REPUBLIC OF THE PHILIPPINES

SUPREME COURT OF THE PHILIPPINES

PADRE FAURA, MANILA

REP. EDCEL C. LAGMAN, ET. AL,

PETITIONERS

VS.
G.R. NO. 231658
HON. SALVADOR C. MEDIALDEA, (PETITION UNDER THE
ET. AL, THIRD PARAGRAPH OF
SECTION 18 OF ARTICLE
RESPONDENTS. VII OF THE 1987
CONSTITUTION)

MEMORANDUM
(For the Petitioners in G.R. No. 231658)

I.
Preliminary Statement

1. Legally and constitutionally, the President cannot and

does not wield or assume additional legitimate powers with the
declaration of martial law or the suspension of the privilege of the
writ of habeas corpus.

2. Likewise, even with the declaration of martial law or the

suspension of the writ, the Armed Forces of the Philippines is not
granted or vested with additional prerogatives to subdue lawless
violence, invasion or rebellion.

2.a. Effecting arrest and detention of those suspected of

involvement in rebellion or invasion is assured by the
suspension of the writ of habeas corpus, not by the imposition
of martial law.

2.b. Installing checkpoints and road blocks are inherent in the

calling out of the Armed Forces of the Philippines to subdue
lawless violence, rebellion or invasion. This authority is not
vested by the declaration of martial law.

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 3. Both the petitioners and the respondents, through their
respective counsel, share this consensus in conformity with some of
the Honorable Justices.

4. This is so because the exercise of powers of both the

President and the Armed Forces of the Philippines when martial law is
declared or the writ is suspended is reined in and delimited by the
multiple safeguards enshrined in the 1987 Constitution to prevent the
repetition of the misuse and abuse of such declaration or suspension
together with the attendant excesses, repression and atrocities
reminiscent of the 14 ignominious years of martial law under the late
President Ferdinand Marcos.

5. The following exacting safeguards are unequivocally

found in Section 18 of Article VII of the 1987 Constitution:

Constitutional Safeguards

(a) Graduated and sequential response by the President to

lawless violence, invasion and rebellion, of which the
declaration of martial law is a last resort. Section 18 of Article
VII pertinently reads:

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.

(b) The alternative ground of imminent danger of rebellion

or invasion for the declaration of martial law or the suspension
of the writ of habeas corpus as found in the 1935 and 1973
Constitutions has been obliterated in the 1987 Constitution.

(c) The requisite factual basis for declaration of martial law

and the suspension of the privilege of the writ of habeas corpus
is actual invasion or rebellion, when public safety requires it.

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(d) Within forty-eight hours from the proclamation of
martial law or the suspension of privilege of the writ of habeas
corpus, the President shall submit a report in person or in
writing to the Congress.

(e) The Congress, voting jointly, by a vote of at least a

majority of all its Members, in regular or special session, may
revoke such proclamation or suspension.

(f) The congressional revocation shall not be set aside by

the President.

(g) The Congress, if not in Session, shall, within twenty-four

hours following such proclamation or suspension, convene in
accordance with its rules without need for a call.

(h) The effectivity of martial law is limited to a period not

exceeding sixty days, unless extended by initiative of the
President with the concurrence of the majority of all the
Members of the House of Representatives and the Senate
voting jointly.

(i) 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.

(j) 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.

(k) 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.

(l) During the suspension of the privilege of the writ

of habeas corpus, any person thus arrested or detained shall be

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 judicially charged within three days, otherwise he shall be
released.

Efficacy can be waylaid by a President

6. However, the foregoing constitutional safeguards are only

good, vibrant and fulfilling with a President who resolutely respects
the Constitution and truly recognizes the separate inherent domain of
the other co-equal branches of the Government.

7. Despite the Solicitor Generals repeated assurances to the

Honorable Supreme Court that the Duterte martial law is different
from the Marcos martial law, his principal, President Rodrigo
Duterte himself, unabashedly espouses a contrary position because
he praised the Marcos-style martial law as very good and asserted
that his own version of martial law will not be any different from
what President Marcos did and he will be harsh. (Attached as A
to A-5 are pertinent news accounts in InterAksyon [24 May 2017],
Manila Standard [25 May 2017], Philippine Star [25 May 2017],
Financial Times [24 May 2017], Japan Times [25 May 2017], Channel
News Asia [24 May 2107]).

Peoples aversion to martial law

8. The declaration of martial law in the whole of Mindanao

ignores the peoples overwhelming rejection of the revival of martial
law.

9. The latest survey from 06 to 11 December 2016

conducted by Pulse Asia documents the Filipinos aversion to the
revival of martial law, with 74% against its imposition and only 12%
in favor. (Attached as ANNEX B is a printout of the said report
from Pulse Asias website).

10. The survey results in Mindanao are even more revealing

with 75% against and only 11% in favor despite the fact that various
acts of terrorism were committed in Mindanao proximate to the
survey period, like:

(a) The bombing of the Roxas Night Market in Davao City on

02 September 2016;

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 (b) Two separate explosions on 03 September 2016 in North
and South Cotabato, the first of which involved the bombing of
a power transmission tower; and

(c) A hand grenade exploding in a public plaza on 07

December 2016 in Iligan City.

11. This is not to mention (a) the declaration of President

Duterte of a State of National Emergency on Account of Lawless
Violence in Mindanao on 04 September 2016 over the entire nation
in Proclamation No. 55; (b) a blast injuring four policemen in the Al
Salaam Mosque Compound in Quezon City; and (c) an improvised
explosive device (IED) found on 21 March 2017 near the US Embassy
along Roxas Boulevard attributed to Maute terrorists.

12. The Pulse Asia survey documents that this anti-martial

law sentiment was the prevailing opinion in all geographic areas
(65% to 81%), socio-economic classes (67% to 77%), and age
groupings (70% to 77%) as well as among both men and women
(73% and 74%, respectively).

13. Clearly, the people have not forgotten the atrocities,

repression and corruption spawned by the dark years under the late
President Marcos. It is not only those who had personally
experienced the adversities of martial law who are against its
reimposition. The younger generation or the millennials also
condemn martial law after learning the historical verities of the
abuses and excesses during the martial law regime.

14. Seven in 10 Filipinos reject martial law. This is a clear and

unmistakable popular message to President Rodrigo Duterte.

15. But the President ignored this anti-martial law sentiment

when he imposed martial law in the whole of Mindanao, the very
region where the anti-martial law opinion is highest, even higher than
the national average.

16. The allegation of some officials of the Department of

National Defense that wherever the President goes in Mindanao, the
people are clamoring for the imposition of martial law is completely
debunked by the aforesaid national survey, particularly in Mindanao,
where Filipinos overwhelming reject the imposition of martial law.

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 17. If the President cannot assume or exercise any additional
powers as a result of the declaration of martial law, why then did he
issue Proclamation No. 216 covering the whole of Mindanao under
martial law?

