You are on page 1of 18

BERSAMIN

The Associate Justice votes to uphold the constitutionality of Proclamation No. 216. In his
separate opinion, he agreed with the majority opinion 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 to emasculate the courts task under section 18, article VII. According to him, the
term appropriate proceeding of the third paragraph of section 18 is different from the proceedings or
actions that the court may take cognizance. The 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.
In regard to the burden of proof, the Associate Justice said that it has to fall on the shoulders of the citizen
initiating the preceding. He emphasized that the laying of the burden of proof is constitutional, natural and
practical. He persists that the president, in proclaiming the state of martial law, did so in good faith.
Lastly, the Associate Justice agreed with the majority that the proclamation of martial law over the entire
Mindanao was warranted. The rest of Mindanao, even those not under armed conflict at the moment of
proclamation, were exposed to the same positive danger of the rebellion that gave rise to the
proclamation.

REYES

Separate Concurring Opinion of Associate Justice Beinvenido L. Reyes on the Lagman v. Medialdea
case

Justice Reyes said that although the President is accorded wide discretion in ascertaining the nature and
extent of the danger that confronts the State, his exercise of the powers is subject to certain constitutional
limitations pursuant to the separation of powers among the three departments.
He agreed that the term "appropriate proceeding," refers to sui generis proceeding, which is separate and
distinct from the jurisdiction of the Court laid down under Art. VIII of the Constitution. The petitioners have
burden of proof to show that the President's delaration and/or suspension lacks sufficient factual basis.
He also stated that the President's power to declare martial law and suspend the privilege of the writ of
habeas corpus are retained in the 1987 Constitution 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.

Thus his vote to DISMISS the consolidated petitions.

MENDOZA

Justice Mendoza is with the majority in dismissing the petitions. It is his opinion that the case at hand is
considered as the appropriate proceeding. A sui generis absent the specific procedure promulgated by
the Court.

1. The view of the Justice is that the constitution did not define what martial law is in order to make it
flexible enough to be an effective tool to address emergencies and merely providing specific restrictions
to strike balance of the state to protect itself from threats and the concern of the public over abuse of
power.

2. It is his opinion that the Commander-in-Chief Clause grant the president a sequence of graduated
powers that he may call upon not it any specific order, these are namely: The calling out power; the
power to suspend the privilege of the writ of habeas corpus; and the power to declare martial law. And 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 emergency.
3. Justice Mendoza agrees with Justice Del Castro in setting aside the doctrine laid down in the case of
Fortun v. Macapagal-Arroyo. He states that there is nothing in the constitutional provisions or the
deliberations which provide that it is only after congress fails or refuse to act can the Court exercise its
power to review. In this proceeding the burden to prove the same lies with the government. If it were
otherwise, then the judicial review safeguard would be rendered moot.

4. With regard to the threshold of evidence his position is that it is neither the standard of probable cause
nor is it certiorari jurisdiction, where the point to determine is arbitrariness. Rather the threshold is
reasonableness. Although he concurs with Justice Del Castro with the purpose of probable cause as a
threshold, the President is not bound by the technical rules observed in the determination of probable
cause of rebellion or invasion.
Show less

Patrick Balisi
23:34 11 Jul
Note: number 3. Instead of Justice Mendoza agrees with justice Del Castro is DAPAT DEL CASTILLO

Patrick Balisi
23:54 11 Jul
note again: no 4. CHANGE DEL CASTRO to DE CASTILLO. sorry

5. Concerning the sufficiency of factual basis Justice Mendoza finds that the President has sufficient
factual basis, based on the evidence that ISIS linked local group had panned to, and did, invade Malawi
City. That they were armed and posed danger to troops, and their occupation paralyzed government
function of Marawi.

6. It is his opinion that the Court cannot order the authorities to lift Martial law in this appropriate
proceeding because the judicial review is limited to the sufficiency of factual basis. When there is no
longer any basis to continue Imposition of martial law, the remedy is to file a certiorari petition to question
the arbitrariness of the assessment to prolong the period.

7. It his understanding under the Commander-in-Chief Clause the president has the discretion to
determine the territorial scope of the coverage as long as the constitutional requirements are met. So long
as there is concurrence of an actual rebellion or invasion and the necessity for public safety.

