Jo Vanne Trivilegio

JD-4

JUSTICE LEONEN DISSENTING OPINION

Justice Leonen dissents from the majority because his position is that the President
cannot be granted “undefined powers over the entire Mindanao region.” His reading of the
Constitution is that the Court should be “stricter, more precise, more vigilant of the fundamental
rights of our people.”

He pointed out that unlike previous versions of our Constitution, the 1987 Constitution
provides for limitations for the declaration of martial law and “Therefore, any declaration must
clearly articulate the powers that would be exercised by the President as Commander-in-Chief. It
cannot now just be a declaration of a state of Martial Law. Otherwise, it would be
unconstitutionally vague.”
Justice Leonen submits that Proclamation No. 216 issued on May 23, 2017 “expands
with every new issuance from its administrators.” Hence, the purpose of the Martial Law ended
up becoming a solution for many other issues in Mindanao, and not just the rebellion and lawless
violence in Marawi.
General Order No. 1 issued by the President expands Martial Law by instructing the
Armed Forces to “undertake all measures to prevent and suppress all acts of rebellion and
lawless violence in the whole of Mindanao, including any and all acts in relation thereto, in
connection therewith, or in furtherance thereof.” Justice Leonen points out that under GO No. 1,
“all acts of lawless violence throughout Mindanao even if unrelated to the ongiong hostilities in
Marawi have been included...” Example: Davao night market bombing.

b) The second paragraph of Art.3 of GO No.1 orders the AFP to cause the “arrest of persons
and/or groups who have committed, are committing, or attempting to commit” both rebellion and
any other kind of lawless violence.

Furthermore, while the majority subscribed to the idea that the void for vagueness
doctrine applied only to freedom of speech cases, Leonen in his dissenting opinion proved
otherwise by review of existing jurisprudence. Jurisprudence provides example of application of
the void for vagueness doctrine in cases other than those involving freedom of speech. A
distinction between overbreadth and void for vagueness was also made, and while the
Proclamation No. 216 cannot be facially challenged under the overbreadth doctrine, it may be
challenged on ground of void for vagueness as the President failed to provide for the specific
powers, crimes and actions to be covered under Proclamation No. 216.
The dissenting opinion also argued that the burden of proof is not that of probable cause but one
which employs judicial standards which are either substantial, preponderance or proof beyond
reasonable doubt.

Leonen argues that what the constitution requires is for the Court to evaluate the factual
sufficiency of the basis for the declaration of martial law which may be evaluated first, by
determining the credibility of the facts as alleged and used by the president and, second, whether
under the facts, public safety requires the use of specific powers under the rubric of martial law.
Petitioners should also be allowed to utilize news reports as it is the most efficient method of
gathering information in light of their limited access to the apparatus of the state.
the court ruled whether or not the President, in declaring Martial law is required to be:

a. To be factually correct or only not to be arbitrary in his appreciation of facts.

b. Required to obtain favorable recommendation from the Secretary of Defense.
c. Is required only to take into consideration factual events at the time of the declaration
even if subsequent events prove otherwise.
Justice Leonen also points out that the facts presented by the respondents were not
sufficient to reasonably conclude that the armed hostilities and lawless violence happening in
Marawi City is for the purpose of removing the area’s allegiance to the government and
depriving the President of their powers or prerogatives on the same area.
1. The armed hostilities in Marawi City are acts of terrorism done to prevent the actual
service of warrants on leaders of local terrorist groups. They are not acts of rebellion.
Jo Vanne Trivilegio
JD-4

2. Respondents, who bear the burden of proof, were unable to discharge the burden. Many
of the facts they presented were mere hearsay and they did not even bother to either show
their sources or present logical analysis of the intel that led to the incident.
3. The facts presented by the parties themselves are not sufficient to justify the conclusion
that Martial Law under Proclamation No. 216, General Order No. 1, and in the
Operational Directives of the Chief of Staff of the AFP should be declared over the entire
Mindanao. None of the directives specify which island or island groups belong to
Mindanao. In other words, their scope of “Mindanao” is not expressly defined.
The Court ruled that (a) the power to review is only limited to the pleadings and to the
facts available to the President prior to or during the declaration of the state of Martial Law; (b)
further, in relation to the Courts pronouncements on the discretionary nature of the power to
declare martial law, the Court ruled that the constitution did not intend congress nor any other
official to interfere a priori to the declaration of martial law. Hence, the recommendation of the
Secretary of Defense is not a requisite for the valid declaration of martial law; (c) and since the
power to review is limited only to facts prior to or subsisting during the time of the declaration of
martial law, the court may not rule on the factual basis of the declaration based on facts which
were proven or discovered subsequent to the declaration.

Leonen ruled on the contrary. Leonen disagreed with the view of the majority. It was
argued that the history of the 1987 constitution and the intent of the framers of the constitution
was to require the President to exercise emergency powers in a graduated sequence. The nature
of the calling out power, the suspension of the writ of habeas corpus and the declaration of the
state of martial law are designed to deal with and respond to different kinds of emergencies. The
constitution itself provided for situation where these different powers should be applied.
He emphasized that under the present constitution, the president is required to clear as to
what variant of martial law is imposed and is encompassed by Proclamation No. 216; otherwise
it will be too vague that it will violate the fundamental right of due process as well as evading
review under Art. VII Sec. 18 of the constitution.

He emphasized that although the President is the Commander in Chief of the Armed
Forces, he is in fact a civilian commander in chief (Saguisag vs Ochoa Jr. and Gudani vs Senga);
and that the exercise of military powers under martial law is not an inherent power but an
exception to the ordinary rule of law. Hence, the exercise of the calling out power, suspension of
the writ of habeas corpus and the declaration of martial law must be exercised and availed of in a
graduated sequence.

Justice Leonen disagreed with the government’s position to elevate the acts of a lawless
criminal group that uses terrorism as a tactic into the constitutional concept of rebellion because
it acknowledges the lawless criminal group as a political group. Rebellion is a political crime and
the court has acknowledged that if rebels are able to capture government, then rebellion, no
matter how brutal, will then be justified.
Acknowledging the Maute group as rebels elevates their “inhuman barbarism” into an “armed
conflict of non-international character” protected by International Humanitarian Law.

According to Justice Leonen, hostilities and lawless violence and their consequences
can be addressed by many of the prerogatives of the President. There is no showing that
Martial Law has become necessary for the safety of the entirety of Mindanao.