18. The real reason is that martial law evokes and creates
extra-legal powers like:

(a) Projecting the primacy of the role of the President as

Commander-in-Chief of the Armed Forces;
(b) Intensifying, wittingly or unwittingly, the emergence of
military rule;
(c) Instilling fear among the citizens who are apprehensive of
the atrocities and repressions committed during the
regime of Marcos martial law; and
(d) Fomenting opportunities for violation of human rights and
civil liberties under the pretext of protecting national
security.

II.
Discussion of the Issues contained in the
Supreme Courts Revised Advisory
dated 13 June 2017

Issue No. 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 by this Court when a
declaration of martial law or the suspension of the privilege of the
writ of habeas corpus is promulgated.

Petitions are the appropriate proceeding

19. The three petitions at bar are the appropriate

proceeding covered by the Constitution granting to the Honorable
Court the jurisdiction to review the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the writ.

20. This special and specific grant of jurisdiction is different

from the (a) expanded power of judicial review of the Honorable
Court under Section 1 of Article VIII to determine whether or not
there has been a grave abuse of discretion amounting to lack or

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excess of jurisdiction on the part of any branch or instrumentality of
Government and (b) the Supreme Courts power of judicial review in
certiorari cases under Section 1 of Rule 65 of the Rules of Court.

21. The constitutional grant of jurisdiction to the Supreme

Court under the third paragraph of Section 18 of Article VII is sui
generis or of its own kind.

22. It is one of the safeguards enshrined in the 1987

Constitution to prevent the abuse and misuse of the declaration of
martial law or the suspension of the writ of habeas corpus. Its
uniqueness or difference from other proceedings is underscored by
the following: (a) the petition can be filed by any citizen; (b) the
issue is limited to a review of the sufficiency of the factual basis of
the declaration of martial law or the suspension of the writ of habeas
corpus; and (c) the Honorable Supreme Court is mandated to
promulgate its decision within thirty (30) from the filing of the
petition.

23. The requirement of appropriate proceeding is satisfied

by: (a) a written petition is filed by a bona fide citizen of the
Philippines who is of legal age, even without the assistance of
counsel; (b) there are adequate allegations of ultimate facts
supporting the petition; and (c) the petition is verified by the
petitioner together with a Certificate of Non-Forum Shopping.

24. The issue whether the Honorable Court can dismiss

outright the herein petitions because its jurisdiction is prefixed by the
word may and not shall, is of no moment.

25. A reading of the entirety of the third paragraph of Section

18 or Art. VII, verily shows its mandatory character which is
underscored by the constitutional directive for the Honorable
Supreme Court to promulgate its decision within 30 days from the
filing of the appropriate proceeding or petition.

26. The established rule is that constitutional provisions are

to be construed as mandatory, unless by express provisions or by
necessary implications, a different intention is manifested.
Accordingly, it is the general rule to regard constitutional provisions
as mandatory. (Taada vs. Cuenco, 103 Phil 1051).

27. The reason why provisions of the Constitution, are

generally regarded as mandatory is that in a constitution, the

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sovereign itself speaks and is laying down rules which for the time
being at least are to control alike the government and the governed.
Its provisions are binding upon all departments of the government.
(Vargas vs. Rilloraza, 80 Phil. 279 [1948]).

Issue No. 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 proclamation, even if subsequent events prove the
situation to have not been accurately reported.

Factual basis must be correct

28. The President must be factually correct on the sufficiency

of the factual basis of his declaration or suspension, irrespective
whether or not he was arbitrary in the appreciation of facts.

29. What is being challenged is the sufficiency of the factual

basis of the Presidents declaration and suspension, regardless of
whether he acted arbitrarily or with grave abuse of discretion, a
question which is relevant in a review by certiorari under Section 1 of
Article VIII of the Constitution and Section 1 of Rule 65 of the Rules
of Court, and not under the third paragraph of Section 18 of Article
VII of the Constitution.

30. Senior Associate Justice Antonio Carpio has aptly stressed

that since in declaring martial law or suspending the writ, the
President exercises executive powers, consequently review by
certiorari under Rule 65 will not apply because what is subject to
review in the latter case is the exercise of judicial or quasi-judicial
functions.

The President must not act alone

31. Although the Constitution does not specifically require any

recommendation or consultation prior to the Presidents declaration
of martial law, it is obvious and imperative that his exercise of this
8
extraordinary emergency power should be preceded and backed up
by appropriate recommendation from and thorough consultation with
the ranking defense and military officials who are responsible for
validating intelligence reports. Hence, the imperativeness of their
recommendation after prior discussions and consultations with them.

32. It was respondent Defense Secretary Delfin Lorenzana

himself who admitted, without any subsequent denial or retraction,
that he did not make any recommendation for the issuance of
Proclamation No. 216. He added that no consultation was held by the
President with his official entourage in Moscow which included
himself, Respondent Chief-of-Staff Eduardo Ao, Respondent
Executive Secretary Salvador Medialdea and National Security Adviser
Hermogenes Esperon, Jr.

33. In fact, there is no mention in Proclamation No. 216 and

the Report of the President to the Congress of any recommendation
from or consultation with defense officials and military authorities
prior to the issuance of Proclamation No. 216. (Attached as ANNEX
C is a copy of Proclamation No. 216 dated 23 May 2017 and as
ANNEX D is a copy of the Presidents Report to the Congress
dated 25 May 2017, both of which are of judicial notice).

34. The President cannot act in solitude because his extreme

action would affect the multitude.

Only relevant and correct facts at the time of the

proclamation will satisfy sufficiency

35. The President is required to take into account only the

situation at the time of the proclamation of martial law or the
suspension of the writ, even if subsequent events prove the situation
to have not been accurately reported.

36. In the same token, conditions which are the aftermath of

the declaration or suspension cannot be used to justify an originally
errant declaration or suspension which is bereft of sufficient factual
basis.

37. The escalating number of casualties of the armed

confrontation in Marawi City, including soldiers, innocent civilians and
hapless children, damage to private and public property and
unprecedented violations of human rights and civil liberties are the
9
tragic aftermath of the declaration of martial law and the
suspension of the writ, which were not the real facts on the
ground when Proclamation No. 216 was issued.

38. The video clip purportedly depicting a planning session of

the Maute brothers and Hapilon to lay siege on Marawi City was
recovered on the second day after the proclamation.
Consequently, it was not an input as factual basis for the declaration
and suspension as in fact said videotape was not mentioned in the
Proclamation or Report. This videotape has been declassified.

39. Moreover, it was a planned terrorist offensive which is

akin to an imminent danger of rebellion which has been deleted in
the 1987 Constitution as an alternative ground for declaring martial
law or suspending the writ.

40. Furthermore, the military has claimed that such projected

grand plan has been preempted even before the declaration of
martial law.

41. Since it appears that the videotape was recorded at the

instance of the terrorist leaders themselves, it falls under the pattern
of projecting terrorist activities in social media as propaganda to get
ISIS support and for recruitment purposes, which according to the
military, terrorist groups have employed with relative success. In
other words, what was depicted was not really that furtive and the
projected siege of Marawi was not menacingly serious.

42. Verily, in assessing and reviewing the sufficiency of the

factual basis of the declaration or suspension, such sufficiency must
indubitably appear in the Presidents Proclamation and Report to the
Congress.