8. Justice Mendoza concludes that to limit the coverage of martial to Malawi City only is impractical since
all the terrorist forces came from surrounding area, and to limit the operation of the armed forces within
Marawi City would be ineffective in quelling the uprising. It is his view that the framers of the constitution
put first and foremost in their minds the security, safety and territorial integrity of the country.

PERALTA

SEPARATE CONCURRING OPINION


DIOSDADO M. PERALTA
Associate Justice Peralta concurred in the decision to uphold completely the constitutionality of
Proclamation No. 216 asserting:
1. That the appropriate proceeding under paragraph 3 section 18, Article VII of the constitution should
be the certiorari proceeding, which requires the Court to look into whether the President acted arbitrarily.
Highlighting, the separation of power of the three equal branch of the government as well as the system
of check and balance provided in the Constitution, the proper role of the Court to perform when the
President declares martial law or suspends the privilege of writ of habeas corpus is the duty to determine
whether the president acted with grave abuse of discretion. The Court need not to determine whether he
decided rightly or not, and the Court cannot second guess the Presidents decision at that time. The
Court, however, needs to know whether the President acted with or without factual basis.
2. That the elements of rebellion were present at the time of the proclamation. It has been established
that, indeed, there was public uprising and taking arms against the government. Moreover, Justice
Peralta supported the position of the OSG that the Marawi siege is not merely a result of counter-
measures against the governments pursuit of Hapilon, and that it is a strategic and well-coordinated
attack to overthrow the present government and to establish a wilayah in Mindanao. It was also
determined that the said siege has a clear purpose, which was to take over a portion of the Philippine
territory.

. That declaring martial law in the ENTIRE Mindanao is valid. His position is that if martial law and the
suspension of the writ of habeas corpus will only be declared in places where there is actual rebellion will
follow a piece-meal approach; and this shall not be followed for rebellion has no predetermined bound.
He also stated that the rebellion being committed by the ISIS-linked groups is not limited to the crimes
they have committed in Marawi City. Hence, criminal acts done in furtherance of the purpose of rebellion,
which are absorbed in the offense, even in places outside of Marawi are necessarily part of the crime
itself. He also gave emphasis on the ISIS-linked rebel groups having a common goal of taking control of
Mindanao from the the government for the purpose of establishing the region as a wilayah.

DE CASTRO

Associate Justice Teresita De Castro was one of the 11 Justices that noted to uphold Proclamation No.
216.

Justice De Castro is of the opinion that Section 1 and 5 Article VIII of the 1987 Constitution do not
restrict the Court's jurisdiction to the actions mentioned therein. The lack of any specific rules governing
such a petition does not prevent the court from exercising constitutionally mandated power to review
the property of such proclamation of popencia. The court may adopt in its direction any rule procedure
for its purpose. Justice De Castro also opened the opinion that the Court is not bound to strictly comply
with the usual rules on the burdens of proof for so long as procedural due process is complied. She also
concurs with the ponencia that the President had sufficient factual basis for the proclamation and the
suspension considering that the respondents has presented perils of violent create which mainly
intended to lay the groundwork of eventual establishment of a DAESH Hilayah. Lastly, Justice De Castro
took the petition that the Constitution given the President the right to determine the territorial scope on
application of martial lawor suspending the writ of the privilege of habeas corpus.
Justice Teresita J. Leonardo-De Castro is one of the eleven (11) justices who concurred with the
conclusion of Justice Del Castillo as to the constitutional sufficiency of the factual bases for the issuance
of the President Rodrigo Roa Duterte in the Proclamation No. 216 declaring a state of martial law and
suspending the privilege of the writ of habeas corpus in the whole of Mindanao which took effect on
May 23, 2017, for a period not exceeding 60 days. Filed under the third paragraph of Section 18, Article
VII of the 1987 Constitution, she concurs in the dismissal of the Petitions filed therewith.

In accordance to the nature of the appropriate proceeding provided in Section 18, Article VII, Justice
De Castro is of the opinion that the jurisdiction of the Court is not limited to the actions mentioned
under Sections 1 and 5 of Article VIII. She further added that petitioners had the right to file an action
denominated as a petition under Section 18, Article VII because the Constitution itself has the granting
power to provide judicial remedy to any citizen who wishes to criticize the sufficiency of the basis of a
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus and grants
jurisdiction upon the Court to make aware of the same.

