prevent spread of extremist violence. All other UCs outside Mindanao conducts insulation and security operations in their respective JAO to prevent spillover of extremist violence.

The CSAFP is the designated Martial Law Implementer with Commanders, WMC and EMC concurrently designated as the Deputy Martial Law Implementers for their respective JAOs. They shall establish direct coordination with the Local Chief Executives and counterpart PNP officials for the implementation of the Martial Law in respective JAOs. This set up maybe cascaded to the AORs of subordinate unit Commanders.

The AFP shall take the lead in the restoration of peace and order and law enforcement operations with the active support of the Philippine National Police.

Significant to this operation is the ability of the AFP forces to immediately contain the outbreak of violence at specific areas in Mindanao.

Critical to this is the early detection and continuous real time monitoring of the enemy's intention, plans and movements, with the public's support and community cooperation.

Decisive to this operation is the destruction of the DAESH-inspired Rebellion.125 (Emphasis supplied)

The scope of martial law now includes degrading the capabilities of the New People's Army or the Communist Party of the Philippines, illegal drugs, and other lawless violence. The facts which were used as basis to include these aspects of governance were never presented to Congress through the President's report or to this Court.

The Operational Directive for the Implementation of Martial Law however, has another definition for martial law, thus:

12. Martial Law. The imposition of the highest-ranking military officer (the President being the Commander-in-Chief) as the military governor or as the head of the government. It is usually imposed temporarily when the government or civilian authorities fail to function effectively or when either there is near-violent civil unrest or in cases of major natural disasters or during conflicts or cases of occupations, where the absence of any other civil government provides for the unstable population.126

This definition emphasizes the taking over of civil government albeit temporarily. This is different from the provision in General Order No. 1 which focuses on arrests and illegal detention or in the first part of the same Operational Directive which involves the neutralization of armed elements whether engaged in rebellion, lawless violence, or illegal drugs.

The government's concept of martial law, from the broad provisions of Proclamation No. 216 therefore partakes of different senses. Rightly so, the public is not specifically guided and their rights are put at risk. This is the ghost of martial law from the Marcos era resurrected. Even Proclamation No. 1081 of September 21, 1972 was more specific than Proclamation No. 216. Yet, through subsequent executive issuances, the scope of martial law became clearer: it attempted to substitute civilian government even where there was no conflagration. It was nothing but an attempt to replace democratically elected government and civilian law enforcement with an iron hand.

For this alone, Proclamation No. 216, General Order No. 1 as well as the Operational Directive should be declared unconstitutional for being vague and for evading review of its factual basis.

VI

Even assuming that the declaration is not unconstitutionally vague, it is the government's burden to prove that there are sufficient facts to support the declaration of martial law. Respondents have not discharged that burden.

This Court should assume that the provisions of the Constitution should not be unworkable and therefore we should not clothe it with an interpretation which will make it absurd. Article VII, section 18 allows "any citizen" to file the "appropriate proceeding."

Certainly, petitioners should not be assumed to have access to confidential or secret information possessed by the respondents. Thus, their burden of proof consists of being able to marshal publicly available and credible sources of facts to convince the Court to give due course to their petition. For this purpose, petitioners are certainly not precluded from credible sources of facts to convince the Court to give due course to their petition. For this purpose, petitioners are certainly not precluded from referring to news reports or any other information they can access to support their petitions. To rule otherwise would be to ignore the inherent asymmetry of available information to the parties, with the Government possessing all of the information needed to prove sufficiency of factual basis.

Again owing to its sui generis nature, these petitions are in the nature of an exercise of a citizen's right to require transparency of the most powerful organ of government. It is incidentally intended to discover or smoke out the needed information for this Court to be able to intelligently rule on the sufficiency of factual basis. The general rule that "he who alleges must prove"127 finds no application here in light of the government's monopoly of the pertinent information needed to prove sufficiency of factual basis.

As it is, a two-tiered approach is created where petitioners have no choice but to rely on news reports and other second-hand sources to support their prayer to strike down the declaration of suspension because of their lack of access to the intelligence reports funded by taxpayers. At this point, the burden of evidence shifts to the government to prove the constitutionality of the proclamation or suspension and it does this by presenting the actual evidence, not just conclusions of fact, which led the President to decide on the necessity of declaring martial law.

It bears stressing that what is required of this Court is to look into the sufficiency of the factual basis surrounding Proclamation No. 216, hence, determining the quantum of evidence to be used, like substantial evidence, preponderance of evidence, or proof beyond reasonable doubt, becomes immaterial. I cannot agree with the ponencia therefore that the standard of evidence is probable cause similar to either the prima facie evidence required of a prosecutor or the finding that will validate a judge's issuance of a warrant of arrest or search warrant.

Rather, this Court must put itself in the place of the President and conduct a reassessment of the facts as presented to him. The Constitution requires not only that there are facts that are alleged. It requires that these facts are sufficient.

Sufficiency can be seen in two (2) senses. The first sense is that the facts as alleged and used by the President is credible. This entails an examination of what kinds of sources and analysis would be credible for the President as intelligence information. The second sense is whether the facts (b) public safety requires the use of specific powers under the rubric of martial law allowable by our Constitution.

Necessarily, this Court will not have to weigh which between the petitioner and the respondents have the better evidence. The sufficiency of the factual basis of the declaration of martial law does not depend on the asymmetry of information between the petitioner and the respondent. It depends simply on whether the facts are indeed sufficient.

However, despite the clear wording of the Constitution as regards what is expected of the Court and the minimal trigger put in place to initiate the Court's involvement, the government intends to create an absurd situation by asserting that petitioners cannot refer to news reports to support their claim of factual insufficiency. The government claims that news ' reports are unreliable for being hearsay in character and that they might even be manipulated by the Armed Forces of the Philippines as part of its tactic of psychological warfare or propaganda.128

This is specious argumentation to say the least. Furthermore, that the information used by the petitioners quoting government sources amounts to psychological warfare or propaganda is only an allegation in the Memorandum of the Solicitor General. It is not supported by any of the affidavits annexed to his Memorandum.

VII

It is the mandate of this Court to assess the facts in determining the sufficiency of the factual basis of the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus.129 Intelligence information relied upon by the President are credible only when they have undergone a scrupulous process of analysis.

To be sufficient, the facts alleged by the respondents cannot be accepted as per se accurate and credible. Banking on this presumption would be tantamount to a refusal of this Court to perform its mandate under the Constitution. Article VII, Section 18 of the Constitution130 is extraordinary in the sense that it compels this Court to act as a fact-finding body to determine whether there is sufficient basis to support a declaration of martial law or a suspension of the privilege of the writ of habeas corpus.

Insisting on a deferential mode of review suggests that this Court is incapable of making an independent assessment of the facts. It also implies that this Court is powerless to overturn a baseless and unfounded proclamation of martial law or suspension of the privilege of the writ of habeas corpus. Although some may consider the duty imposed in Article VII, Section 18 of the Constitution as a heavy burden, it is one that this Court must willingly bear to ensure the survival of our democratic processes and institutions. The mandate imposed under the Constitution is so important that to blindly yield to the wisdom of the President would be to commit a culpable violation of the Constitution.131

The bases on which a proclamation of martial law or the suspension of the privilege of the writ of habeas corpus are grounded must factually be correct with a satisfactory level of confidence at the time when it is presented. Any action based on information without basis or known to be false is arbitrary.

The role of validated information for decision-making is vital. It serves as the foundation from which policy is crafted.

The President, in exercising the powers of a Commander-in-Chief under Article VII, Section 18 of the Constitution, cannot be expected to personally gather intelligence information. The President will have to rely heavily on reports given by those under his or her command to arrive at sound policy decisions affecting the entire country.

It is imperative, therefore, that the reports submitted to the President be sufficient and worthy of belief. The recommendation or non-recommendation of the President's alter-egos regarding the imposition of martial law or the suspension of the privilege of the writ of habeas corpus would be indicative of the sufficiency of the factual basis.

Reports containing intelligence information should be shown to have undergone a rigorous process to ensure their veracity and credibility. Good intelligence requires that information gathered by intelligence agencies is collected and subsequently analyzed.132 Cogent inferences are then drawn from the analyzed facts after which judgments are made.133

The Rules on Evidence find no application in testing the credibility of intelligence information. This Court will have to examine the information gathered by intelligence agencies, which collect data through five (5) Intelligence Collection Disciplines, namely: (1) Signals Intelligence (SIGINT); (2) Human Intelligence (HUMINT); (3) Open-Source Intelligence (OSINT); (4) Geospatial Intelligence (GEOINT); and (5) Measurement and Signatures Intelligence (MASINT).134

Signals Intelligence (SIGINT) refers to the interception of communications between individuals135 and "electronic transmissions that can be collected by ships, planes, ground sites, or satellites."136

Human Intelligence (HUMINT) refers to information collected from human sources137 either through witness interviews or clandestine operations.138

By the term itself, Open-Source Intelligence (OSINT) refers to readily-accessible information within the public domain.139 Open-Source Intelligence sources include "traditional media, Internet forums and media, government publications, and professional or academic papers."140

Newspapers and radio and television broadcasts141 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.142 An example of geospatial intelligence is a "satellite photo of a foreign military base with topography[.]"143

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."144 Measures and Signatures Intelligence has been helpful in "identify[ing] chemical weapons and pinpoint[ing] the specific features of unknown weapons systems."145

The analysis of information derived from the five (5) Intelligence Collection Disciplines involves the application of specialized skills and the utilization of analytic tools from which inferences are drawn.146

By way of example, the Central Intelligence Agency of the United States created the Office of National Estimates in the 1950s to "provide the most informed intelligence judgments on the effects a contemplated policy might have on American national security interests."147 The Office of National Estimates generates National Intelligence Estimates consisting of analyzed information.148 National Intelligence Estimates consider questions such as "[w]hat will be the effects of ... ?[,] [w]hat are the probable developments in ... ?[,] [w]hat are the intentions of ... ?[,] [and] [w]hat are the future military capabilities of ... ?"149 As a result of analysis, the Office of National Estimates arrives at opinions or judgments that are "likely to be the best-informed and most objective view the decision-maker can get."150

That there are no facts that have absolute truth in intelligence can be seen through an example. Recently, a declassified report151 of three (3) intelligence agencies in the United States was released and made public. The report extensively discussed the methodology or analytic process that intelligence agencies utilize to arrive at assessments that adhere to well-established and refined standards.152

Intelligence analysts determined the reliability and quality of different sources of information153 and ascribed levels of confidence.154 A high level of confidence indicates that the assessment is based on high-quality information. On the other hand, a moderate level of confidence indicates that the assessment is backed by information that is "credibly sourced and plausible."155 A low level of confidence indicates that the information is unreliable. It also signifies that the information cannot support a strong inference.156

Aside from determining the reliability of their sources, intelligence analysts also distinguished between information, assumptions, and their own judgments.157 This distinction is important so that established facts are not muddled with mere assumptions.

Moreover, intelligence analysts used "strong and transparent logic."158 The utilization of these standards ensures that there is appropriate basis to back up the assessments or judgments of intelligence agencies.159

Evidently, the factual basis upon which the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus is founded cannot just be asserted. The information must undergo an analytical process that would show sound logic behind the inferences drawn. The respondents should show these analyses by indicating as far as practicable their sources and the basis of their inferences from the facts gathered. Thereafter, the respondents should have indicated the levels of confidence they have on their conclusions.

VIII

The government's presentation of facts and their arguments of their sufficiency are wanting.

First, there are factual allegations that find no relevance to the declaration of martial law and the suspension of the privilege of the writ of habeas corpus. Second, there are facts that have been contradicted by Open-Source Intelligence sources. Lastly, there are facts that have absolutely no basis as they are unsupported by credible evidence.

There are factual allegations contained in Proclamation No. 216 dated May 23, 201 7 and in the Report of President Duterte to Congress dated May 25, 2017 that are patently irrelevant to the imposition of martial law and suspension of the privilege of the writ of habeas corpus in Mindanao.

The Zamboanga siege arose out of the Moro National Liberation Front's (MNLF) protest against what they deemed to be the "government's failure to fulfill the provisions of the peace agreement that the MNLF signed with the Ramos administration in 1996."160 On September 9, 2013, 500 members of the MNLF led by Nur Misuari stormed Zamboanga City in an attempt to derail the peace plan between the government and the Moro Islamic Liberation Front (MILF).161 The clash between the MNLF and government forces, which lasted for three (3) weeks, killed "19 government forces[,] 208 rebels, and dislocated 24,000 families."162

On the other hand, the Mamasapano incident was an encounter between the Philippine National Police Special Action Force (PNP-SAF) and members of the MILF, BIFF, and other private armed groups.163

On January 25, 2015, two (2) units of the PNP-SAF carried out an operation in Mamasapano, Maguindanao to capture international terrorist Zulkifli bin Hir, known as "Marwan," and Abdul Basit Usman,164 a Filipino bomb maker.165 The g4th PNP-SAF Company was tasked to capture Marwan while the 55th PNP-SAF Company served as the blocking force.166 Although Marwan was killed, 44 members of the PNP-SAF died during the clash, which was characterized as a case of pintakasi.167

The Zamboanga siege and the Mamasapano clash, cited by the President in his Report to Congress dated May 25, 2017, are incidents that neither concern nor relate to the alleged ISIS-inspired groups. Moreover, there is no direct or indirect correlation between these incidents to the alleged rebellion in Marawi City.

There are also disputed factual allegations. These disputes could have been settled by the respondents by showing their processes to validate the information used by the President. This Court cannot disregard and gloss over reports from newspapers. As earlier mentioned, newspapers are considered Open-Source Information (OSINT) from which intelligence information may be gathered.

Proclamation No. 216 dated May 23, 2017
Factual Allegations Verification

Maute Group attack on the military outpost in Butig, Lanao del Sur in February 2016.168

Omar Maute and his brother Abdullah led a terrorist group in raiding a detachment of the 51st Infantry Battalion in Butig town. According to reports received by the Armed Forces Western Mindanao Command, around 42 rebels were killed. On the other hand, three soldiers died and eleven were injured.169

Mass jailbreak in Marawi City in August 2016.170

50 heavily-armed members of the Maute Group raided the local jail in the southern city of Marawi. The raid led to the escape of 8 comrades of the Maute Group who were arrested a week ago and twenty other detainees. The 8 escaped prisoners were arrested after improvised bombs and pistols were found in their van by soldiers manning an army checkpoint.171 Police Chief Inspector Parson Asadil said that the jailbreak was a rescue operation for the release of the recently arrested members including their leader Hashim Balawag Maute.172

The Maute Group "[took] over a hospital in Marawi City, Lanao del Sur."173

Amai Pakpak Medical Center Chief Dr. Armer Saber (Dr. Saber) stated that the hospital was "not taken over by the Maute Qroup."174 Dr. Saber said that two Maute armed men went to the hospital to seek treatment for their injured comrade. When the armed men were inside the facility, Senior Inspector Freddie Solar, intelligence unit chief of the Marawi City Police, together with other policemen, came to the hospital to have his wife treated for appendicitis. The policemen were held hostage by the Maute fighters and thereafter, Senior Inspector Solar was shot.175 Saber stressed that the only incident when gunshots were fired was during the shootout where Solar was killed.176 Moreover, the Maute members left the hospital the following day.177

Health Secretary Paulyn Ubial belied the reports stating that "the Maute insurgents abducted and held hostage at least 21 health personnel of the APMC." He declared that "all government hospitals in Mindanao are operational and folly secured by the Armed Forces of the Philippines CAFP)."178

AFP Public Affairs Office Chief Marine Colonel Edgard Arevalo and Philippine National Police Spokesman Senior Superintendent Dionardo Carlos denied the reports that Amai Pakpak Medical Center was taken over by the Maute Group.179 They stated that members of the Maute Group only sought medical assistance for a wounded comrade.180

The Maute Group "established several checkpoints within the City."181

The Maute Group "reportedly blocked several checkpoints in the vicinity."182

The Maute Group "burned down certain government and private facilities and inflicted casualties on the part of the government."183

United Church of Christ in the Philippines, the operator of Dansalan College confirmed that the school was burned on the night of May 23, 2017.184 Other schools said to have been burned were only damaged during the clash between the military and the Maute Group.185

Marawi City School Division Assistant Superintendent Ana Al onto said Mambuay Elementary School, Raya Madaya 1 Elementary School, and Raya Madaya 2 Elementary School were damaged by bombs.186

Department of Education Assistant Secretary Tonisito Umali said there were no reports of the Marawi Central Elementary Pilot School burning. Aside from Dansalan College, the City Jail and St. Mary's Church were also burned that day.187

The Maute Group "started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas."188

ISIS flags were raised on top of at least two (2) vehicles roaming Marawi City189 and on some mosques and buildings where members of the Maute , Group position themselves.190


President's Report Relative to Proclamation No. 216

Factual Allegations

Verification

Davao (night-market) bombing (by either the Abu Sayyaf Group or ISIS-backed Maute group)191

According to the Philippine army, four (4) suspects in the Davao City night market bombing were reportedly members of the Dawla Islamiya Fi Cotabato - Maute Group.192

Bombings in Cotabato (by either the Abu Sayyaf Group group)[[l93]]

According to Director of the North Cotabato Provincial Police, they were certain that "the New People's Army was behind the roadside bombing and . . . was not in any way connected to the ongoing strife in Marawi City."194

Bombings in Sultan Kudarat (by either the Abu Sayyaf Group or ISIS-backed Maute grpup)195

Before the incident, text messages circulated containing warnings about an alleged plot by the Bangsamoro Islamic Freedom Fighters (BIFF) to set-off bombs in Tacurong City, Koronadal, General Santos, Cotabato, Midsayap, Cotabato, and Davao City.196

Bombings in Basilan (by either the Abu Sayyaf Group or ISIS-backed Maute group)[[l97]]

Investigators are convinced that "Abu Sayyaf bandits are behind the attack."198

May 23, 2017 - Government operation to capture Isnilon Hapilon - "confronted with armed resistance which escalated into open hostility against the government." The Maute Group took control of Marawi City to establish a wilayah in Mindanao.199

Armed Forces of the Philippines spokesperson Brigadier General Restituto Padilla said, "the on-go mg clash m Marawi City, Lanao Del Sur is aimed at neutralizing Abu Sayyaf leader Isnilon Hapilon, who was spotted along with an estimated 15 followers in the area."200

At 1400H on May 23, 2017 - "Members of Maute Group and [Abu Sayyaf Group] along with their sympathizers, commenced their attack on vanous facilities."201

Spokesperson of 1st Infantry Division of the Army, Lt. Col. Jo-Ar Herrera, said the gun battle erupted at 2 p.m. in Barangay Basak, Malulut, Marawi.202 It was the militm who initiated a ,"surgical operation" following the reports on the presence of Maute Group fighters from the residents.203 Armed Forces of the Philippines Spokesman Brigadier General Restituto Padilla stated that it was the AFP and PNP who initiated the operation in Marawi having received reliable information regarding the location of Hapilon and a number of his cohorts.204

At 1600H on May 23, 2017, 50 armed criminals assaulted Marawi City Jail, which was being managed by the Bureau of Jail Management and Penology. The Maute Group "forcibly entered the jail facilities, destroyed its main gate and assaulted on-duty personnel[,] BJMP personnel were disarmed, locked inside the cells"205

Governor Mujiv Hataman of the Autonomous Region in Muslim Mindanao stated that the "Maute gunmen simultaneously stormed the Mala bang District Jail and the Marawi City Jail ... disarmed guards[,] and freed a total of 107 inmates."206

The Group "took cellphones, personnel-issued firearms ... two [2] prisoner vans and private vehicles."207

Governor Hataman stated that the group "took one [1] government vehicle used in transporting detainees from the jail to the court."208

At 1630H the power supply in Marawi City was "interrupted and sporadic gunfights were heard and felt everywhere[,] [b]y evening, power outage had spread citywide."209

As of 6:30 p.m. on May 25, 2017, the Department of Energy, citing a report of the National Grid Corporation of the Philippines, stated that "a tower along the tie line between Agus 1 and 2 hydropower plant in Lanao del Sur was toppled because of a felled tree."210 The grid disturbance caused the power outage in Marawi City.211

From 1800H to 1900H on May 23. 2017, the Maute Group "ambushed and burned the Marawi Police Station." They also took a patrol car. Meanwhile, a member of the Philippine Drug Enforcement Unit was killed. The Maute Group facilitated escape of at least 68 inmates.212

Marawi City Mayor Majul Gandamra (Mayor Gandamra) disputed reports that the local police station and city jail were burned. According to Mayor Gandamra: "[h]indi po totoo na na-takeover nila ang police station at ang . . . city jail."213 Mayor Gandamra contacted the chief of police who said that the police station and city jail were not occupied.214

Mayor Gandamra also declared that no government facilities or offices were occupied.215

On the evening of May 23, 2017, "at least three (3) bridges in Lanao del Sur, namely Lilod, Bangulo, and Sauiaran, fell under the control of these groups."216

"The Mapandi Bridge that leads to the center of Marawi City remained in the control of the Maute group, and an ISIS flag remains there a week after the terrorists laid siege on the city."217

On the evening of May 23, 2017, the Maute Group burned: (1) Dansalan College Foundation; (2) Cathedral of Maria Auxiliadora; (3) Nun's quarters in the church; and (4) Shia Masjid Moncado Colony. The group took hostages.218

Mayor Gandamra confinned that a fire had taken place in Dansalan College: "[m]erong structure doon na nasunog po, hindi ho lahat [There was a structure burned, but not all]."219

Bishop Edwin Dela Peña said the Maute group torched the Cathedral of Our Lady of Help of Christians: "[k]inuha nila 'yung aming pari, saka 'yung aming secretary, 'yung dalawang working student tapos parokyano namin na nagnovena Jang kahapon. "220 The Cathedral of Our Lady of Help of Christians is also known as the Cathedral of Maria Auxiliadora.221

"About five (5) faculty members of Dansalan College Foundation [were] reportedly killed by the lawless groups."222

United Church of Christ in the Philippines' Executive Director Rannie Mercado told the Philippine Star that there were no confirmed reports regarding the alleged death of school personnel.223

"Senator Ninoy Aquino College Foundation and the Marawi Central Elementary Pilot School" were burned.224

In a phone interview, the Division Assistant Superintendent of Marawi City Schools Division Ana Alonto "denied a report that a public school was among the buildings burnt by the terrorists." She stated that "it was the barangay outpost that was seen burning in a photo circulating online."225

Furthermore, Department of Education Assistant Secretary Umali said they did not receive any report of damage at the Central Elementary Pilot School.226

According to a source on the ground of the Philippine Star, he saw the "Senator Benigno Aquino College Foundation

They also "held the hospital's employees hostage and took over the PhilHealth office[.]"230

hospital was not overrun by terrorists.231

Dr. Saber's statement was corroborated by the PNP Spokesman, Senior Superintendent Dionardo Carlos who said that the terrorists only went there to seek medical assistance for a wounded member. They did not take over the hospital.232 The hospital employees were "only asked to provide medical assistance[.]"233

"Lawless armed groups . . . ransacked the Land [B]ank of the Philippines and commandeered one of its armored vehicles."234

In a statement, the Land Bank of the Philippines (Land Bank) clarified that the Land Bank Marawi City Branch was not ransacked. It merely sustained some damage from the ongoing clash. According to Land Bank, the photo circulating on Facebook is not the Land Bank Marawi Branch but "an image of the closed Land Bank [Mindanao State University Extension Office] that was slightly affected in 2014 by a fire that struck the adjacent building."235

Land Bank also confirmed that an armored vehicle was seized. However, it clarified that the vehicle was owned by a third-party provider and that it was empty when it was taken.236

IX

Third, the factual bases cited by respondents· in their pleadings seem to be mere allegations. The sources of these information and the analyses to vet them were not presented.

In their Consolidated Comment and Memorandum, respondents assert that the Abu-Sayyaf Group from Basilan (ASG Basilan), the Ansarul Khilafah Philippines (AKP) or the Maguid Group, the Maute Group (Maute Group) from Lanao del Sur, and the Bangsamoro Islamic Freedom Fighters (BIFF) are ISIS-inspired237 or ISIS-linked.238 They also assert that these groups "formed an alliance ... to establish a wilayah, or Islamic province, in Mindanao."239

Respondents failed to show their sources to support the inference that the ASG Basilan, AKP, Maute Group, and BIFF are indeed linked to the ISIS and that these groups formed alliances. Respondents' only basis is Isnilon Hapilon's "symbolic hijra."240 Respondent also relies heavily on the ISIS newsletter, Al Naba, which allegedly announced the appointment of Isnilon Hapilon as an emir.241

These allegations neither explain nor conclusively establish the nature of the links of the four (4) groups to the ISIS. The ISIS newsletter, Al Naba, cannot be considered as a credible source of information. It is a propaganda material, which provides skewed information designed to influence opinion.242

Individually, these groups have undergone splits and are fragmented into different factions. Their stability and solidarity is unclear.

The Abu-Sayyaf Group was organized sometime in 1991 by Abdurajak Janjalani.243 Abdurajak Janjalani's brother, Khadaffy Janjalani, took over the group upon Abdurajak's death in 1998. When Khadaffy died, "Radullon" Sahiron took over as the group's commander.244

The split within the Abu-Sayyaf Group began when one of the group's top commanders, Abu Sulaiman, died in 2007. Each subcommand was left to operate independently. Eventually, the Abu-Sayyaf Group became "highly factionalised kidnap-for-ransom groups."245

In May 2010, Isnilon Hapilon returned to Basilan and united the Basilan members of the Abu-Sayyaf Group. This officially marked the split between the Abu-Sayaff Basilan group from the Abu-Sayaff Sulu group, headed by Radullan Sahiron, and other Abu-Sayyaf subcommands.246

The two main factions of the Abu-Sayyaf Group are headed by leaders that do not share the same ideology. Radullan Sahiron only trusted fellow Tausugs and believed that foreign fighters had no place within his group. On the other hand, Isnilon Hapilon welcomed outsiders. Isnilon Hapilon was characterized as someone who "liked anything that smelled foreign, especially anything from the Middle East," a sentiment not shared by Radullan Sahiron.247

The Bangsamoro Islamic Freedom Fighters was founded by Ameril Umbra Kato.248 Ameril Umbra Kato appointed Esmael Abu bakar alias Kumander Bungos as his successor much to the disappointment of Ameril Umbra Kato's relative, Imam Minimbang alias Kumander Kagi Karialan.249

During his leadership, Kumander Bungos aligned the Bangsamoro Islamic Freedom Fighters with the Maute Group.250 This was opposed by Kumander Kagi Karialan.251

In July 2016, Kumander Kagi Karialan, together with a number of Bangsamoro Islamic Freedom Fighter clerics, broke from the group.252

Ansarul Khilafa Philippines (AKP) was led by Mohammad Jaafar Maguid alias Tokboy. Although no major split occurred within Ansarul Khilafa Philippines, the stability of the group is presently unclear due to the death ofTokboy on January 5, 2017.253

The ideological divergence within the ASG and the BIFF as well as the vacuum in the leadership of the AKP creates serious doubt on the strength of their entire group's allegiance to the ISIS and their alleged ties with each other.

Aside from the failure to present their sources to support the factual bases cited in Proclamation No. 216 dated May 23, 2017 and the Report of President Duterte dated May 25, 2017, there is also absolutely no factual basis for the dismantling and arrest of illegal drug syndicates and peace spoilers.254 The inclusion of illegal drug syndicates and peace spoilers unjustifiably broadens the scope of martial law. There has been no evidence presented in this case that would explain their inclusion in the Operational Directive for the Implementation of Martial Law.

X

Fourth, the documents presented to this court containing intelligence information have not been consistent. It shows that the presentation and interpretation of the facts have changed from one which showed the variability in the groups reported to a simplification of the terrorist groups to show the impression that the groups are solidly united. In other words, the presentation of the facts and their interpretation changed to accommodate a version that would support martial law.

The most unreliable form of intelligence information is one which has been tweaked and changed to suit the perspective of the policy maker. For purposes of its assessment of the sufficiency of the facts to support Proclamation No. 216, the credibility of the information will also depend on the extent of independence of the organization gathering and analyzing intelligence.

Among the documents presented to the court was the Chief of Staffs Operational Directive in the Implementation of Martial Law. Annex B of that report pertained to the intelligence backdrop of Operational Plan "Southern Shield" dated 25 May 2017. Their confidential document provided clear insights on the strengths and weaknesses of the various terror groups.255

On the other hand, the affidavit of the Chief of Staff of the Armed Forces of the Philippines to support the Memorandum of the OSG simply states:

12. Sometime on or about August in the year 2014, the AFP received intelligence reports that a number of local rebel groups from Mindanao ha[s] pledged their allegiance to ISIS. These groups include the Abu- Sayyaf Group from Basilan, the Ansarul Khilafah Philippines (also known as "The Maguid Group") from Saranggani and Sultan Kudarat, the Maute Group from Lano del Sur, and the Bangsamoro Islamic Freedom Fighters from Maguindanao;

. . . .

24. As proof of this unification, the ISIS-linked rebel groups had consolidated in Basilan to pledge allegiance to ISIS sometime on June 22, 2016. On the first week of January 2017, a meeting among these rebel groups was supposed to take place in Butig, Lanao del Sur for the purpose of declaring their unified pledge of allegiance to the ISIS and re-naming themselves as the Da'wahtul Islamiyah Waliyatul Mashriq (DIWM). This was, however, preempted by the death of Mohammad Jaafar Maguid (also known as Tokboy), as then leader of the Maguid Group, coupled with the conduct of series of military operations in the area256

Notably, the affidavit fails to emphasize several important key points which put into question the conclusion relating to the strengths of the alleged coalition between the four (4) groups. It puts into question their capability to execute the feared rebellion.

First, not all members of the ASG (especially the group of Sahiron in Sulu) as well as the members of the BIFF have expressed their intent to be inspired or affiliated with the ISIS.257

Second, many of the kidnappings in Southern Philippines can be attributed to the non-ISIS linked or affiliated ASG in Sulu. From January 2017 to May 201 7, six (6) incidents involving 16 individuals should have been attributed to the non-ISIS affiliated ASG. Forty-two (42) of the violent incidents perpetrated by the ASG are attributed to the non-ISIS Sulu group. Of its estimated 446 personnel, AFP's intelligence reports that 168 personalities were neutralized from January to May of 2017.

Third, the Basilan-based ASG which is reported to be led by Hapilon is composed of only about 108 members as of 2016. In its own report, the AFP claims that this ASG is "incapable of sustaining prolonged armed confrontation in view of its limited supply of ammunition and firearms." They also have "a low level of discipline" and are prone to "insubordination and infighting brought about by envy and personal differences within the group." This ISIS inspired ASG has members "motivated purely by financial considerations." They are vulnerable to "rido or clan wars between ASG elements and other armed threat groups in Mindanao."

Fourth, the Maute group is composed of about 263 members as of the end of 2016. However the "figures have changed with the identification of new personalities and neutralization of members as a result of focused military operations (FMO)." Intensified operations have targeted this group since February of 2016. The military intelligence reports consider that the "Maute Group has limited support base which is mostly concentrated in Butig, its stronghold."

Fifth, the third member terrorist group of the alleged coalition is the Maguid Group or the Ansar al-Khilafah Philippines (AKP). As of the end of 2016 the military reports that it has only 7 identified members with 12 firearms. Its leader Mohammad J aafar Maguid, otherwise known as "Tokboy," together with his foreign ally and his wife had already been killed. The AFP acknowledges that this group is obviously "beset with decreasing manpower and lack of direction from a leader."

It was the death of Tokboy which prevented an alleged meeting of all four terrorist groups inspired by ISIS in January of this year.

With this intelligence information, it is difficult to sustain the conclusion that the ISIS-inspired groups are able to wage actual rebellion that will threaten a province or even the entirety of Mindanao. Clearly, they are capable of isolated atrocities. However, to the extent that they can sustain a rebellion threatening even the existence of any local government is a difficult conclusion to believe.

In other words, even before the Marawi hostilities, law enforcers, including the armed forces were already degrading their capability.

Respondent through the OSG and in the Memorandum also belatedly cite 20 "ISIS cell groups," which, allegedly, coordinated with the ASG Basilan, AKP, Maute Group, and the BIFF.258 The alleged "ISIS cell groups" are the following:

1. Ansar Dawiah Fi Filibbin

2. Rajah Solaiman Islamic Movement

3. Al Harakatul Islamiyah Battalion

4. Jama' at Ansar Khilafa

5. Ansharul Khilafah Philippines Battalion

6. Bangsamoro Justice Movement

7. Khilafah Islamiya Mindanao

8. Abu Sayyaf Group (Sulu faction)

9. Syuful Khilafa Fi Luzon

10. Ma'rakah Al-Ansar Battalion

11. Dawla Islamiyyah Cotabato

12. Dawlat Al Islamiyah Waliyatul Masrik

13. Ansar Al-Shariyah Battalion

14. Jamaah al-Tawid wal Jihad Philippines

15. Abu Duhanah Battalion

16. Abu Khubayn Battalion

17. Jundallah Battalion

18. Abu Sadr Battalion

19. Jamaah Al Muhajirin wal Anshor

20. Balik-Islam Group259

However, respondents failed to show any evidence that would establish links and relationships between and among these groups to support the conclusion that these groups are indeed "ISIS cell groups" and that these groups are coordinating attacks with the ASG Basilan, AKP, Maute Group, and the BIFF. For instance, the Sulu faction of the Abu-Sayyaf Group does not share the same ideology as the Basilan faction.260 This listing of twenty groups are not present in any of the presentations or documents presented to the Court during the oral arguments in these cases.

Respondents cite atrocities that have been committed by rebel groups before May 23, 2017.261 Unfortunately, they did not identify which group was involved in each particular incident. Hence, the enumerated atrocities cannot be attributed to all four (4) ISIS-inspired groups.

The underlying evidence262 cited in respondents' Memorandum are unprocessed and are ad hoc pieces of information. Although the Memorandum did mention incidents that were directly attributable to the Abu-Sayyaf Group and the Bangsamoro Islamic Freedom Fighters,263 it failed to indicate which particular faction was involved. Furthermore, it included acts of violence committed by the New People's Army in Batangas and Samar264 and those committed by the Abu Sayyaf Group in Bohol.265

XI

Fifth, it is possible that the critical pieces of information have been taken out of context. The inferences made as to the affiliation of the alleged Maute group with ISIS leave much to be desired. Context was not properly explained.

The OSG lays down the following backdrop to contextualize the events of May 23, 2017 as acts of rebellion: (1) ISIS leader Abu Bakr al-Baghdadi has established an Islamic State in Syria and Iraq;266 (2) Muslims around the world join the Islamic State by pledging allegiance to al-Baghdadi, and this pledge is an obligation to unify under al-Baghdadi's caliphate;267 (3) ISIS' plan consists of "impos[ing] its will and influence worldwide";268 (4) ISIS carries out this plan by capturing and administering territories;269 (5) ISIS, which has been called the "world's wealthiest organization," finances the leaders of these territories, for the proper administration of said territories;270 (6) ISIS' notoriety and its finances attracted local rebel groups, namely, the Abu-Sayyaf Group from Basilan ("ASG-Basilan"), Ansarul Khilafah Philippines ("AKP"), the Maute Group, and the Bangsamoro Islamic Freedom Fighters ("BIFF"), who previously operated separately, to pledge their allegiance to ISIS;271 (7) Because of this pledge of allegiance, these groups have now unified as one alliance (the "ISIS-linked rebel groups");272 (8) Hapilon, leader of ASG-Basilan, was appointed as the emir, or the leader of all ISIS forces in the Philippines;273 (9) Hapilon embarked on a "pilgrimage" to unite with the ISIS-linked rebel groups, which the OSG called a "symbolic hijra," as a step towards establishing an administered territory, for ISIS approval or recognition.274

The OSG links this "pilgrimage" to the five (5) steps for establishing an ISIS-recognized Islamic province,275 and claims that the ISIS-linked rebel groups have already accomplished the third step in the establishment of an ISIS-recognized Islamic province when Hapilon was appointed emir.276 The ISIS-linked rebel groups, together with "ISIS cell groups," have conducted many violent activities to dismember the country.277

This is advocated by the OSG as the proper context to interpret the events of May 23, 201 7. Thus, when government troops faced heavy assault at around 2 o'clock in the afternoon, the perpetrators were identified as the ISIS-linked rebel groups:

29. At 2:18pm, the government troops from the 5lst Infantry Battalion were faced with heavy assault from the rebel groups in the vicinity of the Amai Pakpak Medical Center. Four (4) government troopers were wounded in the encounter.

30. The ISIS-linked local rebel groups launched an overwhelming and unexpectedly strong offensive against government troops. Multitudes, about five hundred (500) armed men, rampaged along the main streets of Marawi and swiftly occupied strategic positions throughout the city. Snipers positioned themselves atop buildings and began shooting at government troops. The ISIS-linked local rebel groups were also equipped with rocket-propelled grenades ("RPG") and seemingly limitless ammunition for high-powered assault rifles.

. . . .

34. In their rampage, the rebel groups brandished the black ISIS flag and hoisted it in the locations that they occupied. An ISIS flag was recovered by the 51st Infrantry Battalion in the vicinity of the Amai Pakpak Medical Center, where the troops had an armed encounter with the rebels. Another ISIS flag was captured by the 103rd Brigade in Barangay Basak, which was under the control of the rebel groups.278

Further, the act of flying the ISIS flag was interpreted, in Proclamation No. 216, as an overt act of attempting to remove part of Mindanao from the allegiance to the Philippine Government:

WHEREAS, today, 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, constituting the crime of rebellion[.]

To assess the sufficiency of the factual basis for finding that rebellion exists in Mindanao, it is essential to contextualize the acts supposedly suggestive of rebellion, in relation to the culture of the people purported to have rebelled.

This Court must consider, who are Isnilon Hapilon and the Maute brothers? What is their relationship to ISIS? Are the ideologies of Hapilon, the Maute brothers, and ISIS compatible? What is their relationship to the people of Marawi? What is the history of armed conflict within Mindanao?

Ignoring the cultural context will render this Court vulnerable to accepting any narrative, no matter how far-fetched. A set of facts which should be easily recognized as unrelated to rebellion may be linked together to craft a tale of rebellion which is convincing only to those unfamiliar with the factual background in which the story is set. Blindly accepting a possibly far-fetched narrative of what transpired in Marawi leading up to and including the events of May 23, 2017 and ignoring the cultural context will have its own consequences. The public will accept this far-fetched narrative as reasonable or the truth, when it could be nothing but "fake news." In turn, the government may be inadvertently doing a service for Maute Group and ISIS projecting them as bigger than what they really are.

It must be understood that there is no single homogenous monolithic Islam. There are many fundamental differences in beliefs and practices between and among Muslims. The ISIS brand of Islam is unabashedly medieval:

Virtually every major decision and law promulgated by the Islamic State adheres to what it calls, in its press and pronouncements, and on its billboards, license plates, stationery, and coins, "the Prophetic methodology," which means following the prophecy and example of Muhammad, in punctilious detail.279

ISIS have been described as following Salafi-jihadis. For Salafists, the Quran is a direct and literal instruction from God:

Salafis encourage a strict constructionist reading of the Quranic verses and prophetic traditions and downplay the role of human interpretive capacity and extratextual rationality ...

Contemporary Salafism makes claims concerning the permissibility and necessity of takfir (declaring a Muslim to be outside the creed, the equivalent of excommunication in Catholicism). Salafis believe Muslims can be judged to have committed major transgressions that put them outside the Islamic faith ...

. . . .

The issue of talfir has become relevant because many jihadi Salafis today argue that existing Muslim regimes rule according to secular laws. Thus, because they violate God's sovereignty, they no longer can be considered Muslim. Consequently, it is permissible to reject them and rebel against them until they repent and apply Islamic law or are removed from power. Many jihadi Salafis declare democratic regimes to be unIslamic because sovereignty is vested in human beings and popular will, not God and his divine will ... Talifir also is invoked against any person working for the "apostate" regimes or the occupation, including police and security services, translators, manual workers, and anyone giving aid or comfort to the occupiers.280

Thus, ISIS takes the position that many "Muslims" are marked for death as apostates, having done acts that remove them from Islam:

These include, in certain cases, selling alcohol or drugs, wearing Western clothes or shaving one's beard, voting in an election.- even for a Muslim candidate - and being lax about calling other people apostates. Being a Shiite, as most Iraqi Arabs are, meets the standard as well, because the Islamic State regards Shiism as innovation, and to innovate on the Koran is to deny its initial perfection ... This means roughly 200 million Shia are marked for death. So too are the heads of state of every Muslim country, who have elevated man-made law above Sharia by running for office or enforcing laws not made by God.

Following takfiri doctrine, the Islamic State is committed to purifying the world by killing vast numbers of people . . . Muslim "apostates" are the most common victims. Exempted from automatic execution, it appears, are Christians who do not resist their new government.

. . . .

Leaders of the Islamic State have taken emulation of Muhammad as strict duty, and have revived traditions that have been dormant for hundreds of years. "What's striking about them is not just the literalism, but also the seriousness with which they read these texts," [Princeton scholar Bernard Haykel, the leading expert on ISIS theology] said.281

ISIS is extremely and fundamentally ideological and Muslims whose practices are inconsistent with ISIS' are apostates.

In contrast, 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. It was only in 2015 that the group pledged allegiance to ISIS.282 The ASG-Basilan, which is a faction of the Abu Sayyaf Group, also used to engage in kidnappings and extortion until it declared its allegiance to ISIS. Rather than being bound by ideology, its members are:

[B]ound together by ethnicity; family ties; loyalty to the leadership; and a strong desire for revenge, given the number of their relatives killed by police and military. Many children of 'martyrs', referred to as ajang-ajang (children) or anak iluh (orphans), are reported to be among the most militant.283

Anyone can pledge allegiance to ISIS. But this pledge does not imply any reciprocity or support from ISIS itself. Thus there are ISIS inspired groups wanting to affiliate but their oaths of affiliation may only be just that. Logistical support from ISIS now bearing the brunt of a multinational assault in Iraq and Syria may not be that forthcoming.