43. Meandering outside the periphery of these principal

documents must not be allowed except to validate relevant collateral
statements, documents and accounts. Otherwise, post-declaration
justifications can continue in perpetuity.

44. The Honorable Supreme Court has given

respondents General Ao and Defense Secretary Lorenzana
the full discretion to disclose to the public the facts in their
PowerPoint presentations. The personal assessment of
Petitioner Lagman, who was allowed to attend the internal
session and executive session of the Honorable Court, is that

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there was nothing confidential in the presentation that
would affect national security or impair operational
strategies.

45. Consequently, if said respondents fail or refuse to

publicly disclose the facts and data covered by their
presentation, it would mean that there is paucity in the
sufficiency of facts they have presented as anchorage for the
assailed declaration and suspension.

46. Moreover, when a party conceals a fact, it is presumed

that the same is against his interest. This is similar to Section 3(e) of
Rule 131, which provides that evidence willfully suppressed would
be adverse if produced.

Issue No. 3: Whether or not the power of this Court to review the
sufficiency of the factual basis for 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.

The Congress has forfeited its mandated duty

47. The power and duty of the Congress to convene and vote
jointly whether or not to revoke the declaration of martial law or the
suspension of the writ and the jurisdiction of the Supreme Court to
review the sufficiency of the factual basis of the declaration and
suspension are concurrent, where time is of the essence because the
proclamation is immediately effective.

48. There is a school of thought, however, as enunciated in

the majority decision in Fortun vs. Macapagal-Arroyo (G.R. No.
190293, March 20, 2012) that the two powers are sequential wherein
the Congress must first act.

49. But this sequential calibration is now academic because

the Congress has reneged on its mandated duty.

50. Consequently, it is now imperative for the Supreme Court

to exercise its special and specific jurisdiction to review the
sufficiency of the factual basis of the subject declaration and
suspension.

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Issue No. 4: Whether or not there were sufficient factual and legal
bases 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?

51. The lack of sufficient factual basis of Proclamation No.

216 will be discussed separately hereunder.

Parameters for review

52. With respect to the parameters for review by the

Honorable Supreme Court, it is respectfully reiterated that the same
be confined principally on the Presidents Proclamation No. 216 dated
23 May 2017 and the Presidents Report to the Congress dated 25
May 2017.

53. These two principal documents contain the Presidents

submission that there was sufficient factual basis for his declaration
of a state of martial law and suspension of the writ of habeas corpus
in the whole of Mindanao.

54. Relevant collateral facts, statements and accounts may be

assessed only to validate or negate the facts specifically mentioned in
the Proclamation and Report.

55. Such collateral matters may not be allowed to add,

supplant, expand and/or embellish the facts as contained or
mentioned in the Proclamation and Report.

56. Otherwise, extraneous and/or contrived factual

justifications, not prevailing at the time of the issuance of
Proclamation No. 216, may be erroneously presented and adduced.

Burden of Proof

57. After the petitioners have traversed or pointed out the

insufficiency of the factual basis for the assailed imposition and
suspension as effected in Proclamation No. 216, the burden of proof

12
is shifted to the respondents to validate their affirmative stance
that there is sufficient factual basis for the imposition of martial law
and the suspension of the writ of habeas corpus in Marawi and the
whole of Mindanao.

58. This onus on the part of the respondents or the

government is manifest because they are the Presidents alter egos
and they are supposed to be privy to the facts recited in Proclamation
No. 216 and the Presidents Report.

Threshold of evidence

59. The quantum of proof for the review by this Honorable

Supreme Court may be akin to the standards used in resolving
certiorari cases, except that the question on arbitrariness or grave
abuse may not be relevant.

60. The probable cause suggested by Senior Associate

Justice Carpio in his dissent in Fortun vs. Macapagal-Arroyo,
supra, may be used but herein petitioners agree with the counsel in
G.R. No. 231771 and G.R. No. 231774 that it should be higher than
probable cause like substantial evidence considering the resultant
gravity of the suspension of the writ of habeas corpus and the
declaration of martial law.

61. The suggestion of the Solicitor General of reasonable

belief is not acceptable because it is an inordinately subjective
standard. Moreover, reasonable belief is not included in the
accepted standards of quantum of proof or threshold of evidence.

Issue No. 5: Whether the exercise of the power of judicial review by

this Court involves the calibration of the graduated powers granted to
the President as Commander-in-Chief, namely: calling out powers,
suspension of the privilege of the writ of habeas corpus, and the
declaration of martial law.

The Constitution mandates graduated action

62. On the gradation of the Presidents actions, Commissioner

Regalado emphasized:

(1) When it is only imminent danger, although of

course, he did not use the term, he can already call out
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 the Armed Forces just to prevent or suppress violence;
(2) if the situation has worsened and there is a need for
stronger measures, then aside from merely calling out the
Armed Forces he goes into the suspension of the privilege
of the writ; (3) but if both measures calling out the
Armed Forces and the suspension of the privilege of the
writ will still prove unavailing in the face of the
developments and exacerbated situation, this time he
goes to the ultimate which would be martial law.

63. Similarly, Fr. Bernas stated that:

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 x (by the
Congress and the Supreme Court). 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.

64. In David vs. Arroyo (G.R. No. 171396, May 03, 2006),
the Supreme Court cited with concurrence the statement of Justice
Vicente Mendoza, to wit: 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. x x x

65. In Lansang vs. Garcia (L-33965, December 11, 1971),

the Honorable Court opined that: the President has, under the
Constitution, three (3) courses of action open to him, namely: (a) to
call out the armed forces; (b) to suspend the privilege of the writ of
habeas corpus; and (c) to place the Philippines or any part thereof
14
under martial law. He had, already, called out the armed forces,
which measure, however, proved inadequate to attain the desired
result. Of the two (2) other alternatives, the suspension of the
privilege is the least harsh.

66. The declaration of martial law under Proclamation No.

216 is premature, precipitate and improvident because President
Duterte resorted to the ultimate action even without sufficient factual
basis, instead of complying with the constitutionally mandated
graduated sequence of his responses. After calling the Armed Forces
to suppress lawless violence, invasion or rebellion, he should have
next suspended the privilege of the writ of habeas corpus consistent
with the graduated response mandated by the Constitution, instead
of immediately declaring a state of martial law in the whole of
Mindanao.

Issue No. 6: Whether or not Proclamation No. 216 of 23 May 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.

67. Issue No. 6 is extensively discussed by the petitioners in

G.R. No. 231771 and herein petitioners adopt the same and they
emphasize that since Proclamation No. 216 is vague, it lacks
sufficient factual basis.

Issue No. 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.

68. Issue No. 7 will be discussed thoroughly hereunder with

respect to the absence of actual rebellion in Marawi City and in the
other parts of Mindanao.
15
 69. At this juncture, suffice it to say that there is no actual
rebellion in Marawi City and elsewhere in Mindanao as contemplated
by the Constitution in relation to the definition of the crime of
rebellion under Article 134 of the Revised Penal Code, particularly the
absence of the element of culpable political purpose.