Justice De Castro expressed that what is reasonable is not arbitrary. In relation, she pointed out the next
item in the judicial inquiry which is the necessity for the Court to carefully examine the facts stated by
the respondents as their reason for issuing Proclamation No. 216 to determine whether or not the
President acted arbitrarily in order determine the sufficiency of the factual basis for such proclamation.
The facts relied upon by the President, which consists of series of violent acts and atrocities committed
by the Abu Sayyaf and Maute terrorist groups, have demonstrated more than sufficient overt acts which
constitutes to the act of rebellion which is defined in Article 134 of the Revised Penal Code. Rebellion,
considering that the sovereignty and territorial integrity of the state is targeted, is a ground for the
President in exercising his constitutional authority to issue the Proclamation No. 216.

MARTIRES

Separate Opinion of J. S. Martires

Associate Justice Martires voted to dismiss the petitions for the same were identified by him as
inappropriate proceedings. To invoke the Courts judicial review of the proclamation, the petitioners
could have filed for petition for certiorari as this course of action was already made available for them to
attack the sufficiency of factual basis of the proclamation. In effect, the petitioners failed to avail the
proper remedy to grant the relief they pleaded.

Also, Justice Martires opined that the President did not act with grave abuse of discretion as he had
sufficient factual basis for Proclamation No. 216. In the Presidents written report, enumerated were
the overt acts of the Maute Group, not just in Marawi City but in whole of Mindanao, manifesting the
culpable intent of rebellion leading the President to his decision of suspending the privilege of habeas
corpus and declaring martial law.

As to who has the burden of proof, Justice Martires concurred that the government has the duty to
justify the proclamation; however, given the governments evidence in the form of the Presidents
written report, the government has duly discharged its responsibility. The burden of proof was then
shifted to the petitioners as their claims are considered as legal affirmative; thus, requiring them to
present evidence. Nonetheless, the stand of the petitioners remained to be insufficient to cast
arbitrariness on the Presidents decision since they did not refute the rest of the factual statements of
Proclamation No. 216 and the Presidents report.

TIJAM

Majella M. Delfin

1i

Lagman v. Medialdea

Justice Tijam concurred with the ponencia

He stated that Martial Law is not intrinsically wrong. If it were framers of the Constitution would have
deleted it altogether. They understood that Martial Law was a necessary constitutional weapon to
defend the integrity and sovereignty of the republic. Those who criticized martial law are haunted by the
abuses of the past but these apprehensions have no bearing when the noble objectives sought to be
accomplished are the protection of the people and defense of the state.

He submitted a separate opinion with these points:

1. Although mere citizenship gives locus standi, there must be prima facie showing of insufficiency
of the factual basis for the proclamation. It must be required that the petition should allege sufficient
grounds for the Court to take further action otherwise the court can be saddled with hundreds of
petitions.

2. Agreed with the ponente in treating the proceedings filed n pursuant to the third paragraph of
section 18, article vii of the 1987 constitution is sui generis. The petition is neither a criminal or civil
proceeding, with a subject unique unto itself as it involves the use of extraordinary power by President
as Commander-In-Chief. Furthermore the constitution provides that the case be filed directly with the
Supreme Court and allows any Citizen to bring action. It is a class of its own.

3. Agreed with the ponente who cited Fortun that the court must allow congress to exercise its
own review powers ahead of the courts inquiry but disagreed on the ponentes point that the Court can
only step-in when Congress defaults in its duty to review. As provided in Section 18, Article VII, the
proclamation shall be within reach of judicial scrutiny not only by default, but also if the congress
decides to support or suspend it. Furthermore in Franciso Jr. v. House of Representatives, the Supreme
Court acts as the final arbitrer who effectively checks the other departments.
4. Agreed with the ponente that the Suprement Courts review cannot extend to calibrating the
Presidents Decision pertaining to which of the three powers under Section 18, article VII of the
constitution to use. The SC merely determines whether it satisfies the conditions prescribed in the
Constitution for the declaration of martial law or the suspension of the privilege of the writ.

5. Recommendation of or consultation with the defense secretary or other high-ranking military


officials is not a condition imposed by the constitution.

6. Constitutionality of the Proclamation is detemined by the court under the sufficiency of factual
basis test as provided in the constitution wherein the declaration is hinged on the existence of an actual
rebellion or invasion where public safety requires it. The Courts criterion is factual and will not involve a
determination of whether the President acted in a whimsical manner.