Moreover, among the core beliefs and driving forces of ISIS is that they will bring about the apocalypse:

In fact, much of what the group does looks nonsensical except in light of a sincere, carefully considered commitment to returning civilization to a seventh-century legal environment, and ultimately' to bringing about the apocalypse.

. . . .

[T]he Islamic State's immediate founding fathers ... saw signs of the end times everywhere. They were anticipating, within a year, the arrival of ... a messianic figure destined to lead the Muslims to victory before the end of the world ...

. . . .

Now that it has taken Dabiq, the Islamic State awaits the arrival of an enemy army there, whose defeat will initiate the countdown to the apocalypse. Western media frequently miss references to Dabiq in the Islamic State's videos, and focus instead on lurid scenes of beheading …284

ISIS ideology, as salafi-jihadis, is fundamentally nihilistic and apocalyptic, and if properly lived by its alleged adherents, it would naturally alienate the Muslim population in many areas in Mindanao.

It bears noting that ISIS leaders consider "emulation of Muhammad as strict duty." They are therefore relentlessly Koranic. However, Hapilon was not even a fluent speaker of Arabic at the time he was supposedlyrecognized as emir of ISIS forces in the Philippines. His religious knowledge was likewise reported to be limited.285 His allegiance to ISIS is conjectured to be motivated by his desire to be part of a Middle Eastern organization, as he "has always liked anything that smelled foreign, especially anything from the Middle East."286

Among the overt acts supposedly done by Hapilon to show his relationship with ISIS, as well as the relationship of the ISIS-linked rebel groups with ISIS, was a "symbolic hijra":

15. On December 31, 2016, Hapilon and about thirty (30) of his followers, including eight (8) foreign terrorists, were surveilled in Lanao del Sur. According to military intelligence, Hapilon performed a symbolic hijra or pilgrimage to unite with the ISIS-linked groups in mainland Mindanao. This was geared towards realizing the five (5)-step process of establishing a wilayah, which are: first, the pledging of allegiance to the Islamic State; second, the unification of all terrorist groups who have given bay 'ah or their pledge of allegiance; third, the holding of consultations to nominate a wali or a governor of a province; fourth, the achievement of consolidation for the caliphate through the conduct of widespread atrocities and uprisings all across Mindanao; and finally, the presentation of all of these to the ISIS leadership for approval or recognition.287

The OSG Memorandum, in turn, cites Hijra Before Isis,288 which discusses the history of hijrah in Islam:

In order to disseminate their views to a wider constituency the Islamic State began in 2014 publishing an English-language magazine called Dabiq. The magazine is produced in glossy format with a colorful layout and careful design. Judging from the flawless English of every article, the authors (all of whom are anonymous) are native English speakers. Dabiq's third issue, dedicated to hijra, calls on Muslims to migrate to Syria and participate in the creation of the Islamic State …

. . . .

Although the third issue of Dabiq opens and closes with attacks on US foreign policies, the core of this issue is its seven-part case for why Muslim believers must perform hijra. Mindful of its English readership, the magazine contrasts hijra, a practice that prioritizes piety over pleasure, to the consumerist orientation of American society. One chapter, entitled "Modem Day Slavery" notes that the "modem day slavery of employment, work hours, wages . . . leaves the Muslim in a constant feeling of subjugation to a kafir [infidel] master." In order to overcome the servitude that is part and parcel of everyday life in industrialized societies, Muslims must migrate to the new Caliphate, the authors argue, where they can live and work under Muslim masters. In this new Caliphate, "there is no life without jihad. And there is no jihad without hijrah." As if to reinforce that hijra never ends, the third issue concludes with a citation from the hadith, the storehouse of sacred sayings that is a major source of authority in Islamic law: "there will be hijrah after hijrah."

Just as, according to the theologians of ISIS, there will be hijra after hijra, so too was there hijra long before its violent reconfiguration by ISIS. Hijra marks the beginning of Islam as a religion, when Muhammad and his followers migrated from Mecca to Medina in 622 in order to preserve their community. The migrants knew that, so long as they continued to reside in Mecca, they would [be] hated by local non-Muslims, and have reason to fear for their lives. Muhammad and his followers were invited to resettle in Medina at just the right moment.

In addition to signifying the general obligation to migrate, hijra refers to the Prophet's departure for Medina. Accordingly, it stands for the beginning of the Islamic calendar. In keeping with this beginning, Muslims are encouraged to migrate to lands under Muslim rule when migration will strengthen the community of faith. The Prophet's hijra is a case in point. Against his will, Muhammad migrated in order for Islam to have a stable base and for Muslims to have freedom of worship. With his migration, hijra became relevant in perpetuity to all believers.

After the migration to Medina, Islam acquired a political foundation. While Islam became a religion of the community as well as of the individual believer, hijra became a story through which Muslims remembered their beginnings. Hijra acquired new life in early modernity, with the systematic expulsions of Muslims, first from Islamic Spain in 1492 (the same year that Columbus discovered America), and later from colonial empires that wanted Muslim lands without Muslims living there. These later expulsions-from Spain and Russia especially-changed the meaning of hijra in Muslim cultural memory. The concept became inflected not just by the pressure to migrate, as during Muhammad's lifetime, but by an ultimatum from the state: leave or you will be slaughtered.

Although the Prophet's hijra is not narrated in the Quran, this sacred book is structured around this event in that it is divided into revelations Muhammad received in Medina and those he received while residing in Mecca. Wherever and whenever in Islamic history there are stories of despair and sacrifice, as well as of courage and of victory, hijra casts its shadow. Hijra is at once the penultimate origin story and a climactic denouement to any traumatic experience.

Hijra is an answer to a universal predicament faced by all believers-how to be pious in an impious world-and an attempt to move beyond the constraints of everyday life. Hijra reconciles the dictates of faith with the dictates of the state, and the impulses of the heart with external constraints. More than a physical action, hijra responds to the inability of our dreams to approximate our realities with the injunction to create a better world in lands under Muslim rule. At its most meaningful, hijra resolves the contradiction between the worlds we desire and the lives we live.

. . . .

The Islamic State's merger of violence with post-national consciousness is unique, and hijra is one of the most basic strategies underlying its vision. Hijra as understood by the Islamic state marks a break in the fabric of time. It has the blessings of antiquity, but pursues a more cosmopolitan vision of human belonging than pre[-]modem precedents. It opposes the crass materialism of American culture, as well as the cowardly subservience of US client states in the Middle East. Hijra is compelling, persuasive, and uniquely able to solicit a profound sense of emotional belonging.

While its critique of American materialism goes some distance towards explaining the appeal of the Islamic State's rhetoric to prospective migrants, the conception of hijra that animates publications like Dabiq relies on a selective reordering [of] the historical record. The Islamic State's rhetoric, for example, suppresses the fact that, for most of Islamic history, Muslims have peacefully co-habited with Jews, Christians, Hindus, and Zoroastrians, and followers of many other non-Muslim religious creeds. Such co-habitation was enshrined into Islamic law, not always on equitable terms, but as a guiding assumption for over a thousand years. It has always been a presumption of normative Islamic law that Muslims must live alongside their non-Muslim counterparts. Only in modernity was the dream of an Islamic State populated exclusively by Muslims, and with all non-Muslims living under the threat of extermination, envisioned.

Meanwhile, hijra today is used in a very different sense: to signify migration for the purpose of jihad. This was not the normative meaning of hijra before modernity. ISIS' crude and contrived medievalism shows how mythical re[-]fashionings of the past can justify many forms of oppression in the present. The contemporary usages of hijra demonstrate how the past is mediated to the present. These usages reveal a rift between the past understood as an object of knowledge and a past which exists for the sake of the present.

In the sense evoked by millions of Muslims over the long course of Islamic history, hijra is the perpetual movement between memory and forgetting. Hijra is the tum to narrative to keep the past-and ourselves-alive in the present. Hijra is what we do when, like Palestinians and Chechens today, and like the Muslims and Jews of Islamic Spain, we have been dispossessed. Hijra is how we create homes for ourselves amidst the perpetual homelessness of exile and displacement that is part of the modem condition.

Hijra is useful to the Islamic State insofar as it encourages believers to cut their ties with the past. However, hijra has for most of its history meant much more than the rejection of the past. As a form ofstorytelling, and an ethical mode of remembering, hijra holds the past accountable to the present. Hijra indexes distances between past and present, not their convergence. For all these reasons, hijra far exceeds and ultimately confounds ISIS' remit. Hijra's appeal to memory, and its grounding in prior forms of life, are nuances that the ideologues of ISIS, in their uncritical appeals to the force of the new, would very much like us to forget.289

Later, the OSG mentions hijrah again, in support of its contention that the ISIS-linked rebel groups is attempting to "carv[e] out their own territory called a wilayah":290

206. On December 31, 2016, Hapilon and about thirty (30) of his followers from Basilan, including eight (8) foreign terrorists, were spotted in Lanao del Sur. Hapilon and his cohorts performed a symbolic hijra, which is the holy voyage of Prophet Muhammad and his followers from Mecca to Medina. The purpose of this is to further the unification goals for all rebel groups in Mindanao.291

Here, however, the OSG cites an intelligence report as basis for the assertion that the hijrah was intended to "further the unification goals for all rebel groups in Mindanao." But, the intelligence report says only:

Following the symbolic hijra of Isnilon HAPILON, the DAESH endorsed Amir for Southeast Asia, and his followers from Basilan to Butig, Lanao del Sur, he was joined by members of local terrorist groups such as the Maute and Maguid groups. These were done in a bid to unite DAESH-inspired groups in compliance with the five-step process of establishing a wilayat in Mindanao.292

The source relied upon by the OSG does not explain what a "symbolic hijrah" is and how it is a step in establishing an ISIS-recognized Islamic province within the Philippines. Rather, the OSG source293 states that, in relation to hijrah, ISIS "calls on Muslims to migrate to Syria," which is the opposite of establishing an ISIS-recognized Islamic Province in the Philippines. Indeed, it appears that ISIS expressly focuses on bringing fighters to Syria:

[M]ost jihadist groups' main concerns lie closer to home. That's especially true of the Islamic State, precisely because of its ideology. It sees enemies everywhere around it, and while its leadership wishes ill on the United States, the application of Sharia in the caliphate and the expansion to contiguous lands are paramount. Baghdadi has said asmuch directly: in November he told his Saudi agents to "deal with the rafida [Shia Muslims] first ... then al-Sulul [Sunni Muslim supporters of the Saudi monarch] ... before the crusaders and their bases."

The foreign fighters (and their wives and children) have been travelling to the caliphate on one-way tickets: they want to live under true Sharia, and many want martyrdom. Doctrine, recall, requires believers to reside in the caliphate if it is at all possible for them to do so. One of the Islamic State's less bloody videos shows a group of jihadists burning their French, British, and Australian passports. This would be an eccentric act for someone intending to return to blow himself up in line at the Louvre or to hold another chocolate shop hostage in Sydney.

A few "lone wolf' supporters of the Islamic State have attacked Western targets, and more attacks will come. But most of the attackers have been frustrated amateurs, unable to immigrate to the caliphate because of confiscated passports or other problems. Even if the Islamic State cheers these attacks - and it does in its propaganda - it hasn't yet planned and financed one.294

Using Arabic words like hijra without any attempt to explain it and naming it an overt act of establishing an Islamic province within the Philippines creates unnecessary ambiguity when what is needed is clarity. It is an act of othering and discourages even the attempt to understand. Such tactics make it all the more necessary for this Court to give proper attention to the culture being invoked to ensure that its interpretation of the facts presented is properly arrived at.

Just as there is no monolithic "Islam," the so-called ISIS-linked rebel groups are just as varied in their principles and ideologies or lack thereof. However, in the cultural phenomenon of "pintakasi," when an enemy enters a community, everyone in the community joins the fight. This common phenomenon resulted in the deaths of many government troops in a botched government operation now known as the Mamasapano Incident, which was an attempt to arrest a foreign terrorist. "Pintakasi" was discussed in a Senate Hearing on the Mamasapano Incident, as summarized in the Committee Report:

Intelligence in the possession of the PNP prior to the launch of Oplan Exodus indicated that there were more than 1,000 hostile troops at or near the target area where Marwan and Usman were believed to be hiding. Yet the PNP-SAF deployed only 392 personnel for the entire operation where almost a quarter of them are positioned to guard the MSR that was so far away from the actual theatre of action.

In addition, the PNP-SAF mission planners were informed of the possibility of a pintakasi, a practice common among Muslim armed groups where groups normally opposed to each other would come together and fight side by side against a common enemy or an intruding force, as described by ARMM Governor Mujiv Hataman ("Governor Hataman") in this testimony before the Committees. Governor Hataman described the bloody encounter as a case of Pintakasi, a jargon for collective work or bayanihan.295

Even assuming that the facts alleged to have occurred on May 23, 20 I 7 are true, these facts may have been linked together, ignoring the cultural context, to create a false narrative by the storyteller.

The facts presented show that there was, indeed, armed confrontation in Marawi City. However, this must be interpreted taking the context into consideration. Without this due consideration, this Court risks misreading the facts, reinforcing a false and dangerous narrative in the minds of the people, and acting as a platform for forces that thrive on image and terror magnified through news reports and social media.

XII

Taking the facts in their proper context, there may be acts of terrorism but not necessarily rebellion. The facts also establish that the Maute group are no more than terrorists who committed acts of violence in order to evade or resist arrest of their leaders.

Terrorism is a pre-meditated, politically-motivated violence perpetrated against non-combatant targets by sub-national groups or clandestine agents.296 It is motivated by political, religious, or ideological beliefs and is intended to instill fear and to coerce or intimidate governments or societies in the pursuit of goals that are usually political or ideological.297 Terrorists plan their attack to draw attention to their cause, thus, the mode and venue of attacks are deliberately chosen to generate the most publicity.298

The United Nations299 defines terrorism as:

Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.

However, the United Nations member states still have not come to an agreement on a single definition of terrorism. The majority of definitions of terrorism have been written by government agencies, making them inherently biased as the government is deliberately excluded from the definition of terrorism.300

The concept of terrorism requires an objective element which is the use of serious violence against persons as a means of terrorist action.301 The subjective element includes the motives and intention of the perpetrators.302 The subjective element is traced back to the roots of terrorism in the French Revolution to create a climate of terror and fear within the population or parts of the population.303 But with respect to t4e modem definition of terrorism, the element of fear and insecurity is only a sufficient subjective element but not a necessary requirement, implying that if the intention of intimidating the population is present, the intention of coercing the government is not a necessary additional requirement.304

On the other hand, rebellion is an act of armed resistance to an established government or leader. Conflicts between liberation movements and an established government present a unique form of conflict which would involve both guerrilla and regular armed warfare.305 International law distinguishes between 3 categories or stages of challenges to established state authority, on an ascending scale, (1) rebellion, (2) insurgency, and (3) belligerency.306

Insurgency is of a more serious nature than rebellion in that some scholars are of the opinion that the conferring of the status as "insurgents" brings them out of the scope of municipal law and onto the international law forum.307 Insurgency would constitute a civil disturbance which is usually confined to a limited area of the territory of the state and is supported by a minimum degree of organization.308 Under the material field of application test, a dissident armed group can claim the status of insurgent only when it is under responsible command and exercises such control over a part of its territory as to enable it to carry out sustained and concerted military operations.309

Belligerency is the final category of a challenge to an established government recognized by international law.310 The lnstitut de Droit International, in the Resolution on Insurrection adopted in 1900 laid down the necessary criteria for a state of belligerency to be recognized: (1) insurgents had occupied a certain part of the State territory, (2) established a government which exercised the rights inherent in sovereignty on that part of territory, and (3) if they conducted the hostilities by organized troops kept under military discipline and complying with the laws and customs of war.311

Article 134 of the Revised Penal Code defines rebellion:

[t]he crime of rebellion or insurrection is committed by rising publicly and taking arms against the government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.312

The elements of rebellion can be summarized as follows:

[F]irst, that there be (a) public uprising and (b) taking arms against the government; second, that the purpose of the uprising or movement is either (a) to remove from the allegiance to said government or its laws (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives.313

In contrast, the crime of terrorism has 3 elements, (1) the predicate crime committed, (2) the effect of the perpetration of the crime (to sow and create widespread and extraordinary fear), and (3) the purpose of which is to coerce the government to give in to an unlawful demand.

The difference between terrorists and rebels boils down to their intention. Terrorists use fear and violence to advance their agenda or ideology, which may or may not be political in nature. While rebels use violence as a form of strategy to obtain their goal of destabilizing or overthrowing the government in order to gain control over a part of or the entire national territory. If rebels succeed in overthrowing the government, then they install themselves as the ruling party and their status is legitimized.

Under Republic Act 93 72, otherwise known as the Human Security Act of 2007, rebellion is punished as a form of terrorism:

Section 3. Terrorism -Any person who commits an act punishable under any of the following provisions of the Revised Penal Code:

a. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);

b. Article 134 (Rebellion or Insurrection);

c. Article 134-a (Coup d' Etat), including acts committed by private persons;

d. Article 248 (Murder);

e. Article 267 (Kidnapping and Serious Illegal Detention);

f. Article 324 (Crimes Involving Destruction), or under

g. Presidential Decree No. 1613 (The Law on Arson);

h. Republic Act No. 6969 (Toxic Substances and Hazardous Nuclear Waste Control Act of 1990);

i. Republic Act No. 6235 (Anti-Hijacking Law);

j. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974); and

k. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions, or Explosives)

Thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. (Emphasis supplied)

In its broader sense, rebellion falls under terrorism because of its resort to violence, which in turn creates widespread fear and panic, to attain its goals of overthrowing the government. However, not all acts of terrorism can qualify as rebellion. Certainly, the acts of terrorism committed by the Maute Group and their allies, after the attempted service of warrants of arrests against their leaders and the disruption of their plans while trying to escape, is not rebellion in the context of Article 134 of the Revised Penal Code. It is certainly not the kind of rebellion that warrants martial law.

XIII

The danger of mischaracterizing the protagonists in the Marawi incident is that this Court will officially accord them with a status far from who they really are - common local criminals.

Rebellion is a political crime with the ultimate objective of overthrowing or replacing the current government. The acts comprising rebellion, no matter how violent or depraved they might be, are not considered separately from the crime of rebellion:

In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance to the Government the territory of the Philippine Islands or any part thereof, then it becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.314

Enrile v. Amin315 held that the crime of rebellion consists of many acts and described it as a vast movement of men and a complex net of intrigues and plots, including other acts committed in furtherance of the rebellion even when the crimes in themselves are deemed absorbed in the crime. Furthermore, Enrile posits that the theory of absorption in rebellion cases must not be confined to common crimes but also to offenses under special laws perpetrated in furtherance of the political offense.316

People v. Lovedioro317 ruled that the elements of rebellion, including political motive, must be clearly alleged in the Information. Nonetheless, "[t]he burden of demonstrating political motive falls on the defense, motive, being a state of mind which the accused, better than any individual knows."318

Being a political crime, the law has adopted a relatively benign319 attitude when it comes to rebellion. People v. Hernandez remarked that the deliberate downgrading of the penalty or treatment of rebellion in the law can be chalked up to the recognition that rebels. are usually created by "social and economic evils" in our society:

Thus, the settled policy of our laws on rebellion, since the beginning of the century, has been one of decided leniency, in comparison with the laws enforce during the Spanish regime. Such policy has not suffered the slightest alteration. Although the Government has, for the past five or six years, adopted a more vigorous course of action in the apprehension of violators of said law and in their prosecution the established policy of the State, as regards the punishment of the culprits has remained unchanged since 1932. It is not for us to consider the merits and demerits of such policy. This falls within the province of the policymaking branch of the government[,] the Congress of the Philippines.320

Despite the law's benign attitude towards the local terrorist groups, by characterizing them as rebels, we risk giving the impression that what are mere sporadic or isolated acts of violence during peacetime, which are considered law enforcement problems, have been transformed to a non-international armed conflict covered under International Humanitarian Law.321

International Humanitarian Law applies during an armed conflict. An armed conflict is defined as (1) any use of force or armed violence between States (international armed conflict), or (2) a protracted armed violence between governmental authorities and organized armed groups, or between such groups within that State (non-international armed conflict).322

Rebellion may be considered (a) an international armed conflict if it is waged by a national liberation movement, (b) a non-international armed conflict if the fighting is protracted and it is committed by an organized armed group that has control of territory under Additional Protocol II, or (c) a law enforcement situation outside the contemplation of International Humanitarian Law if there is no armed conflict as defined by the Geneva Convention, and if the rebels are not members of an organized armed group, as defined by Additional Protocol II.

Under Additional Protocol II, organized armed groups are those that (a) are under a responsible command and (b) exercise such control over a part of their territory as to enable them to (c) carry out sustained and concerted military operations and to implement this Protocol.323

The situation in Mindanao is not one waged by a national liberation movement that would call into application the rules during an international armed conflict. At present, the Philippines is not occupied by a foreign invader or colonist; neither is it being run by a regime that seeks to persecute an entire race. The combatant status applies only during an international armed conflict. Because there is no international armed conflict here, those who take up arms against the government are not considered combatants. As a consequence, they are not immune for acts of war and do not have prisoner-of-war status.

The armed hostilities in Marawi, if at all, may be considered a non-international armed conflict if the Maute group falls under the category of "organized armed group" and if the fighting may be considered "protracted" under Additional Protocol II.

Assuming there is a non-international armed conflict, those who directly participate in hostilities in Mindanao are considered unlawful fighters, not combatants. As unlawful fighters, they are not immune from prosecution for their acts of war. They also do not enjoy prisoner-of-war status; they are merely war detainees.

Finally, if there is no protracted armed violence by an organized armed group, then the rebellion is an entirely law enforcement situation. Article 1 (2) of Additional Protocol II states that situations of riots, internal disturbances and "isolated and sporadic acts" of violence are outside the concerns of International Humanitarian Laws.324 When there is no armed conflict, there is only a law enforcement situation. The use of force is limited and the participants in the violence are liable for common crimes.

The terrorists responsible for the armed hostilities in Marawi cannot be considered rebels. It is true that they may have discussed the possibility of a caliphate. Yet, from all the evidence presented, they are incapable of actually holding territory long enough to govern. Their current intentions donot appear to be to establish a government in Marawi. In all the presentations of the respondents, it was clear that government was able to disrupt the terrorists and the hostilities that resulted were part of the defensive posture of those involved in the terror plot. The armed hostilities in Marawi are not the spark that would supposedly lead to conflagration and the burning down of the entirety of Mindanao due to rebellion.

The Maute Group are terrorists, pure and simple. They are not rebels within the constitutional meaning of the term, neither is there armed conflict as understood under International Humanitarian Law.

XIV

Declaring Proclamation No. 216 and related issuances as unconstitutional will not have an effect on Proclamation No. 55.

Although embodied in the same section, the calling out power of the President is in a different category from the power to proclaim martial law and suspend the privilege of the writ of habeas corpus.

Integrated Bar of the Philippines v. Zamora325 classified the calling out power of the President as "no more than the maintenance of peace and order and promotion of the general welfare."326

The calling out power of the President can be activated to prevent or suppress lawless violence, invasion, or rebellion. Among the three Commander-in-Chief powers mentioned in Article VII, Section 18, the calling out power is the most benign compared to the suspension of the privilege of the writ of habeas corpus and the proclamation of martial law.327

Additionally, unlike the proclamation of martial law or suspension of the privilege of the writ of habeas corpus which must concur with the twin requirements of actual invasion or rebellion and necessity of public safety, no such conditions are attached to the President's calling out power. The only requirement imposed by the Constitution is that "whenever it becomes necessary [the President] may call out such armed forces to prevent or suppress lawless violence, invasion, or rebellion."328

Integrated Bar of the Philippines329 emphasized that the full discretionary power of the President to call out the armed forces is evident in the President's power as Commander-in-Chief under Article VII, Section 18. The lack of Legislative and Judicial review of the calling out power likewise reinforces the President's full discretion when it comes to calling out the armed forces to maintain peace and order.330

Clearly, this Court's ruling on the petitions questioning Proclamation No. 216 will not affect or will have no bearing on Proclamation No. 55 or the declaration of a state of national emergency on account of lawless violence in Mindanao. The calling out order of the President pursuant to Proclamation No. 55 will still be in effect even if this Court ends up striking down Proclamation No. 216 due to lack of constitutionality.

Declaring Proclamation No. 216 as unconstitutional therefore will have no effect on the ongoing military operations in the remaining barangays in Marawi. Neither will it have any effect on military operations ongoing in other parts of the country including Mindanao as a result of Proclamation No. 55.

XVI

The words we choose can have violent consequences.

Characterizing or labeling events on the basis of the categories that law provides is quintessentially a legal act. It is not a power granted to the President alone even as Commander-in-Chief. It is the power wielded by this country's judiciary with finality. Through that power entrusted to us by the sovereign Filipino people, we temper the potentials of force. We ensure the protection of rights which embed our societies' values; the same values, which the terrorists may want us to deny or destroy.

I acknowledge the hostilities in Marawi and the valiant efforts of our troops to quell the violence. I acknowledge the huge pain and sacrifice suffered by many of our citizens as they bear the brunt of violent confrontations. I share the suffering of those who, in moments of callous reaction by members of a majority of our society influenced by a postcolonial culture of intolerance, have to live . through the stigma of undeserved stereotypes. To be Muslim has never meant complicity with themisguided acts of fanatics who appropriate religion for irrational selfish ends.

With due respect to my colleagues, I cannot join them in their acceptance of the President's categorization of the events in Marawi as equivalent to the rebellion mentioned in Article VII, Section 18. In conscience, I do not see the situation as providing for the kind of necessity for the imposition of martial law in Marawi, as well as throughout the entire Mindanao.

Rather, I read the situation as amounting to acts of terrorism, which should be addressed in a decisive but more precise manner. The military can quell the violence. It can disrupt many of the planned atrocities that may yet to come. It can do so as it had on many occasions in the past with the current legal arsenal that it has.

In my view, respondents have failed to show what additional legal powers will be added by martial law except perhaps to potentially put on the shoulders of the Armed Forces of the Philippines the responsibilities and burdens of the entire civilian government over the entire Mindanao region. I know the Armed Forces of the Philippines to be more professional than this narrative.

I honor the sacrifices of many by calling our enemy with their proper names: terrorists capable of committing atrocious acts. They are not rebels desirous of a viable political alternative that can be accepted by any of our societies. With their plans disrupted and with their bankrupt fanaticism for a nihilist apocalypse, they are reduced to a fighting force violently trying to escape. They are not a rebel group that can hope to achieve and hold any ground.

As terrorists, they should be rooted out through the partnership produced by the eyes and ears of our communities and the swift decisive hand of our coercive forces. They cannot be found and kept in check by a false sense of security created by the narrative of martial law.

History teaches us that to rely on the iron fist of an authoritarian backed up by the police and the military to solve our deep-seated social problems that spawn terrorism is fallacy. The ghost of Marcos' Martial Law lives within the words of our Constitution and rightly so. That ghost must be exorcised with passion by this Court whenever its resemblance reappears.

Never again should this court allow itself to step aside when the powerful invoke vague powers that feed on fear but could potentially undermine our most cherished rights. Never again should we fall victim to a false narrative that a vague declaration of martial law is good for us no matter the circumstances. We should have the courage to never again clothe authoritarianism in any disguise with the mantle of constitutionality.

The extremist views of religious fanatics will never take hold in our communities for so long as they enjoy the fundamental rights guaranteed by our constitution. There will be no radicals for so long as our government is open and tolerant of the activism of others who demand a more egalitarian, tolerant and socially just society.

We all need to fight the long war against terrorism. This needs patience, community participation, precision, and a sophisticated strategy that respects rights, and at the same time uses force decisively at the right time and in the right way. The terrorist wins when we suspend all that we believe in. The terrorist wins when we replace social justice with disempowering authoritarianism.

We should temper our fears with reason. Otherwise, we succumb to the effects of the weapons of terror. We should dissent - even resist - when offered the farce that martial law is necessary because it is only an exclamation point.

For these reasons, I dissent.

ACCORDINGLY, I vote to grant the Petitions. Proclamation No. 216 of May 23 2017, General Order No. 1 of 2017, and all the issuances related to these Presidential Issuances are unconstitutional.

MARVIC M.V.F. LEONEN
Associate Justice


Footnotes

1 REV. PEN. CODE, art. 134.

2 OSG Memorandum, Annex 4 of Annex 2, Rules of Engagement (ROE) for Operational Directive 02- 17, p. 12.

3 OSG Memorandum, pp. 28-29.

4 CONST., art. VIII, sec. 5 provides:

Section 5. The Supreme Court shall have the following powers: (1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

5 OSG Memorandum, p. 30.

6 Angara v. Electoral Commission, 63 Phil 139, 156-157 (1936) [Per J. Laurel, En Banc].

7 63 Phil.139 (1936) [Per J. Laurel, En Banc].

8 Id. at 158.

9 See J. Brion's concurring opinion in Villanueva v. Judicial and Bar Council, G.R. No. 211833 April 7, 2015, 755 SCRA 182, 217-218 [Per J. Reyes, En Banc].

10 Biraogo v. The Philippine Truth Commission of 2010, 651 Phil. 374, 438 (2010) [Per J. Mendoza, En Banc], citing Senate of the Philippines v. Ermita, 522 Phil. 1, 27 (2006) [Per J. Carpio Morales, En Banc] and Francisco v. House of Representatives, 460 Phil. 830, 842 (2003) [Per J. Carpio Morales, En Banc].

11 Belgica v. Ochoa, 721 Phil. 416, 526-527 (2013) [Per J. Perlas-Bernabe, En Banc]; Spouses Imbong v. Ochoa, 732 Phil. 1, 120-121 (2014) [Per J. Mendoza, En Banc]; Arau/lo v. Aquino, 737 Phil. 457, 524-525 (2014) [Per J. Bersamin, En Banc].

12 Estrada v. Desierto, 406 Phil 1, 42-43 (2001) [Per J. Puno, En Banc].

13 See Justice Marvic M.V.F. Leonen's concurring opinion in Belgica v. Ochoa, 721 Phil 416, 670-671 (2013) [Per J. Perlas-Bernabe, En Banc], citing I RECORDS OF THE CONSTITUTIONAL COMMISSION (1986) No. 27.

"[T]he role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the Solicitor General set up the defense of political questions and got away with it."

14 CONST., art. VII, sec. 18.

15 Pascual v. Burgos, G.R. No. 171722, January 11, 2016, 778 SCRA 189, 204 [Per J. Leonen, Second Division].

16 RULES OF COURT. Rule 3, sec. 2.

17 684 Phil 526 (2012) [Per J. Abad, En Banc].

18 Id. at 586, citing BERNAS, THE INTENT OF THE 1986 CONSTITUTION WRITERS 474 (1995 ed.).

19 Diocese of Bacolod v. Commission on Elections, 751 Phil. 301, 329-330 (2015) [Per J. Leonen, En Banc].

20 Roque, Jr. et al. v. Commission on Elections, 615 Phil. 149, 201 (2009) [Per J. Velasco, En Banc].

21 Francisco v. The House of Representatives, 460 Phil. 830, 883 (2003) [Per J. Carpio Morales, En Banc].

22 See J. Leonen's Concurring Opinion in Belgica v. Ochoa, 721 Phil 416, 670-671 (2013) [Per J. Perlas-Bernabe, En Banc], citing I RECORDS OF THE CONSTITUTIONAL COMMISSION (1986), No. 27.

23 Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc., G.R. Nos. 207132 & 207205, December 6, 2016, <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20l6/december2016/207132.pdf> [Per J. Brion, En Banc].

24 Id. at 12.

25 Ocampo v. Enriquez, G.R. Nos. 225973, 225984, 226097, 226116, 226117, 226120 & 226294, November 8, 2016 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/20l6/november2016/225973 .pdf> 15 [Per J. Peralta, En Banc], citing Almario, et al. v. Executive Secretary, et al., 714 Phil. 127, 169 (2013) [Per J. Leonardo-De Castro, En Banc].

26 5 Phil 87 (1905) [Per J. Johnson, En Banc].

27 Id.

28 Id. at 96.

29 Id. at 107.

30 Id. at 115.

31 91 Phil 882 (1952) [Per J. Bengzon].

32 Id. at 887.

33 91 Phil 882 (1952) [Per J. Bengzon].

34 In the Matter of the Petition for Habeas Corpus of Lansang et al. v. Garcia, 149 Phil. 547, 585-586 (1971) [Per C.J. Concepcion, En Banc].

35 149 Phil. 547 (1971) [Per C.J. Concepcion, En Banc].

36 Id. at 585-586.

37 Id. at 586.

38 Id. at 591.

39 Id. at 598-599.

40 In the Matter of the Petition for Habeas Corpus of Benigno S. Aquino Jr. et al. v Enrile, 158-A Phil. I, 45 (1974) [Per C.J. Makalintal, En Banc].

41 Id.

42 Id. at 49.

43 Id. at 49-50.

44 Id.

45 Id. at 47-48.

46 206 Phil. 392 (1983) [Per J. De Castro, En Banc]. (Note: This case is more commonly referred to as Garcia-Padilla v. Enrile.)

47 Id. at 431-432.

48 Id. at 453-454.

49 Id. at 454.

50 206 Phil. 466 (1983) [Per J. Concepcion, Jr., En Banc].

51 Id. at 496.

52 Id.

53 David v. Senate Electoral Tribunal, G.R. No. 221538, September 20, 2016 < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/september2016/221538.pdt> [Per J. Leonen, En Banc].

54 Id.

55 See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 666- 667 (2000) [Per J. Kapunan, En Banc].

56 Article XVI, Section 6 and Article X, Section 21 of the Constitution.

57 Rep. Act No. 4864, sec. 7 or the The Police Act of 1966.

58 G.R. Nos. 212426 & 212444, January 12, 2016, 779 SCRA 241 [Per C.J. Sereno, En Banc].

59 Id. at 301-302.

60 530 Phil. 399 (2006) [Per J. Tinga, En Banc].

61 Id. at 420-422.

62 690 Phil. 70 (2012) [Per J. Sereno, En Banc].

63 Id. at 90-93.

64 755 Phil. 296 (2015) [Per J. Leonen, Second Division].

65 Id. at 311-316.

66 J.V. Capua The Early History of Martial Law in England from the Fourteenth Century to the Petition of Right, 36 CAMBRIDGE L.J. 152 (1977).

67 327 U.S. 304 (1946) [Per J. Stone] citing Luther v. Borden, 48 U.S. (7 How.) I (1849) [Per J. Taney].

68 Id.

69 Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) [Per J. Davis]

70 Id.

71 Evolution of the Revolution, PRESIDENTIAL MUSEUM AND LIBRARY <http://malacanang.gov.ph/7824- evolution-of-the-revolution/> (last accessed on June 22, 2017).

72 Ambeth Ocampo, Martial law in 1896. PHILIPPINE DAILY INQUIRER, December 18, 2009, <https://www.pressreader.com/philippines/philippine-daily-inquirer/20091218/28318007957 l 432> (last accessed June 22, 2017).

73 Id.

74 Proc. No. 29 (1944).

75 Dr. Jose P. Laurel as President of the Second Philippine Republic, PRESIDENTIAL MUSEUM AND LIBRARY <http://malacanang.gov.ph/5237-dr-jose-p-Iaurel-as-president-of-the-second-philippinerepublic/#_ edn7> (last accessed July 3, 2017).

76 Proc. No. 30 (1944).

77 Proc. No. 1081 (1972).

78 Gen. Order No. 1 (1972).

79 Gen. Order No. 2 (1972).

80 Gen. Order No. 3 (1972).

81 Gen. Order No. 4 (1972).

82 Gen. Order No. 5 (1972).

83 Gen. Order No. 6 (1972).

84 Gen. Order No. 5 (1972).

85 People of the Philippines v.Piedra, 403 Phil. 31 (2001) [Per J. Kapunan, First Division].

86 646 Phil. 452 (2010) [Per J. Carpio Morales, En Banc].

87 Id. at 488.

88 403 Phil. 31 (2001) [Per J. Kapunan, First Division].

89 Id. at 47.

90 Id. at 47-48.

91 421Phil290 (2001) [Per J. Belosillo, En Banc].

92 Id. at 352.

93 Id.at351-352.

94 Id. at 352.

95 646 Phil. 452 (2010) [Per J. Carpio- Morales, En Banc].

96 Id. at 492.

97 727 Phil. 28(2014) [Per J. Abad, En Banc].

98 Id. at 327.

99 Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712, 719 [Per Gutierrez, Jr., En Banc].

100 G.R. No. 103956, March 31, 1992, 207 SCRA 712 [Per Gutierrez, Jr., En Banc].

101 Id.at720-721.

102 646 Phil. 452 (2010) [Per J. Carpio- Morales, En Banc].

103 Id. at 490.

104 Id.

105 727 Phil. 28 (2014) [Per J. Abad, En Banc].

106 Id. at 308-328.

107 421 Phil. 290 (2001) [Per J. Bellosillo, En Banc].

108 Id. at 354.

109 646 Phil. 452 (2010) [Per J. Carpio- Morales, En Banc].

110 Id. at 488.

111 Id.at490-491.

112 Southern Hemisphere Engagement Network, Inc., v. Anti-Terrorism Council, 646 Phil. 452, 492-493 (2010) [Per J. Carpio- Morales, En Banc].

113 Id.

114 OSG Memorandum, Annex 3, pp. 3-6 and 9.

115 646 Phil. 452 (2010) [Per J. Carpio- Morales, En Banc].

116 Id. at 492.

117 727 Phil. 28 (2014) [Per J. Abad, En Banc].

118 Id. at 121-122.

119 545 Phil. 441 (2008) [Per J. Puno, En Banc].

120 Id. at 491-492.

121 217 Phil. 302 (1984) [Per J. Plana, En Banc].

122 Id. at 312.

123 217 Phil. 302 (1984) [Per J. Plana, En Banc].

124 Gen. Order No. 1 (2017), sec. 6.

125 OSG Memorandum, Annex 3 of Annex 2, Operations Directive 02-2017.

126 OSG Memorandum, Annex 4 of Annex 2, Rules of Engagement (ROE) for Operational Directive 02- 17, p. 12.

127 Joson v. Mendoza, 505 Phil. 208, 219 (2005) [Per J. Chico-Nazario, Second Division].

128 OSG Memorandum, pp. 51-55.

129 CONST., art. VII, sec. 18.

130 CONST., art. VII, sec. 18.

131 CONST., art. XI, sec. 2 provides:

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution[.]

132 See Background to "Assessing Russian Activities and Intentions in Recent US Elections": The Analytic Process and Cyber Incident Attribution, DEPARTMENT OF NATIONAL INTELLIGENCE, January 6, 2017 <https://www.dni.gov/files/documents/ICA 2017 01.pdf> I (last visited June 28, 2017).

133 Id.

134 Eric Rosenbach and Aki J. Peritz, Confrontation or Collaboration? Congress and the Intelligence Community, BELFER CENTER, <http://www. belfercenter .org/ sit es/ defau It/files/ fi Jes/pub I ication/inte 11 igence-basics. pdf> 4-5 (visited June 29, 2017).

135 Id. at 4.

136 Intelligence Branch, FEDERAL BUREAU OF INVESTIGATION, <https://www.fbi.gov/about/leadershipand- structure/intelligence-branch> (visited June 29, 2017).

137 Eric Rosenbach and Aki J. Peritz, Confrontation or Collaboration? Congress and the Intelligence Community, BELFER CENTER <http://www.belfercenter.org/sites/default/files/files/publication/intelligence-basics.pdf> 4 (last visited June 29, 2017).

138 Intelligence Branch, FEDERAL BUREAU OF INVESTIGATION, <https://www.fbi.gov/about/leadershipand- structure/intelligence-branch> (last visited June 29, 2017).

139 Eric Rosenbach and Aki J. Peritz, Confrontation or Collaboration? Congress and the Intelligence Community, BELFER CENTER <http://www.belfercenter.org/sites/default/files/files/publication/intelligence-basics.pdf> 4 (last visited June 29, 2017).

140 Id.

141 Intelligence Branch, FEDERAL BUREAU OF INVESTIGATION, <https://www.fbi.gov/about/leadershipand- structure/intelligence-branch> (visited June 29, 2017).

142 Eric Rosenbach and Aki J. Peritz, Confrontation or Collaboration? Congress and the Intelligence Community, BELFER CENTER http://www.belfercenter.org/sites/default/files/files/publication/intelligence-basics.pdf> 4 (visited June 29, 2017).

143 Id. at 5.

144 Id. at 5.

145 Intelligence Branch, FEDERAL BUREAU OF INVESTIGATION, <https://www.fbi.gov/about/leadershipand- structure/intelligence-branch> (visited June 29, 2017).

146 Background to "Assessing Russian Activities and Intentions in Recent US Elections": The Analytic Process and Cyber Incident Attribution, DEPARTMENT OF NATIONAL INTELLIGENCE, January 6, 2017 <https://www.dni.gov/files/documents/ICA 2017 O l .pdf> 1 (last visited June 28, 2017).

147 Chester L. Cooper, The CIA and Decision-Making, 50 FOREIGN AFF. 223, 224 (1972).

148 Id.

149 Id.

150 Id.

151 Background to "Assessing Russian Activities and Intentions in Recent US Elections": The Analytic Process and Cyber Incident Attribution, DEPARTMENT OF NATIONAL INTELLIGENCE, January 6, 2017 <https://www.dni.gov/files/documents/ICA 2017 O l.pdf> 1 (last visited June 28, 2017).

152 Id.

153 Id. at 1.

154 Id. at 13.

155 Id.

156 Id.

157 Id. at 1.

158 Id.

159 Id.

160 Carmela Fonbuena, Zamboanga siege: Tales from the combat zone, RAPPLER, September 13, 20l4<http://www.rappler.com/newsbreak/68885-zamboanga-siege-light-reaction-battalion> (last visited June 27, 2017).

161 Id.

162 Id.

163 Ina Reformina, DOJ indicts 88 over Mamasapano carnage, ABS-CBN NEWS, August 15, 2016 <http://news.abs-cbn.com/news/08/l 5/ 16/doj-indicts-88-over-mamasapano-camage> (last visited June 27, 2017).

164 Cynthia D. Balana, Mamasapano clash: What happened according to the military, INQUIRER.NET, February 7, 2015 <http://newsinfo.inquirer.net/671126/mamasapano-clash-what-happened-accordingto- the-military> (last visited July 3, 2017).