70. Considering that the facts cited in Proclamation No. 216

and in the Presidents Report to the Congress do not sustain the
existence of actual rebellion, Proclamation No. 216 is constitutionally
flawed.

Issue No. 8: Whether or not terrorism or acts attributable to

terrorism are equivalent to actual rebellion and the requirement of
public safety sufficient to declare martial law or suspend the privilege
of the writ of habeas corpus.

Terrorism does not equate to rebellion

71. Acts of terrorism are not necessarily equivalent to actual

rebellion and the consequent requirement of securing public safety to
justify the assailed declaration and suspension. No less than Justice
Secretary Aguirre admitted that acts of terrorism do not automatically
constitute rebellion. It is for this reason that the Human Security Act
of 2007 (R.A. No. 9372) was enacted to punish acts of terrorism
which do not constitute rebellion.

72. Moreover, the inculpatory elements of rebellion under

Article 134 of the Revised Penal Code are different from the elements
of terrorism.

73. The criminal essence of terrorism is 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. (Section 3 of R.A. No. 9372).

74. As defined, terrorism is essentially politically neutral

unlike rebellion.

75. Rebellion has a culpable political purpose: removing the

Philippines or a part thereof from allegiance to the Republic or

16
preventing the President or the Legislature from exercising their
powers and prerogatives.

76. This culpable political purpose is utterly absent in the

alleged rebellion in Marawi City and elsewhere in Mindanao.

77. Defense and military officials have admitted that the

current armed conflict in Marawi City was government-initiated and
the armed confrontation was precipitated by the military operation to
neutralize or capture Hapilon, which was resisted by the Maute
Group.

78. Consequently, the alleged siege of Marawi City is

actually an armed resistance by the Maute Group to shield
Hapilon from capture, not to overrun Marawi and remove its
allegiance from the Republic.

79. No less than the Presidents Report confirmed that 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.

80. When asked during the military briefing before the House
Committee of the Whole on the variance between the Zamboanga
siege and the current Marawi siege, Deputy Chief of Staff Lt. Gen.
Salvador Mison, Jr. said that in the Zamboanga siege sila po ang
pumasok. Sa Marawi, tayo po ang nagsimula. He added that
the armed conflict in Marawi City was government-initiated as
differentiated from the Zamboanga siege.

81. It must be underscored that neither respondent Gen. Ao

nor Lt. Gen. Mison, Jr. has denied the aforesaid statements which
stand uncontroverted.

82. Verily, there is no actual rebellion in Marawi City and

elsewhere in Mindanao absent the culpable political purpose.

Issue No. 9: Whether or not nullifying Proclamation No. 216 of 23

May 2017 will:

(a) have the effect of recalling Proclamation No. 55 s. 2016;

or

17
 (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.

83. This issue is discussed by the petitioners in G.R. No

231774, which disquisition herein petitioners adopt with the
submission that the questions are answered in the negative.

III.
There is no sufficient factual basis for the declaration
of martial law and the suspension of the writ of
habeas corpus in Marawi City and the whole of
Mindanao as there was no actual rebellion being
committed therein at the time of the issuance of
Proclamation No. 216 on 23 May 2017.

84. When the Constitution provides the existence of actual

rebellion as a ground for the imposition of martial law or suspension
of the writ of habeas corpus, what is contemplated is the crime of
rebellion under Article 134 of the Revised Penal Code.

85. When the 1987 Constitution was being drafted and when
it was ratified by the Filipino people, the only crime of rebellion
known to them is the one defined by Article 134 which provides:

"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."

86. Accordingly, the elements of rebellion are: (a) rising and

taking arms against the Government; and (b) for the purpose of [i]
removing from the allegiance to the Government or its laws, the
territory of the Philippines or any part thereof, of any body of land,
naval or other armed forces, or [ii] depriving the Chief Executive or
the Legislature, wholly or partially, of any of their powers or
prerogatives.

18
 87. While the first element of rising and taking arms against
the Government may be present in Marawi City, there is absolutely
no credible and sufficient factual basis for the second element of
culpable political purpose: removing Marawi City or any part of
Mindanao from allegiance to the government or depriving the Chief
Executive or the Legislature of any of their powers or prerogatives.

The facts alleged in Proclamation No. 216

do not constitute rebellion

88. The following are the facts alleged in Proclamation No.

216 and the conclusions derived therefrom:

(a) The Maute terrorist group attacked a military outpost in

Butig, Lanao del Sur in February 2016, killing and wounding
several soldiers.

(b) The Maute terrorist group caused a mass jailbreak in

Marawi City in August 2016, freeing their arrested comrades
and other detainees.

(c) The Maute terrorist group on 23 May 2017 has taken

over a hospital in Marawi City, Lanao del Sur.

(d) The Maute terrorist group established several

checkpoints within the City.

(e) The Maute terrorist group burned down certain

government and private facilities.

(f) The Maute terrorist group inflicted casualties on the part

of government forces.

(g) The Maute terrorist group 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.

(h) These recent acts show the capacity of the Maute Group
and other rebel groups to sow terror and cause deaths and

19
 damage to property not only in Lanao del Sur but also in other
parts of Mindanao.

89. The foregoing allegations of facts and conclusions of fact

and law do not establish a sufficient factual basis for the imposition
of martial law and suspension of the writ of habeas corpus based on
the ground of rebellion due to the following overriding reasons:

(a) The attack on a military outpost in Butig, Lanao del Sur in

February 2016 was an act of terrorism not amounting to
rebellion. In fact, it happened on 20 February 2016, one year
and three months before the issuance of Proclamation No. 216.
It had been quelled and the outpost and other areas had been
recovered by the military after 10 days of military operations.
Definitely, this terrorist attack could not be used as a factual
basis of Proclamation No. 216 as it is far too distant. (Attached
as ANNEXES E and E-1 are the pertinent news articles
from San Diego Tribune [01 March 2016] and MindaNews [23
February 2016]).

(b) The mass jailbreak in Marawi City in August 2016 is also a

terrorist act, which similarly does not constitute rebellion.
Admittedly, this happened nine months before Proclamation
No. 216. It could not be used as basis for the declaration of
martial law and the suspension of the writ.

(c) The hospital in Marawi which was reportedly taken over

by the Maute terrorist group on 23 May 2017 has been
identified as the Amai Pakpak Medical Center in the Presidents
Report to the Congress. This turned out to be false and
inaccurate because:

Dr. Amer Saber, Chief of Hospital of the Amai Pakpak

Medical Center (APMC) belied reports that the APMC was
taken over by Maute terrorists. Although he confirmed
that the terrorists brought in a wounded comrade for
medical treatment, he stressed that they were very
courteous and the hospital personnel did not feel
harassed by the Maute fighters.