7. Petitioners have the burden of proving insufficiency of factual basis citing Republic v. Roque. Jr.
that he who alleges must prove. In Sanlakas v. Executive Secretary and Ampatuan v. Puno, the rulings
were of the same vein.

8. Proclamation No. 216 and the Presidents Report to Congress sufficiently establish the existence
of actual rebellion that endangers public safety - Agreed that considering the urgency of the situation,
which may not give the president opportunity to verify with precision the facts reported to him, the
president only needs to be satisfied that there is probable cause to conclude that the aforesaid exists.

9. Agreed that the public safety requires the proclamation of martial law and the suspension of the
privilege of the writ of Habeas Corpus - With the events as reported by the President to congress, the
Maute group and its sympathizers have resulted in destruction of goverment an privately-owned
properties as well as human casualties.

10. Agreed that past events as reported by the President may be considered in jutifying the
declaration of martial law and the suspension of the privilege of the writ of habeas corpus but has
reservations as regards the statement of the ponencia that the Courts 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.

11. Pointed out that although rebellion as provided in RA 9372 is included in the crime of terrorism,
the said law did not have the effect of obliterating rebellion as a crime in itself. Thus even if rebellion
can qualify as an act of terrorism it does not cease to be a ground for the declaration of martial law.

12. Proclamation covering the entire Mindanao has sufficient factual basis as it is presumed that the
Presidents report describing various events of violence happneing in Mindanao, has taken into account
intelligence reports including classified information regarding the situation on the ground. Furthermore,
geographically, Marawi City provides easy access for rebels to escape to nearby cities or provinces.

13. Proclamation No. 216 is not void for vagueness for the absence of guidelines/operational
parameters because the measure of the proclamations validity is the condition set in Section 18, Article
VII of the constitution. Furthermore it is not expected that the President can specify the guidelines and
operational parameters as the situation calls for immediate action.
VELASCO

Separate Concurring

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

Justice Velasco Jr. stated that Martial law is the law of necessity and The power to declare it
is exercised precisely upon the principle of self-preservation in times of extreme emergency. Also
saying that its similar to a citizens right to self-defense.

And upon deciding of the existence of this necessity, the facts they were presented to the
president at the moment he made the proclamation must govern. Stressing that his decision must be
scrutinized based on the information that he had at the time and not the information he acquired later.

Justice Velasco Jr. then stipulated an excerpt from Fortun vs Macapagal which in summary
settled that the President should not be burden to search for proof beyond reasonable doubt of the
existence of rebellion and since deciding whether public safety demands action is a prudential matter.
Put differently, looking for rebellion under the penal code is different from looking for rebellion under
the constitution.

Justice Velasco Jr. also said that there are urgency of the circumstances envisioned under
Section 18, Article VII of the constitution requires the President to act with promptness and deliberate
speed. Thus, he cannot be expected the accuracy of each detail of information relayed to him, risking
being too late before declaring Martial law or suspending the writ of habeas corpus. 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, Section 18 article VII does not specify the appropriate proceeding that may be filed
by a citizen for a purpose. Hence, Lagman, et al and cullamat, et al would simply quote to the third
paragraph of Section 18, Article VII. Only petitioners Mohamad, et al ventured further and maintained
that is recourse is a special proceeding. The provisions relation to the appropriate proceeding
mentioned in Section 18, Article VII was spelled out by former Chief Justice and Constitutional
Commissioner Roberto Concepcion which lead to Velascos summary that 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 brave abuse of discretion amounting to lack or excess of jurisdiction.
Resolving a challenged against the exercise of an emergency power, this court held in Integrated
Bar of the Philippines vs Zamora which, in summary, stated that it is unclouded intent the Constitution
to vest upon the President, as Commander-in-Chief the armed forces, full discretion to call forth the
military when in his judgement, it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion, unless the petitioner can prove that the exercise of such discretion was gravely
abused.

On that note, Justice Velasco Jr. deems that the president did not commit grave abuse of
discretion in issuing Proclamation No. 216 given the facts that he was confronted with. He further
concurred that the view sustaining the coverage of Proclamation No. 216 to the entirety of Mindanao
because as appointed out by the ponencia, Marawi is in the heart of Mindanao which in turn, through
Marawi, will easily expand the rebels forces. He then enumerated incidents in which the activities of
these numerous rebel and terrorist groups are spread over different parts of Mindanao. It would only
complicate the situation if the effectivity of Proclamation No. 216 will be limited only to Marawi City or
some other provinces.