165 Frances Mangosing, Its official: MILF killed Bas it Usman -AFP, PHILIPPINE DAILY INQUIRER, May 6, 2015 <http://newsinfo.inquirer.net/689608/its-official-milf-killed-basit-usman-afp> (last visited July 3, 2017).

166 Cynthia D. Balana, Mamasapano clash: What happened according to the military, INQUIRER.NET, February 7, 2015 <http://newsinfo.inquirer.net/671126/mamasapano-clash-what-happened-accordingto- the-military> (last visited July 3, 2017).

167 Ina Reformina, DOJ indicts 88 over Mamasapano carnage, ABS-CBN NEWS, August 15, 2016 <http://news.abs-cbn.com/news/08/l 5/ 16/doj-indicts-88-over-mamasapano-camage> (last visited June 27, 2017).

168 Proc. No. 216 (2017).

169 Alexis Romero, 3 soldiers killed, 11 hurt in Lanao de! Sur clash, THE PHILIPPINE STAR, February 26, 2016 <http://www.philstar.com/nation/2016/02/26/1557058/3-soldiers-killed- l l-hurt-lanao-del-surclash > (last visited June 28, 2017)

170 Proc. No. 216 (2017).

171 Agence France-Presse, Muslim extremists stage mass jailbreak in Marawi City, INQUIRER.NET, August 28, 2016 <http://newsinfo.inquirer.net/810455/muslim-extremists-stage-mass-jailbreak-inmarawi- city >(last accessed June 28, 2017).

172 Bobby Lagsa, Terror leader escapes in Lanao de! Sur jailbreak, RAPPLER, August 28, 2016 < http://www.rappler.com/nation/ 144405-prionsers-escape-jail-raid-lanao-del-sur> (last accessed June 28,2017).

173 Proc. No. 216 (2017).

174 Jigger J. Jerusalem, Hospital in Marawi not taken over by Maute -medical center chief, INQUIRER. NET, May 28, 2017 <http://newsinfo.inquirer.net/900299/hospital-in-marawi-not-taken-over-by-mautemedical- center-chief> (last accessed June 28, 2017).

175 Id.

176 Gerry Lee Gorit, Marawi City hospital not overrun - official, THE PHILIPPINE ST AR, May 29, 2017 < http://www.philstar.com/headlines/2017/05/29/1704661 /marawi-city-hospital-not-overrun-official> (last accessed June 28, 2017).

177 Jigger Jerusalem, Hospital in Marawi not tuken over by Maute -medical center chief, INQUIRER.NET, May 28, 2017 <http://newsinfo.inquirer.net/900299/hospital-in-marawi-not-taken-over-by-mautemedical- center-chief >(last accessed June 28, 2017).

178 Gerry Lee Gorit, Marawi City hospital not overrun - official, THE PHILIPPINE STAR, May 29, 2017 < http://www.philstar.com/headlines/2017/05/29/1704661 /marawi-city-hospital-not-overrun-official> (last accessed June 28, 2017).

179 Janvic Mateo, FACT CHECK: inconsistencies in Duterte 's martial fow report, THE PHILIPPINE STAR, May 31, 2017 <http://www.philstar.com:8080/headlines. 2017 /05/3111705369/fact-checkinconsistencies- dutertes-martial-law-report> (last accessed June 28, 2017).

180 Id.

181 Proc. No. 216 (2017).

182 Ver Marcelo, Gov'tforces, Maute group clash in Marawi City, CNN PHILIPPINES, May 23, 2017, < http://cnnphilippines.com/news/2017 /05/23/marawi-city-clash.htm1 > (last accessed June 28, 2017).

183 Proc. No. 216 (2017).

184 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte 's martial law report, THE PHILIPPINE STAR, May 31, 2017, <http://www.phi1star.com:8080/head1ines/2017/05/31/1705369/fact-checkinconsistencies- dutertes-martial-law-report> (last accessed June 28, 2017).

185 Id.

186 Id.

187 3 fires break out in Marawi as clashes rage, RAPPLER, May 23, 2017 < http://www.rappler.com/nation/170738-fires-marawi-city-maute-attack> (last accessed June 28, 2017).

188 Proc. No. 216 (2017).

189 Maute Group waves !SIS black flag on Marawi streets, RAPPLER, May 23, 2017, < http://www.rappler.com/nation/170729-marawi-city-black-flag-maute> (last accessed June 28, 2017).

190 John Unson, Maute group frees 107 inmates amid clashes in Marawi City, THE PHILIPPINE ST AR, May24, 2017 <http://www.philstar.com/headlines/2017/05/24/1703188/maute-group-frees-107-inmatesamid- c1ashes-marawi-city> (last accessed June 28, 2017).

191 President's Report to Congress, p. 3.

192 CNN Philippines Staff, Four more suspects in Davao City bombing arrested, CNN PHILIPPINES, October 29, 2016 <http://cnnphilippines.com/regional/2016110/29/Davao-City-bombing-suspectsarrested. html> (last accessed on June 27, 2017).

193 President's Report to Congress, p. 3.

194 John Unson, Cop hurt in North Cotabato roadside bombing, THE PHILIPPINE ST AR, May 26, 2017 <http://www. philstar .com/nation/2017/05/26/1703 828/ cop-hurt-north-cotabato-roadside-bombing> (last accessed June 27, 2017).

195 President's Report to Congress, p. 3.

196 Edwin Fernandez, 8 hurt in Tacurong twin explosions, INQUIRER.NET, April 17, 2017<http://newsinfo.inquirer.net/889856/8-hurt-in-tacurong-twin-explosions> (last accessed June 27, 2017)

197 President's Report to Congress, p. 3.

198 John Unson, Basil an mayor survives roadside bomb attack, THE PHILIPPINE ST AR, February 4, 2017 <http://www.philstar.com/nation/2017/02/04/1669016/basilan-mayor-survives-roadside-bomb-attack> (last accessed June 27, 2017).

199 President's Report to Congress, p. 3.

200 Ruth Abbey Gita, et al., Troops, Maute group clash in Marawi City; 3 dead, 12 injured, SUNST AR PHILIPPINES, May 23, 2017 <http://www.sunstar.com.ph/cagayan-de-oro/localnews/ 2017 /05/25/troops-maute-group-clash-marawi-city-3-dead-l 2-injured-543446> (last accessed June 27, 2017).

201 President's Report to Congress, p. 4.

202 Francis Wakefield, Maute, ASG gunmen clash with troops in Marawi; 5 soldiers wounded, MANILA BULLETIN, May 24, 2017 <http://news.mb.eom.ph/2017 /05/23/maute-asg-gunmen-clash-with-troopsin- marawi-5-soldiers-wounded/> (last accessed June 27, 2017).

203 Audrey Morallo, AFP: Marawi clashes part of security operation, not terrorist attack, THE PHILIPPINE STAR, May 23, 2017 <http://www.philstar.com/headlines/2017/05/23/1702885/afp-marawi-clashespart- security-operation-not-terrorist-attack> (last accessed June 27, 2017).

204 Francis Wakefield, Maute, ASG gunmen clash with troops in Marawi; 5 soldiers wounded, MANILA BULLETIN, May 24, 2017 < http://news.mb.corn.ph/2017 /05/23/maute-asg-gunmen-clash-with-troopsin- marawi-5-soldiers-wounded/> (last accessed June 27, 2017).

205 President's Report to Congress, p. 4.

206 John Unson, Maute group frees 107 inmates amid clashes in Marawi City, THE PHILIPPINE ST AR, May 24, 2017 <http://www.philstar.com/headlines/2017 /05/24/1703188/maute-group-frees- l 07-inmatesamid- clashes-marawi-city> (last accessed June 27, 2017).

207 President's Report to Congress, p. 4.

208 John Unson, Maute group frees 107 inmates amid clashes in Marawi City, THE PHILIPPINE ST AR, May 24, 2017 <http://www.philstar.com/headlines/2017 /05/24/1703188/maute-group-frees- l 07-inmatesamid- clashes-marawi-city> (last accessed June 27, 2017).

209 President's Report to Congress, p. 4.

210 DOE: Power supply in Marawi cut, SUNSTAR, May 25, 2017 <http://www.sunstar.com. ph/manila/local-news/2017 /05/25/doe-power-supply-marawi-cut-543 897> (last accessed June 27, 2017).

211 Id.

212 President's Report to Congress, p. 4.

213 Regine Cabato, Marawi Mayor: Police station, city jail not burned, CNN PHILIPPINES, May 24, 2017 <http://cnnphilippines.com/news/2017 /05/24 /marawi-mayor-police-station-city-jail-not-burned.html> (last accessed June 27, 2017).

214 Frances Mangosing, No takeover of gov 't facilities in Marawi by A bus, Maute - mayor, INQUIRER.NET, May 23, 2017 <http://newsinfo.inquirer.net/898833/no-takeover-of-govt-facilities-in-marawi-saysmayor> (last accessed June 27, 2017).

215 Id.

216 President's Report to Congress, p. 4.

217 Chiara Zambrano, Maute terrorists still control key Marawi City bridges, ABS-CBN NEWS, May 31, 2017 <http://news.abs-cbn.com/news/05/30/17i1naute-terrorists-sti11-contro 1-key-marawi-city-bridges> (last accessed June 27, 2017).

218 President's Report to Congress, p. 5.

219 Regine Cabato, Marawi Mayor: Police station, city jail not burned, CNN PHILIPPINES, May 24, 2017 <http://cnnphilippines.com/news/2017/05/24/marawi-mayor-po lice-station-city-j ai I-not-burned. htm I> (last accessed June 27, 2017).

220 Patricia Lourdes Viray, Bishop: Maute burned Marawi cathedral, abducted priest, THE PHILIPPINE STAR, May 24, 2017 <http://www.philstar.com/headlines/2017 /05/24/1703149/bishop-maute-bumedmarawi- cathedral-abducted-priest> (last accessed June 27, 2017).

221 Prelature of Marawi, CATHOLIC BISHOP CONFERENCE OF THE PHILIPPINES <http://www.cbcponline.net/marawi/html/parishes.html> (last accessed July 3, 2017).

222 President's Report to Congress, p. 5.

223 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte's martial law report, THE PHILIPPINE STAR, May 31, 2017 <http://www.philstar.com:8080/headlines/2017/05/31/1705369/fact-checkinconsistencies- dutertes-martial-law-report> (last accessed June 27, 2017).

224 President's Report to Congress, p. 5.

225 Janvic Mateo, DepEd: Opening of classes in Marawi to push through, THE PHILIPPINE STAR, May 24, 2017 <http://www.philstar.com/nation/2017/05/24/1703412/deped-opening-classes-marawi-pushthrough> (last accessed June 27, 2017).

226 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte 's martial law report, THE PHILIPPINE STAR, May 31, 2017 <http://www.philstar.com:8080/headlines/2017 /05/31/1705369/fact-checkinconsistencies- dutertes-martial-law-report> (last accessed June 27, 2017).

230 President's Report to Congress, p. 5.

231 Gerry Lee Gorit, Marawi City hospital not overrun-official, THE PHILIPPINE STAR, May 29, 2017 <http://www.philstar.com/headlines/2017 /05/29/1704661 /marawi-city-hospital-not-overrun-official> (last accessed June 27, 2017).

232 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte's martial law report, THE PHILIPPINE STAR, May 31, 2017 <http://www.philstar.com:8080/headlines/2017/05/3 l/l 705369/fact-checkinconsistencies- dutertes-martial-law-report> (last accessed June 27, 2017).

233 Id.

234 President's Report to Congress, p. 5.

235 Janvic Mateo, FACT CHECK: Inconsistencies in Duterte's martial law report, THE PHILIPPINE STAR, May 31, 2017 <http://www.philstar.com:8080/headlines/2017/05/31/l 705369/fact-checkinconsistencies- dutertes-martial-law-report> (last accessed June 27, 2017).

236 Id.

237 Consolidated Comment, p. 5.

238 OSG Memorandum, p. 5.

239 Id.

240 Id. at 7.

241 Id.

242 Harold D. Lasswell, The Theory of Political Propaganda, 21 AMERICAN POLITICAL SCIENCE REVIEW 627 (1927), also available in <https://www.jstor.org/stable/l9455l5?seq=1#fndtnpage scan tab_ contents> (last visited July 3, 2017).

243 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia, Report No. 33, October 25, 2016, <http://file.understandingcontlict.org/file/2016/10/lPAC _ Report_33.pdf> 3 (last accessed June 30, 2017).

244 Id. at 4.

245 Id.

246 Id.

247 Id. at 4.

248 Id. at 18.

249 Id. at 18-19.

250 Id. at 19.

251 Id. at 19.

252 Id. at 19.

253 Philippines kills leader of Islamic linked militant group in clash, REUTERS, January 5, 2017 <http://www.reuters.com/article/us-philippines-security-idUSKBN 14Pl 7I> (accessed June 30, 2017); OSG Memorandum, p. 8.

254 OSG Memorandum, Annex 3 of Annex 2, Operations Directive 02-2017.

255 Appendix I (Joint Intelligence Estimate) to Annex B - Intelligence Support Plan to Operations Directive 02-2017. Confidential Intelligence Document, which cannot be quoted in full but made available to all the Justices by the respondents.

256 OSG Memorandum Annex 2, Affidavit, General Eduardo M. Ano, Chief of Staff AFP, p. 3-5.

257 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia, Report No. 33, October 25, 2016, <http://file.understandingconflict.org/file/2016/1 O/IPAC __ Report 33.pdt> 2 (last accessed June 30, 2017).

258 OSG Memorandum, p. 6.

259 Id.

260 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia <http://file. understandingconflict.org/file/2016/ 1 O/IPAC Report_ 3 3. pdf> 3-4 (last accessed June 30, 2017).

261 OSG Memorandum pp. 8-11.

262 OSG Memorandum, Annex 9 of Annex 2, Significant Atrocities in Mindanao Prior to the Marawi City Incident.

263 Id.

264 Id.

265 Id.

266 OSG Memorandum, p. 4.

267 Id.

268 Id.

269 Id.

270 Id.

271 Id. at 5-6.

272 Id. at 6.

273 Id. at 7.

274 Id. at 7-8.

275 Id.

276 Id. at 8.

277 Id. at 5-6.

278 Id. at l2-13.

279 Graeme Wood, What ISIS Really Wants, THE ATLANTIC, March 2015 <https://www.theatlantic.com/magazine/archive/2015/03/what-is is-really-wants/3 84980/> (last accessed July 3, 2017).

280 HAFEZ, MOHAMMED M., SUICIDE BOMBERS IN IRAQ: THE STRATEGY AND IDEOLOGY OF MARTYRDOM, pp. 68-70.

281 Graeme Wood, What ISIS Really Wants, THE ATLANTIC, March 2015 <https://www.theatlantic.com/magazine/archive/2015/03/what-isis-really-wants/384980/> (last accessed July 3, 2017).

282 Franco, J., The Maute Group -New Vanguard of IS in Southeast Asia, RSIS COMMENTARY (2017).

283 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their links to Indonesia and Malaysia <http://file.understandingconflict.org/file/2016/1 O/IPAC _ Report_33.pdt> 2 (last accessed June 30, 2017).

284 Graeme Wood, What ISIS Really Wants, THE ATLANTIC, March 2015 <https://www .theatlantic.com/magazine/archive/2015/03/what-isis-really-wants/3 84980/> (last accessed July 3, 2017).

285 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia <http://file. understandingconflict.org/file/2016/1 O/IP AC_ Report _3 3 .pdf.> 7 (last accessed June 30, 2017).

286 Institute for Policy Analysis of Conflict, Pro-Isis Groups in Mindanao and their Links to Indonesia and Malaysia <http://file. understandingconflict.org/file/2016/ 1 O/IPAC Report_ 33 .pdt> 4 (last accessed June 30, 2017).

287 OSG Memorandum, p. 7.

288 Rebecca Gould, Hijra Before ISIS, THE MONTREAL REVIEW (2015), <http://www.themontrealreview.com/2009/Hijra-before-ISIS.php >(last accessed July 3, 2017).

289 Id.

290 OSG Memorandum, p. 69.

291 Id. at 65.

292 OSG Comment, Annex 3, p. I.

293 Rebecca Gould, Hijra Before ISIS, THE MONTREAL REVIEW (2015), <http://www.themontrealreview.com/2009/Hijra-before-ISIS.php > (last accessed July 3, 2017).

294 W Graeme Wood, What !SIS Really Wants, THE ATLANTIC, March 2015 <https://www .theatlantic.com/magazine/archive/2015/03/what-isis-really-wants/384980/> (last accessed July 3, 2017).

295 Comm. Report No. 120, dated March 15, 2015, p. 50.

296 22 U.S. Code section 2656f(D)(2)

297 United States Department of Defense, DOD Dictionary of Military and Associated Terms 23 8 (June 2017), <http://www.dtic.mil/doctrine/new pubs/dictionary.pdf> (last accessed July 3, 2017).

298 Francois Lopez, lf Publicity is the Oxygen of Terrorism - Why Do Terrorists Kill Journalists?, 10 PERSPECTIVES ON TERRORISM, <http://www.terrorismanalysts.com/pt/index.php/pot/article/view/490/html> (last accessed on June 30, 2017)

299 UN General Assembly Resolution 49/60, Measures to Eliminate International Terrorism (1994).

300 Arizona Department of Emergency and Military Affairs, Various Definitions of Terrorism, <https:// dema.az.gov /sites/ default/files/Publications/ AR-Terrorism%20 Definitions-BORUNDA. pdf> (last accessed July 3, 2017).

301 Christian Walter, Defining Terrorism in National and International Law 5 (2003). <https://www.unodc.org/tldb/bibliography/Biblio_Terr_De(_Walter_2003.pdf>

302 Id.

303 Id.

304 Id. at 6-7.

305 Noelle Higgins, The Application of International Humanitarian Law to Wars of National Liberation, JOURNAL OF HUMAN IT ARIAN ASSISTANCE 2 (2004).

306 Id. at 6.

307 Id. at 7.

308 Id. at 8.

309 Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), art. I (1977).

310 Noelle Higgins, The Application of International Humanitarian Law to Wars of National Liberation, JOURNAL OF HUMANITARIAN ASSISTANCE 9 (April 2004) <http://sites.tufts.edu/jha/files/2011/04/al32.pdt>

311 Id.

312 REV. PEN. CODE, art. 134.

313 See Justice Angelina Sandoval-Guttierez' Dissenting Opinion in Lacson v. Perez, 410 Phil. 78, 123 (2001) [Per J. Melo, En Banc].

314 People v. Hernandez, 99 Phil 515, 535-536 (1956) [Per J. Concepcion, En Banc].

315 267 Phil. 603 (1990) [Per J. Gutierrez, Jr., En Banc]

316 Id. at 610-611.

317 320 Phil. 481 (1995) [Per J. Kapunan, First Division].

318 Id. at 489.

319 Id.

320 People v. Hernandez, 99 Phil 5 I 5, 549 (1956) [Per J. Concepcion, En Banc].

321 What is International Humanitarian Law?, International Committee on Red Cross, <https://www.icrc.org/eng/assets/files/othcr/what_is_ihl.pdf.> (last accessed July 3, 2017).

322 Rep. Act No. 985 I, sec. 3 (c) provides:

Section 3.

. . . .

(c) "Armed conflict" means any use of force or armed violence between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within that State: Provided, That such force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 194Q, including their common Article 3, apply. Armed conflict may be international, that is, between two (2) or more States, including belligerent occupation; or non-international, that is, between governmental authorities and organized armed groups or between such groups within a state. It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

323 Additional Protocol II, art. 1, para. 1.

324 Rep. Act No. 9851, sec. 3(c).

325 392 Phil. 618 (2000) [Per J. Kapunan, En Banc].

326 Id. at 636.

327 Id. at 643.

328 CONST., art. VII, sec. 18.

329 392 Phil. 618 (2000) [Per J. Kapunan, En Banc].

330 Id. at 640-642.


The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

CAGUIOA, J.:

"In any civilized society the most important task is achieving a proper balance between freedom and order."1

Petitioners come to the Court for the determination of the sufficiency of the factual basis of the May 23, 2017 declaration of martial law and suspension of the privilege of the writ of habeas corpus via Proclamation No. 216.2

The sufficiency of factual basis for the
declaration of martial law or suspension of
the privilege of the writ is a justiciable
question by Section 18's express provision.

At the outset, it cannot be gainsaid - indeed, it is now hornbook - that the constitutionality of the declaration of martial law and suspension of the privilege of the writ is no longer a political question within the operation of the 1987 Constitution. No attempt should be countenanced to return to that time when such a grave constitutional question affecting the workings of government and the enjoyment by the people of their civil liberties is placed beyond the ambit of judicial scrutiny as long as the Court remains faithful to the Constitution.

The declaration of martial law and suspension of the privilege of the writ are justiciable questions by express authorization of the third paragraph of Section 18, Article VII of the Constitution.

The language of the provision and the intent of the framers3 clearly foreclose any argument of non-justiciability. Moreover, the question before the Court does not squarely fall within any of the formulations of a political question.4 Concretely, even as the first paragraph of Section 18 commits to the Executive the issue of the declaration of martial law and suspension of the privilege of the writ, the third paragraph commits the review to the Court and provides the standards to use therein - unmistakably carving out the question from those that are political in nature. Clearly, no full discretionary authority on the part of the Executive was granted by the Constitution in the declaration of martial law and suspension of the privilege of the writ. As well, insofar as Section 18 lays down the mechanics of government in times of emergency, it is precisely the province of the Court to say what the law is.

The power of the Executive to declare martial law and to suspend the privilege of the writ, and the review by the Court of the sufficiency of the factual basis thereof, are bounded by Article VII, Section 18 of the Constitution:

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.

The third paragraph of Section 18 is a
grant of jurisdiction to the Court.

Jurisdiction is conferred by the Constitution and by law. Article VII, Section 18 of the Constitution positively grants the Court the power to review the sufficiency of the factual basis of the declaration of martial law and suspension of the privilege of the writ; hence, there is absolutely no need to find another textual anchor for the exercise of jurisdiction by the Court apart from Section 18's express conferment. The Court has never attempted to draw distinctions or formulae to determine whether a provision that grants authority grants jurisdiction, or merely lays the basis for the exercise of jurisdiction. To my mind, this is a distinction - semantic or philosophical - that is simply misplaced in this exercise.

Thus, I agree with the ponencia that Section 18 contemplates a sui generis proceeding set into motion by a petition of any citizen. Plainly, Section 18 is a neutral and straightforward fact-checking mechanism, shorn of any political color whatsoever, by which any citizen can invoke the aid of the Court - an independent and apolitical branch of government - to determine the necessity of the Executive's declaration of martial law or suspension of the privilege of the writ based on the facts obtaining.

Given its sui generis nature, the scope of a Section 18 petition and the workings of the Court's review cannot be limited by comparison to other cases over which the Court exercises jurisdiction - primarily, petitions for certiorari under Rule 65 of the Rules of Court and Article VIII, Section 1.

The review under the third paragraph of
Section 18 is mandatory.

It has been proposed that the review is discretionary upon the Court, given the use of the word "may," and further supported by arguments that an interpretation that the review is mandatory will lead to absurdity, to clogging of the Court's dockets, and that the 30-day period to decide Section 18 petitions are taxing for the Court and executive officials.

The argument is untenable - it reduces the provision to mere lip service if the Court can shirk its duty by exercising its discretion in the manner so suggested. While the word "may" is usually construed as directory, it does not invariably mean that it cannot be construed as mandatory when it is in this sense that the statute (in this case, the Constitution), construed as a whole, can accomplish its intended effect.5

I submit that the only reasonable interpretation within the context and object of the Constitution is that the review is mandatory. Keeping in mind that "under our constitutional scheme, the Supreme Court is the ultimate guardian of the Constitution, particularly of the allocation of powers, the guarantee of individual liberties and the assurance of the people's sovereignty,"6 the Court's review rises to the level of a public duty owed by the Court to the sovereign people - to determine, independent of the political branches of government, the sufficiency of the factual basis, and to provide the Executive the venue to inform the public.

A Section 18 proceeding filed by any citizen is sui
generis, and entails a factual and legal review.

I concur with the ponencia that a Section 18 petition may be filed by any citizen. The Court, as intimated above, should not add any qualification for the enjoyment of this clear and evident right apart from what is stated in the provision, especially when the intent of the framers was to clearly relax the question of standing.7

In determining the nature and requirements of the Court's review, guidance can be had from the language of the provision and the intent of the framers. Both show that the review contemplated is both factual and legal in nature. As the framers discussed:

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

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

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

MR. PADILLA. It is for the President as commander-in-chief of the Armed Forces to appraise these reports and be satisfied that the public safety demands the suspension of the writ. After all, this can also be raised before the Supreme Court as in the declaration of martial law because it will no longer be, as the former Solicitor General always contended, a political issue. It becomes now a justiciable issue. The Supreme Court may even investigate the factual background in support of the suspension of the writ or the declaration of martial law.8 (Emphasis supplied)

The constitutional mandate to review, as worded and intended, necessarily requires the Court to delve into both factual and legal issues indispensable to the final determination of the "sufficiency of the factual basis" of the declaration of martial law and suspension of the privilege of the writ. This cannot be resisted by the mere expediency of relying on the rule that the Court is not a trier of facts; indeed, even when it sits as an appellate court, the Court has recognized exceptions when examination of evidence and determination of questions of fact are proper.9

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

Viewed in this light, the government is called upon to embrace this mechanism because it provides the Executive yet another opportunity to lay before the sovereign people its reasons for the declaration of martial law or suspension of the privilege of the writ, if it had not already done so. This requires the Executive to meaningfully take part in this mechanism in a manner that breathes life to the mandate of the Constitution. In the same manner, the Court is also mandated to embrace this fact-checking mechanism, and not find reasons of avoidance by, for example, resorting to procedural niceties.

Under Section 18, the Executive has the
burden of proof by substantial evidence.

Apropos to the question of the burden of proof and threshold of evidence under a Section 18 petition, I submit that fixing the burden of proof upon the petitioners in a neutral and straightforward fact-checking mechanism is egregious error because:

First, there is nothing in the language of Section 18 or the deliberations to show that it fixes or was intended to fix the burden of proof upon the citizen applying to the Court for review;

Second, a Section 18 petition is neither a civil action nor akin to one, but is in the nature of an application to the Court to determine the sufficiency of the factual basis. It is not required to carry a concurrent claim that there was lack or insufficiency of factual basis. Hence, the fixing of burden of proof to the citizen constitutes undue burden to prove aclaim (positive or negative) when no claim was necessarily made;

Third and most important, considering 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 in 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.

In his dissenting opinion in Fortun v. Macapagal-Arroyo10 where former President Macapagal-Arroyo's proclamation of martial law in Maguindanao was questioned, Senior Associate Justice Antonio T. Carpio opined that probable cause to believe the existence of either invasion or rebellion satisfies the standard of proof for a valid declaration of martial law and suspension of the writ. He explained:

Probable cause, basically premised on common sense, is the most reasonable, most practical, and most expedient standard by which the President can fully ascertain the existence or non-existence of rebellion, necessary for a declaration of martial law or suspension of the writ. Therefore, lacking probable cause of the existence of rebellion, a declaration of martial law or suspension of the writ is without any basis and thus, unconstitutional.

The requirement of probable cause for the declaration of martial law or suspension of the writ is consistent with Section 18, Article VII of the Constitution. It is only upon the existence of probable cause that a person can be ''judicially charged" under the last two paragraphs of Section 18, Article VII, to wit:

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.11 (Emphasis supplied)

I concur with the ponencia's holding that the threshold of evidence for the requirement of rebellion or invasion is probable cause, consistent with Justice Carpio's dissenting opinion in Fortun. It is sufficient for the Executive to show that at the time of the declaration of martial law or suspension of the privilege of the writ, there "[existed] such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense [rebellion] has been committed."12

This standard of proof upon the Executive confirms my position that the burden of proof is originally and continually borne by the Executive throughout the entire fact-checking proceeding, for clearly, the petitioning citizen cannot be expected to prove or disprove the factual basis that is within the exclusive knowledge only of the Executive.

For truly, the Executive does not receive evidence in determining the existence of actual rebellion - only such facts and circumstances that would lead to the belief that there is actual rebellion. However, to satisfy the Court of the sufficiency of the factual basis of the declaration of martial law and the suspension of the privilege of the writ (i.e. that indeed, probable cause to believe that actual rebellion existed at the time of the proclamation, and that public safety required it), the Executive must be able to present substantial evidence tending to show both requirements.

Substantial evidence is more than a mere scintilla of evidence. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might conceivably opine otherwise.13

To me, the requirement of "sufficiency" in a Section 18 proceeding is analogous to the "substantial evidence" standard in administrative fact-finding. The Executive needs to reveal so much of its factual basis for the declaration of martial law and suspension of the privilege of the writ so that it produces in the mind of the Court the conclusion that the declaration and suspension meets the requirements of the Constitution. Otherwise, the Court's finding of sufficiency becomes anchored upon bare allegations, or silence. In any proceeding, mere allegation or claim is not evidence; neither is it equivalent to proof.14

For the same reason, I submit that presumption of regularity or constitutionality cannot be relied upon, neither by the Executive nor the Court, to declare that there is sufficient factual basis for the declaration of martial law or the suspension of the writ. The presumption disposes of the need to present evidence - which is totally opposite to the fact-checking exercise of Section 18; to be sure, reliance on the presumption in the face of an express constitutional requirement amounts to a failure by the Executive to show sufficient factual basis, and judicial rubberstamping on the part of the Court.

A Section 18 review is a test of sufficiency
and not arbitrariness.

The ponencia stated that one of the functions of Section 18 is to constitutionalize the holding in Lansang v. Garcia,15 a case questioning the suspension of the privilege of the writ. In Lansang, the Court inquired into the existence of the factual bases of the proclamation to determine the constitutional sufficiency thereof and applied arbitrariness as a standard of review. It explained:

Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.

In the exercise of such authority, the function of the Court is merely to check - not to supplant - the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To be sure, the power of the Court to determine the validity of the contested proclamation is far from being identical to, or even comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal from inferior courts, in which cases the appellate court has all of the powers of the court of origin.

Under the principle of separation of powers and the system of checks and balances, the judicial authority to review decisions of administrative bodies or agencies is much more limited, as regards findings of fact made in said decisions. Under the English law, the reviewing court determines only whether there is some evidentiary basis for the contested administrative finding; no quantitative examination of the supporting evidence is undertaken. The administrative finding can be interfered with only if there is no evidence whatsoever in support thereof, ~d said finding is, accordingly, arbitrary, capricious and obviously unauthorized. This view has been adopted by some American courts. It has, likewise, been adhered to in a number of Philippine cases. Other cases, in both jurisdictions, have applied the "substantial evidence" rule, which has been construed to mean "more than a mere scintilla" or "relevant evidence as a reasonable mind might accept as adequate to support a conclusion," even if other minds equally reasonable might conceivably opine otherwise.

Manifestly, however, this approach refers to the review of administrative determinations involving the exercise of quasi-judicial functions calling for or entailing the reception of evidence. It does not and cannot be applied, in its aforesaid form, in testing the validity of an act of Congress or of the Executive, such as the suspension of the privilege of the writ of habeas corpus, for, as a general rule, neither body takes evidence - in the sense in which the term is used in judicial proceedings - before enacting a legislation or suspending the writ. Referring to the test of the validity of a statute, the Supreme Court of the United States, speaking through Mr. Justice Roberts, expressed, in the leading case of Nebbia v. New York, the view that:

"x x x If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio ... With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal ... "

Relying upon this view, it is urged by the Solicitor General –

"x x x that judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the Court not that the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily."

No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-equality of coordinate branches of the Government, under our constitutional system, seems to demand that the test of the validity of acts of Congress and of those of the Executive be, mutatis mutandis, fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper standard is not correctness, but arbitrariness.16

The standard of review in Lansang was sound, as situated in the context of Article VII, Section 10, paragraph 2 of the 1935 Constitution. At the time, the power to declare martial law and suspend the privilege of the writ was textually-committed to the Executive without a corresponding commitment to the Court of a review. Even then, on the basis of the principle of checks and balances, the Court determined the constitutionality of the suspension by satisfying itself of some existence of factual basis - or the absence of arbitrariness - without explicit authority from the Constitution then in force.

Lansang's holding that the sufficiency of the factual basis of the suspension of the privilege of the writ is not a political question stands as stated in the third paragraph of Section 18. However, given the changing contours of and safeguards imposed upon the Executive's power to declare martial law and suspend the privilege of the writ, Lansang is no longer the standard of review under the 1987 Constitution.

Obviously, the mechanics under the 1935 and 1987 Constitutions belong to different factual and legal milieu. The 1987 Constitution now positively mandates the Court to review the "sufficiency of the factual basis" of the President's declaration of martial law or suspension of the privilege of the writ; the deliberations show an unmistakable and widely-held intent to remove the question of the sufficiency of the factual basis for the declaration of martial law and suspension of the privilege of the writ from the category of political questions that are beyond judicial scrutiny.17

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

Thus, if the Executive satisfies the requirement of showing sufficient factual basis, then the proclamation is upheld, and the sovereign people are either informed of the factual basis or assured that such has been reviewed by the Court. If the Executive fails to show sufficient factual basis, then the proclamation is nullified and the people are restored to full enjoyment of their civil liberties.

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

Accordingly, I disagree with the ponencia's statement that in the review of the sufficiency of the factual basis, the Court can only consider the information and data available to the President prior to or at the time of the declaration and that it is not allowed to undertake an independent investigation beyond the pleadings. The reliance on Macapagal-Arroyo18 and IBP v. Zamora19 is misplaced because these cases deal with the exercise of calling out powers over which the Executive has the widest discretion, and which is not subject to judicial review,20 unlike the declaration of martial law and suspension of the privilege of the writ. To recall, even then, the check on exercise of powers by the Executive was not merely arbitrariness, but "an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion."21

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

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

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

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

In this sense, the evaluation of sufficiency is necessarily transitory.22

Therefore, while I concur with the holding that probable cause is the standard of proof to show the existence of actual rebellion at the time of the proclamation, I submit that the second requirement of public safety (i.e., necessity) is a continuing requirement that must still exist during the review, and that the Court is not temporally bound to the time of the declaration of martial law or suspension of the privilege of the writ in determining the requirements of public safety.

The factual basis for the declaration
includes both the existence of actual
rebellion and the requirements of public
safety.

Proceeding now to the crux of the controversy, the Court must look into the factual basis of both requirements for the declaration of martial law and suspension of the privilege of the writ: (1) the existence of actual rebellion or invasion; and (2) the requirements of public safety. Necessity creates the conditions of martial law and at the same time limits the scope of martial law.23 This is apparent from the following exchange:

MR. VILLACORTA. Thank you, Madam President.

Just two more short questions. Section 15, lines 26 to 28, states:

The President shall be the commander-in-chief of all the armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces ...

I wonder if it would be better to transfer the phrase "whenever it becomes necessary" after the phrase "armed forces," so that it would read: "The President shall be the commander-in-chief of all the armed forces of the Philippines and HE MAY CALL OUT SUCH ARMED FORCES WHENEVER IT BECOMES NECESSARY to prevent or suppress lawless violence, invasion or rebellion." My point here is that the calling out of the Armed Forces will be limited only to the necessity of preventing or suppressing lawless violence, invasion or rebellion. As it is situated now, the phrase "whenever it becomes necessary" becomes too discretionary on the part of the President. And we know that in the past, it had been abused because the perception and judgment as to necessity was completely left to the discretion of the President. Whereas if it is placed in the manner that I am suggesting, the necessity would only pertain to suppression and prevention of lawless violence, invasion or rebellion. May I know the reaction of the Committee to that observation?

x x x x

MR. VILLACORTA. I see. Therefore, the Committee does not see any difference wherever the phrase "whenever it becomes necessary" is placed.

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus; then he can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review.x x x24 (Emphasis supplied)

Also:

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. 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.25 (Emphasis supplied)

Rebellion under Section 18 is understood
as rebellion defined in Article 134 of the
Revised Penal Code.

I concur with the ponencia that the rebellion mentioned in the Constitution refers to rebellion as defined in Article 134 of the Revised Penal Code.

The gravamen of the crime of rebellion is an armed public uprising against the government. By its very nature, rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot be confined a priori within predetermined bounds.26 The crime of rebellion requires the concurrence of intent and overt act; it is integrated by the coexistence of both the armed uprising for the purposes expressed in Article 134 of the Revised Penal Code, and the overt acts of violence described in the first paragraph of Article 135. Both purpose and overt acts are essential elements of the crime and without their concurrence the crime of rebellion cannot legally exist.27

Returning to Section 18, the powers to declare martial law and to suspend the privilege of the writ are further limited through the deletion of insurrection and the phrase "or imminent danger thereof' from the enumeration of grounds upon which these powers may be exercised, thereby confining such grounds to actual rebellion or actual invasion, when public safety so requires. This is seen from the deliberations which show that the calling out powers of the President are already sufficient to prevent or suppress "imminent danger" of invasion, rebellion or insurrection, thus:

MR. CONCEPCION. The elimination of the phrase "IN CASE OF IMMINENT DANGER THEREOF" is due to the fact that the President may call the Armed Forces to prevent or suppress invasion, rebellion or insurrection. That dispenses with the need of suspending the privilege of the writ of habeas corpus. References have been made to the 1935 and 1973 Constitutions. The 1935 Constitution was based on the provisions of the Jones Law of 1916 and the Philippine Bill of 1902 which granted the American Governor General, as representative of the government of the United States, the right to avail of the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law in the event of imminent danger. And President Quezon, when the 1935 Constitution was in the process of being drafted, claimed that he should not be denied a right given to the American Governor General as if he were less than the American Governor General. But he overlooked the fact that under the Jones Law and the Philippine Bill of 1902, we were colonies of the United States, so the Governor General was given an authority, on behalf of the sovereign, over the territory under the sovereignty of the United States. Now, there is no more reason for the inclusion of the phrase "OR IMMINENT DANGER THEREOF" in connection with the writ of habeas corpus. As a matter of fact, the very Constitution of the United States does not mention "imminent danger." In lieu of that, there is a provision on the authority of the President as Commander-in-Chief to call the Armed Forces to prevent or suppress rebellion or invasion and, therefore, "imminent danger" is already included there.28 (Emphasis supplied)

There _is sufficient showing that, at the time
of the proclamation, probable cause existed
for the actual rebellion in Marawi City.

The armed public uprising in Marawi City is self-evident. The use of heavy artillery and the hostile nature of attacks against both civilians and the armed forces are strongly indicative of an uprising against the Government. The multitude of criminal elements as well as the concerted manner of uprising therefore satisfies the first element of the crime of rebellion.

Anent the second element of intent, the Executive's presentation of its military officials and intelligence reports in camera showed probable cause to believe that the intent component of the rebellion exists - that the Maute group sought to establish a "wilayah," or caliphate in Lanao del Sur of extremist network ISIS,29 which has yet to officially acknowledge the said group. The video footage recovered by the military showing the plans of the Maute· Group to attack Marawi City further evidences the plan to remove Marawi City from its allegiance to the Government of the Republic of the Philippines.30

I adopt Chief Justice Sereno's findings of fact and find, based on the totality of the evidence presented, that it has been sufficiently shown that at the time of the declaration of martial law and the suspension of the privilege of the writ, the information known to the Executive constituted probable cause to believe that there was actual rebellion in Marawi City.

Needless to state, the finding of probable cause to believe that rebellion exists in this case is solely for the purpose of reviewing the sufficiency of the factual basis for the declaration of martial law and suspension of the privilege of the writ; it does not serve to determine the existence of the separate criteria for an objective characterization of a non-international armed conflict. The application of International Humanitarian Law (IHL) is a measure of prudence and humanity, and does not, in any way, legitimize these terrorist groups, to use the appropriate appellation.

There is insufficient showing that the
requirements of public safety necessitated
the declaration of martial law over the
entire Mindanao.

The second indispensable requirement that must be shown by the Executive is that public safety calls for the declaration of martial law and suspension of the privilege of the writ. Here, there can be no serious disagreement 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.

According to Fr. Bernas:

Martial law depends on two factual bases: (1) the existence of invasion or rebellion, and (2) the requirements of public safety. Necessity creates the conditions for martial law and at the same time limits the scope of martial law. Certainly, the necessities created by a state of invasion would be different from those created by rebellion. Necessarily, therefore, the degree and kind of vigorous executive action needed to meet the varying kinds and degrees of emergency could not be identical under all conditions. They can only be analogous.31

Due to the incorporation of several safeguards, Philippine martial law is now subject to standards that are even stricter than those enforced in connection with martial law in sensu strictiore, in view of the greater limitations imposed upon military participation. Hence, to determine sufficiency of the factual basis of Proclamation 216 in a manner faithful to the 1987 Constitution, such determination must necessarily be done within this strict framework.

That necessity is part of the review is seen in the following:

MR. VILLACORTA.x x x

x x x x

The President shall be the commander-in-chief of all the armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces ...

I wonder if it would be better to transfer the phrase "whenever it becomes necessary" after the phrase "armed forces," so that it would read: "The President shall be the commander-in-chief of all the armed forces of the Philippines and HE MAY CALL OUT SUCH ARMED FORCES WHENEVER IT BECOMES NECESSARY to prevent or suppress lawless violence, invasion or rebellion." My point here is that the calling out of the Armed Forces will be limited only to the necessity of preventing or suppressing lawless violence, invasion or rebellion. As it is situated now, the phrase "whenever it becomes necessary" becomes too discretionary on the part of the President. And we know that in the past, it had been abused because the perception and judgment as to necessity was completely left to the discretion of the President. Whereas if it is placed in the manner that I am suggesting, the necessity would only pertain to suppression and prevention of lawless violence, invasion or rebellion. May I know the reaction of the Committee to that observation?

x x x x

FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus; then he can impose martial law. This is a graduated sequence.