In a statement, Health Secretary Paulyn Ubial also denied

that the APMC was overrun by Maute terrorists and 21
health personnel were taken hostage. She underscored in
her statement that there was no such event (hostage-
taking) and the APMC continues to be fully functional.
20
 Philippine National Police (PNP) Spokesman Senior
Superintendent Dionardo Carlos in a press briefing on 24
May 2017 echoed the pronouncements of Dr. Saber and
Secretary Ubial. He was quoted to have said: Yun pong
pagpunta ng grupo (Maute group) sa ospital, they did not
control the entire hospital. They were there to seek
medical assistance dahil may tama yung kanilang
kasama.

Even as early as 23 May 2017 or the day Proclamation

No. 216 was issued, Col. Edgard Arevalo, AFP Public
Affairs Office Chief, already denied reports that the APMC
was taken over by the Maute terrorists. He plainly stated
that The news being circulated by these terrorists
and their sympathizers are spurious and are meant
to spread lies and disinformation. It is propaganda
to attract foreign terrorists support and
recognition.

The Mayor of Marawi City himself, Mayor Majul

Gandamra, likewise refuted the reports that the APMC
was taken over by the terrorists. In an interview with
CNN Philippines, he stated that: Yung sinabi po na
tinakeover ay walang katotohanan".

(Attached as ANNEXES F to F-5 are pertinent news

accounts that appeared, respectively, in Philippine Star [31 May
2017], Philippine Star [29 May 2017], Sun Star Cagayan de Oro
[29 May 2017], Inquirer.net [28 May 2017], Bombo Radyo
Online [30 May 2017] and CNN Philippines [24 May 2017]).

(d) The establishment of several checkpoints within Marawi

City by the Maute terrorist group is not an unusual practice and
is not indicative of rebellion.

(e) The government and private facilities allegedly burned

down have not been identified. Granting that this is true, it is
the result of acts of terrorism, not rebellion.

(f) The casualties on the part of government forces do not

evince rebellion, as they were the consequence of the armed
resistance by the Maute Group and their relatives and
sympathizers as an act of pintakasi to shield Hapilon and the

21
Maute brothers from arrest and capture by the military. This is
similar to the Mamasapano massacre where the forces of the
Moro Islamic Liberation Front (MILF) and the breakaway
Bangsamoro Islamic Freedom Fighters (BIFF) temporality set
aside their animosities to jointly engage the police Special
Action Force (SAF) in a fierce gun battle.

(g) The mere fact that the Maute Group flied the ISIS
or Daesh flag is not indicative of removing Marawi City
from its allegiance to the Republic of the Philippines or
depriving the President of his powers and prerogatives.
At most, it was cheap propaganda, which the Maute
terrorists have been employing even in past violent
incidents to attract the attention of ISIS and place
Maute in the global stage.

Moreover, the President is not deprived of any of his powers

and prerogatives to maintain public order and safety in
Mindanao because the channels of civilian and military
command are open and working. The Armed Forces of the
Philippines, the Philippine National Police and all the Local
Government Units (LGUs) in the whole of Mindanao are
operational.

Joseph Franco, an analyst specializing on violent extremism, in

an interview with Vera Files published in the Philippine Star
official website on 29 May 2017 said that the Maute group is
more of the clans private militia latching into the IS
brand theatrically to inflate perceived capability.
(Attached as ANNEX G is the pertinent news article from the
Philippine Star [29 May 2017]).

It was also only after the declaration of martial law that

Secretary Lorenzana labeled the group as Maute ISIS.

On 24 March 2016, then Army Chief Lt. Gen. Eduardo Ao,

described the Maute Group as a bunch of guns for hire,
extortionists and bandits who wanted to be recognized as ISIS
In other words they are bandits, not rebels. (Attached as
ANNEX H is the pertinent news article from MindaNews [24
March 2106).

Two days after the issuance of Proclamation No. 216, Col.

Edgard Arevalo, AFP spokesperson, emphasized that

22
 "Categorically, we are saying na we do not have ISIS in
the Philippines". He added that the groups posing as such
"are merely courting the acclamation of ISIS." (Attached
as ANNEX I is the pertinent news account from ABS-CBN
online [25 May 2017]).

(h) The alleged capacity of the Maute Group and other

unidentified rebel groups to sow terror and cause deaths and
damage to property refers to their capability to launch acts of
terrorism. It cannot be used to conclude capacity to commit
actual rebellion, which bare conclusion should not be
extrapolated to the entire Mindanao region. This alleged
capacity is similar to an imminent danger of rebellion which is
not anymore a ground for imposing martial law or suspending
the writ.

The facts averred in the Presidents Report to Congress do

not constitute sufficient factual basis for the declaration of
martial law and suspension of the writ of habeas corpus.

90. Like the factual allegations in Proclamation No. 216, the

facts averred in the Presidents Report to the Congress, either taken
singly or collectively, do not establish sufficiency of factual basis for
the declaration of martial law and suspension of the writ of habeas
corpus for failure to show that there is actual rebellion in Marawi City
and elsewhere in Mindanao.

91. The following are some of the notable but deficient facts
alleged in the Presidents Report:

(a) At 1400H (2:00PM on 23 May 2017) the Maute

Group and ASGs commenced attack on various facilities
government and privately owned in the City of Marawi.

(b) The terrorists assaulted Marawi City Jail being

managed by the Bureau of Jail Management and Penology
(BJMP) and the Maute Group forcibly entered the jail facilities,
destroyed its main gate and assaulted on-duty personnel who
were disarmed, tied and/or locked inside the cells. The Maute
Group also facilitated the escape of at least sixty eight (68)
inmates of the City Jail.

23
 (c) The supply of power into Marawi City had been
interrupted and by evening the power outage had spread
citywide.

(d) Members of the Maute Group ambushed and

burned the Marawi Police Station and a patrol car of the
Police Station was also taken. (Subsequently denied).

(e) By evening of 23 May 2017, at least three (3)

bridges in Lanao del Sur, namely, Lilod, Bangulo and Saularan,
fell under the control of these groups. They threatened to
bomb the bridges to preempt military reinforcement.

(f) Later, persons connected with the Maute Group

had occupied several areas in Marawi City, including Naga St.,
Banggolo St., Mapandi, and Camp Kiethly, as well as the
following barangays Basak, Malutlot, Mapandi, Saduc, Lilod,
Maday, Bangon, Saber, Bubong, Marantao, Caloocan, Banggolo,
Barionaga, and Abubakar. (Only 13.54% of the 96 barangays
in Marawi City were reportedly occupied).

(g) The lawless armed groups had likewise set up road

blockages and checkpoints at the Iligan City-Marawi City
junction.

(h) The Maute Group burned Dansalan College

Foundation, Cathedral of Maria Auxiliadora, the nuns quarters
in the Church and the Shia Masjid Moncado Colony. Hostages
were taken from the Church.

(i) About five (5) faculty members of Dansalan

College Foundation had been reportedly killed by the lawless
groups.

(j) Other educational institutions were also burned

namely, Senator Ninoy Aquino College Foundation and the
Marawi Central Elementary Pilot School. (Subsequently
denied).

(k) The Maute Group also attacked Amai Pakpak

Hospital and hoisted the Daesh flag there, among other several
locations. As of 0600H of 24 May 2017, members of the Maute
Group were seen guarding the entry gates of the Amai Pakpak
Hospital. They held hostage the employees of the hospital and

24
 took over the PhilHealth Office located thereat. (Subsequently
denied).