Martial Law is not the end itself, it is a temporary means to achieve the paramount object of
restoring peace under civilian authority.

With the nations dark experience under the 1972 Proclamation No. 1081 it is understandable
that any Martial Law proclamation will be examined with extreme wariness. Velasco then said that
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. According to the Courts ruling in David vs. Macapagal-
Arroyo the declaration of Martial Law is a warning 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 any way render
more difficult the restoration of order and the enforcement of law. Justice Vicente V. Mendoza stated
that, specifically, the following powers can be exercised by the President as Commander-in-Chief when
there is a valid declaration of Martial Law or suspension of the writ of habeas corpus (a) arrest and
seizures without judicial warrants (b) ban on public assemblies; and (c) take-over of news and media and
agencies and press censorship.

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, Article II of the Revised Penal Code
and Article 432 of the New Civil Code likewise flow from the same principle.
But Martial Law is by no means an arbitrary license, as it is borne out of necessity, so it is limited
by necessity which Justice Teehankee explained further. Necessity limits both the extent of powers that
may be exercised under Martial Law and the duration of its exercise. 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. Intrusions into the civil rights must be proportional to the
requirements of necessity. It is an unending rule of law that the exercise of military power when the
rights of the citizens are concerned shall never be pushed beyond what the exigency requires.

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 of the regional assemblies.

Justice Velasco Jr. is of the opinion that the martial law is valid because on the ground that the President
correctly found probable cause of the existence of rebellion and that the public safety requires it. 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 require 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.

Certainly, the urgency of the circumstances envisioned under Section 18, Article VII of the Constitution
required 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. Moreover, the Constitution, as couched, does
not require the precision in establishing the fact of rebellion. The President is called to act as public
safety requires.

The President did not commit a grave abuse of discretion in issuing the Proclamation No. 216, given the
facts he was confronted with. Moreover, Justice Velasco Jr. further lend his 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 other rebel and
terrorist groups and extend the scope of the theatre of active conflict to other areas in Mindanao. And
based on past events, such is 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 but not
limited to the improvised explosive device detonated in Davao City and other places such as Basilan,
Tawi-Tawi et cetera, abduction of German national by the Abu Sayyat Group (ASG), ambushed Military
personnel in Marawi City, and various beheading of kidnapped victims.

Justice Velasco Jr. said the Martial Law is not the end in itself, it is a temporary means to achieve the
paramount object of restoring peace under civilians 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 same to the rest of Mindanao, he 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 as possible this tragic humanitarian disaster.

Continuation

As the case of Southern Luzon Drug Crop. V. Department of Social Welfare and Development, this Court,
however, has held that it is the legislature, not the executive, which is the constitutional repository of
police power, the existence of a national emergency, such as a rebellion or invasion, notwithstanding.
Accordingly, the power to temporarily take over or direct the operation of any privately-owned public
utility or business affected with public interest can only be done whenever there is a law passed by
Congress authorizing the same.

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 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.

Furthermore, Justice Velasco Jr. cited the case of Araneta v. Dinglasan, that the Court emphasized thae
legislative power, through which extraordinary measures are exercised, remains in Congress even in
times of crisis. 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.

Without a doubt, state agents-the members of the armed forces who abuse their power and discretion
under the proclaimed Martial Law and thereby violate their duty as the "protector of the people and the
State are criminally and civilly liable. And here lies the ultimate safeguard against the possible abuses of
this emergency power-the ultimate responsibility of the officers for acts done in the implementation of
Martial Law. To whom much is given, much will be required.

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."
CAGUIOA

Associate Justice Caguioa is one of the 4 justices that issued a dissenting opinion regarding the
constitutionality of the Proclamation No. 216 and gave the following points:

1. Contrary to the argument of the OSG that the petitioners have the burden of proof that
Proclamation No. 216 is bereft of factual basis, Justice argues that, it is the Executive that has the
burden of proof by substantial evidence because the Executive has the exclusive knowledge of such
facts and circumstances that would lead to the belief that an actual rebellion is being committed.

Associate Justice Caguioa issued a dissenting opinion for Proclamation no. 216 regarding the sufficiency
of its factual basis after the judicial review of the said proclamation. Aside from the points regarding the
burden of proof on which Justice Caguioa said to supposedly be with the burden of the OSG, rather than
with the petitioners, Justice Caguioa stated 3 more points for the insufficiency of factual basis of
Proclamation no. 216:

1.) There is insufficient showing that the requirements of public safety necessitated the
declaration of martial law over the entire Mindanao.