When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody.32 (Emphasis supplied)

While the ponencia holds that the scope of territorial application could either be "the Philippines or any part thereof' without qualification, this does not mean, as the ponencia holds, that the Executive has full and unfettered discretionary authority. The import of this holding will lead to a conclusion that the Executive needs only to show sufficient factual basis for the existence of actual rebellion in a given locality and then the territorial scope becomes its sole discretion. Ad absurdum. Under this formula, the existence of actual rebellion in Mavulis Island in Batanes, without more, is sufficient to declare martial law over the entire Philippines, or up to the southernmost part of Tawi-tawi. This overlooks the public safety requirement and is obviously not the result intended by the framers of the fact-checking mechanism.

Indeed, the requirement of actual rebellion serves to localize the scope of martial law to cover only the areas of armed public uprising. Necessarily, the initial scope of martial law is the place where there is actual rebellion, meaning, concurrence of the normative act of armed public uprising and the intent. Elsewhere, however, there must be a clear showing of the requirement of public safety necessitating the inclusion.

There is insufficient showing that there
was actual rebellion outside of Marawi
City.

Therefore, the Executive had the onus to present substantial evidence to show the necessity of placing the entire Mindanao under martial law. Unfortunately, the Executive failed to show this. In fact, during the interpellations, it was drawn out that there is no armed public uprising in the eastern portion of Mindanao, namely: Dinagat Island Province, Camiguin Island, Misamis Oriental, Misamis Occidental, Agusan, Zamboanga, Davao, Surigao, Pagadian, Dapitan.33

In this connection, it should be noted that even if principal offenders, conspirators, accomplices, or accessories to the rebellion flee to or are found in places where there is no armed public rising, this fact alone does not justify the extension of the effect of martial law to those areas.34 They can be pursued by the State under the concept of rebellion being a continuing crime, even without martial law.

In the landmark case of Umil v. Ramos,35 rebellion was designated as a "continuing crime" by the Court, wherein it sustained the validity of the arrest of a member of the NP A while the latter was being treated for a gunshot wound in the hospital. The accused therein, who was charged for violation of the Anti-Subversion Act, was arrested for being a member of the NP A, an outlawed subversive organization, despite not performing any overt act at the time of his arrest. Said the Court, citing Garcia-Padilla v. Enrile36 :

The record of the instant cases would show that the persons in whose behalf these petitions for habeas corpus have been filed, had freshly committed or were actually committing an offense, when apprehended, so that their arrests without a warrant were clearly justified, and that they are, further, detained by virtue of valid informations filed against them in court. x x x

As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said offense for his arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is unjustified.

However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing ~n offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. As stated by the Court in an earlier case:

"From the facts as above-narrated, the claim of the petitioners that they were initially arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance, on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction.

x x x x"37 (Emphasis supplied)

Without a showing that normative acts of rebellion are being committed in other areas of Mindanao, the standard of public safety requires a demonstration that these areas are so intimately or inextricably connected to the armed public uprising in order for them to be included in the scope of martial law. Otherwise, the situation in these areas merely constitute an "imminent threat" of rebellion which does not justify the declaration of martial law and suspension of the privilege of the writ in said areas.

In this sense, Justice Feliciano's observations in Lacson v. Perez38 applies with greater force in this case, i.e., 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. In Lacson, he said:

My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal detention or arson) but rather or such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. x x x39 (Emphasis supplied)

Corollary to the declaration of martial law and suspension of the privilege of the writ having been issued in Mindanao without a showing of actual rebellion except in Marawi City, the Executive also failed to show the necessity of the declaration of martial law and suspension of the privilege of the writ in the entire Mindanao to safeguard public safety.

During the oral arguments, the Solicitor General, gave non-answers to questions relating to the requirements of public safety over the entire Mindanao:

JUSTICE REYES:

So if the actual rebellion happened in Mindanao or specifically in Marawi City, would it be, why is it that the declarations of martial law covered the whole Mindanao?

SOLICITOR GENERAL CALIDA:

That was his political judgment at that time, Your Honor. And since our President comes from Davao City and has been mayor for so many years, he knows the peace and order situation in Davao. He has been talking to all the rebels of the other groups against government. He has information that is made available to him or to anybody else, Your Honor. And therefore I trust his judgment, Your Honor.40

The presentation of military officials heard in camera was similarly vague when it came to establishing the necessity of the declaration of martial law and suspension of the privilege of the writ in the entire Mindanao. Given that the only justification offered in these proceedings tends to show that the declaration of martial law41 is merely "beneficial" or "preferable," then the requirement of public safety is necessarily not met.

That something is beneficial or preferable does not automatically mean it is necessary - especially where, as here, the government could not articulate what "additional powers" it could or wanted to wield that Proclamation No. 55 (s. 2016)42 did not give them.

At this juncture, I submit that martial law grants no additional powers to the Executive and the military, unless the magnitude of the emergency has led to the collapse of civil government, or by the very fact of civil government performing its functions endangers public safety.43 This is the import of the fourth paragraph of Section 18. Perforce, the Bill of Rights remains in effect, and guarantees of individual freedoms (e.g. from arrests, searches, without determination of probable cause) should be honored subject to the well-defined exceptions that obtain in times of normalcy.

This is not to say, however, that the capability of the military to pursue the criminals outside of the area of armed public uprising should be curtailed. The Executive, prior to the declaration of martial law and the suspension of the privilege of the writ, had already exercised his calling out power through Proclamation No. 55 covering the entire island of Mindanao. The military remains fully empowered "to prevent or suppress lawless violence, invasion or rebellion," as Proclamation No. 55 remains valid and is not part of the scope of this Section 18 review.

The declaration of martial law is proper
only
-in Marawi City and certain
contiguous or adjacent areas.

The ponencia authorizes the operation of martial law over the entire Mindanao based on linkages established among rebel groups. While the Court is not so unreasonable not to accept arguments that other areas outside of the place of actual rebellion are so intimately or inextricably linked to the rebellion such that it is required to declare martial law to ensure public safety in those areas, or of operational or tactical necessity, there has been no showing, save for conclusionary statements, of specific reasons for the necessity that would justify the imposition of martial law and the suspension of the privilege of the writ over the entire island. Thus, I cannot agree with the ponencia that there is sufficient factual basis to declare martial law over the whole of Mindanao.

Verily, the existence of actual rebellion without the public safety requirement cannot be used as justification to extend the territorial scope of martial law to beyond the locale of actual rebellion. Extending martial law and the suspension of the privilege of the writ even to contiguous or adjacent areas cannot be done without a showing of actual rebellion in those areas or a demonstration that they are so inextricably connected to the actual rebellion that martial law and suspension of the privilege of the writ are necessary to ensure public safety in such places.

Unfortunately, the Executive was not able to show the necessity of the declaration over the entire island of Mindanao.

However, I find that sufficient factual basis was shown for the necessity of martial law and the suspension of the privilege of the writ only over Lanao del Sur and the other places identified by the Chief Justice in her separate dissenting opinion where she had shown the inextricable connection of these areas to the actual rebellion being waged in Marawi. Thus, I concur fully with the Chief Justice that sufficient factual basis has been shown to validate the proclamation of martial law and the suspension of the privilege of the writ over: Lanao del Sur, Maguindanao, and Sulu.

Conclusion

There is no question that the rebellion waged in Marawi city, and the fighting still happening there to this day, has instilled a fair amount of fear and terror in the hearts of the normal Filipino. There is no denying as well that the murders and atrocities being perpetrated by the Maute extremists, inspired by ISIS, evoke in the normal Filipino the urge for retribution and even create the notion that this group be exterminated, like the vermin that they are, at the soonest possible time and with all resources available, thus justifying a resort to martial rule not only in Marawi but over all of Mindanao. The members of the Court, being Filipinos themselves, are not immune from these emotions and gut reactions. However, the members of the Court are unlike the normal Filipino in that they have a duty to protect and uphold the Constitution - a duty each member swore to uphold when they took their oath of office.

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

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

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

Therefore, I vote to declare the proclamation of martial law over the entire Mindanao as having been issued without sufficient factual' basis. I concur with the findings and recommendations of the Chief Justice that martial law and the suspension of the privilege of the writ of habeas corpus can be justified only in Lanao del Sur, Maguindanao, and.Sulu.

ALFREDO BENJAMIN S. CAGUIOA
Associate justice


Footnotes

1 William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (1998) at p. 222.

2 Proclamation No. 216, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao."

3 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, p. 4 70 (1986).

4 As formulated in Baker v. Carr, 369 U.S. 186 (1962) and In re McConaughy, 119 NW, 408 (1909) as adopted in this jurisdiction as early as Tanada v. Cuenca (1957), and Casibang v. Aquino (I 979), and Marcos v. Manglapus (1989).

5 Crawford, Statutory Construction, page 104: "A statute, or one or more of its provisions, may be either mandatory or directory. While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to the construction of statutes; yet it may be stated, as general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience rather than of substance, are directory."

6 Dueñas, Jr. v. HRET, 610 Phil. 730, 742 (2009).

7 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 386, 392 (l 986).

8 Id. at 470.

9 Delos Reyes Vda. Del Prado v. People, 685 Phil. 149, 161 (2012); Sacay v. Sandiganbayan, 226 Phil. 496, 511-512 (1986).

10 684 Phil. 526 (2012).

11 Id. at 598.

12 Ho v. People, 345 Phil. 597, 608 (1997), citing Al/ado v. Diokno, 302 Phil. 213 (1994).

13 Miro v. Vda. De Erederos, 721 Phil. 772, 787 and 788-789 (2013).

14 See Sadhwani v. Court of Appeals, 346 Phil. 54, 67 (1997).

15 149 Phil. 547 (1971).

16 Id. at 592-594.

17 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 470, 476 and 482 (1986).

18 David v. Macapagal-Arroyo, 522 Phil. 705 (2006).

19 392 Phil. 618 (2000).

20 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 409, 412 (1986).

21 David v. Macapagal-Arroyo, supra note 18, at 766.

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

23 Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 919 (2009 ed.).

24 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 408-409 (1986).

25 Id. at 412.

26 People v. Lovedioro, 320 Phil. 481, 488 (1995).

27 People v. Geronimo, 100 Phil. 90, 95 (1956).

28 I RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 773-774 (I 986).

29 Respondents' Memorandum, pp. 5, 64-65.

30 Id. at 71.

31 Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 903 (2009 ed.).

32 II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 408-409 (1986).

33 TSN, June 14, 2017, pp. 126-128.

34 The June 6, 2017 arrest of Cayamora Maute, the father of the Maute brothers, in Davao City does not prove actual rebellion or public necessity of martial Jaw in Davao City - the elder Maute said that he only wanted to get himself treated at a hospital in Davao City because he had difficulty walking. The government had not offered any reason for the arrest. Similarly, the June 10, 2017 arrest of Ominta Romato Maute, the mother of the Maute brothers, in Masiu, Lanao del Sur, also does not, on its own, constitute rebellion and public necessity of martial Jaw in Lanao del Sur.

As well, the June 15, 2017 arrest of Mohammad Noaim Maute alias Abu Jadid, the alleged bomber of the Maute group, in Cagayan de Oro, could be justified under the concept of rebellion as a continuing crime, but does not show actual rebellion or public necessity of martial law in Cagayan de Oro.

35 265 Phil. 325 (1990).

36 206 Phil. 392 (1983).

37 Umil v. Ramos, supra note 35, at 334-336.

38 410 Phil. 78 (2001).

39 Id. at 109.

40 TSN, June 14, 2017, pp. 136-137.

41 TSN, June 15, 2017, pp. 53-54, 68-69 and 78.

42 Proclamation No. 55, series of2016, entitled "Declaring A State of National Emergency on Account of Lawless Violence in Mindanao."

43 Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 902 (2009 ed.), citing Duncan v. Kahanamoku, 327 U.S. 304, 323 (1946).


The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

VELASCO, JR., J.:

[I]f the principle be established that the commander who, under any circumstances whatsoever, assumed to enforce superior military power over the people and territory of his own country does so under ultimate legal responsibility for his acts, military rule is deprived of its terrors, and the law-abiding citizen sees in it nothing except the firm application for his benefit of the powerful military hand when civil institutions have ceased either wholly or at least effectively to perform their appropriate functions.1

- Brig. Gen. W.E. Birkhimer, former
Associate Justice of this Court

On the ground that the President correctly found probable cause of the existence of rebellion and that the public safety requires it, I concur in the ponencia sustaining the validity of Proclamation No. 216, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao."

Martial Law is the law of necessity in the actual presence of an armed conflict.2 The power to declare it is exercised precisely upon the principle of self-preservation in times of extreme emergency. To an extent, the power to declare Martial Law under Section 18, Article VII of the 1987 Constitution is similar to the citizen's right to self-defense under Article 11 of the Revised Penal Code (RPC), as unquestionably a State may use its military power to put down a rebellion too strong to be controlled by the civil authorities3 to preserve its "sovereignty ... and the integrity of [its] national territory."4

As it is a necessity-the confluence of the existence of an actual rebellion or invasion and the requirements of public safety-that gives the power to the President to proclaim Martial Law, such necessity must be shown to exist before such proclamation. However, as discussed in the ponencia, in deciding upon the existence of this necessity, the facts as they were presented to the President at the moment he made the proclamation must govern; his decision must be scrutinized based on the information that he possessed at the time he made the proclamation and not the information he acquired later. Thus, if the facts that were presented to him would excite a reasonable and prudent mind to believe that actual invasion or rebellion existed and the public safety required the imposition of Martial Law, the President is justified in acting on such belief. A subsequent discovery of the falsity of such facts will not render his act invalid at its inception.5

To this end, the President is not expected to act on proof beyond reasonable doubt as to the existence of actual invasion or rebellion and requirements of public safety. He must be able to act with urgency to best respond to the exigencies of the circumstances contemplated in Section 18, Article VII-actual invasion or rebellion. It should, therefore, be sufficient that he acts with the reasonableness and prudence of an average man to suitably respond to such events. Thus, probable cause is the evidentiary measure for the discretion given to the President's decision to proclaim a Martial Law. As in Fortun v. Macapagal,6 I find the following excerpts from the Brief of Amicus Curiae of Fr. Joaquin Bernas, S.J. still instructive in this case:

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 def eat 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.7

Certainly, the urgency of the circumstances envisioned under Section 18, Article VII of the Constitution requires the President to act with promptness and deliberate speed. He cannot be expected to check the accuracy of each and every detail of information relayed to him before he exercises any of the emergency powers granted to him by the Constitution. The window of opportunity to quell an actual rebellion or thwart an invasion is too small to admit delay. An expectation of infallibility on the part of the commander-in-chief may be at the price of our freedom.

As I have pointed out in Fortun,8 "the President cannot be expected to risk being too late before declaring Martial Law or suspending the writ of habeas corpus. The Constitution, as couched, does not require precision in establishing the fact of rebellion. The President is called to act as public safety requires."9 A degree of trust must, therefore, be accorded to the discretion exercised by the officer upon whom the exercise of emergency powers has been confided by the Constitution.

Notably, while Section 18, Article VII provides that "[t]he 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," it does not specify the "appropriate proceeding" that may be filed by a citizen for the purpose. Hence, in describing the nature of their petitions, petitioners Lagman, et al. and Cullamat, et al. would simply quote the third paragraph of Section 18, Article VII. Only petitioners Mohamad, et al. ventured further and maintained that its recourse is a "special proceeding."

It would be problematic for this Court to pigeonhole a petition praying for an inquiry into the "sufficiency of the factual basis of the proclamation of martial law" under any of the rules issued by this Court. Doing so may put undue procedural constraint on petitioners, defeating the intent underlying the provision. Given the exigencies of the circumstances considered in Section 18, Article VII of the Constitution, I concede that there is wisdom in the position that a petition praying for an inquiry into the "sufficiency of the factual basis of the proclamation of martial law" is sui generis.

This Court held in David v. Macapagal-Arroyo,10 however, that the sufficiency of the factual basis for an emergency power must be measured not according to correctness but arbitrariness. The Court held:

As to how the Court may inquire into the President's exercise of power, Lansang adopted the test that "judicial inquiry can go no further than to satisfy the Court not that the President's decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness. In Integrated Bar of the Philippines, this Court further ruled that "it is incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion, then "this Court cannot undertake an independent investigation beyond the pleadings."

In line with this, the yardstick available to this Court in gauging "arbitrariness" is found in Section 1, Article VIII of 1987, which fortifies the expanded certiorari jurisdiction of this Court and, thus, allows it to "review what was before a forbidden territory, to wit, the discretion of the political departments of the government. "11 Section 1, Article VIU of the Constitution provides:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The provision's relation to the "appropriate proceeding" mentioned in Section 18, Article VII was spelled out by former Chief Justice and Constitutional Commissioner Roberto Concepcion in his sponsorship speech. He said:

The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political question and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x

x x x x

Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.12

Thus, where a proclamation of Martial Law is bereft of sufficient factual basis, this Court can strike down the proclamation as having been made with "a grave abuse of discretion amounting to lack or excess of jurisdiction." Otherwise, the President's determination of the degree of power demanded by the circumstances must stand.13 Resolving a challenge against the exercise of an emergency power, this Court held in Integrated Bar of the Philippines v. Zamora:14

On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the insurgency problem could spill over the other parts of the country. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a temporary restraining order every time it is exercised.

Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was gravely abused, the President's exercise of judgment deserves to be accorded respect from this Court.15

On this score, the President did not commit a grave abuse of discretion in issuing Proclamation No. 216, given the facts he was confronted with, including but not limited to the following:

1. A state of national emergency on account of lawless violence was declared in Mindanao on September 4, 2016;

2. The Maute Group published a video declaring their allegiance to the Islamic State of Iraq and Syria (ISIS);

3. The Maute group attacked a military outpost in Butig, Lanao del Sur in February 2016;

4. The Maute Group caused a mass jailbreak in Marawi City in August 2016;

5. A hospital was taken over by the Maute Group on May 23, 2017;

6. Several government and private facilities were set ablaze by the Maute terrorist group;

7. Members of the Maute group hoisted the ISIS flag;

8. A city-wide power outage set in as sporadic gunfights ensued in Marawi City;

9. Control over three bridges in Lanao de Sur fell to the Maute Group;

10.Hostages were taken from a church;

11. Young Muslims were forced to augment the Maute group.

I further lend my concurrence to the view sustaining the coverage of Proclamation No. 216 to the entirety of Mindanao. As pointed out by the ponencia, Marawi is in the heart of Mindanao and the rebels can easily join forces with the other rebel and terrorist groups and extend the scope of the theater of active conflict to other areas of Mindanao. And based on past events, such is the design of the multiple rebel and terrorist groups now presently in armed conflict with the Armed Forces in Marawi City. In fact, as shown by prior incidents, which include the following, the activities of these numerous rebel and terrorist groups are spread over different parts of the Mindanao:

1. An improvised explosive device (IED) was detonated at a night market in Roxas Avenue, Davao City on September 2, 2016, causing the death of fifteen (15) people and injury to more than sixty (60) others;

2. On November 5, 2016, the Abu Sayyaf Group (ASG) abducted a German national, Juergen Kantner off Tawi-Tawi; the remains of his wife, Sabine Merz, was found in Barangay Darul Akram, Sulu;

3. On December 28, 2016, members of the Bangsamoro Islamic Freedom Fighters (BIFF) lobbed two grenades at the provincial office of Shariff Maguindanao;

4. On January 13, 2017, an IED exploded in Baran gay Uno, Basilan thereby killing one civilian and injuring another;

5. On January 19, 2017, the ASG kidnapped three (3) Indonesian crew members near Bakungan Island, Tawi-Tawi;

6. On January 19, 2017, the ASG detonated an IED in Barangay Danapah, Basilan resulting in the death of two (2) children and the wounding of three (3) others;

7. Military personnel were ambushed in Marawi City on February 16, 2017;

8. On February 16, 2017, the ASG beheaded its German kidnap victim, Juergen Kantner, in Sulu;

9. On March 15, 2017, Mrs. Omera Lotao Madid was kidnapped in Saguiaran, Lanao del Sur by suspected Maute Group elements;

10. The ASG beheaded kidnap victim Noel Besconde in Sulu;

11. There were eleven (11) separate instances of IED explosions by the BIFF all over Mindanao from February to May 2017;

12.Military intelligence disclose that the Maute Group had dispatched its members to the cities of Marawi, Iligan and Cagayan de Oro to conduct bombing operations, carnapping and "liquidation" of AFP and PNP personnel in the said areas as early as April 18, 2017.16

It can only complicate the situation if the effectivity of Proclamation No. 216 will be limited only to Marawi City or some other provinces. The Armed Forces must be given ample power to suppress or contain the rebellion as soon as possible under a singular rule of operational procedure regardless of territorial lines in Mindanao.

To date, almost two-thirds of Marawi's population have left the city and are now scattered in different parts of Mindanao. Thousands of these displaced citizens-men, women, and children, young and old alike-are cramped in uncomfortable evacuation centers without any means of livelihood and with barely enough food to eat and survive in these crowded, and sometimes unsanitary, spaces. Meanwhile, those who remain trapped in the ruins of the city are in danger of being caught in the line of fire and have scarcely any access to food or water.

Martial Law is not the end in itself, it is a temporary means to achieve the paramount object of restoring peace under civilian authority. With the breakdown of civilian government in Marawi at the hands of the Maute group, which has a reported culpable intention and capability to do the same to the rest of Mindanao, I find it proper that the President exercised his Martial Law powers to suppress the rebellion and temporarily replace the incapacitated civilian authorities with military men in the hopes of ending as soon possible this tragic humanitarian disaster.

With our nation's dark experience under the 1972 Proclamation No. 1081, however, it is understandable that any Martial Law proclamation will be examined with extreme wariness. In fact, the common thread running through the three consolidated petitions is the implicit distrust of Martial Law. Couched in the consolidated petitions challenging Proclamation No. 216 is the notion that the declaration of Martial Law is equivalent to a desecration of human rights and the automatic negation of Article III of the 1987 Constitution or the Bill of Rights. Even this very Court implied such sentiment. The Court's ruling in Fortun stated, thus:

Two. Since President Arroyo withdrew her proclamation of Martial Law and suspension of the privilege of the writ of habeas corpus in just eight days, they have not been meaningfully implemented. The military did not take over the operation and control of local government units in Maguindanao. The President did not issue any law or decree affecting Maguindanao that should ordinarily be enacted by Congress. No indiscriminate mass arrest had been reported. Those who were arrested during the period were either released or promptly charged in court. Indeed, no petition for habeas corpus had been filed with the Court respecting arrests made in those eight days. The point is that the President intended by her action to address an uprising in a relatively small and sparsely populated province. In her judgment, the rebellion was localized and swiftly disintegrated in the face of a determined and amply armed government presence.17

Indeed, compared to the calling-out power of the President, the power to declare Martial Law is less benign and "poses the most severe threat to civil liberties."18 This Court's ruling in David v. Macapagal-Arroyo19 outlines the marked differences between the two emergency powers, thus:

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action x x x.

x x x x

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement oflaw."

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V. Mendoza, an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

x x x x

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires.20

This Court in David would later cite Justice Vicente V. Mendoza when he stated that, specifically, the following powers can be exercised by the President as Commander-in-Chief where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus: "(a) arrests and seizures without judicial warrants; (b) ban on public assemblies; [and] (c) take-over of news media and agencies and press censorship."21

Truly, in the occasion of a rebellion or invasion, the paramount object of the State is the safety and interest of the public and the swift cessation of all hostilities; it is neither the adjustment to nor the accommodation of the unbridled exercise of private liberties.22 As Martial Law is borne out of necessity, interference of private rights may be justified. This concept is not foreign and is recognized by our laws. The prime example is the inherent police power of the state, which can prevail over specific constitutional guarantees.23 As this Court elucidated, "the guarantees of due process, equal protection of the laws, peaceful assembly, free expression, and the right of association are neither absolute nor illimitable rights; they are always subject to the pervasive and dominant police power of the State and may be lawfully abridged to serve appropriate and important public interests."24

Article 11 of the Revised Penal Code (RPC) and Article 432 of the New Civil Code (NCC) likewise flow from this principle. Respectively, they state:

Article 11, RPC:

ARTICLE 11. Justifying Circumstances. - The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

x x x x

4. Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present:

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;

Third. That there be no other practical and less harmful means of preventing it.

Article 432, NCC:

The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. The owner may demand from the person benefited indemnity for the damage to him.

But Martial Law is by no means an arbitrary license conferred on the President and the armed forces. As it is borne out of necessity, so it is limited by necessity. Justice Teehankee eloquently explained this much:

Necessity limits both the extent of powers that may be exercised under Martial Law, and the duration of its exercise. No life may be taken, no individual arrested or confined, or held for trial, no property destroyed, or appropriated, no rights of the individual may be curtailed or suspended except where necessity justifies such interference with the person or the property. Any action on the part of the military that is not founded on the reasonable demands of necessity is a gross usurpation of power, illegal, unjustified, and improper. The broad mantle of Martial Law cannot cover acts illegal because not justified by necessity, nor proper under the circumstances. This principle is based not only upon the fundamental precepts of constitutionalism, but rests on sound reason - that where the action of the matter is not necessary for the public ends of the state they are illegal, and the mere fact that Martial Law exists will not be a ground for their justification.25

Intrusions into the civil rights must be proportional to the requirements of necessity. Only such power as is necessary to achieve the object of quashing the rebellion or thwarting the invasion and restoring peace can be used. "It is an unbending rule of law that the exercise of military power when the rights of the citizen are concerned shall never be pushed beyond what the exigency requires."26 Anything in excess of what is considered "military necessity"27 or is markedly removed from what is "needed in order to head the [rebellion or invasion] off28 will render liable the officer who committed such ultra vires act. Surely, an act against chastity and the desecration of women is unjustified even in times of war. Such and similar acts remain violative of the laws, which continue to be effective even after Martial Law is proclaimed.

The old maxim of inter arma silent leges (in times of war, the law falls silent) no longer holds true, especially given this clear expression of the uninterrupted superiority of the Constitution in Section 18, Article VII of the 1987 Constitution:

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.29

This is in conformity with the observations made in the seminal case of Ex Parte Milligan30 where the United States' Supreme Court, through Justice Davis, held:

x x x Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

x x x x

This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew - the history of the world told them - the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued human foresight could not tell, and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this and other equally weighty reasons, they secured the inheritance they had fought to maintain by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus.31

The continuous operation of the 1987 Constitution, a safeguard embedded in the very provision bestowing upon the President the power to proclaim Martial Law, primarily ensures that no right will unnecessarily be obstructed or impaired during Martial Law and that "civilian authority is, at all times, superior over the military."32

Notably, while Section 18, Article VII of the 1987 Constitution provides that in times of public emergency, the privilege of the writ of habeas corpus may be suspended, there is no express authority allowing the suspension of the other guarantees and civil liberties. Understandably, the question as to what can or cannot be done during Martial Law has long been discussed and debated over. As early as 1915, Henry Winthrop Ballantine posed the following questions in relation to the proclamation of Martial Law:

I. What is the effect of a proclamation of martial law, does it suspend the constitution, and the laws of the State ... ?

II. Does the [President] of a state, by such proclamation, confer on himself, or on his military representatives, a supreme and unlimited power over all his fellow-citizens, within the space described, which suspends the functions of civil courts and magistrates and substitutes in their place the mere will of the military commander?

III. May the military disregard the writ of habeas corpus, or other process of the courts, if issued? Is the writ of habeas corpus in practical effect suspended by such proclamation?

IV. May a military commission, or summary courts, be established as a substitute for the ordinary civil courts, to try civilians for (a) felony, (b) misdemeanours, or (c) disobedience of orders and proclamations?

V. If so, is there any limit to the punishments which may be prescribed and inflicted? May the military confiscate property and levy fines, as well as imprison and put to death at their discretion?

VI. If they take life, or injure person or property, are the military authorities immune from civil suit or criminal prosecution for unreasonable acts done in excess of authority? Are the ordinary courts without jurisdiction to inquire into and review the legality of military measures?

VII. May the military shoot persons caught looting or in the commission of other crimes?

VIII. May the military arrest without warrant, merely on suspicion of complicity in the rioting, or other disturbances? May theyforcibly enter and search private houses and seize property without a search warrant?

IX. May the military hold and detain persons so arrested on suspicion, for indefinite periods at their discretion, without charge of crime and without turning them over to the civil courts for trial?

X. May the military issue executive orders and proclamations to the citizens generally, having the force of law?

(a) x x x

(b) May the military exercise a censorship over the press and suppress newspapers at their discretion?

(c) May the military limit the right or privilege of peaceable public assembly?

(d) May the military prescribe to employers what classes of laborers they shall or shall not employ?

(e) May the military establish "dead lines" within which it is forbidden to civilians to go without a military pass, and so restrict the freedom of movement of peaceable citizens?

(f) May the military confiscate arms, or forbid traffic in arms?

(g) Will a sentry be justified in firing on a person disobeying his orders to halt, where such person is not attempting to carry out any felonious design?33

In answer, it was proposed that the source from which the power to proclaim Martial Law springs must be considered. Hence, if there is no Constitutional provision or statute expressly allowing an intrusion or limitation of a civil liberty, then it is not and will not be allowed.

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."34 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,35 the authorities may resort to warrantless arrests of persons suspected of rebellion under the foregoing provision of the Rules of Court.36 It must, however, be emphasized that the suspicion of rebellion upon which a warrantless arrest is made must be based on a probable cause, i.e., the ground of suspicion is supported by personal knowledge of facts and circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person sought to be arrested has "committed or is actually committing" the crime of rebellion. Thus, parenthetically, the general arrest orders must be issued by the Armed Forces on the basis of probable cause. Alternatively, it must be shown that the person to be arrested was caught in flagrante delicto or has committed or is actually committing an overt act of rebellion or any other offense in the presence of the arresting officer.

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."37 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.38 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;39 and (8) search of vessels and aircraft,40 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.41 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.42 Otherwise stated, in the absence of clear and present danger, the military is bound by the rules of maximum tolerance43 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. ,44 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:

Temporary takeover of business affected with public interest in times of national emergency

Section 17, Article XII of the 1987 Constitution grants the State in times of national emergency the right to temporarily take over the operation of any business affected with public interest. This right is an exercise of police power which is one of the inherent powers of the State.

Police power has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." It consists of two essential elements. First, it is an imposition of restraint upon liberty or property. Second, the power is exercised for the benefit of the common good. Its definition in elastic terms underscores its all-encompassing and comprehensive embrace. It is and still is the "most essential, insistent, and illimitable" of the State's powers. It is familiar knowledge that unlike the power of eminent domain, police power is exercised without provision for just compensation for its paramount consideration is public welfare.

It is also settled that public interest on the occasion of a national emergency is the primary consideration when the government decides to temporarily take over or direct the operation of a public utility or a business affected with public interest. The nature and extent of the emergency is the measure of the duration of the takeover as well as the terms thereof. It is the State that prescribes such reasonable terms which will guide the implementation of the temporary takeover as dictated by the exigencies of the time. As we ruled in our Decision, this power of the State cannot be negated by any party nor should its exercise be a source of obligation for the State.45

This Court, however, has held that it is the legislature, not the executive, which is the constitutional repository of police power,46 the existence of a national emergency, such as a rebellion or invasion, notwithstanding. Accordingly, the power to temporarily take over or direct the operation of any privately-owned public utility or business a(fected with public interest can only be done whenever there is a law passed by Congress authorizing the same. This Court, in David, explained as much:

But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light of each other. Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest," it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof Youngstown Sheet & Tube Co. et al. v. Sawyer, held:

x x x x

The order cannot properly be sustained as an exercise of the President's military power as Commander-in-Chief of the Armed Forces.1âwphi1 The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is ' a job for the nation's lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States ... "

x x x x

It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate to the President the power to take over privately-owned public utility or business affected with public interest.

In Araneta v. Dinglasan, this Court emphasized that legislative power, through which extraordinary measures are exercised, remains in Congress even in times of crisis.

x x x x

Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress.

Indeed, the military must still be guided by law and jurisprudence and motivated by good faith in the exercise of the supreme force of the State even during a Martial law. Thus, in its endeavor to restore peace and preserve the state, the military must still make proper adjustments to the safeguards of constitutional liberty under the following legislations intended to protect human rights:47

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 (The 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 (I'he 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 (I'he 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 above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.48

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 well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

(b) collective punishments;

(c) talcing of hostages;

(d) acts of terrorism;

(e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

(f) slavery and the slave trade in all their forms;

(g) pillage;

(h) threats to commit any of the foregoing acts.

3. Children shall be provided with the care and aid they require, and in particular:

(a) they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care;

(b) all appropriate steps shall be taken to facilitate the reunion of families temporarily separated;

(c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;

(d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph

(c) and are captured;

(e) measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.49

These international commitments are incorporated into our laws not only by virtue of Section 2, Article II of the 1987 Constitution, but also by the domestic legislations previously enumerated.

Without a doubt, state agents-the members of the armed forceswho abuse their power and discretion under the proclaimed Martial Law and thereby violate their duty as the "protector of the people and the State"50 are criminally and civilly liable. And here lies the ultimate safeguard against the possible abuses of this emergency power-the ultimate responsibility of the officers for acts done in the implementation of Martial Law. To whom much is given, much will be required.

Our history justifies a heightened vigilance against the abuse of power, whether masked by Martial Law or otherwise. However, our fears should not hold us back from employing a power necessary to fight for our sovereignty and the integrity of our national territory under the auspices of democracy and civil authority. As we recognize the superiority of the 1987 Constitution even during Martial Law, so should we recognize and place our trust in the safeguards written and intertwined in the grant of the power to declare Martial Law. Let us concede that the framers of our Constitution, informed by lessons of history, guarded the "foundations of civil liberty against the abuses of unlimited power."51

WHEREFORE, I vote to DISMISS the petitions.

PRESBITERO J. VELASCO, JR.
Associate Justice


Footnotes

1 Birkhimer, W.E., MILITARY GOVERNMENT AND MARTIAL LAW (3rd ed. revised, 1914), Kansas City, Missouri; emphasis supplied.

2 See U.S. v. Diekelman, 92 U.S. 520.

3 See Luther v. Borden, 7 How. 1.

4 CONSTITUTION, Art. II, Sec. 3.

5 Birkhimer, supra note 1.

6 684 Phil. 526, 631 (2012).

7 Emphasis and underscoring supplied.

8 Supra note 6.

9 Emphasis supplied.

10 522 Phil. 705, 854 (2006).

11 Id.

12 I Record of the Constitutional Commission 434-436 (1986); cited in Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc., G.R. Nos. 207132 & 207205, December 6, 2016.

13 See Luther v. Borden, 7 How. 1.

14 392 Phil. 618, 675 (2000).

15 Emphasis supplied.

16 See Respondents Memorandum dated June 19, 2017, pp. 10-11.

17 Supra note 6. Emphasis supplied.

18 David v. Macapagal-Arroyo, supra note 10.

19 Id.

20 Emphasis supplied.

21 Supra note 10.

22 Birkhimer, supra note 1.

23 Nachura, Antonio E.B., OUTLINE REVIEWER IN POLITICAL LAW 47; citing Philippine Press Institute v. COMELEC, G.R. No. 119694, May 22, 1995, 244 SCRA 272 and Quezon City v. Ericta, No. L- 34915, June 24, 1983, 122 SCRA 759.

24 Jmbong v. Ferrer, 146 Phil. 30, 67 (1970); citing Gonzales v. Comelec, No. L-27833, April 18, 1969, 27 SCRA 835, 858; Justice Douglas in Eifbrandt v. Russel, 384 U.S. 11, 18-19, 1966.

25 J. Teehankee's Dissenting Opinion inAquino, Jr. v. Military Commission No. 2, No. L-37364, 159-A Phil. 163-291 (1975); citing Santos, Martial Law, 2nd ed., pp. 17-78, citing Winthrop, p. 820; Fairman, p. 48; Wiener, p. 14. Emphasis supplied.

26 Raymondv. Thomas, 91 U.S. 712.

27 "The necessity of employing measures which are indispensable to achieve a legitimate aim of the conflict and are not otherwise prohibited by International Humanitarian Law." Republic Act No. 9851, Sec. 3(1).

28 Moyer v. Peabody, 212 U.S. 78.

29 Emphasis and underscoring supplied.

30 71 U.S. 2 (4 Wall.) (1866).

31 Emphasis supplied.

32 CONSTITUTION, Art. II, Sec. 3.

33 Ballantine, Henry Winthrop. "Unconstitutional Claims of Military Authority." Journal of the American Institute of Criminal Law and Criminology, vol. 5, no. 5, 1915, pp. 718-743. JSTOR www.jstor.org/stable/1132541.

34 Ex Parle Milligan, supra note 30.

35 Umilv. Ramos, G.R. No. 81567, October 3, 1991, 202 SCRA 251.

36 Sanlakas v. Reyes, 466 Phil. 482, 548 (2004).

37 212 U.S. 78 (1909).

38 Ballantine, Henry Winthrop. "Martial Law." Columbia Law Review, vol. 12, no. 6, 1912, pp. 529-538.

39 People v. Rom, 727 Phil. 587, 607 (2014); citing Dimacuha v. People, 545 Phil. 406 (2007); People v. Martinez, G.R. No. 191366, December 13, 2010, 637 SCRA 791; Caballes y Taiflo v. Court of Appeals, 424 Phil. 263, 290 (2002).

40 Valeroso v. Court of Appeals, 614 Phil. 236, 255 (2009).

41 Eastern Broadcasting Corp. v. Dans, Jr., 222 Phil. 151, 169 (1985).

42 David, supra note 10.

43 BP 880, Sec. 3(c). "Maximum tolerance" means the highest degree ofrestraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

44 465 Phil. 545, 586 (2004).

45 Emphasis supplied.

46 Southern Luzon Drug Corp. v. Department of Social Welfare and Development, G.R. No. 199669, April 25, 2017; citinglchong, etc., et al. v. Hernandez, etc., and Sarmiento, 101 Phil. 1155 (1957).

47 Ocampo v. Enriquez, G.R. Nos. 225973, etc., November 8, 2016.

48 Emphasis supplied.

49 Emphasis supplied.

50 CONSTITUTION, Art. II, Sec. 3.

51 Ex Parte Milligan, supra note 30.


The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

LEONARDO-DE CASTRO, J.:

I concur in the DISMISSAL of the Petitions filed in these consolidated cases but I am compelled to write this separate opinion to elucidate the grounds for my concurring vote which, in some respects, deviate from the grounds adduced by my colleagues who also belong to the majority.

These three cases were denominated as petitions filed under the third paragraph of Section 18, Article VII of the 1987 Constitution. Petitioners collectively seek a ruling from this Court nullifying, for alleged lack of sufficient factual basis, Presidential Proclamation No. 216 dated May 23, 2017 which declared a state of martial law and suspended the privilege of the writ of habeas corpus in the whole of Mindanao. Proclamation No. 216 is quoted in full hereunder:

PROCLAMATION NO. 216

DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO

WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a state of national emergency on account of lawless violence in Mindanao;

WHEREAS, Section 18, Article VII of the Constitution provides that "x x x in case of invasion or rebellion, when the public safety requires it, he (the President) may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law x x x";

WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that ''the crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other 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 Lanae 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.

As previously stated, petitioners base their separate actions on Section 18, Article VII (entitled "Executive Department"), which 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. 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 constitutional provision has laid to rest the issues that were the subject of lengthy debates in the cases of Lansang v. Garcia1 and Aquino v. Ponce Enrile,2 including those touching on the political question doctrine; the nature, extent and scope of martial law; and the respective constitutional boundaries or spheres of competence of the Executive Department, the Legislative Department and the Judiciary in relation to the proclamation by the President of martial law and the suspension of the privilege of the writ of habeas corpus.

Particularly, the 1987 Constitution categorically institutionalized (a) the power of this Court to review the sufficiency of the factual basis of the proclamation of martial law and the suspension of the said privilege; and (b) the power of Congress to revoke or, upon the initiative of the President, to extend the said proclamation and suspension. The 1987 Constitution expressly laid out as well the consequences or effects of a state of martial law, specifically that: the operation of the Constitution is not suspended; civil courts and legislative bodies shall continue to function; no jurisdiction is conferred on military courts or agencies over civilians where civil courts are able to function; the privilege of the writ of habeas corpus is not automatically suspended by the declaration of martial law; and any citizen has legal standing to initiate before the Supreme Court an appropriate proceeding as the avenue for the exercise of the power of judicial review of the aforesaid Presidential actions.

The detailed provisions of the 1987 Constitution have thus eliminated many of the controversial issues that previously confronted the Court in the Marcos martial law cases, which were brought about by the obscurity of the concept of martial law, notwithstanding that unlike the United States Constitution, the 1935 and 1973 Philippine Constitutions already explicitly empowered the chief executive, as Commander-in-Chief of the Armed Forces of the Philippines, to proclaim martial law and suspend the privilege of the writ of habeas corpus. Still, there are provisions in the 1987 Constitution that have engendered varying interpretations among the Members of this Court, which resulted in our differences in opinion on such issues as the nature of the "appropriate proceeding" where the Supreme Court may review the factual basis of the aforesaid Presidential actions, the test to determine the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus by the President, and the concept of "rebellion" adverted to in Section 18, Article VII.

Nature of the "appropriate
proceeding" provided in Section 18,
Article VII

With respect to a preliminary and technical aspect of the consolidated petitions at bar, the Court is called upon to pass upon the issue of what constitutes "an appropriate proceeding" as the means to secure a judicial review of the constitutional sufficiency of a martial law proclamation and/or a suspension of the privilege of the writ of habeas corpus.

On one side, respondents claim that the "appropriate proceeding" referred to in Section 18, Article VII is a petition for certiorari on the theory that it is the most suitable remedy among the actions enumerated in Section 5(1), Article VIII3 of the Constitution over which this Court exercises original jurisdiction. On the other hand, petitioners posit that the appropriate remedy is a petition filed under Section 18, Article VII, a proceeding that they characterize as sui generis.

In the resolution of this particular issue, I am of the opinion that Sections 1 and 5 of Article VIII do not restrict the jurisdiction of the Court to the actions mentioned therein. Furthermore, petitioners may file with this Court an action denominated as a petition under Section 18, Article VII for it is the Constitution itself that (a) grants a judicial remedy to any citizen who wishes to assail the sufficiency of the basis of a proclamation of martial law or the suspension of the privilege of the writ of habeas corpus; and (b) confers jurisdiction upon this Court to take cognizance of the same. The lack of any specific rules governing such a petition does not prevent the Court from exercising its constitutionally mandated power to review the validity or propriety of a declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus as the Court may adopt in its discretion any rule or procedure most apt, just and expedient for this purpose.