(l) The Groups likewise laid siege to another hospital,

Filipino-Libyan Friendship Hospital, which they later set ablaze.

(m) Lawless armed groups likewise ransacked the

Landbank of the Philippines and commandeered one of its
armored vehicles. (Subsequently denied).

(n) 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. (Only 0.4% of the population in Marawi City is
Christian; 99.6% is Muslim).

(o) 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 and open defiance of the
government.

Acts of terrorism, not rebellion

92. The foregoing facts failed to provide sufficient factual

anchorage for Proclamation No. 216 for the following overriding
reasons:

(a) The facts cited above in letters (a), (b), (c), (e), (f),
(g), (h), (i), (l), (n) and (o) narrate acts of terrorism which do
not constitute actual rebellion in the absence of a credible
showing that the culpable purpose of the said acts of terrorism is
to remove Marawi City and other parts of Mindanao from
allegiance to the Republic of the Philippines or deprive the
President of his powers and prerogatives.

(b) The conclusion of fact and law in the Presidents

Report that actual rebellion exists and the purpose is to establish
an ISIS wilayah in Marawi City is utterly conjectural and
unfortunately mirrors terrorist propaganda.

25
 (c) The display of ISIS or Daesh flags do not
show that the Maute and Hapilons faction of the Abu
Sayaf are removing Marawi from allegiance to the
Philippines. This flag raising propaganda has been
repeatedly done before by terrorist groups to project
themselves as ISIS-supported. The government must not
succumb to this cheap propaganda.

Wilayah will not germinate in Mindanao

(d) The design that the Maute and Abu Sayaf Groups
are establishing an ISIS wilayah in Marawi City is another
propaganda to attract the attention and support of ISIS. It is
ironic that ISIS has not responded to this but the government
has considered it a factual verity, thus making the government a
purveyor of terrorist propaganda.

(e) ISIS presence in Mindanao and support of terrorist

groups in Mindanao lack concrete validation. The Maute and Abu
Sayyaf groups are not affiliated with ISIS because ISIS has not
bestowed on them recognition. The ISIS has declared 10
countries as part of its caliphate and these ISIS provinces are
Kenya, Somalia, Nigeria, Egypt, Morocco, Jordan, Saudi Arabia,
Yemen, Afghanistan and Pakistan. The Philippines is not
included. (Please see ANNEX I).

(f) Former National Security Council Senior Consultant

Ashley Acedillo stressed that the Maute Group will not be able to
gain foothold in any area in Mindanao since its size dwarfs in
comparison to that of the Governments. (Please see ANNEX
I)

(g) Joseph Franco, who is with the Center of Excellence

for National Security of the S. Rajaratnam School of International
Studies at the Nanyang Technological University in Singapore,
said it is irresponsible to assume that an illicit institution (ISIS)
would be transplanted from the plains of the Levant to the
jungles of Mindanao. The thesis of Franco is that an ISIS
wilayah or province will not germinate in Marawi City or
elsewhere in Mindanao. (Please see ANNEX G).

26
 False and inaccurate facts

93. What is important to underscore is that many of the facts

recited in the Presidents Report turned out to be false, non-existent
and inaccurate, like the following:

(a) The allegation in the Presidents Report that the

Amai Pakpak Medical Center was attacked by the Maute Group
who held hostage the employees of the hospital was strongly
denied as false, as discussed above, by (i) Dr. Amer Saber, the
Chief of the Hospital; (ii) Health Secretary Paulyn Ubial; (iii)
PNP Spokesperson Senior Supt. Dionardo Carlos; (iv) AFP Public
Affairs Office Chief Col. Edgard Arevalo; and (v) Marawi City
Mayor Majul Gandamra.

(b) The statement in the Presidents Report that the

Maute Group ambushed and burned the Marawi Police Station
was denied by no less than PNP Director General Ronald dela
Rosa who said that the Marawi bandit group has not occupied a
police station in Marawi City. He said in an interview on DZMM
on Wednesday night, 24 May 2017, that Ang headquarters ay
safe, hindi naman napasok ang Marawi City Police Station. May
nasunog na bahay kubo, hindi ang police station talaga.
Marawi City Mayor Majul Gandamra also disputed that the local
police station and city jail were burned by the Maute group.
Speaking to CNN Philippines anchor Pinky Webb on The Source,
Gandamra said: Hindi po totoo na-natake over nila ang police
station at ang city jail. (Attached as ANNEX J and J-1
are the pertinent news reports from ABS-CBN News [25 May
2017] and CNN Philippines [24 May 2017] ).

(c) The Presidents Report also highlighted that

Lawless armed groups likewise ransacked the Landbank of the
Philippines and commandeered one of its armored vehicles.
The bank clarified that its Marawi City branch was not
ransacked. The bank also confirmed that the seized armored
vehicle is not owned by the bank but by a third party provider
and was empty at that time. (Please see ANNEX F).

(d) The Presidents Report also stated that the Marawi

Central Elementary Pilot School was also burned. This was
denied by Marawi City Schools Division Assistance
Superintendent Ana Alonto who that the Marawi Central
Elementary Pilot School was not burned by the terrorists.
Likewise, Department of Education Assistant Secretary Tonisito
27
 Umali said they have not received any report of damage caused
by fire of said school. (Please see ANNEX F).

(e) While the Presidents Report stated that the Maute

Group and ASG attacked (and took over) various government
facilities in Marawi City, Mayor Gandamra told ABS-CBN news
channel that the Abu Sayyaf and Maute terror groups have not
taken over any government facilities in Marawi City. (Attached
as ANNEX K is the pertinent news report from Inquirer.net
[23 May 2017]).

94. Moreover, granting that the terrorists have occupied 13

barangays in Marawi City, this is only 13.54% of the 96 barangays in
Marawi City. It must be stressed that the Marawi City Hall and the
Lanao del Sur Provincial Capitol in Marawi City have not been
attacked and seized by the terrorists. In other words, the seats of
government in Marawi City and Lanao del Sur have not been
occupied and controlled by the terror groups. CNN Philippines said
that Gandamra has since disputed that the City Hall has been taken
over, since he is currently in the venue along with his relatives and
staff. (Please see ANNEX J-1).

Zamboanga siege and Davao Night Market

bombing are irrelevant

95. Reference in the Presidents Report to the Zamboanga

siege and the bombing of the Davao City night market, among other
previous terroristic acts, are not relevant because they are not
proximate to 23 May 2017 when Proclamation No. 216 was issued.
Moreover, Zamboanga City is back to normal with the culprits
apprehended and charged, while the Davao City night market
bombing has been solved with the capture and prosecution of the
suspected terrorists.

96. Verily, both Proclamation No. 216 dated 23 May 2017 and
the Presidents Report to the Congress dated 25 May 2017 failed to
sustain sufficient factual basis for the declaration of martial law and
the suspension of the writ of habeas corpus.