- Although Justice Caguioa adhered to the fact that probable cause was present for the actual
rebellion in Marawi City during the time of proclamation, (the first factual basis of martial law actual
rebellion or actual invasion) the second indispensable requirement which is the requirement on public
safety, is deemed to be insufficient in the case of the entirety of Mindanao. And as a result, should have
not declared martial law in Mindanao as a whole.

- Indeed, there is rebellion in Marawi City. The use of heavy artillery and the hostile nature of
attacks against both armed forces and civilians are a strong indication of an rebellious uprising that is
jeopardizing the public safety of the people in Marawi City; Not Mindanao in its entirety. 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. 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.

2.) There is insufficient showing that there was actual rebellion outside of Marawi City.

- the Executive had the pleasure 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.

- 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. They can be pursued
by the State under the concept of rebellion being a continuing crime, even without martial law.
3.) The declaration of martial law is proper only in Marawi City and certain contiguous or adjacent
areas.

- Corollary to the declaration of martial law and suspension of the privilege of the writ having
been issued in Mindanao without a showing of actual rebellion except in Marawi City, the Executive also
failed to show the necessity of the declaration of martial law and suspension of the privilege of the writ
in the entire Mindanao to safeguard public safety

- Justice Caguioa stated that the 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 that had shown inextricable connection of these
areas to the actual rebellion in Marawi.

JARDELEZA

Lagman v. Medialdea

Separate Opinions of the Justices

Associate Justice Francis Jardeleza

Concurring Justice to uphold the declaration of martial law and the suspension of the privilege of the
writ of habeas corpus.

Summary:

A case filed under Article VII, Section 18 is sui generis

Justice Jardeleza emphasizes the independence of the power of the President to declare martial law and
suspend the privilege of the writ of habeas corpus, power of Court to review the sufficiency of the
factual basis of the proclamation, and the power of the Congress to revoke the proclamation.

He concurs that a case filed under Art. VII, Section 18 is sui generis, which means that an action falling
within the Courts jurisdiction as specified under Art. VII, Section 18 of the Constitution is different from
public suits which require petitioners challenging a governmental act to show locus standi or legal
standing. The Constitution only requires the petitioner to be a citizen.

He emphasized that the function of the Court is, in this case, not a trier of facts. The Court in this case,
as provided in Article VII, Section 18 of the Constitution, is to review the facts in the case of Lagman v.
Medialdea. It involves inquiry of the factual basis if the act, not a review of errors of law or a
determination of lack or excess of jurisdiction or grave abuse of discretion.

Sufficiency if the factual basis is distinct from grave abuse of discretion

Justice Jardeleza, in his separate opinion, state that the 1987 text in our Constitution empowered the
court to make an independent determination of whether the 2 conditions for the exercise if the
extraordinary executive powers have been satisfied.
He said that the Court, as it decides the case no, is not subject to the same limitation as Lansang and
need only be guided by the clear text of Article VII, Section 18.

The Constitution foreclosed good faith belief as an absolute justification for the declaration of martial
law or suspension of the privilege of the writ of habeas corpus. The Courts duty, as he interpreted it, is
to revoke the proclamation because of insufficiency of factual basis and not because of grave abuse of
discretion.

C. Existence of actual rebellion

According to Article 134 of the Revised Penal Code, Rebellion is referred as rising publicly and taking
arms against the Government. However, Associate Justice Jardeleza cited Blacks Law Dictionary in
defining Rebellion as an open, organized, and armed resistance to an established government or ruler.
Justice Jardeleza also stated that the definition of Rebellion in Blacks Law Dictionary is, in his opinion,
the most consistent in regards the suspension of the privilege of the Writ of Habeas Corpus and
proclamation of Martial Law. Justice Jardeleza also stated regarding the existence of rebellion that there
were indeed terrorist groups who killed and wounded several civilians. These terrorist groups also
hoisted the ISIS flag in Marawi City, established road checkpoints, and did not show any signs of retreat.
In total, these constitute to the actual existence of rebellion.