It is long settled in jurisprudence that independent of any statutory provision, every court has the inherent power to do all things reasonably necessary for the administration of justice within the scope of its jurisdiction.4 Relevantly, this doctrine is embodied in Section 6, Rule 135 of the Rules of Court,5 which states:

SECTION 6. Means to carry jurisdiction into effect. - When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules. (Emphasis supplied.)

Nonetheless, I must register my vigorous objection to the implication that a petition under Section 18, Article VII is the only appropriate proceeding wherein the issue of sufficiency of the factual basis of a declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus may be raised. It is my considered view that this issue may be raised in any action or proceeding where the resolution of such issue is germane to the causes of action of a party or the reliefs prayed for in the complaint or petition.

The meaning and the import of the term "appropriate proceeding" are best understood in the context of the scope, extent, conditions and limitations of the exercise of governmental powers during martial law under Section 18, Article VII of the 1987 Constitution.

I am in wholehearted agreement with the ponencia that the intent of the framers of our Constitution in expressly providing for judicial review under Section 18, Article VII is to provide an additional safeguard against possible abuse of the executive power to declare martial law or to suspend the privilege of the writ of habeas corpus. However, I do not believe that the same framers, who are so zealously opposed to the rise of dictatorship, would limit our citizens' judicial remedies against an unconstitutional or oppressive martial law regime to a single type of "sui generis" action or proceeding that at the time of their deliberations was yet unnamed and unseen, and for which no specific rules of procedure had even been promulgated.

A wide plethora of situations affecting the citizenry in general or specific individuals may arise from governmental actions taken or performed by the President or by the martial law administrator or by other government officials during the existence of the state of martial law.

Justice Claudio Teehankee in his separate opinion in the case of Aquino v. Ponce Enrile,6 stated:

Pertinent to this question is the Court's adoption in Lansang of the doctrine of Sterling vs. Constantine enunciated through U.S. Chief Justice Hughes that even when the state has been placed under martial law "x x x (W)hen there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression. To such a case, the Federal judicial power extends (Art. 3, Sec. 2) and, so extending, the court has all the authority appropriate to its exercise. x x x. (Emphasis supplied, citation omitted.)

A party may find cause to seek the nullification or prohibition of acts committed by government officials in the implementation of martial law on the ground of grave abuse of discretion in which case a petition for certiorari and/or prohibition may be his/her best judicial recourse. There is no constitutional or procedural bar for the issue of sufficiency of factual basis of a martial law proclamation to be raised in a petition for certiorari or prohibition should a party choose to avail of these remedies. It is jurisprudentially accepted that:

With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. This application is expressly authorized by the text of the second paragraph of Section 1 [Article VIII of the 1987 Constitution].

Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit or nullify the acts oflegislative and executive officials.7

Pertinently, Fortun v. President Macapagal-Arroyo8 and its consolidated cases illustrate the diverse situations that may precipitate the filing of an "appropriate proceeding" under Section 18, Article VII. These situations can be gleaned from certain questions identified by the Court for resolution in connection with the threshold issue of whether there is sufficient factual basis for the issuance by then President Gloria MacapagalArroyo of Proclamation No. 1959, which declared martial law within the Province of Maguindanao, except for certain excluded areas. These issues were:

3. Whether the declaration of martial law or the suspension of the writ authorizes warrantless arrests, searches and seizures;

x x x x

6. Whether this Court's determination of the sufficiency of the factual basis of the declaration of martial law or suspension of the writ, which in the meantime has been lifted and restored, respectively, would be essential to the resolution of issues concerning the validity of related acts that the government committed during the time martial law was in force. (Emphasis supplied.)

In Fortun and its consolidated cases, separate petitions for certiorari, petition for prohibition, and petition for certiorari, prohibition and mandamus were filed assailing the validity of Proclamation No. 1959 for lack of factual basis. While the majority opinion dismissed the petitions for being moot and academic, the separate opinions, whether concurring or dissenting, tacitly admitted the availability of the aforesaid special civil actions in questioning the validity of Proclamation No. 1959. This is implicit in the Dissenting Opinion of Justice Antonio T. Carpio (Justice Carpio) that the aforesaid petitions in Fortun and its consolidated cases may "prosper" as "any citizen" is clothed with legal standing to challenge the constitutionality of the declaration of martial law or suspension of the writ. Justice Carpio also opined that the Court should exercise its review power in Fortun and its consolidated cases which were filed as special civil actions as exceptions to the requirement of an actual case or controversy.9 Justice Presbitero J. Velasco, Jr. (Justice Velasco) was also in favor of entertaining the petitions as exceptions to the requirement of an actual controversy in exercising the power of judicial review. Verily, at the time that the Court was deliberating on Fortun, it was never contemplated that the petitions therein were improper modes of invoking the Court's review power over a martial law declaration.

To my mind, the Court may even review the sufficiency of the factual basis for a declaration of martial law or the suspension of the privilege of the writ in a habeas corpus proceeding. This has judicial precedent in such cases as Lansang v. Garcia10 wherein the Court inquired into the "constitutional sufficiency" of the factual bases for the suspension of the privilege of the writ of habeas corpus; and Aquino v. Ponce Enrile11 wherein the Court took cognizance of the issue of constitutional sufficiency of the factual bases for the proclamation of martial law. In both instances, the issue of factual sufficiency was elevated to the Court through petitions for habeas corpus as petitioners therein uniformly asserted that they were illegally arrested and detained.

The importance of a petition for a writ of habeas corpus as a judicial remedy under martial law was discussed by Commissioner Florenz D. Regalado during the 1986 Constitutional Commission's deliberation, to wit:

MS. QUESADA: But there is a possibility then that the Congress cannot be convened because many of its Members have already been arrested.

MR. RAMA: There is always that possibility; that is why I am narrowing that chance.

x x x x

MR.QUESADA: One of the assurances was that there were enough safeguards that the President would not just be able to use that power without some other conditions. So, are there any parts of the Constitution that would so protect the civilians or the citizens of the land?

MR. RAMA: Yes, there are safeguards.

MR. REGALADO: May I also inform Commissioner Quesada that the judiciary is not exactly just standing by. A petition for a writ of habeas corpus, if the Members [of Congress] are detained, can immediately be applied for, and the Supreme Court shall also review the factual basis. x x x.12 (Emphases supplied.)

It would be unjust, unreasonable and contrary to the orderly administration of justice to require a person who might have been illegally detained under martial law to file a petition for a writ of habeas corpus separately from a petition under Section 18, Article VII if he/she wishes to secure his/her liberty and at the same time question the constitutional validity of a proclamation of martial law or a suspension of the privilege of the writ of habeas corpus. That would be an inimical consequence of a ruling by this Court that the "appropriate proceeding" envisaged by the framers of our Constitution under Section 18, Article VII refers solely to a petition filed specifically for the purpose of questioning the sufficiency of the factual basis of a martial law proclamation or a suspension of the privilege of the writ of habeas corpus.

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.13

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.

The Sufficiency of Factual Basis of
Proclamation No. 216

I find it crucial to point out at the outset the underlying rationale behind the constitutional provision conferring upon the President, as Commander-in-Chief of the Armed Forces of the Philippines, three levels of emergency powers, such as (1) whenever necessary to call out such armed forces to prevent lawless violence, invasion or rebellion; or (2) to suspend the privilege of the writ of habeas corpus; or (3) to place the Philippines or any part thereof under martial law both in case of invasion or rebellion. In the past, a Member of this Court fittingly stated that:

The right of a government to maintain its existence is the most pervasive aspect of sovereignty.1âwphi1 To protect the nation's continued existence, from external as well as internal threats, the government "is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions" (Mr. Justice Bradley, concurring in Legal Tender Cases [US] 12 Wall. 457, 554, 556, 20 L. ed. 287, 314, 315). To attain this end, nearly all other considerations are to be subordinated. The constitutional power to act upon this basic principle has been recognized by all courts in every nation at different periods and diverse circumstances.14

The above-mentioned extraordinary powers vested by the Constitution urider Section 18, Article VII upon the President as Commander-in-Chief of the Armed Forces of the Philippines implement the principle declared in Section 3, Article II of the Constitution, quoted below:

Sec. 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the state. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

In Carpio v. Executive Secretary,15 we held:

[T]he President, as Commander-in-Chief, is not a member of the Armed Forces. He remains a civilian whose duties under the Commander-inChief provision "represent only a part of the organic duties imposed on him. All his other functions are clearly civil in nature." His position as a civilian Commander-in-Chief is consistent with, and a testament to, the constitutional principle that "civilian authority is, at all times, supreme over the military. x x x."

Rebellion, which is directed against the sovereignty and territorial integrity of the state, is a ground for the exercise of the second and third levels of emergency powers of the President, the existence of which is now invoked by the issuance of Proclamation No. 216.

The Concept of Rebellion

To determine the sufficiency or adequacy of the factual basis for the declaration of martial law and the suspension of the writ, an understanding of the concept of "rebellion" employed in Section 18, Article VII of the 1987 Constitution is necessary.

The concept of rebellion in our penal law was explained in the leading case of People v. Hernandez,16 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,17 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 a necessary means to attain, or in furtherance of, the purpose of rebellion. In Ponce Enrile v. Amin,18 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.19 (Emphases supplied.)

In Aquino, the Court expounded on the sophisticated and widespread nature of a modem rebellion, which rings more true today, in this wise:

The state of rebellion continues up to the present. The argument that while armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and materiel, fifth-column activities including sabotage and intelligence - all these are part of the rebellion which by their nature are usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that context.20

To construe the existence of rebellion in the strict sense employed in the Revised Penal Code to limit martial law to places where there are actual armed uprising will hamper the President from exercising his constitutional authority with foreseeable dire consequences to national security and at great peril to public safety.

Standard of Proof to Determine
Sufficiency of Factual Basis and
Manner by which Standard is
Applied

The Constitution vests upon the Supreme Court the duty to determine the sufficiency of the factual basis of the Presidential proclamation of martial law. The Constitution does not prescribe the quantum of proof to determine the "sufficiency" or "adequacy" of the factual basis for such a proclamation. We can only rely on settled jurisprudence but bearing in mind the nature of the respective responsibilities lodged upon the President, the Legislature and the Judiciary under Section 18, Article VII of the Constitution, where the system of checks and balances, as a concomitant feature of the principle of the separation of powers, is made distinctly manifest.

There are seeming differences as to the standard or test to determine the sufficiency of the factual basis for the Presidential Proclamation. This arises from the confusion as to two concepts: (1) the standard to be used and (2) the manner the standard shall be applied.

In Lansang, the Court adopted this view:

[T]hat judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the Court not that the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily.21 (Emphasis supplied.)

Justice Antonio T. Carpio uses the test of "probable cause" to determine the sufficiency of factual basis of Proclamation No. 216, which in this case is the existence of rebellion in Mindanao. Justice Francis H. Jardeleza prefers to use "reasonableness," not arbitrariness. Justice Carpio cites the definition of probable cause as follows:

Probable cause has been defined as a "set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the information or any offense included therein has been committed by the person sought to be arrested.22 (Emphasis supplied.)

In a similar vein, Justice Jardeleza elucidated his view as follows:

Accordingly, the standard of review in determining whether actual rebellion exists and whether public safety requires the extraordinary presidential action should likewise be guided by reasonableness. As well put in an American case, reasonableness is "what from the calm sea level of common sense, applied to the whole situation, is not illegitimate in view of the end attained." Since the objective of the Court's inquiry under Article VII, Section 18 is to verify the sufficiency of the factual basis of the President's action, the standard may be restated as such evidence that is adequate to satisfy a reasonable mind seeking the truth (or falsity) of its factual existence. (Emphasis supplied, citations omitted.)

While I do not subscribe to the meaning of rebellion advanced by Justice Carpio, his view on the quantum of proof to sustain the proclamation of martial law and the suspension of the writ, which is "probable cause," is consistent, I believe, with my view that the test to be applied to determine sufficiency of factual basis for the exercise of said Presidential power is reasonableness or the absence of arbitrariness. "Probable cause" and "reasonableness" are two sides with almost the same meaning or with little difference in degree of proof necessary. "Probable cause" and "reasonableness" are the same standards to sustain the assailed Presidential proclamation.

The various tests advocated by the Justices appear to use interchangeable terms. Notably, the term "arbitrary" is defined as "existing or coming about ... as a capricious and unreasonable act ofwill."23 In Aquino v. Ponce Enrile,24 Justice Cecilia Muñoz Palma described the arbitrariness test in this manner:

The President's action was neither capricious nor arbitrary. An arbitrary act is one that arises from an unrestrained exercise of the will, caprice, or personal preference of the actor (Webster's 3rd New International Dictionary, p. 110), one which is not founded on a fair or substantial reason (Bedford Inv. Co. vs. Falb, 180 P. 2d 361, 362, cited in Words & Phrases, Permanent Ed., Vol. 3-A, p. 573), is without adequate determining principle, non-rational, and solely dependent on the actor's will. (Sweig vs. US. D.C. Tex., 60 F. Supp. 785, Words & Phrases, supra, p. 562) x x x. (Emphases supplied.)

Premises considered, there is an apparent consensus that "reasonableness" is the proper test to be used in these consolidated cases which is but the other side of the same coin as the "arbitrariness" test: what is reasonable is not arbitrary.

At this point, I express my reservation regarding the view of Justice Jardeleza which relates the concept of good faith with the arbitrariness standards as a basis for his objection to this test. He states:

The danger of fusing the sufficiency-of-factual-basis test with the standard of arbitrariness/grave abuse of discretion is this: the sufficiency of the factual basis is being measured by grave abuse of discretion. This is problematic because the phrase "grave abuse of discretion" carries a specific legal meaning in our jurisdiction. It refers to such capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction; the abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. While inquiry into the sufficiency of factual basis may yield a finding consistent with the accepted definition of grave abuse of discretion, such as when the presidential proclamation was totally bereft of factual basis or when such factual basis had been manufactured by the executive, the correlation is not perfect. Good faith reliance on inaccurate facts, for instance, does not strictly satisfy the "capricious and whimsical" or "arbitrary or despotic" standard. By setting the sufficiency-of-factual-basis standard, the Constitution foreclosed good faith belief as an absolute justification for the declaration of martial law or suspension of the privilege of the writ. Under Article VII, Section 18, the Court is vested with the power to revoke the proclamation, not because of grave abuse of discretion, but because of insufficiency of factual basis. (Citations omitted.)

The concept of "good faith" or "bad faith" should not be confused with the test of "arbitrariness." "Good faith" or "bad faith" refers to the state of mind of a person. It is a concept different from the exercise of one's sound judgment in a given situation. Good faith in declaring martial law which is not based on sufficient facts will not justify the existence or continuation of martial law. If at all, good faith may have a bearing only the accountability of the President who declared martial law which does not meet the constitutional sufficiency test.

The above-mentioned standards, which essentially are synonymous with "reasonableness," if applied as threshold requirements for a martial law declaration, oblige us to uphold the Presidential proclamation. Consistent with these standards, to nullify the proclamation must necessarily require proof that the action taken was capricious or arbitrary, which would amount to "grave abuse of discretion" within the contemplation of Section 1, of Article VIII, which reads:

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.

In Maturan v. Commission on Elections,25 we explained:

Grave abuse of discretion is committed "when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." x x x. (Emphasis supplied.)

Nevertheless, to discharge faithfully the Court's duty under Section 18, Article VII requires more than setting the test or standard. What is equally important is adopting the process or the manner by which the test or standard is properly applied. Hence, Justice Cecilia Munoz Palma stressed the importance of how the test is applied in Aquino v. Ponce Enrile26 which I quote here:

[W]hile that may be true, as it is the Lansang decision is a "giant leap" in the interest of judicial supremacy in upholding fundamental rights guaranteed by the Constitution, for that reason I cannot agree that We discard said decision or emasculate it so as to render its ruling a farce. The test of arbitrariness of executive action adopted in the decision is a sufficient safeguard; what is vital to the people is the manner by which the test is applied by the Court in both instances, i.e., suspension of the privilege of the writ of habeas corpus and/or proclamation of martial law. (Emphasis supplied.)

The procedure followed by the Court in Lansang was replicated in these cases where the Court assumed an active role in ascertaining whether or not there is evidence to show that the President's proclamation has sufficient or adequate factual basis. At its own initiative, the Court held a closed-door briefing by high-ranking defense and military officials in the presence of the Solicitor General and a representative of the petitioners, to be informed of classified information upon which the President acted. This is judicial activism consistent with the intent of Section 18, Article VII. To comply with its constitutional duty under said provision, the Court may opt not to strictly apply the usual rules on burden of proof, if in its sound judgment, the procedure it used complied with the requirement of due process of law.

The theoretical foundation of Lansang remains sound but perhaps what was lacking then was the judicial will to resolutely apply the theory and follow it to its logical conclusion. While the Court should not pass upon whether the exercise of Presidential discretion is correct, we must nonetheless, as the present Constitution now demands, carefully weigh the facts before us to determine whether there is real and rational basis for the President's action.

Hence, it is necessary for the Court to carefully examine the facts cited by the respondents as basis for issuing Proclamation No. 216 to determine whether or not the President acted arbitrarily or unreasonably or capriciously. Do the facts presented to the Court show that the President acted as a "reasonably discreet and prudent man" such that he had reasonable factual basis when he issued Proclamation No. 216? This is the next and final item in this judicial inquiry.

Characterization of the armed
hostilities averred in Proclamation
No. 216 and in the Report of the
President to Congress as actual
Rebellion

The facts relied upon by the President have demonstrated more than sufficient overt acts of anned public uprising in the island of Mindanao against the government. These have already been pointed out and extensively discussed by the ponencia of Justice Mariano C. del Castillo (Justice Del Castillo).

Respondents had convincingly shown that the series of violent acts and atrocities committed by the Abu Sayyaf and Maute terrorist groups were "intended to lay the groundwork for the eventual establishment of a DAESH wilayah or province in Mindanao." These factual bases for the declaration of martial law in the island of Mindanao were confirmed by defense military officials during the closed-door briefing of the Court. AFP Chief of Staff Eduardo Afio informed the Court that he had briefed the President on the situation in Mindanao frequently and on a regular basis. In its Memorandum dated June 19, 2017, the Office of the Solicitor General amply recited past, current, and related events, prior to the declaration of martial law, that would support the factual claim that the Abu Sayyaf and Maute terrorist groups are aiming to establish a wilayah in the island of Mindanao:

9. There are four ISIS-linked local rebel groups that operate in different parts of Mindanao. These groups have formed an alliance for the purpose of establishing a wilayah, or Islamic province, in Mindanao. The four (4) groups, which find their roots in different parts of Mindanao, are as follows:

a. The Abu Sayyaf Group from Basilan ("ASG-Basilan"), led by Isnilon Hapilon ("Hapilon");

b. Ansarul Khilafah Philippines ("AKP"), also known as the Maguid Group, from Saranggani and Sultan Kudarat. The group is led by Mohammad Jaafar Maguid;

c. The Maute Group from Lanao del Sur led by Omar Maute; and

d. Bangsamoro Islamic Freedom Fighters ("BIFF"), based in the Liguasan Marsh, Maguindanao.

x x x x

13. [I]n April 2016, the ISIS' weekly online newsletter, Al Naba, announced the appointment of ASG-Basilan leader, Hapilon, as the emir or leader of all ISIS forces in the Philippines. The appointment of Hapilon as its Philippine emir was further confirmed in a June 21, 2016 online video by ISIS entitled "The Solid Structure." The video hailed Hapilon as the mujahid authorized to lead the soldiers of the Islamic State in the Philippines.

14. The appointment by the ISIS of an emir in the Philippines furthered the unification of the local rebel groups. Sometime in June 2016, members of the different ISIS-linked local rebel groups consolidated in Basilan where its new emir operates his rebel group.

15. On December 31, 2016, Hapilon and about thirty (30) of his followers, including eight (8) foreign terrorists, were surveilled in Lanao del Sur. According to military intelligence, Hapilon performed a symbolic hijra or pilgrimage to unite with the ISIS-linked groups in mainland Mindanao. This was geared towards realizing the five (5)-step process of establishing a wi/ayah, which are: first, the pledging of allegiance to the Islamic State; second, the unification of all terrorist groups who have given bay 'ah or their pledge of allegiance; third, the holding of consultations to nominate a wali or a governor of a province; fourth, the achievement of consolidation for the caliphate through the conduct of widespread atrocities and uprisings all across Mindanao; and finally, the presentation of all of these to the ISIS leadership for approval or recognition.

16. On the first week of January 2017, a meeting among these ISIS-linked rebel groups was supposed to take place in Butig, Lanao del Sur for the purpose of declaring their unified pledge of allegiance to ISIS and re-naming themselves as the Da 'wahtul Islamiyah Waliyatul Mashriq ("DIWM"). This was, however, preempted by the death of Mohammad Jaafar Maguid (a.k.a. Tokboy), then leader of the AKP, coupled with the conduct of a series of military operations in the area.

17. The appointment by ISIS of an emir in the Philippines is already the third step in the establishment of a wilayah in Mindanao. Moreover, these groups now have the unified mission of wresting control of Mindanaoan territory from the government for the purpose of establishing a wilayah.27

These factual antecedents show that there is probable cause or reasonable ground to believe that the series of violent acts and atrocities committed by the Abu Sayyaf and Maute terrorist groups are directed against the political order in Mindanao with no other apparent purpose but to remove from the allegiance of the Republic of the Philippines the island of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety therein.

On the other hand, petitioners maintain that the facts relied upon by the President in support of his declaration of martial law are invariably false, simulated, and/or hyperbolic. However, the evidence presented by petitioners to bolster these claims consisted mainly of unverified news articles culled from news websites on cyberspace with nary an author or credible source presented in court or, who at the very least, executed an affidavit to corroborate what has been alleged. Jurisprudence has established that newspaper articles amount to "hearsay evidence, twice removed" and are, therefore, not only inadmissible but without any probative value at all, whether objected to or not, unless offered for a purpose other than proving the truth of the matter asserted.28 Therefore, given the inadmissibility and lack of probative value of petitioners' proffered evidence, the ponencia was correct in upholding the factual bases relied upon by the President - facts which are sourced from the entire intelligence-gathering machinery of the government itself and presented in utmost detail personally to the Members of this Court in closed session.

With regard to the contention that since Marawi City is the epicenter of hostilities, it is therefore error on the part of the President to subject the entire Mindanao region under martial rule. Petitioners submit that the proper course of action should have been to declare martial law only in Marawi City and its immediate environs. This contention is misplaced. The 1987 Constitution concedes to the President, through Section 18, Article VII or the Commander-in-Chief clause, the discretion to determine the territorial coverage or application of martial law or suspension of the privilege of the writ of habeas corpus and I quote:

[I]n case of invasion or rebellion, when the public safety requires it, [the President] may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.x x x (Emphasis supplied.)

What is clear from this provision is a tacit acknowledgment that since the President possesses the means and wherewithal to access vital and classified information from the government's entire intelligence apparatus, he is given wide latitude to define the metes and bounds within which martial law or the suspension of the privilege of the writ of habeas corpus should take effect.

In the consolidated cases at bar, the intelligence report that was presented to the Members of this Court in closed session indicated that several local armed groups other than those presently engaged in the fighting in Marawi City have established alliances with the Maute group to form an ISIS-linked organization with the aim of establishing a wilayah in Mindanao and eventually dismembering the entire Mindanao region from Philippine territory. Prior and contemporaneous events likewise suggest that the same groups were committed to this concerted act of rebellion all over Mindanao. These said events include but are not limited to the following:

a. There had been six (6) kidnappings from January 2017 up to the present, resulting to sixteen (16) victims. Notably, three (3) of the victims were beheaded, five (5) were released and nine (9) others were rescued with twenty-seven (27) victims still being held in captivity;

b. IED attack at a night market in Roxas A venue, Davao City on September 2, 2016, leading to the death of fifteen (15) people and the injury of more than sixty (60) others;

c. On November 5, 2016, the ASG [Abu Sayyaf Group] abducted a German national, Juergen Kantner, and killed his wife, Sabine Merz;

d. Siege in Butig, Lanao del Sur from November 26 to December 1, 2016, which resulted in skirmishes with government troops and the eventual withdrawal of the group amid several fatalities;

e. On December 28, 2016, the members of BIFF [Bangsamoro Islamic Freedom Fighters] lobbed two (2) grenades at the provincial office of Shariff, Maguindanao;

f. On January 12, 2017, an IED exploded in Barangay Campo Uno, Basilan thereby killing one (1) civilian and injuring another;

g. On January 19, 2017, the ASG kidnapped three (3) Indonesian crew members near Bakungan Island, Tawi-tawi;

h. On January 29, 2017, the ASG detonated an IED in Barangay Danapah, Basilan resulting in the death of two (2) children and the wounding of three (3) others;

i. Ambush of military elements in Marawi City on February 16, 2017, to include MAJ JERICO P MAN GAL US PA and one (1) enlisted personnel;

j. Carnapping in Iligan City on February 24, 2017 which led to government pursuit operations killing two (2) members identified as Azam Taher AMPATUA and @WOWIE and the apprehension of Eyemen Canulo ALONTO in Tagoloan, Lanao del Norte on the same day;

k. On February 26, 2017, the ASG beheaded its German kidnap victim, Juergen Kantner in Sulu;

l. On March 5, 2017, Mrs Omera Lotao MADID was kidnapped in Saguiaran, Lanao del Sur by suspected Maute Group elements;

m. On April 11, 201 7, the ASG infiltrated Inabanga, Bohol leading to firefights between the rebels and government troops;

n. On April 20, 2017, the ASG kidnapped SSgt. Anni Siraji and beheaded him three (3) days later; and,

o. From February to May 2017, there were eleven (11) separate instances of IED explosions by the BIFF in Mindanao. This resulted in the death and wounding of several military and civilian persons.29

Furthermore, the AFP Intelligence Report, entitled "Timeline of ASG and Maute Collaboration" discloses that as early as April 18, 2017, Abdullah Maute had dispatched his followers to the cities of Marawi, Iligan, and Cagayan de Oro to conduct born bing operations, camapping, and "liquidation" of AFP and PNP personnel in the said areas.30

These circumstances clearly indicate a concerted effort of formerly separate armed groups now united under an ISIS flag to essentially undertake a rebellion in the Mindanao region. Beyond doubt, this is constitutionally satisfactory justification for the President to declare a state of martial law and the suspension of the privilege of the writ of habeas corpus all over Mindanao. Hence, I fully concur with the conclusion of Justice Del Castillo as to the constitutional sufficiency of the factual bases for the issuance of Proclamation No. 216.

In view of the foregoing, I vote to DISMISS the petitions in these consolidated cases.

TERESITA J. LEONARDO-DE CASTRO
Associate Justice


Footnotes

1 149 Phil. 547 (1971).

2 158-APhil.1, 132(1974).

3 Section 5(1), Article Vlll of the 1987 Constitution provides:

SECTION 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

4 Shioji v. Harvey, 43 Phil. 333, 342 (1922).

5 See Go Lea Chu v. Gonzales, 130 Phil. 767, 776-777 (1968) in relation to the counterpart Section 6, Rule 135 under the then prevailing Rules of Court.

6 Supra note 2 at 132.

7 Araullo v. Aquino III, 737 Phil. 457, 531 (2014).

8 684 Phil. 526, 584 (2012).

9 Id. at 587-591.

10 Supra note 1.

11 Supra note 2.

12 Record of the 1986 Constitutional Commission No. 044, Vol. II, July 31, 1986, pp. 503-504.

13 See, for example, Strategic Alliance Development Corp. v. Radstock Securities Ltd., 622 Phil. 431, 475 (2009), citing Solicitor General v. The Metropolitan Manila Authority, 281 Phil. 925, 933 (1991).

14 Justice Felix Q. Antonio, Separate Opinion in Aquino v. Ponce Enrile, supra note 2 at 288.

15 283 Phil. 196, 212 (1992).

16 99 Phil. 515, 520-521 (1956).

17 Section 3(b), Republic Act No. 9372 "Human Security Act of2007."

18 267 Phil. 603, 611-612 (1990).

19 Fortun v. President Macapagal-Arroyo, supra note 8 at 629-630.

20 Aquino v. Ponce Enrile, supra note 2 at 48-49.

21 Lansang v. Garcia, supra note 1 at 594.

22 Fortun v. President Macapagal-Arroyo, supra note 8 at 597-598.

23 Webster's Ninth New Collegiate Dictionary (1986), p. 99.

24 Supra note 2 at 483.

25 G.R No. 227155, March 28, 2017.

26 Supra note 2 at 483.

27 Memorandum of Respondents dated June 19, 2017, pp. 5-8.

28 Feria v. Court of Appeals, 382 Phil. 412, 423 (2000).

29 Memorandum of Respondents dated June 19, 2017, pp. 73-74.

30 Id. at 74, referring to Annex "7" of the Affidavit of Eduardo Aflo dated June 17, 2017.


The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

PERALTA, J.:

On May 23, 201 7, President Rodrigo Roa Duterte issued Proclamation No. 216, declaring a state of martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao. The proclamation cited the Maute terrorist group's efforts to "remove Marawi City from the allegiance to the Philippine Government" and to 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.

On May 25, 2017, President Duterte submitted to Congress a Report relative to Proclamation No. 216. The document was received at 21:55 hours by respondents Senate President Aquilino "Koko" Pimentel III and Speaker of the House of Representatives Pantaleon Alvarez.

On May 29, 2017, the House of Representatives resolved to constitute itself as a Committee of the Whole to formally receive and consider the Report on Proclamation No. 216.

On May 31, 2017, the last day of its First Regular Session, the Senate adopted P.S. Resolution No. 388, declaring Proclamation No. 216 as satisfactory, constitutional, and in accordance with the law. The Senate supported it fully as it found no compelling reason to revoke the same. Likewise, a majority of the Senators voted to reject P.S. Resolution No. 390 entitled "Resolution to Convene Congress in Joint Session and Deliberate on Proclamation No. 216."

On even date, the House of Representatives, led by Speaker Alvarez, convened itself as a Committee of the Whole to discuss President Duterte's Report. Thereafter, the Committee introduced to the plenary House Resolution No. 1050, expressing full support to President Duterte's declaration of Proclamation No. 216. A majority of the representatives voted to adopt House Resolution No. 1050.

On June 2, 2017, the First Regular Session of Congress adjourned. No joint session of the Senate and the House of Representatives was convened.

Issues

The issues, as stated in the revised Advisory, are as follows:

1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771, and 231774 are the "appropriate proceeding" covered by paragraph 3, Section 18, Article VII of the Constitution sufficient to invoke the mode of review required of this Court when a declaration of martial law or the suspension of the privilege of the writ of habeas corpus is promulgated;

2. Whether or not the President in declaring martial law and suspending the privilege of the writ of habeas corpus:

a. is required to be factually correct or only not arbitrary in his appreciation of the facts;

b. is required to obtain the favorable recommendation thereon of the Secretary of National Defense;

c. is required to take into account only the situation at the time of the proclamation, even if subsequent events prove the situation to have not been accurately reported;

3. Whether or not the power of this Court to review the sufficiency of the factual basis [of] the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus is independent of the actual actions that have been taken by Congress jointly or separately;

4. Whether or not there were sufficient factual [basis] for the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus;

a. What are the parameters for review?

b. Who has the burden of proof?

c. What is the threshold of evidence?

5. Whether the exercise of the· power of judicial review by this Court involves the calibration of the graduated powers granted the President as Commander-in-Chief, namely: calling out powers, suspension of the privilege of the writ of habeas corpus, and declaration of martial law;

6. Whether or not Proclamation No. 216 of May 23, 2017 may be considered vague and thus null and void:

a. with its inclusion of "other rebel groups," or

b. since it has no guidelines specifying its actual operational parameters within the entire Mindanao region;

7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of the President to Congress are sufficient basis:

a. for the existence of actual rebellion;

b. for a declaration of martial law or the suspension of the privilege of the writ of habeas corpus in the entire Mindanao region;

8. Whether or not terrorism or acts attributable to terrorism are equivalent to actual rebellion and the requirements of public safety sufficient to declare martial law or suspend the privilege of the writ of habeas corpus;

9. Whether or not nullifying Proclamation No. 216 of May 23, 2017 will:

a. have the effect of recalling Proclamation No. 55, s. 2016; or

b. also nullify the acts of the President in calling out the Armed Forces to quell lawless violence in Marawi and other parts of the Mindanao region.

In a democratic and republican State such as ours, everyone must abide by the Rule of Law. More so, in momentous events affecting the life of the nation and the welfare of its people it is imperative to properly determine how power is to be allocated, exercised and recognized vis-a-vis the competing mandate of the three equal branches of the government to safeguard the civil liberties of the sovereign from whom their authority emanates. That is the gist of the issues presented in this case. Here, President Duterte, pursuant to his constitutional powers, has proclaimed martial law and suspended the privilege of the writ of habeas corpus. Apparently, the Congress has manifested its approbation thereto. Now, the Court is pleaded to discharge its solemn duty, similarly conferred by the Fundamental Law, to review the sufficiency of the factual basis of the President's action.

Indubitably, under Section 18, Article VII of the 1987 Constitution, the President, as the Commander-in-Chief of all armed forces of the Philippines, is authorized to place the country or any part thereof under martial law or to suspend the privilege of the writ of habeas corpus in case of invasion or rebellion, when the public safety requires it. The same provision of the organic act empowers the Supreme Court, upon the initiation of an appropriate proceeding by any citizen, to inquire into the sufficiency of the factual basis of such action. There is no question then that this Court is mandated to determine the validity of the declaration of martial law or suspension of the privilege of the writ of habeas corpus, in the same way that the Congress is given the license to revoke such proclamation or suspension.

The "appropriate proceeding"
under paragraph 3, Section
18, Article VII of the
Constitution

The preliminary issue to take into account is the nature of the "appropriate proceeding" by which the Court could exercise its prerogative and discharge its responsibility as well as the extent of such authority to look into the assailed actions of the President.

While the present Constitution does not specifically state the kind of proceeding, the same could be ascertained from the antecedent of Section 18, Article VII in relation to the significant and novel feature of the 1987 Constitution that expands the concept of judicial power:

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.1

The aforequoted provision constitutionalized the ruling in In the Matter of the Petition for Habeas Corpus of Lansang et al.2 as it appears clear that paragraph 2, Section 1, Article VIII of the Constitution incorporates in the Fundamental Law the teaching therein.3 It was observed that:

This new provision was enacted to preclude this Court from using the political question doctrine as a means to avoid having to make decisions simply because they are too controversial, displeasing to the President or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed the Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of consequences or a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down an exercise of authoritarian power. x x x The Constitution was accordingly amended. We are now precluded by its mandate from refusing to invalidate a political use of power through a convenient resort to the political question doctrine. We are compelled to decide what would have been non-justiceable under our decisions interpreting earlier fundamental charters.4

Given the Lansang background of paragraph 2, Section 1, Article VIII, it is appropriate to echo what the Court said way back in 1971, which pronouncement finds vitality, illumination and relevance today as it was then, if not more in view of the many features of the present Constitution that were influenced by the Marcos martial law experience. We held in Lansang:

The first major question that the Court had to consider was whether it would adhere to the view taken in Barcelon v. Baker and reiterated in Montenegro v. Castaneda, pursuant to which, "the authority to decide whether the exigency has arisen requiring suspension (of the privilege of the writ of habeas corpus) belongs to the President and his 'decision is final and conclusive' upon the courts and upon all other persons." Indeed, had said question been decided in the affirmative, the main issue in all of these cases, except L-34339, would have been settled, and, since the other issues were relatively of minor importance, said cases could have been readily disposed of. Upon mature deliberation, a majority of the Members of the Court had, however, reached, although tentatively, a consensus to the contrary, and decided that the Court had authority to and should inquire into the existence of the factual bases required by the Constitution for the suspension of the privilege of the writ; but before proceeding to do so, the Court deemed it necessary to hear the parties on the nature and extent of the inquiry to be undertaken, none of them having previously expressed their views thereon. Accordingly, on October 5, 1971, the Court issued, in L-33964, L-33965, L-33973 and L-33982, a resolution stating in part that –

x x x a majority of the Court having tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the issuance of Presidential Proclamations Nos. 889 and 889-A (suspending the privilege of the writ of habeas corpus for all persons detained or to be detained for the crimes of rebellion or insurrection throughout the Philippines, which area has lately been reduced to some eighteen provinces, two subprovinces and eighteen cities with the partial lifting of the suspension of the privilege effected by Presidential Proclamations Nos. 889-B, 889-C and 889-D) and thus determine the constitutional sufficiency of such bases in the light of the requirements of Article III, Sec. 1, par. 14, and Article VII, Sec. 10, par. 2, of the Philippine Constitution; and considering that the members of the Court are not agreed on the precise scope and nature of the inquiry to be made in the premises, even as all of them are agreed that the Presidential findings are entitled to great respect, the Court RESOLVED that these cases be set for rehearing on October 8, 1971at9:30 A.M.

x x x x

In our resolution of October 5, 1971, We stated that "a majority of the Court" had "tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the issuance of Presidential Proclamations Nos. 889 and 889-A x x x and thus determine the constitutional sufficiency of such bases in the light of the requirements of Article III, Sec. 1, par. 14, and Article VII, Sec. 10, par 2, of the Philippine Constitution x x x." Upon further deliberation, the members of the Court are now unanimous in the conviction that it has the authority to inquire into the existence of said factual bases in order to determine the constitutional sufficiency thereof.

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended x x x." It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" - or, under Art. VII of the Constitution, "imminent danger thereof' - "when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." Far from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.

Much less may the assumption be indulged in when we bear in mind that our political system is essentially democratic and republican in character and that the suspension of the privilege affects the most fundamental element of that system, namely, individual freedom. Indeed, such freedom includes and connotes, as well as demands, the right of every single member of our citizenry to freely discuss and dissent from, as well as criticize and denounce, the views, the policies and the practices of the government and the party in power that he deems unwise, improper or inimical to the commonwealth, regardless of whether his own opinion is objectively correct or not. The untrammelled enjoyment and exercise of such right - which, under certain conditions, may be a civic duty of the highest order - is vital to the democratic system and essential to its successful operation and wholesome growth and development.

Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and, hence, within the framework of the social order established by the Constitution and the context of the Rule of Law. Accordingly, when individual freedom is used to destroy that social order, by means of force and violence, in defiance of the Rule of Law - such as by rising publicly and taking arms against the government to overthrow the same, thereby committing the crime of rebellion - there emerges a circumstance that may warrant a limited withdrawal of the aforementioned guarantee or protection, by suspending the privilege of the writ of habeas corpus, when public safety requires it. Although we must be forewarned against mistaking mere dissent - no matter how emphatic or intemperate it may be - for dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less refuse - when the existence of such rebellion or insurrection has been fairly established or cannot reasonably be denied - to uphold the finding of the Executive thereon, without, in effect, encroaching upon a power vested in him by the Supreme Law of the land and depriving him, to this extent, of such power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize.

x x x x

Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying our· system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in tum, constitutionally supreme.

In the exercise of such authority, the function of the Court is merely to check - not to supplant - the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. To be sure, the power of the Court to determine the validity of the contested proclamation is far from being identical to, or even comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal from inferior courts, in which cases the appellate court has all of the powers of the court of origin.

Under the principle of separation of powers and the system of checks and balances, the judicial authority to review decisions of administrative bodies or agencies is much more limited, as regards findings of fact made in said decisions. Under the English law, the reviewing court determines only whether there is some evidentiary basis for the contested administrative finding; no quantitative examination of the supporting evidence is undertaken. The administrative finding can be interfered with only if there is no evidence whatsoever in support thereof, and said finding is, accordingly, arbitrary, capricious and obviously unauthorized. This view has been adopted by some American courts. It has, likewise, been adhered to in a number of Philippine cases. Other cases, in both jurisdictions, have applied the "substantial evidence" rule, which has been construed to mean "more than a mere scintilla" or "'relevant evidence as a reasonable mind might accept as adequate to support a conclusion," even if other minds equally reasonable might conceivably opine otherwise.

Manifestly, however, this approach refers to the review of administrative determinations involving the exercise of quasi-judicial functions calling for or entailing the reception of evidence. It does not and cannot be applied, in its aforesaid form, in testing the validity of an act of Congress or of the Executive, such as the suspension of the privilege of the writ of habeas corpus, for, as a general rule, neither body takes evidence - in the sense in which the term is used in judicial proceedings – before enacting a legislation or suspending the writ. Referring to the test of the validity of a statute, the Supreme Court of the United States, speaking through Mr. Justice Roberts, expressed, in the leading case of Nebbia v. New York, the view that:

x x x If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, andjudicial determination to that effect renders a court functus officio ... With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal ...

Relying upon this view, it is urged by the Solicitor General –

x x x that judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the Court not that the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily.

No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-equality of coordinate branches of the Government, under our constitutional system, seems to demand that the test of the validity of acts of Congress and of those of the Executive be, mutatis mutandis, fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper standard is not correctness, but arbitrariness.5

The foregoing considered, it necessarily follows that the "appropriate proceeding" under paragraph 3, Section 18, Article VII of the Constitution refers to the certiorari jurisdiction of the Court where the inquiry is on whether the President acted arbitrarily.6 The proper role of the Supreme Court, in relation to what it has been given as a duty to perform whenever the Commander-in-Chief proclaims martial law or suspends the privilege of the writ of habeas corpus, is merely to determine whether he acted with grave abuse of discretion amounting to lack or excess of jurisdiction. It is not for Us to rule on whether he decided rightly or otherwise, but whether he acted without factual basis, hence, acted whimsically or capriciously. If he had factual basis, there was no arbitrariness. We cannot second guess what he should have done under the prevailing circumstances. If the President was wrong in his assessment and in exercising his judgment call, he shall be answerable to the people and history and not to this Court.