Unwarranted and baseless conclusions of fact and law have

no legal pedigree or evidentiary value

97. After a verbatim quotation of the definition of rebellion

under Article 134 of the Revised Penal Code and paraphrasing the
28
inculpatory elements of rebellion, Proclamation No. 216 and the
Presidents Report proceeded to conclude without sufficient factual
basis that rebellion is being committed in Marawi City and other parts
of Mindanao for the purpose of removing the latter from allegiance to
the Republic or preventing the President from exercising his powers
and prerogatives, copying the phraseology or language of Article 134.

98. The assertion that the Maute Group and the Abu Sayyaf
Group (Hapilon faction) laid siege to Marawi City is a conclusion of
fact that is belied by admissions from the military establishment that
it was the military, not the terrorists, who initiated the armed
confrontation, and the armed resistance of the Maute Group was not
to seize Marawi City but to shield and protect Hapilon and the Maute
brothers from capture by the military.

99. On the fact that the current armed conflict in Marawi City
was precipitated and initiated by government forces, the following
are clear admissions of government civilian and military authorities:

(a) Presidential Spokesman Ernesto Abella said in

Moscow on 23 May 2017 that fighting has erupted in
Marawi City when the state security forces attempted
to serve a warrant of arrest on Isnilon Hapilon in
Barangay Basak, Marawi City. (Attached as ANNEX L is the
transcript of the 23 May 2017 Press Briefing in Moscow led by
Presidential Spokesperson Ernesto Abella as it appears in the
Presidential Communications Operations Office official website).

(b) Defense Secretary Delfin Lorenzana likewise stated

in Moscow in the same press briefing that government forces
were surprised that Hapilons armed followers resisted the
serving of the warrant on Hapilon stating that x x x medyo
nabigla lang sila doon because they were expecting to arrest
Mr. Isnilon (Hapilon). They didnt know that he was backed up
by more or less 100 armed fighters x x x. (Please see ANNEX
L)

(c) The Presidents Report also stated that 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.

29
 (d) When asked during the military briefing before the
House Committee of the Whole on the variance between the
Zamboanga siege and current Marawi siege, Deputy Chief of
Staff Lt. Gen. Salvador Mison, Jr. said that in the Zamboanga
siege sila po ang pumasok. Sa Marawi, tayo po ang
nagsimula. He added that the armed conflict in Marawi City
was government-initiated as differentiated from the
Zamboanga siege.

(e) The aforesaid statements of Lt. General Mison are

confirmatory of a previous admission in the same briefing by
the military establishment that what triggered the ongoing
armed confrontation in Marawi City was the military operation
to neutralize or capture Isnilon Hapilon, a high-profile terrorist
commander which was resisted by the Maute Group.
Consequently, the armed resistance is not intended to seize
Marawi City and remove its allegiance to the Republic.

100. Verily, it is baseless for the President to conclude that

Marawi City is under siege amounting to rebellion because the
armed resistance of the Maute and Abu Sayyaf groups was not to
capture Marawi City but to divert the attention of the military
offensive and shield Hapilon and the Maute brothers from capture.

101. Under these circumstances, staging a rebellion was

farthest from the minds of the terrorists who were engaged in
pintakasi to help embattled comrades from a superior government
military force.

Aside from an actual rebellion, it is also indispensable

that securing public safety is paramount

102. Except for self-serving conclusions of fact and law,

neither Proclamation No. 216 nor the Presidents Report to the
Congress laid down the factual basis for the need to secure public
safety. The serious gravity of the circumstances requiring the
protection of public safety proximate to the issuance of Proclamation
No. 216 dated 23 May 2107 is belied by the uniform assessment by
the military of the situation in Marawi City hours before and
contemporaneous with the declaration of martial law and suspension
of the privilege of the writ of habeas corpus by the President.

30
 (a) According to responsible military officials, the situation in
Marawi City was under control and the military was on top of
the situation shortly before and at the time Proclamation No.
216 was issued.

(b) At 7:28 PM or four hours before President Duterte issued

Proclamation No. 216 in Moscow at 11:20 PM (Philippine time),
on 23 May 2017, National Security Adviser Hermogenes
Esperon, Jr. categorically said that the Armed Forces of the
Philippines was in full control of the situation. (Attached as
ANNEX M is the pertinent news report from ABS-CBN News
[25 May 2017]).

(c) About two hours later, at 9:45 PM on 23 May 2017,

Respondent Gen. Eduardo Ao, Chief of Staff of the Armed
Forces of the Philippines, who was with the President in
Moscow, told ANC Live that the military was in full control.
(Please see ANNEX M).

(d) One hour before the issuance of Proclamation No. 216 or

at 10:30 PM on 23 May 2017, Marawi Operations Spokesperson
Lt. Col. Jo-Ar Herrera confirmed in an interview with CNN
Philippines that the military was on top of the situation.
(Attached as ANNEX N is the pertinent news report from
CNN Philippines [25 May 2017]).

(e) Twenty minutes before the issuance of Proclamation No.

216, or at 11:00 PM on 23 May 2017, Col. Edgard Arevalo,
Chief of the AFP Public Affairs Office, asserted in a briefing that
the situation in Marawi has stabilized and security forces are in
full control of the situation. (Please see ANNEX N).

103. Verily, not only was there no sufficient basis on the

existence of rebellion, there was also no factual anchorage for the
necessity of imposing martial law in order to secure public safety.

Summary of the grounds why there is no sufficient

factual basis for Proclamation No. 216

104. The following are the grounds showing that the assailed
declaration of martial law and suspension of the privilege of the writ
of habeas corpus under Proclamation No. 216 are bereft of sufficient
factual basis:

31
(a) There is no actual rebellion in Marawi City and elsewhere
in Mindanao.

(b) The element of culpable political purpose is absent.

(c) The projected establishment of an ISIS wilayah in Marawi

City or Mindanao is basically conjectural and unsubstantiated
without any confirmation from ISIS even as it is a self-serving
propaganda by terrorist groups to attract the attention of ISIS.

(d) The ongoing armed conflict in Marawi City was initiated

by government forces and was precipitated by the military
operation to neutralize and capture Isnilon Hapilon, the leader
of an Abu Sayyaf faction.

(e) The Maute and Abu Sayyaf groups resisted the aforesaid
military operation to shield and protect Hapilon and the Maute
brothers from capture.

(f) The armed resistance of the terrorist groups was a

pintakasi to help embattled comrades, not to seize Marawi City
whose City Hall (like the Provincial Capitol) was not even
attacked or overrun.

(g) Shortly before and contemporaneous with the issuance of

Proclamation No. 216, responsible Philippine civilian and
military officials in the country and those with the President in
Moscow assured that the situation in Marawi City was under
control and the military was on top of the situation.

(h) Mere conclusions of fact and law regarding the factual

basis for Proclamation No. 216 have no legal pedigree.

(i) The reported capacity of the terrorist groups to

perpetuate acts of terrorism, even rebellion, is akin to
imminent danger which is no longer a constitutional ground
for the declaration of martial law or the suspension of the writ
of habeas corpus.

(j) There is no showing that securing public safety was

paramount and necessary.