D. Public safety requires it

According to Justice Jardeleza, it would be difficult to appraise the possible impact of the insurgencies to
public safety. He added that the only requirement is that the threat to public safety must be real based
on the facts given or presented to by verifiable sources. Because of the increasing number of terrorist
attacks in Mindanao, it is clear that there is a threat in public safety and requires the declaration of
Martial Law and suspension of the privilege of the Writ of Habeas Corpus.

E. Burden of proof

1. He who alleges must prove cannot be applied in the proceeding as it is the Governments duty to
present the facts that were considered by the President as his basis for the declaration and suspension.
The court will decide whether the factual bases, in total, are sufficient. Consequently, the President will
have to disclose the pieces of information presented to him, although there may be matters which
cannot be disclosed publicly by the government.After the in camera presentations, Justice Jardeleza
concluded that the contents of the presentations contained no sensitive military matters and only
contained the identities of the local terrorist groups and the order of events. Hence, can be disclosed to
the public. First, It is the publics right to be informed on matters of public concern. The public has the
right to be informed about the ongoing proceedings regarding the declaration and suspension, which
involves restriction on some civil rights. Second, it is so that the Government will be held responsible
over which specific pieces of information shall be disclosed and not be disclosed to the public. Third, to
conduct proceedings in public would give credibility and accountability in the administration of justice. If
the Government invokes the necessity of closure in order to preserve higher values, then can in camera
presentations be allowed.
Justice jardeleza agrees that there is an actual rebellion and public safety requires the declaration of
martial law and the suspension of the privilege of the writ of habeas corpus in the entire Mindanao,
however, he proposes a different standard of review for Art. VII, section 18 of the constitution.

The petitioners did not question the other facts presented by the Executive Department. The former
were only able to dispute the event in Amai Pakpak Hospital, Marawi police station, and Land Bank.
Moreover, they were also only able to dispute the groups taking over of a government facility. Even
though the petitioners were able to dispute some minor details, this does not affect the issue whether
actual rebellion exists.

He proposes that there should be:

Standard of reasonableness a review of the sufficiency of factual basis of the 2 requirements of


declaration of martial law.

Twin requirements: Rebellion demands of public safety

SEPARATE DISSENTING

BERNABE

J. Perlas-Bernabe:

The justice is of the opinion proclamation 216 is valid, since it rests on sufficient factual basis.
The justice found that the said proclamation has complied with the two requisites in imposing martial
law: (1) that there is actual invasion, and (2) that the public safety so requires it . She supported that the
president should not be bound to search for proof that goes beyond reasonable doubt of the existence
of rebellion and that public safety requirement is a prudential matter incomparable and different from a
function of judge in convicting a person for rebellion or not. It is her position that the standard of
probable cause must not be applied to the highest-ranking public official in the country who is tasked
not only to determine the existence of an actual rebellion but also to calibrate the public safety
demands in requiring a martial law proclamation. It follows that the government is the one with the
burden in compliance with the requirement of the constitution while the petitioner, who may be any
citizen, does not have access to the information used by the president in justifying the proclamation.

Certain constitutional powers and prerogatives of the Chief Executive of the Nation must be exercised
by him in person and no amount of approval by any other person will validate exercise of those powers;
such include his power to suspend the writ of habeas corpus and proclaim martial law. In assessing the
second requisite, the justice states that the court must give deference to the presidents prudential
judgement on determining the need for the declaration of martial law along with its territorial coverage.
The president has a vast intelligence network through which he gathers information, some confidential,
imperatively necessary in a state of emergency for there is a need of exercising his power to protect the
general public and prevent mass destruction of property in which the court has no technical
competence.

The counter evidence provided by the petitioners consisted of insubstantial sources and
therefore do not suffice to invalidate the factual statements; and even when objections are proved to be
true, other incidents remain irrefutable. The government has also established that an actual rebellion
already existed at the time of the presidents issuance of of Proclamation No. 216. J. Perlas-Bernabe
agrees that the imposition of martial law over the whole of Mindanao was sensible to meet the
exigencies of the situation. The adequate proof that the proclamation has sufficient factual basis and
complies with the requirements of the declaration of martial law therefore led the justice to vote for the
dismissal of petitions.

CARPIO

Dissenting opinion of Justice Carpio (by Odylou Camille M. Montojo)

Justice Carpio issued a dissenting opinion and voted to partially grant the petitions in view of the
following:

1. The OSG erroneously concluded 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;

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.