We are aware that our decision-making authority is based on considerations that are vastly different from what the political departments regard in arriving at their own, especially on discretionary acts for which the latter are basically accountable to the electorate. Particularly, when it comes to the exercise of a power lodged in the Commander-in-Chief, the Court is cognizant of the practical necessity that there are certain matters and pieces of information that may only be available to the President and no one else in view of their sensitivity as well as their effect to public safety and national security. To make delicate matters available to the general public may compromise the ability of the government to do its job of protecting the Republic and its people. Confidentiality still has its place in a free and transparent society, otherwise greater danger may ensue. There is, therefore, a presumption in favor of the Chief Executive that he knows what he is doing, unless it could clearly be shown that he acted arbitrarily in the sense that he did not have any acceptable factual basis to justify what he did. Presumably, the Office of the President is equipped with facilities where the implications of certain facts and circumstances could be appreciated and acted upon in a holistic manner.

Existence of actual rebellion
defined and penalized under
the Revised Penal Code

The factual basis of the President in declaring martial and suspending the privilege of the writ of habeas corpus is the rebellion being committed by the Maute terrorist group. The elements of the crime are as follows:

1. That there be (a) public uprising, and (b) taking arms against the Government.

2. · That the purpose of the uprising or movements is either -

a. To remove from the allegiance to said Government or its laws:

(1) The territory of the Philippines or any part thereof; or

(2) Any body of land, naval or other armed forces; or

b. To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives.

In my interpellation during the oral argument, it has been established that public uprising and taking arms against the government are present, thus:

JUSTICE PERALTA:

For clarification, Congressman. Now, you could not admit that there is now public uprising in the Marawi City?

CONGRESSMAN LAGMAN:

There is public uprising, Your Honor, but there is no ...

JUSTICE PERALTA:

Yah, there is also taking up arms rebellion against the government, you also admit that?

CONGRESSMAN LAGMAN:

Yes, Your Honor, we agree to that.

JUSTICE PERALTA:

What we are saying is that, because you believe that, what we are saying is that there are essential elements of rebellion: one, public uprising; two is taking up arms against the . government. What you are disputing is that, the focus of public uprising and taking up arms against the government is not political?

CONGRESSMAN LAGMAN:

No, we are saying that essential element of culpable purpose is not present.

JUSTICE PERALTA:

That's correct, that's what I'm saying. So, the purpose of the violence or the taking up arms against the government is not political in nature?

CONGRESSMAN LAGMAN:

Yes, Your Honor, we can say that because it is merely to saw fear and apprehension, Your Honor.

JUSTICE PERALTA:

When do you say the purpose is not political? May I know why you are saying that the purpose of the violence or taking up arms against the government is not political?

CONGRESSMAN LAGMAN:

Well, we just agreed with your statement, Your Honor, but if you see the context of the present violence in Marawi City, there is no culpable purpose of removing Marawi City from the allegiance to the Republic or there is no culpable purpose of depriving the President to exercise its powers and prerogatives because the channels of civilian and Military authority is not destructive.

JUSTICE PERALTA:

By the extent of the violence committed, Mr. Congressman, the Chief Executive is deprived of his power to enforce the laws in Marawi City?

CONGRESSMAN LAGMAN:

At the time the proclamation was issued, Your Honor, there was no such kind of multitude in the violence, no less than the Military officials hours before the President issued the Proclamation said that the situation is under control. What this abuse in the mind of the public, Your Honor, is that what is happening now in Marawi City is the aftermath of the declaration of martial law, which was not the reality of the ground when martial law was imposed.

JUSTICE PERALTA:

The Chief ...

XXXX

CHIEF JUSTICE SERENO:

So, we can now resume the interpellation of Justice Peralta. Thank you.

JUSTICE PERALTA:

We, therefore, agree, Congressman, that there are two political purposes of rebellion. One is the removal of the allegiance from the government or any part of its laws, that's number one. Number two, is the deprivation of the Chief Executive or the Legislator in the exercise of its powers and prerogatives. Am I correct?

CONGRESSMAN LAGMAN:

Yes, Your Honor.

JUSTICE PERALTA:

And then you said that presently, there is now a factual basis of the existence of rebellion, because it is now impossible for the President to exercise its power or the power enforcing the laws in Marawi, because of the extent of violence, did I heard (sic) you right?

CONGRESSMAN LAGMAN:

Your Honor, I think that was not my statement. There is now a factual basis for rebellion.

JUSTICE PERALTA:

Now, do you agree now that the President can now exercise ' its power to enforce the laws because of the extent of violence in Marawi City?

CONGRESSMAN LAGMAN:

Well, even without declaring martial law, Your Honor, the violence in Marawi City did not prelude the President from exercising its powers and prerogatives, because the channels of civilians and military authority are there.

JUSTICE PERALTA:

But I thought you said a while ago that there is no question that there is now public uprising. You also said that the violence, the taking up arms against the government is already there?

CONGRESSMAN LAGMAN:

Yes, Your Honor ...

JUSTICE PERALTA:

So, all these essential elements are already present?

CONGRESSMAN LAGMAN:

The culpable purpose is not there.

JUSTICE PERALTA:

So, what was the culpable purpose?

CONGRESSMAN LAGMAN:

The culpable purpose, Your Honor, of rebellion, is to remove the Philippines or part thereof from allegiance to the republic or to prevent the President from the legislator from exercising its powers and prerogatives.

JUSTICE PERALTA:

So, what would you like the President to do under the circumstances?

CONGRESSMAN LAGMAN:

Under the circumstances, Your Honor, he has done what is supposed to do, except the fact that he declared martial law, because he could call the armed forces of the Philippines to subdue this terrorism being perpetrated.

JUSTICE PERALTA:

Despite the presence of public uprising and taking up arms against the government?

CONGRESSMAN LAGMAN:

Your Honor, the presence of an uprising, the presence of taking arms against the government is only one of the elements.

JUSTICE PERALTA:

That's what I was saying.

CONGRESSMAN LAGMAN:

It does not conclude or presume that the other element is present.

JUSTICE PERALTA:

That's what I was saying. How can the President exercise or execute the laws under the circumstances?

CONGRESSMAN LAGMAN:

Your Honor, he can, and he must be doing that, Your Honor.

JUSTICE PERALTA:

How?

CONGRESSMAN LAGMAN:

Because the channels of civilian and military commands [have] not been broken, Your Honor. As a matter of fact, the DND ofMarawi City, the LGUs of the entire Mindanao region are existing and operational. He can exercise his prerogatives and powers through the channels of these local government units, including the functioning departments of the government.7

Although petitioner Lagman did not agree that the element of culpable purpose is present, his adamant position is contrary to what is actually happening in Marawi City. As pointed out by the OSG, the siege in the City cannot be characterized as merely a result of counter-measures against the government's pursuit of Isnilon Hapilon, but is, in fact, a strategic and well-coordinated attack to overthrow the present government and to establish a wilayah in Mindanao. Needless to say, the Marawi siege shows a clear purpose to take over a portion of the Philippine territory.

Validity of the declaration of
martial law and the suspension
of habeas corpus in the entire
Mindanao

In view of President Duterte's possession of information involving public safety which are unavailable to us, the Court cannot interfere with the exercise of his discretion to declare martial law and suspend the privilege of the writ of habeas corpus in the whole of Mindanao.

The OSG, representing the public respondents, averred that the Maute Group has. banded with three other radical terrorist organizations, namely: the ASG from Basilan headed by Hapilon, the AKP (formerly known as the Maguid Group) from Saranggani and Sultan Kudarat, and the BIFF from Maguindanao. These groups are also affiliated with local cell groups located throughout the country. Even prior to the Marawi siege, the ASG, AKP, Maute Group, and BIFF as well as the numerous ISIS cell groups have already committed numerous bombings, assassinations, and extortion activities in the country, especially in Mindanao. These violent activities are widespread in several areas of Mindanao, such as Basilan, Sulu, Tawi-Tawi, Zamboanga, Davao Del Norte, Lanao Del Sur, and Maguindanao. The AFP intelligence reports also disclosed that as early as April 18, 2017, Abdullah Maute had dispatched his followers to the cities of Marawi, Iligan, and Cagayan de Oro to conduct bombing operations, carnapping and "liquidation" of AFP and PNP personnel in the areas. As the OSG emphasized, the primary goal of the ISIS-linked local rebel groups is to establish a wilayah in Mindanao. In a video retrieved by the AFP, Abdullah Maute was shown saying: "O kaya, unahin natin dit x x x tapos sunodsunod na ito x x x 0 kaya unahin natin ditto x x x at separate natin dito isa (circled Marawi) para may daanan tayo." Based on these, it cannot be said that the danger to public safety is isolated and contained only in Marawi City. At the very least, the danger stretches in the entire Mindanao.

I cannot accede to petitioner Lagman's proposition that it is only when the acts of rebellion are actually committed outside Marawi City that the President could declare martial law or suspend the privilige of the writ of habeas corpus in other affected towns or cities. Quoted below is my interpellation during the oral argument:

JUSTICE PERALTA:

Okay, I'll go to another point. Do [you] agree that the crime of rebellion is a continuing offense?

CONGRESSMAN LAGMAN:

Well, yes, there are jurisprudence to that effect, Your Honor.

JUSTICE PERALTA:

In other word ...

CONGRESSMAN LAGMAN:

But I would say that rebellion should not be extrapolated.

JUSTICE PERALTA:

No, I'm not after that. The other meaning of continuing offense is that; several acts are committed in different places, but their purpose is the same, do you agree with that?

CONGRESSMAN LAGMAN:

Yes, Your Honor, but in this particular case, the acts are not committed in other places.

JUSTICE PERALTA:

No, I'm not going to that yet, I will ask that question later, Congressman. What is the principle of continuing offense, you agree with that, the other principle of continuing offense?

CONGRESSMAN LAGMAN:

Yes, Your Honor.

JUSTICE PERALTA:

That several acts might be committed in different places?

CONGRESSMAN LAGMAN:

Yes, Your Honor.

JUSTICE PERALTA:

But the purpose is the same?

CONGRESSMAN LAGMAN:

Yes, Your Honor.

JUSTICE PERALTA:

Now, if assuming this is hypothetical, assuming that there is rebellion in Marawi City, and some of the acts are committed outside Marawi City, supposing the guns come from the nearby town of Marawi City and the other members of the rebel groups are based in that place and they bring their guns inside Marawi City. Will that not be rebellion in the other place?

CONGRESSMAN LAGMAN:

In the first place, Your Honor, that hypothetical question is not actually happening in Marawi City and other parts of Mindanao region.

JUSTICE PERALTA:

Supposing it happens, will it not be covered by the principle of continuing offense? If the acts are committed in another place and the actual rebellion takes place in another place, all of them will be liable under the theory of conspiracy.

CONGRESSMAN LAGMAN:

When we say, Your Honor, that it's a continuing offense, that rebellion is a continuing offense, it assumes that the inculpatory elements of rebellion are present.

JUSTICE PERALTA:

Of course, we assume that, that's why it's hypothetical. Now, if there's a rebellion, I will not use anymore Marawi City, because you might be presuming that I'm referring martial law in Marawi. Supposing in one place, there is a rebellion ongoing, the declaration is to cover the whole area, outside the place where the actual rebellion is happening, can the President likewise cover the other areas nearby, as part of the declaration of rebellion?

CONGRESSMAN LAGMAN:

Your Honor, that may not be legally possible because with respect to the other areas, there is only an imminent danger of a rebellion and imminent danger has been deleted ...

JUSTICE PERALTA:

What I understand from the deliberations of an imminent danger is, the initial declaration of martial law should not be based on imminent danger. Because if there is already a declaration of rebellion, you need not anymore ask or require imminent danger, because if there is a rebellion in one place, let's say in Marawi City, and then the rebels will go to the other place committing rebellion, the President will issue again a proclamation in that place? And then declare martial law in order to suspend the writ of habeas corpus in other place?

CONGRESSMAN LAGMAN:

While we say, Your Honor, that the President declares martial law,

or suspends the privilege of the writ of habeas corpus, there must be an

actual rebellion in the place occurring. When there is no actual rebellion in

the other place because there is only a possibility that it is cover, I think

that would, the imminent danger is not anymore ground.

JUSTICE PERALTA:

Can he not declare rebellion in Mindanao? Because Marawi City is part of Mindanao? You are suggesting that for every town that there is rebellion and declaration should be made?

CONGRESSMAN LAGMAN:

Yes, Your Honor, martial law can only be declared where there is actual rebellion in the coverage of President's proclamation.

JUSTICE PERALTA:

Yeah, because what I understand from the imminent danger as the reason why the possibility is that, in the initial proclamation of rebellion, under the old law, you can use that as a ground, but if the initial, if the proclamation is rebellion, that's it. It's covered in the Constitution.

CONGRESSMAN LAGMAN:

Rebellion, Your Honor, with respect to the place it is covered by marital law, not to other places where there is no rebellion or there is only a threat.

JUSTICE PERALTA:

But if the President declares Mindanao and Marawi City is part of Mindanao, what's wrong with it?

CONGRESSMAN LAGMAN:

Your Honor, Marawi City is only 0.0% of the entire Mindanao.

JUSTICE PERALTA:

But the groups who are involved are located in several places in Mindanao, some are based in Lanao, based in Davao, based in Basilan, based in Sulu, all of these places.

CONGRESSMAN LAGMAN:

That is only a threat, because of their presence there, but they have not activated, Your Honor. The word "a threat" is a key to imminent danger, it is not a ground.

JUSTICE PERALTA:

That's not what I mean, what I mean is that the President declares martial law in Mindanao, will that not cover the whole Mindanao because rebellion is taking place in Mindanao?

CONGRESSMAN LAGMAN:

Your Honor, that has no factual basis, the sufficiency of the basis of that declaration is not there because there is no rebellion in the other parts of Mindanao, particularly the areas mentioned yesterday by some members of this Honorable Court.

JUSTICE PERALTA:

Okay, so, the President should specifically declare certain place[ s] where the actual rebellion is happening.

CONGRESSMAN LAGMAN:

Yes ...

JUSTICE PERALTA:

So, if the rebellion will spread to the other towns, the President must declare, must again come out with the proclamation, declaring martial law in that place, is that your theory?

CONGRESSMAN LAGMAN:

Where there is actual rebellion in that place, Your Honor.

JUSTICE PERALTA:

Yeah, there is actual rebellion in the other place, so, the rebels are now in certain place[s]. They now expand the rebellion in the nearby town, so the President will declare another proclamation in that nearby town. If we follow the theory, that there is no imminent danger, [then] he can only declare martial law, when the actual rebellion already takes place in that nearby town.

CONGRESSMAN LAGMAN:

We are just following the intention of the Constitution, Your Honor, that there must be actual rebellion as the basis for the declaration of martial law.

JUSTICE PERALTA:

Of course, that's always the requirement, that there must be actual rebellion. Thank you, thank you, Congressman.

CONGRESSMAN LAGMAN:

Thank you, Your Honor.8

To limit the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in Marawi City alone where there is actual rebellion verges on the absurd. If we are to follow a ''piece-meal" proclamation of martial law, the President would have to declare it repeatedly. Where there is already a declaration of martial law and/or suspension of the privilege of the writ of habeas corpus, considering that rebellion is a continuing crime, there is no need for actual rebellion to occur in every single town or city of Mindanao in order to validate the proclamation of martial law or suspension of the privilege of the writ of habeas corpus in the entire island. Indeed, there is no need for a separate declaration because the declaration itself already covers the whole of Mindanao.

The validity of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao is further bolstered by the fact that rebellion has no "predetermined bounds." Quoting People v. Lovedioro,9 the OSG raised:

The gravamen of the crime of rebellion is an armed public uprising against the government. By its very nature, rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot be confined a priori within predetermined bounds. One aspect noteworthy in the commission of rebellion is that other acts committed in its pursuance are, by law, absorbed in the crime itself because they acquire a political character. This peculiarity was underscored in the case of People v. Hernandez, thus:

In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance 'to the Government the territory of the Philippine Islands or any part thereof,' then it becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.10

Consistent with the nature of rebellion as a continuing crime and a crime without borders, the rebellion being perpetrated by the ISIS-linked rebel groups is not limited to the acts committed in Marawi City. The criminal acts done in furtherance of the purpose of rebellion, which are absorbed in the offense, even in places outside the City are necessarily part of the crime itself. More importantly, the ISIS-linked rebel groups have a common goal of taking control of Mindanao from the government for the purpose of establishing the region as a wilayah. This political purpose·, coupled with the rising of arms publicly against the government, constitutes the crime of rebellion and encompasses territories even outside Marawi City, endangering the safety of the public not only in said City but the entire Mindanao.

It is true that the 1987 Constitution has a number of safeguards to ensure that the President's exercise of power to declare martial law or suspend the privilege of the writ of habeas corpus will not be abused. Nonetheless, it does not do away with the powers necessarily included in the effective exercise of such authority. Indeed, certain things taken for granted during times of peace and quietude may have to adapt to meet the exigencies of the moment. What may be considered as unreasonable during normal times may become justifiable in cases of invasion or rebellion. When the threat to society becomes evident, there must be corresponding adjustments in the manner by which the government addresses and responds to it. For instance, would ordinary rules regarding visual search or inspection in checkpoints still be reasonable if vehicles are used as car bombs? Or should appropriate remedial measures be adopted to ensure that the lives of the people are not unwittingly exposed to such danger, such as undertaking more comprehensive inspections and not just relying on the apparent, if not deceptive, appearances of the vehicles and their occupants?

The Constitution is a living, responsive, and adaptable instrument for effective governance. It should not be seen as providing permanently framed and fossilized rules. The nation could not stand still and be a helpless victim of ordinary crimes, terrorism, rebellion or invasion. It has its own defenses and means to protect itself, which are primarily entrusted to the President who remcrins to be accountable to the sovereign people. The Court also has its part in that duty, yet it can only do so within the confines of its own constitutionally vested authority, including the limitation not to overstretch itself and encroach on the domain of the Executive Department.

Wherefore, I vote to DISMISS the consolidated petitions.

DIOSDADO M. PERALTA
Associate Justice


Footnotes

1 1987 CONSTITUTION, Art. VIII, Sec. 1, par. 2.

2 149 Phil. 547 (1971).

3 See Ma,caH. Mang/apur, QR. No. 88211, September 15, 1989, 177 SCRA 668, 696

4 See Dissenting Opinion of Justice Hugo E. Gutierrez, Jr. in Marcos v. Mang/apus, at 708. Likewise, In his separate opinion in Arau/lo v. Aquino III (G.R. No. 209287, July 1, 2014, 728 SCRA I, 249), Justice Arturo D. Brion observed that "[t]his addition was apparently in response to the Judiciary's past experience of invoking the political question doctrine to avoid cases that had political dimensions but were otherwise justiciable. The addition responded as well to the societal disquiet that resulted from these past judicial rulings."

5 In the Matter of the Petition for Habeas Corpus of Lansang, et al., supra note 2, at 577-594. (Citations omitted; emphasis in the original)

6 Cf Aratuc v. Commission on Elections, 177 Phil. 205, 222-224 (1979), the Court, after noting the change in the phraseology in the 1973 Constitution, as against the 1935 Constitution, with regard to review of COMELEC decisions, pointed out:

Now before discussing the merits of the foregoing contentions, it is necessary to clarify first the nature and extent of the Supreme Court's power ofreview in the premises. The Aratuc petition is expressly predicated on the ground that respondent Comelec "committed grave abuse of discretion, amounting to lack of jurisdiction" in eight specifications. On the other hand, the Mandangan petition raises pure questions of law and jurisdiction. In other words, both petitions invoked the Court's certiorari jurisdiction, not its appellate authority of review.

This is as it should be. While under the Constitution of 1935, "the decisions, orders and rulings of the Commission shall be subject to review by the Supreme Court" (Sec. 2, first paragraph, Article X) and pursuant to the Rules of Court, the petition for "certiorari or review" shall be on the ground that the Commission "has decided a question of substance not theretofore determined by the Supreme Court, or has decided it in a way not in accord with law or the applicable decisions of the Supreme Court" (Sec. 3, Rule 43), and such' provisions refer not only to election contests but even to pre-proclamation proceedings, the 1973 Constitution provides somewhat differently thus: "Any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof' (Section 11, Article XII), even as it ordains that the Commission shall "be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials" (Section 2[2].)

x x x x

We hold, therefore, that under the existing constitutional and statutory provisions, the certiorari jurisdiction of the Court over orders, rulings and decisions of the Comelec is not as broad as it used to be and should be confined to instances of grave abuse of discretion amounting to patent and substantial denial of due process. Accordingly, it is in this light that We shall proceed to examine the opposing contentions of the parties in these cases.

7 TSN, Oral Arguments, June 14, 2017, pp. 41-49.

8 Id. at 49-54.

9 G.R. No. 112235, November 29, 1995, 250 SCRA 389.

10 People v. Lovedioro, GR. No. 112235, Novembe.29, 1995, 250 SCRA 389, 394-395. (Emphasis ours)


The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

MENDOZA, J.:

Once again the Court is confronted with an issue raised to test the constitutional safeguards against abuses put in place by the Framers of the 1987 Constitution in response to the experiences of the nation during the regime of former President Ferdinand E. Marcos.

Martial law is a polarizing concept. On the one hand, it is an extraordinary constitutional power conferred on the president, which he may exercise when there is invasion or rebellion and when public safety requires it. Martial law is not merely an implied or necessary power, but a power expressly and categorically entrusted by the people to the president.

Yet, an invocation of the said power generates a dissonant reaction from various sectors of the citizenry-some are downright antagonistic. They still vividly recall how, during the Marcos regime, martial law was utilized, not as a shield to protect the sovereignty from both foreign and local threats, but as a mechanism to stifle dissent, to oppress the opposition, and to plunder the economy. The same power intended to protect the citizenry from danger was instead used to violate their constitutional and human rights.

The present controversy stemmed from the issuance of President Rodrigo Duterte (President Duterte) of Proclamation No. 216, which placed several islands comprising Mindanao under martial law.

Considering the trauma sustained by the people during the Marcos regime, the Court understands the skepticism of some sectors of society. In case of invasion or rebellion and when the public safety requires it, however, the Court cannot just enjoin the implementation of martial law. It can only do so if the sufficiency of the factual bases for such declaration cannot be proven in an appropriate proceeding.

This case is the appropriate proceeding. It is sui generis in the absence of a corresponding specific procedure promulgated by the Court.

The Factual Antecedents

As early as November 2014, certain groups in Mindanao pledged allegiance to the Islamic State of Iraq and Syria (ISIS) Caliphate.1 The four groups coming from different parts of Mindanao were (1) the Abu Sayyaf Group (ASG) from Basilan, headed by Isnilon Hapilon (Hapilon); (2) the Dawlah Islamiya or the Maute Group from Lanao del Sur, headed by Omar Maute; (3) the Ansarul Khilafah Philippines (AKP), also known as the Maguid Group from Saranggani and Sultan Kudarat, led by Mohammad Jaafar Maguid; and (4) the Bangsamoro Islamic Freedom Fighters (BIFF), based in Maguindanao.

In 2016, Hapilon was appointed as the Emir in the Islamic State of the Philippines. The groups intended to establish Marawi City in Lanao del Sur as their capital as it is the central point from which other areas in Mindanao can be easily accessed.

In the first quarter of 2017, due to the heightened frequency of the armed attacks in Mindanao, the quality of the weapons used by the armed groups, and the evident political intention to dismember Philippine territory and deprive the President of his powers in Mindanao, Defense Secretary Delfin N. Lorenzana (Secretary Lorenzana) and National Security Adviser General Hermogenes Esperon, Jr. (General Esperon), during security briefings and cabinet meetings, expressed to the President the advisability of declaring martial law. Martial Law Administrator, Armed Forces Chief General Eduardo Afi.o (General Ano), confirmed that he had been briefing the President at least three (3) times a day on the situation in Mindanao, which was getting critical every day.

Sometime before May 23, 2017, the Maute Group, the ASG, the BIFF, and the AKP, who all vowed to overthrow the government and establish a wilayah (province) in Mindanao, met and discussed how to execute their plan to realize their aspirations. This has been validated by a video2 showing Hapilon and the Maute brothers discussing their strategy on how to attack Marawi City.

On May 23, 2017, acting on intelligence so far gathered, the police, with the assistance of the military, moved out to serve a warrant of arrest on Hapilon, who was reported to be in a safe house of the Maute Group. A firefight between the military and the rebels ensued, but the latter, following their then secret plan, simultaneously laid siege to Marawi City in an unprecedented scale, occupied strategic positions therein, set up their own checkpoints, and virtually paralyzed the city. Several government and private infrastructures were destroyed and the operations of the local government were crippled. The ISIS-inspired local rebel groups had indeed succeeded in terrorizing the entire city of Marawi on the very first day of Ramadan with the goal of establishing a wilayah in Mindanao.

On the same day, May 23, 2017, acting on validated intelligence reports, President Duterte issued Proclamation No. 216 declaring a state of martial law in the entire Mindanao.

Hence, these consolidated petitions.

Overall, the petitioners challenge President Duterte's declaration of martial law on the ground that it is constitutionally infirm primarily because there is no actual rebellion, and even if there is, he should have exercised his calling out powers only.

Martial Law Powers
under the 1987
Constitution

The power of the president to declare martial law is specifically provided under Section 18, Article 7 of the 1987 Constitution ("Commander-in-Chief" Clause), viz:

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. [Emphases and underscoring supplied]

As explained by revered constitutionalist Fr. Joaquin Bernas (Fr. Bernas), the martial law contemplated under the present Constitution pertains to the traditional concept of martial law as espoused in American Jurisprudence. Thus:

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 Constitution; therefore, it does not suspend the principle of separation of powers.

The question now is: During martial law, can the President issue decrees? The answer we gave to that question in the Committee was: During martial law, the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theatre of war, not in the situation we had during the period of martial law. In other words, there is an effort here to return to the traditional concept of martial law as it was developed especially in American jurisprudence, where martial law has reference to the theatre of war.3 [Emphases supplied]

Justice Isagani Cruz wrote that "the declaration of martial law has no further legal effect than to warn the citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order and that while the emergency lasts, they must, upon pain of arrest and punishment, not commit any act which will in any way render difficult the restoration of order and the enforcement of law. When martial law is declared, no new powers are given to the executive; no extension of arbitrary authority is recognized; no civil rights of the individuals are suspended. The relation of the citizens to their State is unchanged. "4

It is to be noted that the Constitution does not define what martial law is and what powers are exactly granted to the president to meet the exigencies of the moment. Fr. Bernas merely described it as one similar to the martial law of the American legal system. Thus, martial law is a fluid and flexible concept, which authorizes the president to issue orders as the situation may require. For said reason, it can be said that the president possesses broad powers, which he may exercise to the best of his discretion.

To confine martial law to a particular definition would limit what the president could do in order to arrest the problem at hand. This is not to say, however, that the president has unrestricted powers whenever he declares martial law. Compared to the past constitutions, the president's discretion has been greatly diminished. In the exercise of his martial law powers, he must at all times observe the constitutional safeguards.

In crafting the provisions, the Framers sought to establish equilibrium between the protection of the public from possible abuses and the president's prerogative to wield the martial law power. The sponsorship speech of Commissioner Sumulong is quite enlightening, viz:

The Committee on the Executive has the honor to submit, for consideration and approval, Proposed Resolution No. 517, proposing to incorporate in the new Constitution an Article on the Executive. This Article on the Executive is based mainly on the many resolutions referred to our Committee for study and report. The members of the Committee have studied and discussed these resolutions which dealt with concrete instances of misuse and abuse of executive power during the Marcos regime especially after the declaration of martial law. The members of the Committee made an intensive and exhaustive study on the constitutional proposals contained in those resolutions intended to prevent a repetition of the misuse and abuse of executive power. At the same time, the members of the Committee were always on guard and careful in their intense desire to undo and correct the misdeeds and mistakes of the Marcos regime, because we might impose safeguards and restrictions which may be unreasonable and unduly harsh and which might emasculate our future presidents in the exercise of executive power.5 [Emphasis supplied]

Clearly, the Framers were cognizant of the past abuses prevalent during the Marcos regime when they laid down the powers of the president under the Commander-in-Chief Clause. At the same time, they recognized the necessity to provide the president sufficient elbow room to address critical situations. Thus, the present Constitution is more stringent and more precise in contrast to past provisions because it imposed limitations on the exercise of the martial law power.

As can be gleaned from the Constitution, it did not define what martial law is in order to make it flexible enough to be an effective tool to address extraordinary needs during extraordinary times. To my mind, in not giving a positive definition on what martial law is and merely providing specific restrictions, the Framers were striking a balance between the right of the State to protect itself from local and foreign threats and the concern of the public over the abuse in the exercise of such potent power. The Framers deemed it wise to impose safeguards to curtail possible abuses of the martial law powers without categorically defining martial law as not to unduly restrict the president.

It must be borne in mind that it is the people, through the Constitution, who entrusted to the president their safety and security. They gave him enough latitude and discernment on how to execute such emergency powers. If the Framers did not so cramp him, it is not for the Court to impose restrictions. To do so is dangerous for it would tie up the hands of future presidents facing the same, if not more serious, critical situations. At any rate, the Framers have put in place several safeguards to prevent violations of the constitutional and other human rights.

Constitutional Safeguards

As above-stated, the harrowing experience of the Filipino people during the Marcos regime did not escape the minds of the Framers. It is for this reason that numerous safeguards were put in place to prevent another dictator from abusing the said power.

The present government is very much aware of these restrictions. Thus, the Department of National Defense (DND), in its May 24, 2017 Memorandum, cited the constitutional safeguards under Section 18, Article VII of the Constitution, particularly: (1) the continuing operation and supremacy of the Constitution; (2) military authority not supplanting Congress or the Judiciary; and (3) the military courts not acquiring jurisdiction over civilians, where civilian courts are fully functioning. Stated differently, the president and the armed forces cannot issue orders violative of the Constitution. Otherwise, they may be held accountable to be determined in a separate action.

Pursuant thereto, the DND enjoined the Armed Forces of the Philippines (AFP), and all its officers and personnel to faithfully observe the rule of law in places where martial law has been in effect. It is an assurance by the government that it would adhere to the constitutional safeguards in place and would not countenance any violation or abuse of constitutional or human rights.

Martial Law justified in cases
of Rebellion or Invasion and
when Public Safety requires it

One of the important reforms in the present charter is the removal of the phrase "imminent danger." Thus, at present, martial law may be declared only when following circumstances concur: (1) there is actual rebellion or invasion; (2) and the public safety requires it.

The initial determination of the existence of actual rebellion and the necessity of declaring martial law as public safety requires rests with the president. The following discussions of the Framers are enlightening, viz:

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.

xxx

MR. REGALADO: It becomes a matter of factual appreciation and evaluation. The magnitude is to be taken into account when we talk about tumultuous disturbance, to sedition, then graduating to rebellion. All these things are variances of magnitude and scope. So, the President determines, based on the circumstances, if there is presence of a rebellion.

MR. DE LOS REYES: With the concurrence of Congress.

MR. REGALADO: And another is, if there is publicity involved, not only the isolated situations. If they conclude that there is really an armed public uprising although not all over the country, not only to destabilize but to overthrow the government, that would already be considered within the ambit of rebellion.If the President considers it, it is not yet necessary to suspend the privilege of the writ. It is not necessary to declare martial law because he can still resort to the lesser remedy of just calling out the Armed Forces for the purpose of preventing or suppressing lawlessness or rebellion.6 [Emphases supplied]

Rebellion, as understood in the Constitution, is similar to the rebellion contemplated under the Revised Penal Code (RPC). Thus, in order for the president to declare martial law, he must be satisfied that the following requisites concur: (1) there must be a public uprising; (2) there must be taking up arms against the government; (3) with the objective of removing from the allegiance to the government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces; (4) the Chief Executive or the Legislature, wholly or partially, is deprived of any of their powers or prerogatives;7 and (5) the public safety requires it. In tum, the initial determination of the president must be scrutinized by the Court if any citizen challenges said declaration.

The President has Wide
Discretionary Powers

The Commander-in-Chief Clause granted the president a sequence of graduated powers, from the least to the most benign, namely: (1) the calling out power; (2) the power to suspend the privilege of the writ of habeas corpus; and (3) the power to declare martial law.8 In Integrated Bar of the Philippines v. Zamora (Zamora),9 the Court explained the supplementary role of the military in the exercise of the president's calling-out-power, to wit:

We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The participation of the Marines in the conduct of .ioint visibility patrols is appropriately circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines' authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols. Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. It is their responsibility to direct and manage the deployment of the Marines. It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers. In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority.10 [Emphases supplied]

Under the calling-out-power, the president merely summons the armed forces to aid him in suppressing lawless violence, invasion and rebellion.11 The military merely supplements the police forces, with the latter having supervision over the former.

It is not, however, required that the president must first resort to his calling out power before he can declare martial law. Although the Commander-in-Chief Clause grants him graduated powers,12 it merely pertains to the intensity of the different powers from the least benign (calling out powers) to the most stringent (the power to declare martial law), and the concomitant safeguards attached thereto. The Constitution does not require that the different powers under the Commander-in-Chief Clause be exercised sequentially.

So long as the requirements under the Constitution are met, the president may choose which power to exercise in order to address the issues arising from the emergency. In other words, when there is sufficient factual basis for the declaration of martial law, the president can resort to the most awesome power granted under the Commander-in-Chief Clause. He cannot be faulted for not resorting to his calling out power if he finds that the situation requires a stronger action. When the president declares martial law, he, in effect, declares that the military shall take a more active role in the suppression of invasion or rebellion in the affected areas. The armed forces can conduct operations on their own without any command or guidance from the police.

At any rate, prior to the issuance of Proclamation No. 216 on May 23, 201 7, the President already opted to choose and exercise the most benign action - the calling out power. This is found in the first Whereas Clause of Proclamation No. 216. Unfortunately, the calling out power was ineffective in pre-empting the brewing rebellion. When such power was deemed ' inadequate, the President resorted to the declaration of martial law because public safety already required it in the face of the overwhelming attack against Marawi and the government forces.

Judicial Review

Another significant constitutional safeguard the Framers have installed is the power of the Court to review the sufficiency of the factual basis for the declaration of martial law or the suspension of the privilege of the writ of habeas corpus. The intent of the Framers to delimit the prerogative of the president to declare martial law is clear, to wit:

MR. NATIVIDAD: First and foremost, we agree with the Commissioner's thesis that in the first imposition of martial law there is no need for concurrence of the majority of the Members of Congress because the provision says "in case of actual invasion and rebellion." If there is actual invasion and rebellion, as Commissioner Crispino de Castro said, there is need for immediate response because there is an attack. Second, the fact of securing a concurrence may be impractical because the roads might be blocked or barricaded. They say that in case of a rebellion, one cannot even take his car and go to the Congress, which is possible because the roads are blocked or barricaded. And maybe if the revolutionaries are smart, they would have an individual team for each and every Member of the Congress so he would not be able to respond to a call for a session. So the requirement of an initial concurrence of the majority of all the

Members of the Congress in case of an invasion or rebellion might be impractical as I can see it.

Second, Section 15 states that the Congress may revoke the declaration or lift the suspension.

And third, the matter of declaring martial law is already a justiciable question and no longer a political one in that it is subject to judicial review at any point in time. So on that basis, I agree that there is no need for concurrence as a prerequisite to declare martial law or to suspend the privilege of the writ of habeas corpus. I notice in the Commissioner's proposal that he is requiring less factors for the suspension of the privilege of the writ of habeas corpus than for the declaration of martial law. Is that correct?

MR. PAD ILLA: That is correct.

Xxx

MR. MONSOD: Yes, Madam President, in the case of Mr. Marcos, he is undoubtedly an aberration in our history and national consciousness. But given the possibility that there would be another Marcos, our Constitutfon now has sufficient safeguards. As I said, it is not really true, as the Gentleman has mentioned, that there is an exclusive right to determine the factual basis because the paragraph beginning on line 9 precisely tells us that the Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof and must promulgate its decision on the same within 30 days from its filing.

I believe that there are enough safeguards. The Constitution is supposed to balance the interests of the country. And here we are trying to balance the public interest in case of invasion or rebellion as against the rights of citizens. And I am saying that there are enough safeguards, unlike in 1972 when Mr. Marcos was able to do all those things mentioned.13 [Emphases supplied]

As can be gleaned from the deliberations, the power of the Court to review the sufficiency of the factual basis for the declaration of martial law was precisely included to remove from the president the unbridled prerogative to determine the necessity thereof. It is a precautionary measure to prevent a repeat of possible abuses in cases where the awesome 'Power to declare martial law rests only on one individual. Consequently, the Executive Department cannot hide behind the cloak of the political question doctrine because the Constitution itself mandated the review, thus, unquestionably justiciable.

The question as to the sufficiency of the factual basis for the declaration of martial law and the manner by which the president executes it pursuant to such declaration are entirely different. The Court, upon finding that the factual basis is sufficient, cannot substitute the president's judgment for its own. "In times of emergencies, our Constitution demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive, but at the same time, it obliges him to operate within carefully prescribed procedural limitations."14

In Fortun v. Macapagal-Arroyo,15 it was written:

Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President's proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.

xxx

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President's action, and ascertain if it has a factual basis.16

I agree with the ponencia that this should be set aside. There is nothing in the constitutional provisions or the deliberations which provide that it is only after Congress fails or refuses to act can the Court exercise its power to review. I am of the position that the Court can act on any petition questioning such sufficiency independently of the congressional power to revoke.

Burden of Proof re
Sufficiency of Factual
Basis rests on the
Government

In this appropriate proceeding to review the sufficiency of the factual basis for declaring martial law or suspending the privilege of the writ of habeas corpus, the burden to prove the same lies with the government. If it were otherwise, then, the judicial review safeguard would be rendered inutile considering that ordinary citizens have no access to the bulk of information and intelligence available only to the authorities.

Indeed, "he who alleges, not he who denies, must prove."17 This rule, however, exists in recognition of the fact that in most court proceedings, he who puts forth an allegation is, in all probability, in possession of documents or other pieces of evidence to substantiate his claim.

It is not, however, without an exception. If a party's case depends upon the establishment of a negative fact, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative fact.18 To put it in another way, when the parties are not in an equal position with respect to the evidence to prove a negative fact, then, the party denying the negative fact is bound to establish its existence.19

Doubtless, the petitioners do not have access to the intelligence gathered by the military. Instead, they principally rely on information provided by the Office of the President and reports from mainstream media and social media. For said reason, it is readily apparent that the petitioners are not in an equal position with the government, which has a trove of intelligence reports, security briefings and other vital information at its disposal.

Threshold of Evidence re
Sufficiency of the Factual
Basis

In the ponencia, it has been written that probable cause is the allowable standard of proof as the President needs only to convince himself that there is evidence showing that, more likely than not, a rebellion has been committed or being committed. Others are of the view that as the Court exercises its certiorari jurisdiction, the point to determine should be arbitrariness, as enunciated in Lansang v. Garcia.20

In this regard, I share the view of Justice Estela Perlas-Bernabe that it is neither. I agree with her that there is no action, but a proceeding, a sui generis one, to ascertain the sufficiency of the factual bases of the proclamation, and that the Constitution itself provided the parameter for review - sufficient factual basis, which means that there exists clear and convincing proof (1) that there is invasion or rebellion; and (2) that public safety requires the proclamation of martial law. The threshold is reasonableness.

On probable cause, I concur with her that the purpose and vantage point of a prosecutor or judge in the determination of probable cause are fundamentally different from those of the president when he proclaims martial law. She cited Fr. Bernas who, as the then amicus curiae of the Court, wrote that "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."21

"For purposes of filing a criminal information, probable cause has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondents are probably guilty thereof. It is such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect."22 Accordingly, in a criminal case, it is necessary that a crime has been committed.

In contrast, the president establishes the existence of rebellion or invasion, not as a crime for purposes of prosecution against the accused, but merely as a factual occurrence to justify his declaration of martial law. If the president has sufficient and strong basis that a rebellion has been planned and the rebels had started to commit acts in furtherance thereof, he can already command the military to take action against the rebels.

This is to say that the president is afforded much leeway in determining the sufficiency of the factual basis for the declaration of martial law. Unlike in the executive or judicial determination of probable cause, the president may rely on information or intelligence even without personally examining the source. He may depend on the information supplied by his subordinates, and, on the basis thereof, determine whether the circumstances warrant the declaration of martial law. While the president is still required to faithfully comply with the twin requirements of actual rebellion and the necessity of public safety, he is not bound by the technical rules observed in the determination of probable cause.

As to arbitrariness, suffice it to say that the Framers did not refer to it as one akin to a certiorari petition. They were silent on it because they really intended it to be a unique proceeding, a sui generis one, with a different threshold of evidence.

Sufficiency of the Factual Basis

Guided by the above-mentioned standard, I fully concur with the ponencia that the proclamation of martial law by the President has sufficient factual basis. First, it has be.en unquestionably established that the ISISlinked local groups had planned to, and did, invade Marawi City. Second, they were heavily armed and posed a dangerous threat against government forces. Third, the occupation by the ISIS-linked groups paralyzed the normal functions of Marawi and caused the death and displacement of several Marawi residents. Fourth, they sought to sever Marawi from the allegiance of the government with the goal of establishing a wilayah in the region.

The intention of the rebels to isolate and sever Marawi from the government is evident from the video retrieved by the military from their initial operations in Marawi. In the said video,23 it can be seen that Hapilon, together with other unidentified members, were listening in closely as Abdullah Maute was giving directions or suggestions on how to commence and execute their planned offensive. In particular, they sought to isolate Marawi so that it could be used as their center of operation to access all points in Mindanao.

It need not be repeated that the ISIS-linked group attacked, stormed and rampaged all over Marawi City, terrorizing the whole populace, killing soldiers, policemen and civilians, effecting the escape of inmates from the Marawi City jail, taking over hospitals and other similar centers, controlling the business district, major thoroughfares and three bridges, burning Dansalan College, setting fire to the Cathedral of Maria Auxiliadora, kidnapping and taking hostages, and ransacking banks and residences. They also commandeered police and other vehicles, planted ISIS flags on them and rambled around the city, displaying their intimidating presence and power.