32
 (k) The present tragic and appalling situation in Marawi City
is the aftermath of the declaration of martial law and the
suspension of the writ of habeas corpus, which was not the
prevailing factual situation on the ground on 23 May 2017 when
Proclamation No. 216 was issued.

(l) The turmoil in Marawi City cannot be extrapolated to the

entire Mindanao region for the latters inclusion in the coverage
of Proclamation No. 216.

IV.
There are instances when newspaper or media
accounts are admissible in evidence as
exceptions to the hearsay rule

105. The media accounts (newspaper write-ups, TV coverage,

radio reports and online articles) used by herein petitioners invariably
refer to statements of responsible civilian and military officials,
including President Rodrigo Duterte, and acknowledged experts in
violent extremism, which are pertinent to the issues at bar.

106. These statements were issued or made by the said

government officials with presumption of regularity.

107. Moreover, the subject officials have not denied nor

retracted the statements made by or attributed to them.

108. While as a general rule newspaper clippings and similar

media reportage are hearsay and of no evidentiary value, this rule of
evidence admits reasonable exceptions like in the following:

(a) In Pacquing vs. CA (G.R. No. 122954, February

15, 2000), the news article therein was admissible only as
evidence that such publication does exist with the tenor of the
news therein stated.

(b) In Bedol vs. COMELEC (G.R. No. 179830,

December 03, 2009), it was ruled that hearsay evidence (news
clippings published in the Philippine Daily Inquirer) may be
admitted by the courts on grounds of relevance,
trustworthiness and necessity.

33
 (c) Another exception to the hearsay rule is the
doctrine of independently relevant statements (Bedol vs.
COMELEC, supra).

(d) The law governing hearsay is somewhat less than

pellucid. And, as with many rules, the hearsay rule is not
absolute, it is replete with exceptions. Witnesses die,
documents are lost, deeds are destroyed, memories fade. All
too often, primary evidence is not available and courts and
lawyers must rely on secondary evidence. (Dallas County vs.
Commercial Union Assurance Co., 286 F 2d 388 [156 Cir.
1961]).

(e) News articles, however, may be introduced if they

are bolstered by supporting evidence that confers
circumstantial guarantees of trustworthiness upon them.
Trustworthiness is met when three independent
newspapers attributed similar quotations to the same
person. (A Students Guide to Trial Objections, pp. 242-243,
Thomas Reuters, United States of America, 2015).

109. It is respectfully submitted that the media accounts

documenting the statements of civilian and military government
officials as well as acknowledged experts on violent extremism cited
in the petition be accorded admissibility.

V.
Final Statement

110. Petitioners unequivocally condemn the acts of terrorism

committed and being committed by the Maute Group and the Abu
Sayyaf Group.

111. The full force of the Armed Forces of the Philippines must
be used to subdue these terrorists.

112. However, confronting and defeating them does not need

the imposition of martial law where there is no actual invasion or
rebellion when the public safety requires such imposition or
suspension and when there is no sufficient factual basis for the same.

113. Moreover, the regime of martial law can drastically result

in abuses, atrocities, repression and curtailment of human rights and

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civil liberties as was the experience during the martial law regime of
President Marcos.

114. In fact, the Integrated Bar of the Philippines-Lanao del

Sur Chapter, in a formal communication addressed to President
Duterte, through Defense Secretary Delfin Lorenzana, cited the
sheer magnitude of wanton disregard of sanctity of
domicile, the right against deprivation of property without
due process of law, the right to be secure in ones person,
house, papers and effects against unreasonable searches and
seizures and the privacy of communication and
correspondence of innocent civilians committed by AFP and
PNP who take pride of being the protector of the people.
The statement was signed by Atty. Aminoden Macalandap, the
chapter president, with the concurrence of the IBP-Lanao del Sur
Board of Officers. (Attached as ANNEX O is a copy of the said
communication).

115. In addition to calling the full might of the Armed Forces of

the Philippines, the Government must enforce the Human Security
Act of 2007 (R.A. No. 9372) and activate the Anti-Terrorism Council
created under the said law.

116. Section 53 of R.A. No. 9372 mandates the Council to

formulate and adopt comprehensive, adequate, efficient and
effective anti-terrorism plans, programs and countermeasures to
suppress and eradicate terrorism in the country and to protect the
people from acts of terrorism.

117. Among the members of the Council are Respondents

Executive Secretary Medialdea, who is its Chairperson; Defense
Secretary Lorenzana; and National Security Adviser Esperon, Jr.
(respondent in G.R. No. 231774).

118. We are certain that the Honorable Supreme Court will

uphold the sanctity and supremacy of the Constitution by nullifying
for want of sufficient factual basis Proclamation No. 216 dated 23
May 2017 which precipitately and unwarrantedly imposed martial law
and suspended the privilege of the writ of habeas corpus in the
whole of Mindanao.

119. It is only the Honorable Supreme Court, among the three

great Departments of the Republic, which can give meaning and

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efficacy to the multiple safeguards enshrined in the Constitution to
prevent the recurrence of the misuse and abuse of martial law.

PRAYER

ACCORDINGLY, it is respectfully prayed that the Honorable

Supreme Court nullifies and voids for lack of sufficient factual basis
Proclamation No. 216 dated 23 May 2017, which declared a state of
martial law and suspended the privilege of the writ of habeas corpus
in the whole of Mindanao.

It is further prayed that the respondent National Defense

Secretary Delfin Lorenzana, as Martial Law Administrator, and
respondent Chief-of-Staff Gen. Eduardo Ao, as Martial Law
Implementor, be ordered to cease and desist from enforcing and
implementing Proclamation No. 216 dated 23 May 2017.

Petitioners pray for other just and equitable reliefs.

Quezon City, for Manila

19 June 2017

LAGMAN LAGMAN & MONES LAW FIRM

Counsel for the Petitioners
2/F Tempus Place Condominium
Makatarungan and Matalino Streets,
Brgy. Central, Diliman, Quezon City
Telefax: 433-5354
lagmanlaw@gmail.com

EDCEL GRECO A. B. LAGMAN

Roll of Attorneys No. 45738 24 May 2001
PTR No. 4750746/Quezon City/09 June 2017
IBP Lifetime No. 012364
16 January 2014/Albay Chapter
MCLE Compliance No. V No. 000288
Mobile No. 09163324958

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Copy furnished (to be served to the parties, through counsel or
representative, at 2:00 PM on 19 June 2017 at the Judicial Records
Office of the Supreme Court):

SOLICITOR GENERAL JOSE C. CALIDA

Counsel for the Public Respondents
OSG Building, 134 Amorsolo St., Legaspi
Village, Makati City

ATTY. NERI J. COLMENARES

Counsel in G.R. No. 231771
National Union of Peoples Lawyers (NUPL)
3/F Erythrina Bldg., No. 1 Matatag corner
Maaralin Sts., Central District, Quezon City

ATTY. MARLON J. MANUEL

Counsel in G.R. No. 231774
Alternative Law Groups, Inc.
Room 215, Institute of Social Order
Social Development Complex
Ateneo de Manila University
Loyola Heights, Quezon City

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