2. The OSG, erroneously argued that petitioners, being the parties who allege, must show proof of the
sufficiency of the factual basis;

Being a sui generis petition, the proceeding under paragraph 3, Section 18, Article VII of the 1987
Constitution places the burden of proof on the Government. This is only logical because it is the
Government that is in possession of facts and intelligence reports, which supposedly justified the
declaration of martial law or the suspension of the privilege of the writ of habeas corpus.

3. 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.

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.

4. To require the President to establish the existence of rebellion or invasion with such amount of proof
as that of a criminal offense before declaring martial law or suspending the privilege of the writ,
constitutes an excessive restriction on the President's power to exercise his emergency powers and
disabling him from protecting the nation against threats to public safety.

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.

5. 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.

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. HOWEVER, THE SAME DOES NOT APPLY TO THE REST OF MINDANAO.

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, thus admitting that only
"this part of Mindanao" is the subject of separation from Philippine sovereignty by the rebels.

Hours after the Decision was announced on 4 July 2017, President Duterte told media that he declared a
Mindanao wide martial law to prevent a spillover: It's easy to escape because there is no division in
terms of land. You can go anywhere, there can be a spillover

This only confirms that there is no actual rebellion outside of Marawi City. THEREFORE, 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.

CONCLUSION: Justice Antonio T. Carpio voted to partially grant the petitions in G.R. Nos. 231658,
231771, and 231774, BUT to 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.
SERENO

Gerard Reantillo

Janna Salvacion

Ian Taduran

The duty of the Court to inquire into the necessity of declaring martial law to protect public safety
logically and inevitably requires the determination of proportionality of the powers sought to be
exercised by the President. As pointed out by the ponencia, the exercise of the powers of the President
under Section 18, Article VII "can be resorted to only under specified conditions." This means that
greater powers are needed only when other less intrusive measures appear to be ineffective.

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. 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.

There is a conclusion that the welfare and protection of the people are endangered by series of
incidents involving kidnapping both to local residents and foreigners in Mindanao, and the incidents of
explosion in Basilan where a number of casualties have been reported. However, those cannot be
considered as an act of rebellion but should be treated as acts of terrorism.

The elements of public taking up of arms in Marawi city and the series of incidents done by the Maute
group in the different places in Mindanao constitutes the element of public taking up of arms to the
government and endangering the public safety.

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. This opinion actually recognizes that the areas for a valid martial law operation cover much more
than the actual area of combat.
DISSSENTING

LEONEN
The power of the President to proclaim martial law and suspend the privilege of the writ of habeas corpus
can be counterbalanced by the two other branches as stated in Article 8 Section 18 of 1987 Constitution
mainly the power to review by the Court and the power to revoke by Congress. 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 curtailment of those
civil liberties.
Furthermore, the vagueness of a declaration of martial law is unconstitutional as it will evade review of
the sufficiency of facts required by the constitutional provision 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.
It is also stated that due to the sui generis nature of Art VII Sec. 18, the petitioners are exempted from the
general rule' "he who alleges, must prove". It is the respondents' burden to prove that there are sufficient
facts to support the martial law declaration. Art. VII, Sec. 18 also calls on the Supreme Court that it may
act as a fact finding body to verify the factual basis of the declaration of martial law. The respondents
should have indicated the basis of the facts that they have gathered and the level of confidence they have
as to its accuracy so as to further solidify the factual basis of the declaration of martial law.
Respondents are burdened to prove the sufficiency of facts. However, their presentation and arguments
are lacking. First, there are factual allegations that are irrelevant to the declaration of martial law and
suspension of the privilege of writ of habeas corpus. Second, Open-Source intelligence sources, such as
newspaper reports, contradict some factual allegations. Third, there are factual allegations that are
dubious as they are not supported by credible evidence and analyses.

Fourth, there is inconsistency in the documents submitted to the court which contain intelligence
information. Fifth, there is a possibility that pieces of information which are critical have been taken out of
context. Mate Group is defined as a terrorist groups, instead of rebels due to the actions committed that is
coherent to a terrorist act instead of rebellion. Therefore, resorting to Martial Law as way of combating the
current situation in Marawi City is unconstitutional and should be dissented. In conclusion, Proclamation
No. 216 is declared as unconstitutional which therefore have no effect on the ongoing military operation in
Marawi City and other parts of the country including Mindanao in terms of Proclamation No. 55 as well.