Further, the requirement of public safety has been met considering the capability of the rebel group to wreak more havoc on the region. The petitioners argue that what the group has launched does not amount to an actual rebellion. The contrary, however, has been sufficiently established. At the time Proclamation No. 216 was issued, the Maute-led group had already commenced their offensive in Marawi. Their past actions, validated by subsequent events, serve as indicia of their ability to wage a protracted war and shed more blood. To date, 82 soldiers have given up their lives and the government is still not in total control of Marawi. The military has confirmed that there are already 39 dead civilians, not to mention those wounded, displaced and missing.

The nation is fortunate that the country has a decisive president who took immediate action to prevent the expansion of the rebellion to other areas. At a great price, its spread to other areas was checked. If it has indeed been contained, the Court, however, cannot order the authorities to lift martial law in this appropriate proceeding because the judicial review, provided in the Constitution as a mechanism to check abuses, is limited only to the ascertainment of the sufficiency of the factual basis. When there is no longer any basis to continue the imposition of martial law, the remedy is to file a certiorari petition to question the arbitrariness of the assessment to prolong the period.

At any rate, General Afio gave his assurance that when the situation becomes normal, he will recommend the lifting of martial law.

Territorial Coverage of
the Proclamation

Under the Commander-in-Chief Clause, the president may declare martial law in the Philippines or in any part thereof. Thus, it is understood that the president has the discretion to determine the territorial scope of the coverage as long as the constitutional requirements are met. In other words, there must be concurrence of an actual rebellion or invasion and the necessity for public safety. There is no constitutional provision suggesting that martial law may only be declared in areas where actual hostilities are taking place. The president must be given much leeway in deciding what is reasonably necessary to successfully quash such rebellion or invasion. As Commander-in-Chief, he has under his command the various intelligence networks operating in the country and knows what is needed and where it is needed.

To limit the coverage of martial law to Marawi City only is unrealistic and impractical. As can be gleaned from the records, ISIS-linked local groups came from different places in Mindanao. The ASG, headed by Hapilon, came from Basilan; the Maute Group, from Lanao del Sur; the AKP or the Maguid Group, from Saranggani and Sultan Kudarat; and the BIFF, from Maguindanao.

These rebels previously wreaked havoc on other parts of Mindanao. Thus, President Duterte cannot be faulted for declaring martial law all over Mindanao because public s·afety would be greatly imperilled if these rebel groups would be able to expand their operations beyond Marawi City. Their capability to launch further attacks from Marawi City, serving as a spring board to extend their influence over other areas, impelled President Duterte to act swiftly and decisively.

Further, judicial notice can be taken of the fact that several members of the rebel groups had been apprehended in areas other than Marawi, such as Iligan City and Cagayan de Oro City. In fact, the father of the Maute brothers, Casamora Maute, was arrested at a Task Force Davao checkpoint in Sirawan, Toril District, Davao City. Their mother, Omenta Romato Maute, also known as Farhana, was apprehended in Masiu, Lanao Del Sur, beyond Marawi City. Others were intercepted in far away Bacolod City.

The fear of the petitioners that the constitutional rights of the people of the rest of Mindanao would be violated is unfounded. As earlier pointed out, the DND reminded the AFP and all its officers and personnel to faithfully observe the rule of law. As provided in the Constitution itself,

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.24

Restricting the operation of the armed forces within the confines of Marawi City would be ineffective in quelling the uprising. The insurgents would simply cross city borders and be beyond the reach of the martial law authorities, who would not be able to exercise martial law powers. They will not be able to arrest any of them, unless they have personal knowledge of what the rebels have just committed, are committing or about to commit. Certainly, this is not what the Framers intended in including the martial law provisions in our Constitution. First and foremost in their minds were the security, safety, and territorial integrity of the country.

To ignore the reality is to dishonor the memory of the 82 soldiers who gallantly sacrificed and gave up their lives so that this country may still be one.

Accordingly, I vote to dismiss all the petitions.

JOSE CATRAL MENDOZA
Associate Justice


Footnotes

1 The word 'Caliph' means successor, and designates the political leader of the Islamic community, or ummah. By using the language of Caliph and Caliphate, ISIS is attempting to establish itself as the leader of a worldwide Muslim movement and mobilize a broad coalition of support by erasing national boundaries. (http://www.huffingtonpost.com/2014/06/30/what-is-a-caliphate-meaning_ n5543538.html)

2 Annex "B," Consolidated Comment.

3 Records of the Constitutional Commission No. 42.

4 Cruz, Philippine Political Law (2002 Ed.), p. 227 citing Willoughby, 2nd Ed., Sec. 1056, pp. 1591-1592.

5 Records of the Constitutional Commission No. 42.

6 Records of the Constitutional Commission No. 42.

7 Article 134, Book II of the RPC.

8 SANLAKAS v. Executive Secretary, 466 Phil. 482, 510-511 (2004).

9 392 Phil. 618 (2000).

10 Id. at 645-646.

11 David v. Arroyo, 522 Phil. 705, 780 (2006).

12 Supra note 8.

13 Records of the Constitutional Commission No. 43.

14 Supra note 11, at 744.

15 684 Phil. 526 (2012).

16 Id. at 558-561.

17 Heirs of Sevilla v. Sevilla, 450 Phil. 598, 612 (2003).

18 Spouses Cheng v. Spouses Javier, 609 Phil. 434, 441 (2009).

19 Apines v. Elburg Shipmanagement Philippines, Inc., G.R. No. 202114, November 9, 2016.

20 149 Phil. 547, 592-594 (1971).

21 Cited in the Dissenting Opinion of J. Velasco in Fortun, supra note 15, at 629.

22 People v. Borje, G.R. No. 170046, December 10, 2014, 744 SCRA 399, 409.

23 Annex "B" of the Consolidated Comment.

24 Section 18, Article 7 of the 1987 Constitution.


The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

REYES, J.:

"The right of a government to maintain its existence is the most pervasive aspect of sovereignty. To protect the nation's continued existence, from external as well as internal threats, the government 'is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions. "'1 The government, particularly the President, should be accorded extensive authority and discretion when what is at stake is the sovereignty and territorial integrity of the State. The measures undertaken by the President in such cases should enjoy the widest latitude of constitutional interpretation, tempered only by reason, lest the government be stymied and rendered inutile.

I.

At the center of the controversy in this case is a proper interpretation of Article VII, Section 18 of the 1987 Constitution,2 which outlines the President's Commander-in-Chief powers, i.e.,first, the power to call out the armed forces; second, the power to declare martial law; and third, the power to suspend the privilege of the writ of habeas corpus. The power to call out the armed forces may only be exercised if it is necessary to prevent or suppress lawless violence, invasion or rebellion. On the other hand, the power to declare martial law and suspend the privilege of the writ of habeas corpus entails a more stringent requisite - it necessitates the existence of actual invasion or rebellion and may only be invoked when public safety necessitates it.

There is invasion when there is a hostile or forcible encroachment on the sovereign rights of the Philippines.3 On the other hand, the term rebellion in Section 18 of Article VII of the Constitution must be understood as having the same meaning as the crime of rebellion defined and punishable under Article 134 of the Revised Penal Code (RPC),4 which reads:

Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

In rebellion, it is not enough that there be a public uprising and taking arms against the Government, it must be shown that the purpose of the uprising or movement is either: first, to remove from the allegiance to the Government or its laws the territory of the Philippines or any part thereof or any body of land, naval, or other armed forces; or second, to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.5

It is in the President alone that the Constitution vests the powers to declare martial law and suspend the privilege of the writ of habeas corpus subject to the aforementioned requisites. Accordingly, contrary to the petitioners' suppositions, the recommendation of the Secretary of the Department of National Defense (DND) or of any other high-ranking officials of the Armed Forces of the Philippines (AFP) is not a condition precedent to the declaration of martial law or the suspension of the privilege of the writ of habeas corpus.

Further, when the President declares martial law or suspends the privilege of the writ of habeas corpus, he is inevitably exercising a discretionary power solely vested in his wisdom. The President, as Commander-in-Chief and Chief Executive on whom is committed the responsibility of preserving the very survival of the State, is empowered, indeed obliged, to preserve the State against domestic violence and foreign attack. In the discharge of that duty, he necessarily is accorded a very broad authority and discretion in ascertaining the nature and extent of the danger that confronts the nation and in selecting the means or measures necessary for the preservation of the safety of the Republic. Indeed, whether actual invasion or rebellion exists is a question better addressed to the President, who under the Constitution is the authority vested with the power of ascertammg the existence of such exigencies and charged with the responsibility of suppressing them. His actions in the face of such emergency must be viewed in the context of the situation as it then confronted him.6

In this regard, in declaring martial law and suspending the privilege of the writ of habeas corpus, the President only needs to be convinced that there is probable cause of the existence of an invasion or rebellion. To require a higher standard of evidence would amount to an unnecessary restriction on the President's use of exclusive prerogatives under Section 18 of Article VII of the Constitution. Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded on such a state of facts as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean actual or positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief.7 It is enough that it is believed, given the state of facts, that an actual invasion or rebellion indeed exists.

Corollary to the foregoing, the petitioners' claim that the President should have exercised his calling out power instead of declaring martial law and suspending the privilege of the writ of habeas corpus to address the armed uprising of the Maute group in Marawi City is plainly untenable. To stress, the President, in case of the extraordinary circumstances mentioned in Section 18 of Article VII of the Constitution, has broad discretionary powers to determine what course of action he should take to defend and preserve the sovereignty and territorial integrity of the State or any part thereof. Thus, it would be unreasonable and utterly baseless to require the President to first exercise his calling out power and treat the same as a condition precedent to the declaration of martial law and the suspension of the privilege of the writ of habeas corpus.

The imposition of martial law, however, "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 x x x."8 It does involve the substitution of the military in the civilian functions of govemment,9 except, by express terms of the Constitution, the performance of legislative and judicial functions. In other words, martial law entails a substitution of the military in the performance of executive functions, including the maintenance of peace and order and the enforcement of laws relative to the protection of lives and properties, which is normally a function of the Philippine National Police (PNP).10 Otherwise stated, during a state of martial law, the military personnel take over the functions, inter alia, of the PNP.

II.

Although the President is accorded wide discretion in ascertaining the nature and extent of the danger that confronts the State, as well as the course of action necessary to deal with the same, his exercise of the powers as Commander-in-Chief under Section 18 of Article VII of the Constitution is nevertheless subject to certain constitutional limitations pursuant to the system of separation of powers and balancing of powers among the three great departments.

Thus, the President is required to submit a report to Congress within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. Thereupon, 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. In the same manner, Congress may likewise extend such proclamation or suspension upon request by the President if the invasion or rebellion shall persist and public safety requires it.11

Further, the Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, or the extension thereof, and must promulgate its decision thereon within 30 days from its filing.12 I agree with the majority opinion that the term "appropriate proceeding," refers to a sui generis proceeding, which is separate and distinct from the jurisdiction of the Court laid down under Article VIII of the Constitution. Indeed, contrary to the respondents' assertion, the term "appropriate proceeding" under Section 18 of Article VII of the Constitution could not have referred to a certiorari proceeding under Rule 65 of the Rules of Court. The "appropriate proceeding" under Section 18, unlike a certiorari suit, must be resolved by the Court within 30 days from the institution of the action. More importantly, as articulated by Associate Justice Antonio T. Carpio, certiorari is an extraordinary remedy designed for the correction of errors of jurisdiction. What is at issue in the "appropriate proceeding" referred to under Section 18 is only the sufficiency of the factual basis for the declaration of martial law or the suspension of the privilege of the writ of habeas corpus.

Thus, as aptly pointed out by Associate Justice Lucas P. Bersamin, the Court, once the "appropriate proceeding" is commenced, is mandated to examine and sift through the factual basis relied upon by the President to justify his proclamation of martial law or suspension of the privilege of the writ of habeas corpus and to determine whether such factual basis is sufficient or insufficient.

Also, as already stated, the petitioners have burden of proof to show that the President's declaration of martial law and suspension of the privilege of the writ of habeas corpus lacks sufficient factual basis. First, as a general rule, official acts enjoy the presumption of regularity, and the presumption may be overthrown only by evidence to the contrary. When an act is official, a presumption of regularity exists because of the assumption that the law tells the official what his duties are and that he discharged these duties accordingly.13 The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty. The presumption, however, prevails until it is overcome by no less than clear and convincing evidence to the contrary. Thus, unless the presumption is rebutted, it becomes conclusive.14 Second, it is elementary that he who alleges a fact must prove it, and a mere allegation is not evidence,15 and since the petitioners allege that there is no factual basis to support the said declaration and suspension, they are bound to prove their allegations.

III.

The petitioners failed to prove that the President had insufficient basis in declaring martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao. It is incumbent upon the petitioners to present credible evidence to prove that the President's declaration of martial law and suspension of the privilege of the writ of habeas corpus had insufficient basis. However, a perusal of the petitioners' allegations shows that the same are merely based on various newspaper reports on the ongoing armed fighting in Marawi City between the government forces and elements of the Maute group. However, newspaper articles amount to "hearsay evidence, twice removed" and are therefore not only inadmissible but without any probative value at all.16

A newspaper article is admissible only as evidence that such publication does exist with the tenor of the news therein stated, but not as to the truth of the matters stated therein.17 Hearsay evidence is that kind of evidence which does not derive its value solely from the credit to be attached to the witness himself, but rests also in part on the veracity and competency of some other person from whom the witness received his information.18 By itself, and as repeatedly conveyed by jurisprudential policy, hearsay evidence is devoid of merit, irrespective of any objection from the adverse party.19

The declaration of martial law and suspension of the privilege of the writ of habeas corpus are official acts of the President, exercised pursuant to the Commander-in-Chief powers accorded to him by no less than the Constitution. As such, the same enjoys the presumption of regularity, which is conclusive unless clear and convincing evidence of irregularity or failure to perform a duty is adduced. There is none in this case, however, except for hearsay evidence consisting of the unverified newspaper articles; the petitioners' allegations vis-a-vis the supposed irregularity in the declaration and suspension cannot be justified upon hearsay evidence that is never given any evidentiary or probative value in this jurisdiction.

IV.

The petitioners' attempt to convince the Court that no rebellion is happening in Marawi City fails miserably in light of the factual milieu on the ground. The fact of the Maute group's uprising and armed hostility against the government is not disputed. The petitioners, nevertheless, contend that the armed uprising undertaken by the Maute group in Marawi City is not for the purpose of removing the territory of the Philippines or any part thereof from the allegiance to the Government or its laws or depriving the President or Congress, wholly or partially, of any of their powers and prerogatives.

The supposed lack of culpable purpose behind a rebellion enumerated under Article 134 of the RPC is more apparent than real. It is a mere allegation unsupported by any evidence. The aforementioned culpable purpose, essentially, are the political motivation for the public uprising and taking arms against the Government. However, motive is a state of mind that can only be discerned through external manifestations, i.e., acts and conduct of the malefactors at the time of the armed public uprising and immediately thereafter.

Based on the President's report to Congress relative to Proclamation No. 216, at around 2:00 p.m. on May 23, 2017, members of the Maute group and the Abu Sayyaf Group (ASG) commenced their attack on various public and private facilities in Marawi City; they forcibly opened the gates of the Marawi City Jail and assaulted personnel thereof; they took over three bridges in Lanao del Sur to pre-empt military reinforcements; they set up road blockades and checkpoints and forcibly occupied certain areas; they attacked and burned several schools, churches, and hospitals; they hoisted the flag of the Islamic State of Iraq and Syria (ISIS) in several areas in Marawi City.20

Further, military intelligence reports had previously confirmed that the grand plan of the Maute group and other rebel groups in Mindanao is to raze the entire city of Marawi City, that would have served as a precursor for other terrorist groups to stage their own uprising across Mindanao in a bid to establish a wilayah or a province of the ISIS in the region.21 Simple logic would dictate that the foregoing circumstances points to no conclusion other than that the political motivation behind the armed public uprising by the Maute group has for its purpose the removal of Marawi City and, consequently, the whole of Mindanao, from the allegiance to the Government or, at the very least, deprive the President of his powers and prerogatives.

Also, the President, in declaring martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindat;tao, had probable cause to believe that the armed insurgents in Marawi City and the rest of Mindanao are mounting a rebellion against the State and are not merely engaged in armed hostilities. It should be noted that the President had previously issued Proclamation No. 55 on September 4, 2016, which declared a state of national emergency on account of lawless violence in Mindanao. 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 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.22

Further, based on the ISIS' propaganda material Dabiq, which was obtained by the AFP, as early as November 2014, a number of local rebel groups in Mindanao, particularly the Maute group, the ASG, the Ansarul Khilafah Philippines, and the Bangsamoro Islamic Freedom Fighters, have already pledged their allegiance to the ISIS caliphate.23 In April 2016, the ISIS' weekly online newsletter Al Naba announced the appointment of ASG's leader Isnilon Hapilon (Hapilon) as the emir or leader of all ISIS forces in the Philippines. Hapilon's appointment as emir is confirmed by the ISIS' June 21, 2016 online video entitled "The Solid Structure," which hailed Hapilon as the mujahid authorized to lead the soldiers of the Islamic State in the Philippines.24 What is clear from the foregoing circumstances is that the rebel groups in Mindanao already have the organization and manpower to realize their goal of removing the whole of Mindanao from the allegiance to the Government.

Prior to the siege of Marawi City on May 23, 201 7, the rebel groups in Mindanao had perpetrated several crimes and hostilities such as kidnapping and beheading victims, attacks on several military installations, bombing public places, attacks on several government offices, and ambush of military personnel.25 The President, at the time of the issuance of Proclamation No. 216, has knowledge of the foregoing military intelligence reports, including the ultimate goal of the rebels to establish an ISIS caliphate in Mindanao. Indeed, as early as the first quarter of 2017, DND Secretary Delfin Lorenzana and National Security Adviser General Hermogenes Esperon, Jr. have submitted to the President thick briefers outlining the political motivation of the said rebel groups and a list of the armed attacks against the government in Mindanao.26

Thus, it cannot be gainsaid that the President had reasonable belief that the hostilities in Marawi City is not merely an armed public uprising, but is already a realization of the rebel groups' plan to mount a full scale rebellion in Mindanao. Surely, the President may not be faulted for using everything in his arsenal of powers to deal with the exigencies of the situation; more so considering that what is at stake is the very sovereignty and territorial integrity of the State, which the President is duty-bound to preserve and protect. It would be unreasonable to wait for a territory of the Philippines to be actually removed from the allegiance to the Government before the President may be authorized to exercise his Commander-in-Chief powers.

In this regard, the contention that the coverage of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus should have been limited only to Marawi City is utterly baseless. To stress, the conduct of the rebel groups at the time of the siege of Marawi City, and even prior thereto, coupled with the aforementioned military intelligence reports in the possession of the President, are sufficient bases to engender a reasonable belief that the Marawi City is but a staging ground for the widespread armed attacks in the whole of Mindanao, with the ultimate objective being the establishment of an ISIS caliphate therein and, thus, removing Mindanao from the allegiance to the Government. Given the foregoing considerations, it would be the height of absurdity to expect the President to dawdle around and wait for the armed attacks by the rebel groups to reach the neighboring cities of Marawi and the rest of the provinces of Mindanao before he exercise his power to declare martial law and suspend the privilege of the writ of habeas corpus.

The continued armed attacks by the Maute group and other rebel groups not only in Marawi City, but as well as in the rest of Mindanao, indubitably affects the residents therein who are forced to flee from their respective homes to avoid being caught in the cross-fire. Also, the said rebel groups, even prior to the siege of Marawi City, have been perpetrating several activities aimed at terrorizing the residents of Mindanao, such as bombing, kidnapping and attacks on military and government installations.

The members of the PNP, who are generally tasked to enforce all laws and ordinances relative to the protection of lives and properties and the maintenance of peace and order,27 are way in over their heads in dealing with the rebel groups' attacks against the civilian populace in Mindanao. Indubitably, public safety necessitated, nay required, the President's declaration of martial law and suspension of the privilege of the writ of habeas corpus.

V.

It cannot be emphasized enough that sovereignty and territorial integrity, which are in danger of being undermined in cases of invasion or rebellion, are indispensable to the very existence of the State. It is therefore the primordial duty of the President, within the limits prescribed by the Constitution, to exercise all means necessary and proper to protect and preserve the State's sovereignty and territorial integrity. The President should thus be allowed wide latitude of discretion dealing with extraordinary predicament such as invasion or rebellion.

The petitioners' apprehensions regarding the declaration of martial law and the suspension of the privilege of the writ of habeas corpus is quite understandable given the abuses that were committed when the same measures were implemented in the Philippines a few decades back supposedly to address the threat of communist insurgency. Nevertheless, the ghosts of the past should not impede the resolution of our current predicament. The country is facing an actual rebellion in Mindanao; no amount of denial would make the rebellious insurgency in Mindanao wither away.

The President's powers to declare martial law and suspend the privilege of the writ of habeas corpus are retained in the 1987 Constitution by the framers thereof for a reason - they are effective measures to quell invasion or rebellion and are thus necessary for the protection and preservation of the State's sovereignty and territorial integrity. In any case, whatever the misgivings the petitioners may have as regards the present declaration of martial law and suspension of the privilege of the writ of habeas corpus, suffice it to say that the 1987 Constitution, unlike the 1935 and 1973 Constitutions, has placed enough safeguards to ensure that the ghosts of the past would no longer return to haunt us.

ACCORDINGLY, in view of the foregoing disquisitions, there being sufficient factual basis for the issuance by President Rodrigo Roa Duterte of Proclamation No. 216, I vote to DISMISS the consolidated petitions.

BIENVENIDO L. REYES
Associate Justice


Footnotes

1 Separate Opinion of J. Antonio in Aquino v. Ponce Enrile, 158-A Phil. 1, 288 (1974), citing Mr. Justice Bradley, concurring in Legal Tender Cases [US] 12 Wall. 457, 554, 556, 20 L. ed. 287, 314, 315.

2 Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

x x x x

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

x x x x

3 See Black's Law Dictionary, 8th ed., p. 843.

4 See Dissenting Opinion of J. Carpio in Fortun, et al. v. President Macapagal-Arroyo, et al., 684 Phil. 526, 591-592 (2012).

5 See Lad/adv. Senior State Prosecutor Velasco, 551 Phil. 313, 329 (2007).

6 See Separate Opinion of J. Antonio in Aquino v. Ponce Enrile, supra note 1.

7 See Metropolitan Bank and Trust Company v. Hon. Gonzales, et al., 602 Phil. 1000, 1009 (2009).

8 1987 CONSTITUTION, Article VII, Section 18.

9 See Dissenting Opinion of J. Tinga in Prof David v. Pres. Macapagal-Arroyo, 522 Phil. 705, 830 (2006).

10 Republic Act No. 6975 known as the "Department of the Interior and Local Government Act of 1990", Section 24.

11 1987 CONSTITUTION, Article VII, Section 18.

12 Id.

13 Reyes, Jr. v. Be/isario, et al., 612 Phil. 936, 960 (2009).

14 Bustillo, et al. v. People, 634 Phil. 547, 556 (2010).

15 Garcia v. Philippine Airlines and/or Trinidad, 580 Phil. 155, 176 (2008).

16 See Feria v. Court of Appeals, 382 Phil. 412, 423 (2000).

17 Id.

18 See Peralta, Jr., Perspectives of Evidence, 2005 ed., p. 269, citing 2 Jones Evidence, p. 514.

19 Id. at 275.

20 President's Report relative to Proclamation No. 216, pp. 4-5.

21 Office of the Solicitor General's Memorandum, p. 66.

22 Proclamation No. 216, fourth whereas clause.

23 Office of the Solicitor General's Memorandum, p. 5.

24 Id. at 7.

25 Id. at 9-11.

26 Id. at 11.

27 Republic Act No. 6975, Section 24.


The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

TIJAM, J.:

I concur in the result reached by Mr. Justice Del Castillo in his ponencia. I submit this opinion to offer my views concerning certain issues.

All three petitions seek this Court's judicial review of Proclamation No. 216 dated May 23, 2017 (Proclamation), pursuant to the third paragraph of Section 18, Article VII of the 1987 Constitution which reads:

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

Although mere citizenship gives
locus standi, there must be prima
facie
showing of insufficiency of the
factual basis for the Proclamation.

As a rule, a party must be able to establish a direct and personal interest in the controversy to clothe him with the requisite locus standi. He must be able to show, not only that the government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way.1 The Constitution, however, has relaxed this rule with respect to petitions assailing the sufficiency of the factual basis of a proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, requiring only that the petitioner be any Filipino citizen. The exception was so provided to facilitate the institution of any judicial challenge to such proclamation or suspension. This is just one of the several safeguards placed in Section 18, Article VII of the Constitution to avert, check or correct any abuse of the extraordinary powers, lodged in the President, of imposing martial law and suspending the privilege of the writ of habeas corpus. Nevertheless, this should not result in the Court taking cognizance of every petition assailing such proclamation or suspension, if it appears to be prima facie unfounded. That the Court has the authority to outright deny patently unmeritorious petitions is clear from the above-quoted provision, which uses the permissive term "may" in referring to the Court's exercise of its power of judicial review. The term "may" is indicative of a mere possibility, an opportunity or an option.2 When used in law, it is directory and operates to confer discretion.3

Indeed, given that any citizen can file the action, it must be required that the petition ·should allege sufficient grounds for the Court to take further action. For instance, a petition that simply invokes the court's judicial power to review the proclamation without alleging specific grounds, or is based on a general, unsubstantiated and conclusory allegation that the President was without or had false factual basis for issuing the proclamation or suspension, could be dismissed outright. Otherwise, in the absence of a personal stake or direct injury which will ordinarily infuse one with legal standing to file the case, the Court can theoretically be saddled with hundreds of petitions and be compelled to entertain them simply because they were filed. The requirement of a prima facie showing of insufficiency of the factual basis in the declaration of martial law or the suspension of the privilege of the writ of habeas corpus becomes even more important if, as the ponencia declares, this Court's review is to be confined only to the Proclamation, the President's Report to Congress, and the pleadings.

Action questioning the sufficiency
of the factual basis of the
Proclamation is sui generis.

I am in agreement with the ponente in treating the proceedings filed pursuant to the third paragraph of Section 18, Rule VII of the 1987 Constitution as sui generis.

The action questioning the sufficiency of the factual basis of the declaration of martial law or the suspension of the privilege of the writ of habeas corpus is neither a criminal nor a civil proceeding. Its subject is unique unto itself as it involves the use of an extraordinary power by the President as Commander-in-Chief and matters affecting national security. Furthermore, the exercise of such power involves not only the executive but also the legislative branch of the government; it is subject to automatic review by Congress which has the power to revoke the declaration or suspension. To ensure that any unwarranted use of the extraordinary power is promptly discontinued, the Constitution limits the period for the Court to decide the case. And to facilitate a judicial inquiry into the declaration or suspension, the Constitution allows any citizen to bring the action. The Constitution likewise specifies the ground upon which this particular action can be brought, i.e. the sufficiency of the factual basis of the declaration or suspension. As an express exception to the rule that the Court is not a trier of facts, the Court is asked to make a factua1 determination, at the first instance, of whether the President had adequate reasons to justify the declaration or suspension. Moreover, as an exception to the doctri'ne of hierarchy of courts, the Constitution provides that the case be filed directly with this Court. Finally, the Court's jurisdiction was conferred as an additional safeguard against any abuse of the extraordinary power to declare martial law and suspend the privilege of the writ of habeas corpus. Taken together, these elements make the Court's jurisdiction under Section 18 sui generis.

Verily, considering the magnitude of the power sought to be checked or reviewed, bearing in n1ind the evil sought to be prevented by constitutionalizing the Court's power to inquire into the sufficiency of the factual basis of the declaration or suspension, and taking into account the requirements specified by the Constitution for such review, an action brought pursuant to the third paragraph of Section 18, Article VII of the 1987 Constitution is indeed a class of its own.

Accordingly, any action that invokes this Court's jurisdiction under Section 18, Article VII of the 1987 Constitution to detennine the sufficiency of the factual basis of the declaration of martial law or the suspension of the privilege of the writ of habeas corpus, satisfies the constitutional requirement that the challenge be made "in an appropriate proceeding."

That a proceeding under Section 18, Article VII is not included in the enumeration of actions over which the Court has jurisdiction under Section 5, Article VIII of the Constitution is of no moment. After all, the Court's judicial power, as defined in the same Article, is not an exhaustive list of this Court's jurisdiction. The definition provides that "(j)udicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandahlc 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." It, therefore, does not preclude this Court from assuming such jurisdiction as may have been confrrred elsewhere in the Constitution but not specifically indicated in Article VIII.

Congress' action precedes the
Court's review but Congressional
imprimatur is not conclusive on the
Court. The Court's independence is
not necessarily compromised by
awaiting Congressional action.

Addressing respondents' assertion that due deference must be given to the actions of the two co-equal branches of government - the President's resort to martial law and suspension of the privilege of the writ of habeas corpus, and Congress' support thereof, the ponencia stresses the independence of this Court's judicial review and holds that such review can be made simultaneously with and independently from Congress' power to revoke. The ponencia, thus, would have the Court re-examine, reconsider and set aside its pronouncement in Fortun v. Macapagal-Arroyo4 that the Court "must allow Congress to exercise its own review powers," and should hear petitions challenging the President's action only when Congress defaults in its duty to review the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus.

I agree with the Fortun pronouncement insofar as it instructs that the Court must allow Congress to exercise its own review powers ahead of the Court's inquiry. I do not agree, however, that the Court can "step in" only when Congress defaults in its duty to review. The Court can inquire into the sufficiency of the factual basis of the proclamation or suspension not only when Congress fails to undertake such review, but also if it decides to support the proclamation or suspension as in this case. The Court is not bound by Congress' decision not to revoke the proclamation or suspension. The system of checks and balances as built in Section 18, Article VII demands that the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus be within reach of judicial scrutjny. It is only when Congress decides to revoke the proclamation or suspension that the Court shall withhold review as such revocation will render any prayer for the nullification of the proclamation or suspension moot; and, even if the Court finds the existence of the conditions for the proclamation or suspension, it cannot require or compel the President to exercise his martial law or suspension power.

The exercise by the President, Congress and the Court of their powers under Section 18, Article VII is sequential. Accordingly, Congress' review must precede judicial inquiry, for the fo1lowing reasons:

First. As observed in Fortun, the President's power to declare martial law or to suspend the privilege of the writ of habeas corpus is essentially shared with Congress. Under the Constitution, Congress has the power to revoke the declaration or suspension, and the President is absolutely without authority to set the revocation aside. As stated in Fortun, since only Congress can maintain the declaration or suspension based on its own evaluation of the facts, the President and Congress, in a sense, exercise the martial law and suspension power jointly. Thus, Congress' review of the declaration or suspension must perforce take place before the Court's judicia] examination of the factual basis of the President's action.

Second. As a measure to rein in the President's use of the extraordinary powers under Section 1 8, Article VII, the framers of the 1987 Constitution originally intended for the martial law and suspension power to be exercised by the President with the concurrence of Congress.5 They intended for Congress to act, not even sequentially, but jointly, in the President's exercise of the martial law or suspension power. In lieu of such concurrence, however, they ultimately settled on Congress' revocation power, taking into account that the President would need-to act immediately if there is indeed rebellion or invasion and public safety is endangered. That the framers of the Constitution, if not for such time element, would have Congress take part in the decision whether to exercise the martial law or suspension power, supports the view that Congress' action should precede judicial inquiry.

Third. The Constitution requires the President to submit his Report to Congress, either in person or in writing, within forty-eight (48) hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus. After receiving the President's Report, Congress' review of the proclamation or suspension is automatic. Judicial review, on the other hand, has to be initiated by a citizen. The imposition on the President of a duty to report to Congress within such a short period from the proclamation or suspension, and Congress' automatic review of the Report, show that Congress is expected to initially act on the President's proclamation or suspension for the purpose of deciding whether it must continue.

Fourth. As safeguards or remedies against an unjustified use of the extraordinary powers under Section 18, Article VII, the Constitution provides for both Congressional review, which is automatic, and judicial review, which must be initiated by any citizen. Being automatic, Congressional review of the proclamation or suspension is instantly an available remedy to address any misuse of the extraordinary powers under Section 18, Article VII. With its power of revocation which the President cannot set aside, Congress' action offers an adequate remedy against any unwarranted use of the martial law and suspension power. To ensure an orderly procedure and in the interest of preserving comity with a co-equal branch of the government, Congressional review of the proclamation or suspension must be allowed to take place before the Court intervenes.6 Indeed, it is sound practice to exhaust all available and adequate remedies before resort to judicial review.

Fifth. The Court should not pre-empt Congress' possible revocation of the President's proclamation or suspension. Furthermore, conflicting decisions from the Court and Congi;ess, which will not be in the interest of judicial stability or Congressional independence, will be avoided. Indeed, it will not promote judicial stability if Congress can still exercise its power to revoke notwithstanding a decision from this Court finding sufficient factual basis for the proclamation or suspension. Furthermore, if the Court decides to nullify the proclamation or suspension ahead of Congress' action, Congress may still assert its independence to evaluate the President's decision. These may lead to a constitutional crisis involving two (2) co-equal branches of government, each endowed with power to review the President's action. Thus, for the sake of orderly procedure, one must precede the other, and since the Court has been considered as the "last bulwark of justice and democracy,"7 it is but logical that it should undertake its review after the legislature has performed its duty. This is consistent with the principle of separation of powers which has been explained as follows:

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an daborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And 1he judiciary in turn, with the Supreme Court as the final arbiter, effecthrely checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.8 (Emphasis supplied)

However, consistent with Fortun, should Congress procrastinate or default on its duty to review, the Court will proceed to hear petitions challenging the President's action.

To be sure, legislative imprimatur on the proclamation or suspension will not consequentially bring such proclamation or suspension outside the ambit of judicial review. It should be noted that under Section 18, Article VII, even extensions of the proclamation or suspension, which only Congress can declare upon the President's initiative, can be the subject of this Courf s inquiry in an appropriate proceeding that questions the factual basis thereof.

It must he stressed, too, that the Court's independence will not be compromised by allowing Congressional review to take place before the Court exercises its judicial authority. This Court's independence will still be preserved as it will not be bmmd by the findings of Congress but will have to make an independent assessment of the facts upon which the President relied in issuing his proclamation or suspension. There is no abdication of duty on the part of the Court as it will proceed to hear the case if Congress decides not to revoke the Proclamation.

Any concern that the Comi may not be able to decide within the thirty-day (39) period (from filing of the appropriate proceeding), as fixed by the Constitution, if the exercise of the powers under Section 18, Article VII is to be sequential, has been addressed in Fortun. The Court explained that since Congress is expbctcd to act swiftly upon submission of the President's Report, the 30-day period would be enough for the Court to exercise its review power, and in any case, the expiration of the period would not di vest the Court of its jurisdiction since jurisdiction once acquired is not lost until the case has heen tenTLinated.

At this jilncture, it bears noting that while the Fortun pronouncement, as quoted iri the ponencia, speaks of the Court's intervention taking place only when Congress defaults on its duty to review the President's action, subsequent statements in the. Fortun Decision suggests that the Court would still hear petitions questioning the factual basis of the proclamation or suspension even after Congress' review, thus:

But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its duty without pre-empting congressional action. Section 18, Article VII, requires the President to report his actions to Congress, in person or in writing, within 48 hours of such proclamation or suspension. In turn, the Congress is required to convene without need of a call within 24 hours following the Presidents proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the Congress. Whatever form that action takes, therefore, should give the Court sufficient ti,me to fulfill its own mandate to review the factual basis of tbe proclamation or suspension within 30 days of its issuance. (Emphasis supplied)

Therefore, based on the entirety of its Decision in Fortun, it cannot be said that the Court has, as the ponencia states, "abdicated from its bounden duty to review" the factual basis of the proclamation or suspension, or "surrendered the same to Congress."

The Court cannot supplant the
President's choice of which of the
three powers under Section 18,
Article VII of the Constitution to
use.

Section 18, Article VII of the 1987 Constitution gives the President, under prescribed conditions, the powers to call out the armed forces, to suspend the privilege of the writ of habeas corpus, and to place the Philippines or any part thereof under martial law.

I agree with the ponente in holding that this Court's review cannot extend to calibrating the President's decision pertaining to which of said powers to avail given a set of facts or conditions.

It is not within this Court's power to rule that the President should have used his "calling out" powers instead. To do so is to encroach on an entirely executive prerogative and violate the principle of separation of powers. It is not this Court's duty to supplant the President's decision but merely to determine whether it satisfies the conditions prescribed in the Constitution for the declaration of martial law or the suspension of the privilege of the writ of habeas corpus.

The Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal body but rather simply making sure that any act of government is done in consonance with the authorities and rights allocated to it by the Constitution.9

Recommendation of or consultation
with the Defense Secretary or other
high-ranking military officials is
not a condition imposed by the
Constitution.

Indeed, as the ponencia holds, a plain reading of Section 18, Article VII of the Constitution will n.weal no such cqndition for the President's exercise of the power to proclairn martial law ori to suspend the privilege of the writ of habeas corpus. lt should also be pointed out that as the Chief Executive, the President has access to all kinds of information, not necessarily from the military. Furthermore, the President himself is from Mindanao and has served as n local chief executive of Davao City for many years. It cannot be said, therefore, that he is not privy to the realities on the ground in Mindanao and that his knowledge is superficial or will not enable him, absent a recommendati1m frorn or consultation with military officials, to make an informed judgment in the exercise of the martial law and suspension powers under Section 18, Article VIL

Constitutionality of the Proclamation
is determined under the sufficiency
of factual basis test.

Based on the ponencia, there are two (2) tests to determine the constitutionality of a declaration of martial law or a suspension of the privilege of the writ of habeas corpus: the arbitrariness test, as applied in the 1971 case of Lansang v. Garcia,10 and the sufficiency of factual basis test, introduced in Section 18, Article VII of the 1987 Constitution.

Section 18, however, specifies the scope of this Court's judicial review, i.e., the determination of the sufficiency of the factual basis of the imposition of martial law or the suspension of the privilege of the writ of habeas corpus. The factual basis, as provided in the Constitution, lies in the existence of an actual rebellion or invasion where public safety requires the declaration of martial law or the suspension of the privilege of the writ of habeas cOJpus. The Court's review is, thus, confined to the detennination of whether the facts upon which the President relied in issuing such declaration or suspension show a case of actual rebellion or invasion that poses a danger to public safety. The Constitution does not require the Court to look into the fairness or arbitrariness of such imposition or suspension. Otherwise, the framers of the Constitution would have stated so, considering that they introduced the concept of judicial review of grave abuse of discretion under Section 1 of Article VIII of the Constitution. In other words, in reviewing the President's Proclamation, this Court's criterion is factual and will not involve a determination of whether the President acted in a whimsical, capricious or despotic manner by reason of passion or personal hostility.

Petitioners have the burden of
proving insufficiency of factual
basis.

Under our Rules of Cmirt, it is presumed that an official duty has been regularly performed.11 It has likewise been held that a public officer is presumed to have acted in good faith in the performance of his duties.12 It is also a settled rul.e that he who alleges must prove,13 and the rule applies even to negative assertions.14 Thus, the burden of proving that the President's factual basis for declaring martial law and suspending the privilege of the writ of habeas corpus in Mindanao was insufficient, lies with the petitioners.

Notably, in Sanlakas v. Executive Secretary,15 involving President Gloria Macapagal-Arroyo's declaration of a state of rebellion, the Court decided the case on the premise that petitioners therein had the burden of proving that the President exceeded her authority as Chief Executive or Commander-in-Chief in issuing such declaration and in calling out the armed forces to suppress the rebellion, thus:

It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of diScretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis.

x x x x

The petitions do not cite a specific instance where the President has attempted to or has exercised powers beyond her powers as Chief Executive or as Commander-in-Chief The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executjve and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI.

In t he same vein, the Court, in Ampatuan v. Puno,16 involving President Macapagal-Arroyo's Proclamation 1946 which placed the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato under a state of emergency, and called out the Armed Forces of the Philippines and the Philippine National Police to prevent and suppress all incidents of lawless violence therein, the burden of proof was likewise placed upon the petitioners questioning the President's decision, thus:

Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of Maguindanao, Sultan Kudarat and Cotabato Chy, as well as the President's exercise of the calling out power had no factual basis. They simply alleged that, since not all areas under the ARMM were placed under a state-of emergency, it follows that the take over of the entire ARMM by the DILG Secretary had no basis too.

x x x x

Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subject places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly no factual bases, the Court must respect the President's actions.

Considering that the foregoing cases also involve the exercise of the President's power as Commander-in-Chief and they likewise inquire into the factual basis of the executive action, the Court's ruling that the burden of proof lies with the petitioners impugning the exercise of such power, should similarly apply to the instant case.

Petitioners failed to discharge
their burden of proof.

Petitioners were unable to show that the President had no sufficient factual basis in issuing Proclamation No. 216. The attempt of petitioners in G.R. No. 231658 and 231771 to discredit some of the President's reasons for issuing his Proclamation must perforce fail as it was based merely on news articles they found online. Such news reports amount to "hearsay evidence, twice removed" and are, therefore, "not only inadmissible but without any probative value at all whether objected to or not, unless offered for a purpose other than proving the truth of the matter asserted."17 Indeed, it appears that not even an effort to verify said news reports was made, or affidavits of witnesses presented, to directly refute the President's factual assertions.

In any event, of the several incidents mentioned by the President in his Proclamation and Report to Congress, petitioners in G.R. No. 231658 imputed falsity and inaccuracy only to some of the events so stated. Granting arguendo that the President's claims as regards these events were inaccurate or false, the other incidents enumerated in the President's Proclamation and Report to Congress still establish conditions upon which the President can exercise his martial law and suspension powers.

Furthermore, reliance of petitioners, in G.R. No. 231658, on the maxim offalsus in uno, falsus in omnibus is greatly misplaced. Firstly, their allegation of falsehood, based on mere newspaper reports, is unsubstantiated. Secondly, the legal maxim of falsus in uno, falsus in omnibus is not a positive rule of law and is not strictly applied in this jurisdiction.18 Thirdly, it has been held that said principle presupposes the existence of a positive testimony on a material point contrary to subsequent declarations in the testimony.19 It has not been shown, however, that there was a self-contradiction or an inconsistency in the President's rationale for issuing Proclamation No. 216. Finally, for the principle of falsus in uno, falsus in omnibus to apply, there should be a conscious and deliberate intention to falsify.20 Petitioners have not been able to establish that there was at least a conscious and deliberate intention on the part of the President to falsify his reasons for declaring martial law and suspending the privilege of the writ of habeas corpus.

Proclamation No. 216 and the
President's Report to Congress
sufficiently establish the
existence of actual rebellion that
endangers public safety.

The conditions prescribed in the Constitution for a valid proclamation of martial law or suspension of the privilege of the writ of habeas corpus are as follows: (1) there must be an actual invasion or rebellion; and (2) public safety requires the proclamation or suspension.

I agree that considering the urgency of the situation, which may not give the President opportunity to veri(y with precision the facts reported to him, the President only needs to be satisfied that there is probable cause to conclude that the aforesaid conditions exist. As a standard of proof, probable cause has been defined thus:

x x x Probable cause is meant such set of facts and circwnstances, which would lead a reasonably discreet and prndent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. In detennining probable cause, the average person weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, but it requires less than evidence that would justify a conviction.21 (Emphasis supplied)

There was probable cause for the
President to believe that rebellion
was being committed.

The facts, upon which the President based his Proclamation and which have not been satisfactorily controverted, show that more likely than not, there was rebellion and public safety required the exercise of the President's powers to declare martial law and to suspend the privilege of the writ of habeas corpus in Mindanao.

Article 134 of the Revised Penal Code, as amended by Republic Act No. 6968, defines "rebellion" as follows:

Article 134. Rebellion or insurrection - How committed. - The crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. (Emphasis supplied.)

That there is an armed uprising in Marawi City is not disputed. The bone of contention lies in the element of culpable purpose.

However, the facts and incidents, as put forward by the President in his Proclamation and Report to Congress, show that there is probable cause to conclude that the uprising is aimed at removing Mindanao from its allegiance to the Philippine Government and depriving the President of his powers over the territory.

As reported by the President, the Maute Group, along with the Abu Sayyaf Group and their sympathizers, attacked, laid siege and burned both government and privately-owned facilities in Marawi City, including hospitals and schools, and caused casualties to both government personnel and civilians. They took hostages and searched for Christians to execute. They prevented Maranaos from leaving their homes, and forced young male Muslims to join their groups. They occupied several areas in Marawi City and set up road blockades and checkpoints at the Iligan City-Marawi City junction. These acts, viewed in the light of the Maute Group's declaration of allegiance to the DAESH22 and. their brazen display of the ISIS23 flag in several areas in Marawi City, sufficiently establish the Group's intention to remove the City's allegiance to the Philippine Gove1nment, to reinforce their Group and create a stronghold in Marawi City, and to establish a DAESH wilayat or province in Mindanao.

Furthermore, as the President stated in his Report to Congress, the Maute Group and their sympathizers had been responsible for cutting vital lines of transportation and power, which prevented the government from delivering basic services and from sending troop reinforcements to restore peace in Marawi City. By such act, the Maute Group and their cohorts clearly intended to prevent the Executive from exercising its functions to deliver basic services and to maintain peace and order in Marawi City.

Clearly, therefore, by the standard of probable cause, the culpable purpose required under Article 134 of the Revised Penal Code has been shown to exist.

Petitioners in G.R. No. 231658 also argue that the alleged siege of Marawi City was actually an armed resistance, not to remove the City'sallegiance from the Republic, but to shield a high profile terrorist, Isnilon Hapilon, following a government operation to capture him. The argument, however, fails to persuade. The acts perpetrated by the Maute Group are more consistent with the intention to establish a seat of power in Marawi City, than an effort to shield Hapilon from capture. Indeed, it taxes credulity to assume that the act of setting a school on fire, or of recruiting young male Muslims to strengthen the group's force, or the killing of teachers, as cited in the President's Report, is simply for the purpose of shielding the group's leader. Thus, if anything, the government operation only set in motion the group's plan to lay siege and take over Marawi City for and in the name of ISIS. In fact, the group's resources and weapons, which have enabled them to continue fighting the Philippine military more than a month since Proclamation No. 216 was issued, confirm that they were preparing to carry out an armed uprising to establish a DAESH wilayat.

The same petitioners likewise maintain that the Maute Group's act of hoisting the DAESH flag is mere cheap propaganda and is not indicative of removing Marawi City from its allegiance to the Republic or of depriving the President of his powers and prerogatives. On the contrary, this act, in light of the group's declaration of allegiance to DAESH, demonstrated an intention to subject the city to the DAESH's rule. It is not even necessary that the DAESH recognize the group or acknowledge its allegiance; what matters is the group's intent to bring the City under its regime. The brazen display of the DAESH flag in several areas of Marawi City cannot but be considered as laying claim over the City for and on behalf of DAESH. To dismiss it as cheap propaganda may not be prudent and may not serve the best interest of national security.

Public safety requires the
proclamation of martial law and the
suspension of the privilege of the
writ of habeas corpus.

The events as reported by the President to Congress show that the violent attacks of the Maute group and its sympathizers have resulted in destruction of government and privately-owned properties as well as human casualties. The government has been prevented from delivering basic services and from sending troop reinforcements to restore peace in Marawi City. Civilians and government personnel have no easy access to and from the City. All of these were taking place as part of the plan of the Maute Group and its sympathizers to establish their seat of power in Marawi City and create a DAESH wilayat in Mindanao. Clearly, the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus have been firmly grounded on the requirements of public safety.

Scope of Review

I agree that past events may be considered in justifying the declaration of martial law and the suspension of the privilege of the writ of habeas corpus if they are connected or related to the situation at hand. Such events may also be considered if material in assessing the extent and gravity of the current threat to national security.

In Proclamation No. 216, the President averred that the Maute terrorist group who attacked government and private facilities, inflicted casualties, and hoisted the DAESH/ISIS flag in several areas, in Marawi City, on May 23, 2017, is the very same group that had been responsible for a series of violent acts for which the President issued Proclamation No. 55 in February 2016, declaring a state of emergency on account of lawless violence in Mindanao. These violent acts included an attack on the military outpost in Butig, Lanao del Sur in February 2016, the killing and wounding of several soldiers, and the mass jailbreak in Marawi City in August 2016 which freed the group's comrades and other detainees.

These past incidents are clearly relevant to the assessment of the Maute group's intention and capability to implement a plan of establishing a DAESH wilayat in Mindanao.

Similarly, events subsequent to the issuance of the proclamation or suspension may be considered in the Court's determination of the sufficiency of the factual basis. Subsequent events confirm the existence or absence of the conditions for the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus.

I have my reservations, however, as regards the statement in the ponencia that the Court's review is confined to the sufficiency, not accuracy, of the information at hand during the declaration of martial law or the suspension of the privilege of the writ of habeas corpus. The accuracy or veracity of the information upon which the President based his decision, if properly challenged before the Court, would have to be passed upon and determined.

Rebellion and Terrorism

It is true, as Mr. Justice Leonen pointed out, that martial law is not a constitutionally prescribed solution to terrorism. This is so, however, because terrorism was not as pronounced or prevalent when the 1987 Constitution was drafted as it is today. I reckon that if it were, it would have been considered and indeed included by the framers of the Constitution among the conditions for the exercise of the martial law power, given that like rebellion or invasion, it is inimical to national security, and because it is, as described in Republic Act No. (RA) 9372,24 a crime against the Filipino people and against humanity.25

Terrorism, under RA 9372 is committed when specific crimes under the Revised Penal Code (RPC) or special laws, are perpetrated, thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand. Rebellion under .Article 134 of the RPC, as well as murder, kidnapping and arson, are some of the offenses subsumed in the crime of terrorism.

However, while rebellion is included in the crime of terrorism under RA 9372, said law did not have the effect of obliterating-rebellion as a crime in itself. Thus, even as rebellion can qualify as an act of terrorism, it does not cease to be a ground for the declaration of martial law if the elements under the RPC are present. In this case, it has been established by the standard of probable cause that the armed uprising of the Maute group and its sympathizers is for the purpose of establishing as DAESH wilayat or province in Mindanao. The argument, therefore, that the acts of the Maute group and their sympathizers constitute mere acts of terrorism, outside the ambit of the martial law power, will not hold water.

In fact, RA 9372 specifically states that "(n)othing in (said) Act shall be interpreted as a curtailment, restriction or diminution of constitutionally recognized powers of the executive branch of the government." It can be deduced, therefore, that even if rebellion qualifies as terrorism, the President is still empowered to exercise the martial law and suspension powers under Section 18, Article VII of the 1987 Constitution.

"(A)s set of rules and principles, (the International Humanitarian Law) aims, for humanitarian reasons, to limit the effects of armed conflict."26 If the reason for the law is to protect human rights and to promote human welfare, it cannot possibly be a source of protection for the acts of rebellion perpetrated by the Maute group and its cohorts since their acts constitute or qualify as acts of terrorism. Terrorism is the very antithesis of human rights.27

Proclamation covering the entire
Mindanao has sufficient factual
basis.

In his Report to Congress, the President, in part, stated:

(a) The attacks of the Maute group and their sympathizers on May 23, 2017 constitute not simply a display of force, but a clear attempt to establish the group's seat of power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire Mindanao.

(b) The acts of the Maute group and their sympathizers have emboldened other armed groups in Mindanao, resulted in the deterioration of public order and safety in Mindanao, and compromised the security of the entire Mindanao.

(c) Their occupation of Marawi City fulfills a strategic objective because of its terrain and the easy access it provides to other parts of Mindanao. Lawless armed groups have historically used provinces adjoining Marawi City as escape routes, supply lines and backdoor passages.

(d) The Maute terrorist group is composed of 263 fully armed members (as of the end of 2016). It chiefly operates in Lanao del Sur but has extensive networks with foreign and local armed groups such as the Jemaah Islamiyah, Mujadin lndonesia Timur and the Abu Sayyaf Group. It adheres to the principles of DAESH and has declared its allegiance to the DAESH. Reports show that the group receives financial and logistical support from foreign-based terrorist groups, the ISIS in particular, and from illegal drug money. And,

(e) Considering the network .and alliance-building activities among terrorist groups, local criminals and lawless armed men, the siege of Marawi City is a vital step towards achieving absolute control over the entirety of Mindanao.

In arriving at these conclusions, the President is presumed to have taken into account intelligence reports, including classified information, regarding the actual situation on the ground. Absent any countervailing evidence, these statements indicate a plan and an alliance among armed groups to take over and establish absolute control over the entire Mindanao. Thus, there appears to be sufficient basis for the imposition of martial law and the suspension of the privilege of the writ of habeas corpus in the entire Mindanao.

In their Consolidated Comment, respondents averred that the intelligence reports submitted by the Armed Forces of the Philippines to the President showed that the Maute Group has banded with three other radical terrorist organizations (the Abu Sayyaf Group from Basilan, Ansarul Khilafah Philippines from Saranggani and Sultan Kudarat, and the Bangsamoro Islamic Freedom Fighters from Maguindanao); that due to their uniform pledge of allegiance to ISIS and a common purpose of establishing an ISIS wilayah in Mindanao, an alliance was formed among these rebel groups; that Hapilon was appointed emir or leader of all ISIS forces in the Philippines and hailed as the mujahid or leader of the soldiers of the Islamic State in the Philippines; that Hapilon performed a symbolic hijra or pilgrimage to unite the ISIS-inspired groups in mainland Mindanao; that after Hapilon was appointed as emir, multiple atrocities, including bombings, abductions and beheadings, were committed in the wake of the consolidation of the forces of said rebel groups and foreign terrorists; that these widespread atrocities were to fulfill the· last ·Step before they are presented to the ISIS for approval and recognition; and that said rebel groups chose Marawi City as the starting point of establishing its wilayah in Mindanao because it is at the heart of Mindanao, within reach of nearby provinces and cities, and because of its cultural and religious significance to Muslims.

It does not appear that chc admissibility, weight or credibility of these reports have been challenged in such manner as to override the presumption of regularity in the exercise of the President's power to declare martial law and to suspend the privilege of the writ of habeas corpus. Likewise, a demand for respondents to validate these findings or reports does not appear to have been made. As they stand, these findings will reasonably engender a belief that the rebel groups seek and intend to make Mindanao an ISIS wilayah or province, with Marawai City, given its strategic location and cultural and religious significance, as the starting point of their occupation in the name of ISIS. Considering the alliance of these rebel groups, the violent acts they have perpetrated in different parts of Mindanao for the shared purpose of establishing an ISIS wilayah, and the extent of the territory they intend to occupy in the name of ISIS, it cannot be said that the imposition of martial law over the entire Mindanao is without factual basis.

The location of the armed uprising should not be the only basis for identifying the area or areas over which martial law can be declared or the privilege of the writ of habeas corpus can be suspended. Thus, that the subject armed uprising appears to be taking place only in Marawi City should not be a reason to nullify the declaration or suspension over the rest of Mindanao. Foremost, it has been shown that there is factual basis to include the rest of Mindanao in the Proclamation. So also, the Constitution does not require. that the place over which the martial law or suspension will be enforced, should be limited to where the armed uprising is taking place, thus, giving the President ample authority to determine its coverage. Furthermore, as noted in Aquino, Jr. v. Enrile,28 modem day rebellion has other facets than just the taking up of arms - including financing, recruitment and propaganda that may not necessarily be found or occurring in the place of the armed conflict, thus:

x x x The argument that while armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and material, fifth-column activities including sabotage and intelligence - all these are part of the rebellion which by their nature arc usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that context.

Moreover, the geography of Marawi City provides easy access for rebels to escape to nearby provinces or cities. If martial rule will be limited to Marawi City, rebels may simply move to neighboring areas to elude arrest. The recent apprehension of the parents of the Maute brothers in Davao City and Lanao del Sur, under Arrest Order No. 1, and of another suspected rebel, Sultan Fahad Salic, in Misamis Oriental, indicates that rebels may already be taking advantage of the easy access afforded by Marawi's location. These arrests, made outside Marawi City, lend support to the President's decision to make Proclamation No. 216 apply to the whole of Mindanao.

Proclamation No. 216 is not void for
vagueness for the absence of

guidelines/operational parameters.

The validity of a proclamation of martial law or suspension of the privilege of the writ of habeas corpus is to be measured against the conditions set in the Constitution, The only conditions prescribed in the Constitution are that actual rebellion or invasion exists and public safety requires the proclamation or suspension. There is nothing in the Constitution that requires that guidelines or operational parameters be included in the proclamation. Thus, the proclamation cannot be voided on the ground that they are not set out therein. Besides, as noted by Mr. Justice Del Castillo in his ponencia, guidelines or operational parameters are merely tools for the implementation of the proclamation.

Furthennore, as the situation calls for immediate action, the President cannot be expected to at once specify the guidelines and operational parameters in the proclamation. In any event, safeguards have been incorporated in the Constitution to ensure that rights are protected. Thus, Section 18, Article VII, in part, states:

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.

Conclusion

Martial law is not intrinsically wrong. If it were, the framers of the Constitution composed of staunch nationalists and defenders of human rights, would have deleted it altogether from the 1935, 1973 and 1987 Constitutions. These learned men understood that martial law was a necessary constitutional weapon to defend the integrity and sovereignty of the Republic.

Those who criticize martial law are haunted by the abuses of the past and fearful of the potential dangers it may entail. But these apprehensions have no bearing when the noble objectives sought to be accomplished are the protection of the people and the defense of the state.

The foregoing considered, I vote to DISMISS the consolidated petitions.

NOEL GIMENEZ TIJAM
Associate Justice


Footnotes

1 Araullo v. Aquino, G.R. No. 209287, July l, 2014.

2 Social Security Commission v. Court ojAppeals, G.R. No. 152058, September 27, 2004.

3 See Office of the Ombudsman v. Andutan, Jr., G.R. No. 164679, July 27, 2011.

4 G.R. No. 190293, March 20, 2012.

5 Deliberations on the 1987 Con'ititution, Vol. IL pp. 485 & 732 (Explanations of Commissioners Sarmiento and Quesada on their votes).

6 The same principle has been arp!ied in upholding the doctrine of exhaustion of administrative remedies.

7 Roxas v. De Zuzuarregui, Jr., G.R. No. 152072, July 12, 2007.

8 Francisco, Jr. v. House of Representatives, G.R. No. 160261, November 10, 2003, citing Angara v. Electoral Commission, 63 Phil. 139 (1936).

9 Biraogo v. The Philippine Truth Commission, G.R. No. 192935, December 7, 2010.

10 G.R. No. L-33964, December 11, 1971.

11 Section 2(m), Rule 131.

12 Araullo v. Aquino, G.R. No. 209287, February 3, 2015.

13 Republic v. Roque, Jr., G.R. No. 203610, October 10, 2016.

14 People v. Castillo, G.R. No. (Unreadable text) – February 15, 2000; Cheng v. Javier, G.R. No. 182485, July 3, 2009.

15 G.R. No. 159085, February 3, 2004.

16 G.R. No. 190259, June 7, 2011.

17 Feria v. Court of Appeals, G.R. No. 122954, February 15, 2000.

18 Northwest v. Chiong, G.R. No. 155550, January 31, 2008.

19 Id.

20 People v. Mirandilla, Jr., G.R. No l 80417, July 27, 2011.

21 Clay & Feather international, inc. v. Lichaytoo, G.R. No. 192105, May 30, 2011.

22 Acronym of a group's full Arabic name, al-Dawla al-Islamiya fi al-Iraq wa al-Sham, translated as "Islamic State in Iraq and Syria."

23 Islamic State of fraq and Syria.

24 Human Security Act of 2007.

25 Section 2, RA 9pm.

26 http://www.ijrcenter.org/international-humanitarian-law/ (Last accessed July 5, 2017).

27 "A Human Rights Watch Briefing Paper for the 59th Session of the United Nations Commission on Human Rights March 25, 2003," https://www.hrw.org/legacy/un/chr59/counter-terrorism-bck.pdf (Last accessed July 5, 2017).

28 G.R. No. L-35546, September 17, l 974.


The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

BERSAMIN, J.:

I CONCUR.

I hereby substantiate my concurrence in order to express my views on certain issues that I deem to be of greatest significance.

I

The 1987 Constitution is often described. as an anti-martial law fundamental law. This may most probably be because the Filipino people have thereby firmly institutionalized solid safeguards to ensure against the abuse of martial law as a response to any internal or external threats to the stability of the Republic.

I think, however, that the description may not be entirely apt. Martial law had theretofore no generally accepted definition, much less precise meaning. The lack of an accepted or constant definition and precision has been recognized in this jurisdiction for some time now.1 The need for the Court to enlighten our people through a higher understanding of the concept of martial law thus exists even today. But the problem is not only about the meaning; it is also about the scope of martial law. Such understanding is essential to the determination of the serious issues that have been presented in these consolidated cases.

There is much about martial law that is mysterious probably because of its extraordinary and uncommon effects on civilians used to a rule by civil authority. The traditional concept of martial law is its not being law in the usual sense but the will of the military commander, to be exercised by him or her only on his or her responsibility to his or her government or superior officer; when once established, it applies alike to citizen and soldier.2 In its comprehensive sense, the term martial law is that which is promulgated and administered by and through military authorities and agencies for the maintenance of public order and the protection of persons and property in territory wherein the agencies of the civil law usually employed for such purposes have been paralyzed, overthrown, or overpowered, and ary unable, for the time being, fully to operate and function.3 In its strict and absolute sense, however, martial law supersedes all civil authority during the period in which it is in operation.4

The latter sense is not true under the 1987 Constitution. The majority opinion, ably written for the Court by Justice Del Castillo, adverts to the discussion among the members of the Constitutional Commission on the added powers of the President during martial law.5 As can be gathered from the discussion, martial law does not automatically vest legislative power in the President; and does not supplant the functioning of civil courts. During martial law, the President is granted the powers of a commanding general in a theater of war, and, as such, becomes authorized to issue orders that have the effect and force of law strictly in the theater of war.

The reference to the theater of war manifests the intent of the framers to revert to the traditional concept of martial law as developed in American juFisprudence. Ex parte Milligan,6 decided around the end of the American Civil War, stands among the earliest cases explaining the necessity for martial rule to substitute civil authority during an invasion or civil war, when it is impossible to administer justice according to law. It is worthy to note that Ex parte Milligan referred to a theater of active of military operations or the locality of actual war in relation to martial rule, to wit:

If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.

Another American case - Duncan v. Kahanamoku7 - became the occasion to clarify that martial law, "while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals."

The right to proclaim, apply and exercise martial law is one of the rights of sovereignty, and is as essential to the existence of a nation as the right to declare and carry on war.8 In republican Philippines, the power to proclaim martial law has always been lodged in the Presidency. This is by no means either odd or unwelcome. The necessity that can justify the wielding of the power looks to the President as the commander-in-chief of all the armed forces of the State to respond swiftly and capably to any internal or external threats. Giving to the bicameral Congress the right to exercise the power may be cumbersome, inconvenient and unwieldy, and is anathema to the notion of responding to the critical emergency that directly and immediately threatens to diminish, if not destroy, the sovereignty of the State itself over the territory and population of the country. Indeed, of the three great branches of the Government, it is the President, as the Chief Executive and commander-in-chief of the armed forces, who has the ability and competence and the means to make the timely and decisive response.

II

Section 18, Article VII of the 1987 Constitution expressly 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 need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Under the provision, the President has the leeway to choose his or her responses to any threat to the sovereignty of the State. He or she may call out the armed forces to prevent or suppress lawless violence, invasion or rebellion; or, in case of invasion or rebellion, when the public safety requires it, he or she may suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law for a period not exceeding 60 days.

These consolidated cases focus on the proclamation of martial law by President Duterte over the entire Mindanao through Proclamation No. 216. The herein petitioners essentially seek the review by the Court, pursuant to the third paragraph of Section 18, of the "sufficiency of the factual basis of the proclamation of martial law." The review is a legal duty of the Court upon the filing of the several consolidated petitions assailing the sufficiency of the factual basis for the proclamation of martial law.

There is no question to me that the third paragraph of Section 18, supra, vests in the Court the unqualified duty to review the factual sufficiency of the declaration of martial law, and the necessity for the declaration.

Invoking the paragraph, the petitioners insist that the action they have initiated is a sui generis proceeding, different from the Court's certiorari powers stated in the second paragraph of Section 1,9 Article VIII of the 1987 Constitution and those enumerated under Section 5(1),10 Article VIII of the 1987 Constitution.

In contrast, the Office of the Solicitor General (OSG) posits that it is insufficient for the petitioners to merely invoke the third paragraph of Section 18 in order to enable the Court to review the sufficiency of the factual bases of Presidential proclamation No. 216 because they should also invoke the expanded judicial power of the Court to determine the existence of grave abuse of discretion under the second paragraph of Section 1, in relation to Section 5(1). Equating the appropriate proceeding under the third paragraph of Section 18 with the special civil action of certiorari under Section 5(1), the OSG theorizes that the third paragraph of Section 18 requires the petitioners to anchor their petitions on the existence of grave abuse of discretion because the appropriate proceeding under the third paragraph of Section 18 should be brought under the second paragraph of Section 1.

The majority opinion adopts the position of the petitioners. It holds that to equate the appropriate proceeding mentioned in the third paragraph of Section 18 with the certiorari action under Section 5(1) in relation to the second paragraph of Section 1 is to "emasculate the Court's task under Section 18, Article VII."11

I agree with the majority opinion.

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.

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 18 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.12

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.

Nonetheless, considering that the appropriate proceeding under the third paragraph of Section 18 is initiated by a petition filed by any citizen, the Court need not be hamstrung by the foregoing differentiation. In discharging its constitutional duty of reviewing the sufficiency of the factual basis for the proclamation of martial law, the Court should be least curtailed by form and formality. It should dutifully undertake the review regardless of form and formality. It should also eschew the usual judicial tools of avoidance, like locus standi and justiciability, because the task at hand is constitutionally inevitable for the Court. Until adequate rules for the regulation of the appropriate proceeding under the third paragraph of Section 18 are crafted and promulgated, the Court should be content with the petitions as they have been filed in these consolidated cases.

In this connection, I have no hesitation in adopting the caution that our colleague, Justice Leonardo-De Castro, has written so clearly in her Separate Concurring Opinion herein, to wit:

The Court should be cautious that it does not take a position in these consolidated cases that needlessly restricts our people's judicial remedies nor carelessly clips our own authority to take cognizance of the issue of constitutional sufficiency under Section 18, Article VII in any appropriate action that may be filed with the Court. Such would be antagonistic to the clear intent of the framers of the 1987 Constitution to empower our citizens and the Judiciary as a vital protections against potential abuse of the executive power to declare martial law and suspend the privilege of the writ of habeas corpus.

One noticeable area of disagreement between the OSG and the petitioners is the burden of proof. This disagreement has to arise because the Court's task to be presently discharged requires the determination of the sufficiency of the factual basis of the necessity for martial law.

The petitioners' argument that the burden of proof immediately falls on the Government is difficult to accept. My view is that the burden of proof to show that the factual basis of the President in proclaiming martial law was insufficient has to fall on the shoulders of the citizen initiating the proceeding. Such laying of the burden of proof is constitutional, natural and practical - constitutional, because the President is entitled to the strong presumption of the constitutionality of his or her acts as the Chief Executive and head of one of the great branches of Government;13 natural, because the dutiful performance of an official duty by the President is always presumed;14 and practical, because the alleging party is expected to have the proof to substantiate the allegation.

For purposes of this proceeding, President Duterte, by his proclamation of martial law, discharged an official act. He incorporated his factual bases in Proclamation No. 216 itself as well as in his written report to Congress. The petitioners have come forward to challenge the sufficiency of the factual bases for the existence of actual rebellion and for the necessity for martial law (i.e., the public safety requires it). It was incumbent upon the petitioners to show why and how such factual bases were insufficient. Although there may be merit in the urging of the petitioners that the Government carried the burden of proof on the basis of the proclamation of martial law being a derogation of civil rights and liberties, I persist in the view that the burden of proof pertained to the petitioners considering that despite embedding numerous safeguard mechanisms, the 1987 Constitution has not dissolved the presumption of good faith in favor of the President. In other words, we should presume that the President, in proclaiming the state of martial law, did so in good faith.15

Nonetheless, I also suggest future consideration that where the petitioning citizen has incorporated or stated in the petition those of the factual bases that he or she admits, and those that he or she denies because he holds them to be false or fabricated, or inadequate to justify the proclamation, specifying the reasons for the denial or for holding such factual bases as false, fabricated or inadequate, then the burden of evidence - as distinguished from the burden of proof - may be shifted to the Government. This process, known in civil procedure as the specific denial,16 may be very useful in allocating the duty to come forward with the evidence.

V

The Government has convincingly shown that the President had sufficient factual bases for proclaiming martial law over the entire Mindanao. Indeed, the facts and events known to the President when he issued the proclamation provided sufficient basis for the conclusion that an actual rebellion existed.

The point has been made that the proclamation of the state of martial law should be confined to the areas of Mindanao under armed conflict.

After accepting the factual premises based on the existence of an actual rebellion fueled by the movement for secession, and knowing that the rebellion has been happening in various areas of Mindanao for a long time already, I agree with the majority that the proclamation of martial law over the entire Mindanao was warranted. Indeed, the local armed groups had formed linkages aimed at committing rebellion throughout Mindanao, not only in Marawi City, which was but the starting point for them. Verily, the rest of Mindanao, even those not under armed conflict at the moment of the proclamation, were exposed to the same positive danger of the rebellion that gave rise to the necessity for the proclamation.17

I VOTE TO UPHOLD the constitutionality of Proclamation No. 216 over the entire Mindanao.

LUCAS P. BERSAMIN
Associate Justice


Footnotes

1 See the concurring opinion of J. Barredo in Aquino v. Enrile, No. L-35546 September 17, 1974, 59 SCRA 183, which noted:

Martial law pursuant to Proclamation No. 1081, however, does not completely follow the traditional forms and features which martial law has assumed in the past. It is modem in concept, in the light of relevant new conditions, particularly present day rapid means of transportation, sophisticated means of communications, unconventional weaponry, and such advanced concepts as subversion, fifth columns, the unwitting use of innocent persons, and the weapons of ideological warfare.

The contingencies which require a state of martial law are time-honored. They are invasion, insurrection and rebellion. Our Constitution also allows a proclamation of martial law in the face of imminent danger from any of these three contingencies. The Constitution vests the power to declare martial law in the President under the 1935 Constitution or the Prime Minister under the 1973 Constitution. As to the form, extent, and appearance of martial law, the Constitution and our jurisprudence are silent.

Martial law pursuant to Proclamation No. 1081 has, however, deviated from the traditional picture of rigid military rule super-imposed as a result of actual and total or near total breakdown of government.

Martial law was proclaimed before the normal administration of law and order could break down. Courts of justice were still open and have remained open throughout the state of martial law. The nationwide anarchy, overthrow of government, and convulsive disorders which classical authors mention as essential factors for the proclamation and continuation of martial law were not present.

More important, martial law under Proclamation No. 1081 has not resulted in the rule of the military. The will of the generals who command the armed forces has definitely not replaced the laws of the land. It has not superseded civilian authority. Instead of the rule by military officials, we have the rule of the highest civilian and elective official of the land, assisted by civilian heads of executive departments, civilian elective local officials and other civilian officials. Martial law under Proclamation No. 1081 has made extensive use of military forces, not to take over civilian authority but to insure that civilian authority is effective throughout the country. This Court can very well note that it has summoned and continues to summon military officers to come before it, sometimes personally and at other times through counsel. These military commanders have been required to justify their acts according to our Constitution and the laws of the land. These military officers are aware that it is not their will much less their caprice but the sovereign will of the people under a rule oflaw, which governs under martial law pursuant to Proclamation No. 1081.

2 Id., citing Johnson v. Jones, 44 III 142.

In addition, Thurman Arnold wrote about Martial Law in the Encyclopaedia ofSocial Sciences, viz.:

Martial law is a legal concept by which Anglo-American civil courts have sought in times of disorder to define the limits of executive or military control over citizens in domestic territory. It is analyzed in so many different ways, and there are so many theories as to its sanction that no definition can do more than express the most current legal impressions. Martial law is regarded as the substitution of the will of the executive or military commander for the process of the courts.

3 Id., citing State ex rel. O'Connor v. District Court in Shelby County, 219 Iowa 1165, 260 NW 73, 99 ALR 967; Ex parte McDonald, 49 Mont 454, 143 P 947; State ex rel. Grove v. Mott, 46 NJL 328.

4 Id., citing Exparte Minigan, 71US2; Martin v. Mott, 25 US 19; Johnson v. Jones, 44 Ill 142; State ex rel. O'Connor v. District Court in Shelby County, 219 Iowa 1165, 260 NW 73, 99 ALR 967;Ex parte McDonald, 49 Mont 454, 143 P 947; Ex parte Lavinder, 88 W Va 713, 108 SE 428, 24 ALR 1178.

5 Records of the Constitutional Commission No. 042, [July 29, 1986]:

FR. BERNAS: That same question was asked during the meetings of the Committee: What precisely does martial law add to the power of the President to call on the armed forces? The first and second lines in this provision state:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies ...

The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case Aquino vs. COMELEC where the Supreme Court said that in times of martial law, the President automatically has legislative power. So these two clauses denied that. A state of martial law does not suspend the operation of the Constitution; therefore, it does not suspend the principle of separation of powers.

The question now is: During martial law, can the President issue decrees? The answer we gave to that question in the Committee was: During martial law, the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theatre of war, not in the situation we had during the period of martial law. In other words, there is an effort here to return to the traditional concept of martial law as it was developed · especially in American jurisprudence, where martial law has reference to the theatre of war.

6 71 U.S. (4 Wall.) 2 (1866)

7 327 U.S. 304 (1946)

8 53A Am Jur 2°d, Section 437, citing Luther v. Borden, 48 US 1.

9 Section 1. x x x

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

10 Section 5. The Supreme Court shall have the following powers:

1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

x x x x

11 See the majority opinion, p. 22.

12 The 2010 Rules ofthe Presidential Electoral Tribunal (A.M. No. 10-4-29-SC dated May 4, 2010).

13 Abakada Gura Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251, 272.

14 Section 3 (m), Rule 131 of the Rules of Court.

15 Dimapilis-Baldoz v. Commission on Audit, G.R. No. 199114, July 16, 2013, 701 SCRA 318.

16 Section 10, Rule 8 of the Rules of Court recites:

Section 10. Specific denial. -A defendant must specify each material allegation of fact the

truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint, he shall so state, and this shall have the effect of a denial. (10a)

17 Lieber, G. Norman, What is the Justification of Martial Law?, The North American Review, Vol. 163, No. 480 (Nov., 1896), pp. 549-563 (published by the University of Northern Iowa), quoting Dr. Francis Lieber' s manuscript note entitled "Instructions for the government of the armies of the United States in the field," to wit:

It has been denied that the government has any right to proclaim martial law, or to act according to its principles, in districts distant from the field of action, or declare it in larger districts than either cities or counties. This is fallacious. The only justification of martial law is the danger to which the country is exposed, and as far as the positive danger extends, so far extends its justification. (Bold underscoring supplied)


The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

PERLAS-BERNABE, J.:

These consolidated petitions assail the sufficiency of the factual basis of Proclamation No. 216, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao," issued by President Rodrigo Roa Duterte (President Duterte) on May 23, 2017.

I. Nature of the Proceeding/Parameter of Review

Section 18, Article VII of the 1987 Constitution vests unto this Court special jurisdiction to review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law, viz.:

Section 18. x x x.

x x x x

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

As Section 18, Article VII confers unto this Court the power to review a particular class of cases, i.e., the factual basis of a martial law proclamation, it is clearly a jurisdiction-vesting provision, and not one that merely affects the exercise of jurisdiction.1 As explicitly worded, Section 18, Article VII does not merely pertain to the Court's "decision of x x x questions arising in the case;"2 nor "the correctness or righteousness of the decision or ruling made by [it]."3 Rather, it provides the "authority to hear and determine a cause - the right to act in a particular case."4

The nature and import of the phrase "appropriate proceeding" as well as the parameter "sufficiency of factual basis" under Section 18, Article VII are unique constitutional concepts that have yet to be elucidated, much less defined, in our existing rules of procedure and jurisprudence. That being said, the Court is now confronted with the delicate task of fleshing out these concepts in light of their true constitutional intent.

It is my view that the term "appropriate proceeding" can only be classified as a sui generis proceeding that is exclusively peculiar to this Court's special jurisdiction to review the factual basis of a martial law declaration. Being a class of its own, it cannot therefore be equated or even approximated to any of our usual modes of review, such as a petition for review on certiorari under Rule 45 of the Rules of Court (which is an appeal) or a petition for certiorari under Rule 65 (which is a special civil action). Clearly, a petition based on Section 18, Article VII is not an appeal to review errors committed by a lower court; neither is it a special civil action for it is in fact, attributed as a type of "proceeding." Under Section 3 (a), Rule I of the Rules of Court:

Section 3. Cases governed. - These Rules shall govern the procedure to be observed in actions, civil or criminal and special proceedings.

(a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.

A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to the specific rules prescribed for a special civil action.

x x x x

A petition under Section 18, Article VII is not one whereby a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong. In fact, there is no cause of action5 in this type of proceeding, as it is only intended to determine the sufficiency of the factual basis of a proclamation. In this limited sense, it can be argued that this proceeding, at most, resembles - albeit cannot be classified as - a special proceeding, which under the Rules of Court is "a remedy by which a party seeks to establish [among others] a particular fact"6 (that being the factual basis of a martial law proclamation).

That a petition anchored on Section 18, Article VII is a case originally filed before this Court, or that it would eventually result in the nullification of a governmental act does not - as it should not - mean that it can be classified as an action for certiorari. The similarities between the two begin and end there. As earlier stated, a Section 18, Article VII petition carries no cause of action and is instead, a proceeding meant to establish a particular factual basis. This fundamental difference alone already precludes the above-supposition. Besides, other cases, such as for prohibition, mandamus, quo warranto, and habeas corpus, are equally impressed with the feature of being originally filed before the Court, yet their nature and parameters remain conceptually distinct from one another. Meanwhile, the resulting nullification of a martial law proclamation (if so found by this Court to rest on insufficient factual basis) is not a conclusion exclusive to an action for certiorari; rather, the proclamation would be nullified on the ground that it violates the requirements of the Constitution. In fine, the cosmetic similarities between a Section 18, Article VII proceeding and a certiorari action are not valid reasons to confound the nature of the former with the latter.

Since Section 18, Article VII petition is a sui generis proceeding, the usual standards of review, such as to determine errors of judgment in a Rule 45 petition, or grave abuse of discretion amounting to lack or excess of jurisdiction in a Rule 65 petition, should therefore find no application. The standards used in Rule 45 and Rule 65 petitions trace their jurisdictional bases from Section 5, Article VIII of the 1987 Constitution, which pertinently reads:

Section 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved.

x x x x

To my mind, the Court's jurisdiction in these cases should be considered to be general in nature as compared to its special jurisdiction under Section 18, Article VII, the latter being utilized only in one specific context, i.e., when the factual basis of a martial law declaration is put into question. In this relation, the rule in statutory construction of lex specialis derogat generali, which conveys that where two statutes are of equal theoretical application to a particular case, the one specially designed therefor should prevail,7 ought to apply.

In fact, the textual placement of Section 18, Article VII fortifies the sui generis nature of this "appropriate proceeding." It may be readily discerned that Section 18, Article VII is only one of two provisions relative to a Supreme Court power that is found in Article VII (Article on the Executive Department), and not in Article VIII (on the Judicial Department) of the 1987 Constitution. The other one is found in Section 4, Article VII, which states that "[t]he Supreme Court, sitting en bane, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose." Similar to it acting as Presidential Electoral Tribunal (PET),8 the 'Court is tasked to thresh out the factual issues in the case, as if acting as a trial court; thus, Section 18, Article VII's peculiar standard of "sufficiency of factual basis." The provision's location in Article VII on the Executive Department reveals the correlative intent of the Framers to instill the proceeding as a specific check on a particular power exercised by the President. In this regard, the Court is not called on to exercise its expanded power of judicial review 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";9 rather, the Court is called to exercise its special jurisdiction to determine the sufficiency of the President's factual basis in declaring martial law. This parameter of review is not only explicit in Section 18, Article VII; it is, in fact, self-evident. Thus, all the more should this Court debunk the notion that the "appropriate proceeding" under Section 18, Article VII is a certiorari action with the parameter of grave abuse of discretion.

The parameter of review denominated as "sufficient factual basis" under Section 18, Article VII is both conceptually novel and distinct. Not only does it defy any parallelism with any of the Court's usual modes of review, but it also obviates the usage of existing thresholds of evidence, such as the threshold of substantial evidence as applied in administrative cases, preponderance of evidence in civil actions, and proof of guilt beyond reasonable doubt in criminal cases. Concomitantly, the burdens of proof utilized in these cases should not apply.

The same holds true for the evidentiary threshold of probable cause, which is but "the amount of proof required for the filing of a criminal information by the prosecutor and for the issuance of an arrest warrant by a judge."10 Probable cause is ascertained from the vantage point of a "reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested."11 "In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He [merely] relies on common sense."12 While it had been previously opined that probable cause, being merely "premised on common sense, is the most reasonable, most practical, and most expedient standard by which the President can fully ascertain the existence or non-existence of rebellion, necessary for a declaration of martial law or suspension of the writ,"13 it is my view that the purpose of and vantage point assumed by a prosecutor or judge in a determination of probable cause are fundamentally different from the purpose of and vantage point assumed by the President when he proclaims martial law. Verily, the standard of probable cause cannot be applied to the decision-making process of the highest-ranking public official in the country, who, through credible information gathered by means of the executive machinery, is not only tasked to determine the existence of an actual rebellion but must also calibrate if the demands of public safety require a martial law proclamation. Commissioner Fr. Joaquin G. Bernas, S.J. (Fr. Bernas), acting as amicus curiae in the case of Fortun v. Macapagal-Arroyo14 (Fortun), had occasion to explain that "the function of the President is far different from the function of a judge trying to decide whether to convict a person for rebellion or not":

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 different from the function of a judge trying to decide whether to convict a person for rebellion or not. Put differently, looking for rebellion under the Penal Code is different from looking for rebellion under the Constitution.15 (Emphasis supplied)

It is my opinion that Fr. Bernas' reasoning is equally relevant when comparing the function of the President under Section 18, Article VII to the functions of a prosecutor or a judge who determines probable cause to respectively file a criminal case in court or issue a warrant for the arrest of an accused. Hence, however reasonable, practical or expedient it may seem, it is my position that this Court should not apply the probable cause standard in a Section 18, Article VII case.

For another, the Office of the Solicitor General has invoked the case of In the Matter of the Petition for Habeas Corpus of Lansang16 (Lansang), as affirmed in Aquino, Jr. v. Enrile17 (Aquino, Jr.) and thereby, argues that the parameter of "sufficient factual basis" is equivalent to the gauge of arbitrariness (in contrast to correctness).18 However, as will be gleaned below, these are not proper authorities to construe the term "sufficient factual basis" since the provision regarding the power of the Court to check the President's declaration of martial law never existed in the past Constitutions under which these two cases were decided.

To briefly contextualize, Lansang is a 1971 case, decided under the 1935 Constitution, which involved the propriety of the suspension of the privilege of the writ of habeas corpus. In that case, the Court held that it had the "authority to inquire into the existence of said factual bases in order to determine the constitutional sufficiency thereof."19 The Court cited and affirmed Lansang in Aquino, Jr., which was a case decided in 1974 under the 1973 Constitution. There, this Court ruled:

The recognition of justiciability accorded to the question in Lansang, it should be emphasized, is there expressly distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to ascertaining "merely whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." The test is not whether the President's decision is correct but whether, in suspending the writ, he did or did not act arbitrarily.20 (Emphasis supplied)

The pertinent provisions on martial law under the 1935 and 1973 Constitutions respectively read:

Section 10, Article VII of the 1935 Constitution

Section 10. x x x.

x x x x

(2) The President shall be commander-in-chief of all armed forces of the Philippines, and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law.

x x x x

Section 12, Article IX of the 1973 Constitution

Section 12. The Prime Minister shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.

As above-mentioned, these past constitutional provisions on martial law do not reflect the Court's power to "review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension