Lagman vs.

Medialdea

G.R. No. 231658, 4 July 2017

Ponente: Del Castillo

Facts:

Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte
issued Proclamation No. 216 declaring a state of martial law and suspending the privilege of the
writ of habeas corpus in the whole of Mindanao.

Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to
Congress on May 25, 2017, a written Report on the factual basis of Proclamation No. 216.

The Report pointed out that for decades, Mindanao has been plagued with rebellion and lawless
violence which only escalated and worsened with the passing of time.

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

The President went on to explain that on May 23, 2017, a government operation to capture the
high-ranking officers of the Abu Sayyaf (ASG) and the Maute Group was conducted. These
groups, which have been unleashing havoc in Mindanao, however, confronted the government
operation by intensifying their efforts at sowing violence aimed not only against the government
authorities and its facilities but likewise against civilians and their properties

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

The unfolding of these events, as well as the classified reports he received, led the President to
conclude that:

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These activities constitute not simply a display of force, but a clear attempt to establish the
groups' seat of power in Marawi City for their planned establishment of a DAESH wilayat or
province covering the entire Mindanao.

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

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

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

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

After the submission of the Report and the briefings, the Senate issued P.S. Resolution No. 3888
expressing full support to the martial law proclamation and finding Proclamation No. 216 "to be
satisfactory, constitutional and in accordance with the law". In the same Resolution, the Senate
declared that it found "no compelling reason to revoke the same”.

The Senate's counterpart in the lower house shared the same sentiments.

Lagman’s petition are as follows;

- there is no rebellion or invasion in Marawi City or in any part of Mindanao. It

argues that acts of terrorism in Mindanao do not constitute rebellion 12 since
there is no proof that its purpose is to remove Mindanao or any part thereof from
allegiance to the Philippines, its laws, or its territory. 13 It labels the flying of ISIS
flag by the Maute Group in Marawi City and other outlying areas as mere
propaganda1 1 4 and not an open attempt to remove such areas from the

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allegiance to t Philippine Government and deprive the Chief Executive of the
assertion an exercise of his powers and prerogatives therein.

- The Lagman Petition also avers that L. Gen. Salvador Mison, Jr. himself admitted
that the current armed conflict in Marawi City was precipitated or initiated by the
government in its bid to capture Hapilon.

- That all the acts of terrorism found in the report of Duterte are fake

- the Lagman Petition claims that the declaration of martial law has no sufficient
factual basis considering that the President acted alone and did not consult the
military establishment or any ranking official before making the proclamation.

- Based on the review by senate, there was absence of any hostile plan by the Moro
Islamic Liberation Front; and the number of foreign fighters allied with ISIS was
"undetermined"28 which indicates that there are only a meager number of foreign
fighters who can lend support to the Maute Group

Culamat’s Petitions:

- In particular, it avers that the supposed rebellion described i Proclamation No. 216
relates to events happening in Marawi City only an not in the entire region of
Mindanao. It concludes that Proclamation No 216 "failed to show any factual
basis for the imposition of martial law in the entire Mindanao, "failed to allege
any act of rebellion outside Maraw'· City, much less x x x allege that public safety
requires the imposition o martial law in the whole of Mindanao".

- The Cullamat Petition claims that the alleged "capability of the Maute Group and
other rebel groups to sow terror and cause death and damage to property" does not
rise to the level of rebellion sufficient to declare martial law in the whole of
Mindanao. It also posits that there is no lawless violence in other parts of
Mindanao similar to that in Marawi City.

- In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and

falsities in the Report of the President to Congress.

Mohamad’s Petitions:

- It contends that the extraordinary powers of the President should be dispensed

sequentially, i.e., first, the power to call out the armed forces; second, the power to
suspend the privilege of the writ of habeas corpus; and finally, the power to
declare martial law. It maintains that the President has no discretion to choose
which extraordinary power to use; moreover, his choice must be dictated only by,
and commensurate to the exigencies of the situation

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- It asserts that the Marawi incidents "do not equate to the existence of a public
necessity brought about by an actual rebellion, which would compel the
imposition at if martial law or the suspension of the privilege of the writ of habeas
corpus".

- Report of Duterte regarding martial law is bereft of substantiation

- Finally, in invoking this Court's power to review the sufficiency of the factual
basis for the declaration of martial law and the suspension of the privilege of the
writ of habeas corpus, the Mohamad Petition insists that the Court may "look into
the wisdom of the President's actions, and not just the presence of arbitrariness”

Government’s petition:

- The OSG acknowledges that Section 18, Article VII of the Constitution vests the
Court with the authority or power to review the sufficiency of the factual basis of
the declaration of martial law. The OSG, however, posits that although Section 18,
Article VII lays the basis for the exercise of such authority or power, the same
constitutional provision failed to specify the vehicle, mode or remedy through
which the "appropriate proceeding" mentioned therein may be resorted to.

- Sufficiency of facts in the proclamation should be reviewed under the lens of

grave abuse of discretion

- Likewise, the OSG posits that the sufficiency of the factual basis musk be
assessed from the trajectory or point of view of the President and base on the facts
available to him at the time the decision was made. It argue that the sufficiency of
the factual basis should be examined not based on the facts discovered after the
President had made his decision to declare martial law because to do so would
subject the exercise of the President's discretion to an impossible standard. 70 It
reiterates that the President's decision should be guided only by the information
and data available to him at the time h made the determination. 71 The OSG thus
asserts that facts that were established after the declaration of martial law should
not be considered in the review of the sufficiency of the factual basis of the
proclamation of martial law.

o The OSG fears that if the Court considers after proclamation facts in its
review of the sufficiency of the factual basis for the proclamation, it would
in effect usurp the powers of the Congress to determine whether martial
law should be revoked or extended.

- Since the power to declare martial law is vested solely on the President as
Commander-in-Chief, the lack of recommendation from the Defense Secretary, or

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any official for that matter, will not nullify the said declaration, or affect its
validity, or compromise the sufficiency of the factual basis.

- Moreover, the OSG opines that the petitioners miserably failed to validly refute
the facts cited by the President in Proclamation No. 216 and in his Report to the
Congress by merely citing news reports that supposedly contradict the facts
asserted therein or by criticizing in piecemeal the happenings in Marawi. For the
OSG, the said news articles are "hearsay evidence, twice removed," and thus
inadmissible and without probative value, and could not overcome the "legal
presumption bestowed on governmental acts"

- Finally, the OSG points out that it has no duty or burden to prove that
Proclamation No. 216 has sufficient factual basis. It maintains that the burden
rests with the petitioners.

Issues:

A. Whether the petition to review the validity of declaring martial law is appropriate

B. Whether petitioners has locus standi

C. Whether respondents has the burden of proof

D. Whether the facts which the proclamation was based depends on the approval of the
defense secretary; that facts on which it is based must include future facts: that facts are
correct

E. Whether the power to review by the court is independent on the power to review by the
legislature

F. Whether the power to review by the court calibrates the power of the president

G. Whether there is an actual rebellion

H. Whether the proclamation fits the void for vagueness doctrine

Ruling:

o LOCUS STANDI ISSUE

▪ YES, ALL PETITIONERS HAS LOCUS STANDI

One of the requisites for judicial review is locus standi, i.e., "the constitutional question is
brought before [the Court] by a party having the requisite 'standing' to challenge it." As a general
rule, the challenger must have "a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement." Over the years, there has

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been a trend towards relaxation of the rule on legal standing, a prime example of which is found
in Section 18 of Article VII which provides that any citizen may file the appropriate proceeding
to assail the sufficiency of the factual basis of the declaration of martial law or the suspension of
the privilege of the writ of habeas corpus. "The only requisite for standing to challenge the
validity of the suspension is that the challenger be a citizen. He need not even be a taxpayer."

Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens of the
Republic;" similarly, petitioners in the Mohamad Petition all claim to be "Filipino citizens, all
women, all of legal age, and residents of Marawi City".

In the Lagman petition, petitioners therein did not categorically mention that they are suing's
citizens but merely referred to themselves as duly elected Representatives

Considering, however , the trend towards relaxation of the rules on legal standing, as well as the
transcendental issues involved in the present Petitions, the Court will exercise judicial self-
restraint and will not venture into this matter.

In any case, the Court can take judicial cognizance of the fact that petitioners in the Lagman
Petition are at! citizens of the Philippines since Philippine citizenship is a requirement for them
to be elected as representatives. We will therefore consider them a! suing in their own behalf as
citizens of this country. Besides, respondent did not question petitioners' legal standing.

• APPROPRIATE PROCEEDING TO QUESTION MARTIAL LAW

o IT DOES NOT REFER TO PETITION FOR CERTIORARI it is SUI GENERIS

During the oral argument, the petitioners theorized that the jurisdiction of this Court under the
third paragraph of Section 18, Article VII is sui generis. It is a special and specific jurisdiction of
the Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII.

It is settled that jurisdiction over the subject matter is conferred only by the Constitution or by
the law. Unless jurisdiction has been specifically conferred by the Constitution or by some
legislative act, no body or tribunal has the power to act or pass upon a matter brought before it
for resolution. It is likewise settled that in the absence of a clear legislative intent, jurisdiction
cannot be implied from the language of the Constitution or a statute. It must appear clearly from
the law or it will not be held to exist.

A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically grants
authority to the Court to determine the sufficiency of the factual basis of the proclamation of
martial law or suspension of the privilege of the writ of habeas corpus.

The standard of review in a petition for certiorari is whether the respondent has committed any
grave abuse of discretion amounting to lack or excess of jurisdiction in the performance of his or
her functions. Thus, it is not the proper tool to review the sufficiency of the factual basis of the

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proclamation or suspension. Put differently, if this Court applies the standard of review used in a
petition for certiorari, the sartje would emasculate its constitutional task under Section 18,
Article VII.

Section 18, Article VII is meant to provide additional safeguard against possible abuse by the
President in the exercise of his power to declare martial law or suspend the privilege of the writ
of habeas corpus. Reeling from the aftermath of the Marcos martial law, the framers of the
Constitution deemed it wise to insert the now third paragraph of Section 18 of Article VII.

To give more teeth to this additional safeguard, the framers of the 1987 Constitution not only
placed the President's proclamation of martial law or suspension of the privilege of the writ of
habeas corpus within the ambit of judicial review, it also relaxed the rule on standing by allowing
any citizen to question before this Court the sufficiency of the factual basis of such proclamation
or suspension. Moreover, the third paragraph of Section 18, Article VII veritably conferred upon
any citizen a demandable right to challenge the sufficiency of the factual basis of said
proclamation or suspension. It further designated this Court as the reviewing tribunal to examine,
in an appropriate proceeding, the sufficiency of the factual basis , and to render its decision
thereon within a limited period of 30 days from date of filing

The most important objective, however, of Section 18, Article VII is the curtailment of the extent
of the powers of the Commander-in-Chief. This is the primary reason why the provision was not
placed in Article VIII or the Judicial Department but remained under Article VII or the Executive
Department.

While traditional powers inherent in the office of the President are granted, nonetheless
for the first time, there are specific provisions which curtail the extent of such powers.
Most significant is the power of the Chief Executive to suspend the privilege of the writ
of habeas corpus or proclaim martial law.

To conclude that the "appropriate proceeding" refers to a Petition for Certiorari filed under the
expanded jurisdiction of this Court would, therefore, contradict the clear intention of the framers
of the Constitution to place additional safeguards against possible martial law abuse for,
invariably, the third paragraph of Section 18, Article VII would be subsumed under Section 1 of
Article VIII. In other words, the framers of the Constitution added the safeguard under the third
paragraph of Section 18, Article VII on top of the expanded jurisdiction of this Court.

The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and 5 of Article
VIII. For instance, its jurisdiction to be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President can be found in the last paragraph of
Section 4, Article VII.102 The power of the Court to review on certiorari the decision, order, or
ruling of the Commission on Elections and Commission on Audit can be found in Section 7,
Article IX(A).

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The unique features of the third paragraph of Section 18, Article VII clearly indicate that it
should be treated as sui generis separate and different from those enumerated in Article VIII.
Under the third paragraph of Section 18, Article VII, a petition filed pursuant therewith will
follow a different rule on standing as any citizen may file it. Said provision of the Constitution
also limits the issue to the sufficiency of the factual basis of the exercise by the Chief Executive of
his emergency powers. The usual period for filing pleadings in Petition for Certiorari is likewise
not applicable under the third paragraph of Section 18, Article VII considering the limited
period within which this Court has to promulgate its decision.

In fine, the phrase "in an appropriate proceeding" appearing on the third paragraph of Section
18, Article VII refers to any action initiated by a citizen for the purpose of questioning the
sufficiency of the factual basis of the exercise of the Chief Executive's emergency powers, as in
these cases. It could be denominated as a complaint, a petition, or a matter to be resolved by the
Court

• REVIEW OF THE COURT INDEPENDENT FROM REVIEW OF CONGRESS

o YES, IT IS ENTIRELY DIFFERENT FROM REVIEW CONDUCTED BY

CONGRESS

The framers of the 1987 Constitution reformulated the scope of the/ extraordinary powers of the
President as Commander-in-Chief and the review of the said presidential action. In particular, the
President' extraordinary powers of suspending the privilege of the writ of habeas corpus and
imposing martial law are subject to the veto powers of the Court1 and Congress.

The Court may strike down the presidential proclamation in and appropriate proceeding filed by
any citizen on the ground of lack of sufficient factual basis. On the other hand, Congress may
revoke the proclamation or suspension, which revocation shall not be set aside by the President.

In reviewing the sufficiency of the factual basis of the proclamation, the Court considers only the
information and data available to the President prior to or at the time of the declaration; it is not
allowed to "undertake an independent investigation beyond the pleadings." On the other hand,
Congress may take into consideration not only data available prior to, but likewise events
supervening the declaration. Unlike the Court I which does not look into the absolute correctness
of the factual basis as will be discussed below, Congress could probe deeper and further; it can
delve into the accuracy of the facts presented before it

In addition, the Court's review power is passive; it is only initiated by the filing of a petition "in
an appropriate proceeding" by a citizen. On the other hand, Congress' review mechanism is
automatic in the sense that it, may be activated by Congress itself at any time after the
proclamation or suspension was made.

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Thus, the power to review by the Court and the power to revoke by Congress are not only totally
different but likewise independent from each other although concededly, they have the same
trajectory, which is, the nullification of the presidential proclamation. Needless to say, the power
of the Court to review can be exercised independently from the power of revocation of Congress.

If only to show that the intent of the framers of the 1987 Constitution was to vest the Court and
Congress with veto powers independently from each other

A petition for a writ of habeas corpus, if the Members are detained, can immediately be
applied for, and the Supreme Court shall also review the factual basis

By the above pronouncement, the Court willingly but unwittingly clipped its own power and
surrendered the same to Congress as well as: abdicated from its bounden duty to review. Worse,
the Court considered' itself just on stand-by, waiting and willing to act as a substitute in case
Congress "defaults." It is an aberration, a stray declaration, which must be rectified and set
aside in this proceeding.

We, therefore, hold that the Court can simultaneously exercise its power of review with, and
independently from, the power to revoke by Congress. Corollary, any perceived inaction or
default on the part of Congress does not deprive or deny the Court of its power to review.

• CALIBRATION OF THE PRESIDENT’S POWER

o NO, IT DOES NOT CALIBRATE THE PRESIDENT’S POWER VESTED BY

THE CONSTITUTION

Among the three extraordinary powers, the calling out power is the most benign and involves
ordinary police action. The President may resort to this extraordinary power whenever it
becomes necessary to prevent or suppress lawless violence, invasion, or rebellion. "The power to
call is fully discretionary to the President;” the only limitations being that he acts within
permissible constitutional boundaries or in a manner not constituting grave abuse of discretion.
In fact, "the actual use to which the President puts the armed forces is not subject to judicial
review.

The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or
declaring martial law may be exercised only when there is actual invasion or rebellion, and
public safety requires it.

Limitations of martial law and or suspension of the privilege of the writ of habeas corpus: (1)
time limit of 60 days, (2) review and possible revocation of congress, (3) review and possible
nullification of SC

The powers to declare martial law and to suspend the privilege of tle writ of habeas corpus
involve curtailment and suppression of civil rights a d individual freedom. Thus, the declaration

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of martial law serves as a warning to citizens that the Executive Department has called upon the
military to assist in the maintenance of law and order, and while the emergency remains, the
citizens must, under pain of arrest and punishment, not act in a manner that will render it more
difficult to restore order and enforce the law. As such, their exercise requires more stringent
safeguards by the Congress, and review by the Court

What really happens during the imposition of martial law?

Statement before the Senate Committee on Justice on March 13, 2006, stated that under a vali d
declaration of martial law, the President as Commander-in-Chief may order the "(a) arrests and
seizures without judicial warrants; (b) ban on public assemblies; (c) [takeover] of news media
and agencies and press censorship; and ( d) issuance of Presidential Decrees

Worthy to note, however, that the above-cited acts that the President may perform do not give
him unbridled discretion to infringe on the rights of civilians during martial law. This is because
martial law does not suspend the operation of the Constitution, neither does it supplant the
operation o civil courts or legislative assemblies. Moreover, the guarantees under the Bill of
Rights remain in place during its pendency.

• GRADUATION OF POWERS

Indeed, the 1987 Constitution gives the President, as Commander-in-Chief, a sequence of

graduated powers.

It must be stressed, however, that the graduation refers only to hierarchy based on scope and
effect. It does not in any manner refer to a sequence, arrangement, or order which the
Commander-in-Chief must follow. This so called "graduation of powers" does not dictate or
restrict the manner by which the President decides which power to choose.

These extraordinary powers are conferred by the Constitution with the President as Commander-
in-Chief; it therefore necessarily follows that the power and prerogative to determine whether the
situation warrants a mere exercise of the calling out power; or whether the situation demands
suspension of the privilege of the writ of habeas corpus; or whether it calls for the declaration of
martial law, also lies, at least initially, with the President. The power to choose, initially, which
among these extraordinary powers to wield in a given set of conditions is a judgment call on the
part of the President. As Commander-in-Chief, his powers are broad enough to include his
prerogative to address exigencies or threats that endanger the government, and the very integrity
of the State.

It is thus beyond doubt that the power of judicial review does not extend to calibrating the
President's decision pertaining to which extraordinary power to avail given a set of facts or
conditions. To do so would be tantamount to an incursion into the exclusive domain of the

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Executive and an infringement on the prerogative that solely, at least initially, lies with the
President.

The elimination by the framers of the 1987 Constitution of the requirement of prior concurrence
of the Congress in the initial imposition of martial law or suspension of the privilege of the writ
of habeas corpus further supports the conclusion that judicial review does not include the
calibration of the President's decision of which of his graduated powers be availed of in a given
situation.

It cannot be overemphasized that time is paramount in situations

In necessitating the proclamation of martial law or suspension of the privilege I of the writ of
habeas corpus. It was precisely this time element that prompted the Constitutional Commission
to eliminate the requirement of concurrence of the Congress in the initial imposition by the
President of martial law or suspension of the privilege of the writ of habeas corpus

Considering that the proclamation of martial law or suspension of the privilege of the writ of
habeas corpus is now anchored on actual invasion or rebellion and when public safety requires it,
and is no longer under threat or in imminent danger thereof, there is a necessity and urgency for
the President to act quickly to protect the country. The Court, as Congress does, must thus accord
the President the same leeway by not wading into the realm that is reserved exclusively by the
Constitution to the Executive Department.

• RECOMMENDATION OF DEFENSE SECRETARY

o NO, IT IS NOT A CONDITION BEFORE THE PRESIDENT CAN

PROCLAIM MARTIAL LAW

Even the recommendation of, or consultation with, the Secretary of National Defense, or other
high-ranking military officials, is not a condition for the President to declare martial law. A plain
reading of Section 18, Article VII of the Constitution shows that the President's power to declare
martial law is not subject to any condition except for the requirements of actual invasion or
rebellion and that public safety requires it. Besides, it would be contrary to common sense if the
decision of the President is made dependent on the recommendation of his mere alter ego.
Rightly so, it is only on the President and no other that the exercise of the powers of the
Commander-in-Chief under Section 18, Article VII of the Constitution is bestowed.

In any event, the President initially employed the most benign action -the calling out power
before he declared martial law and suspended the privilege of the writ of habeas corpus.

Proclamation No. 55 on September 4, 2016, declaring a state of national emergency on account

of lawless violence in Mindanao. This, in fact, is extant in the first Whereas Clause of
Proclamation No. 216. Based on the foregoing presidential actions, it can be gleaned that

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although there is no obligation or requirement on his part to use his extraordinary powers on a
graduated or sequential basis still the President made the conscious and deliberate effort to first
employ the most benign from among his extraordinary powers. As the initial and preliminary
step to wards suppressing and preventing the armed hostilities in Mindanao, the President
decided to use his calling out power first. Unfortunately, the situation did not improve; on the
contrary, it only worsened. Thus, exercising his sole and exclusive prerogative, the President
decided to impose martial law and suspend the privilege of the writ of habeas corpus on the
belief that the armed hostilities in Mindanao already amount to actual rebellion and public safety
requires it.

• VOID FOR VAGUENESS DOCTRINE

o NO, IT IS NOT VOID ON ITS FACE

Proclamation No. 216 is being facially challenged on the ground of "vagueness" by the insertion
of the phrase "other rebel groups" in its Whereas Clause and for lack of available guidelines
specifying its actual operational parameters within the entire Mindanao region, making the
proclamation susceptible to broad interpretation, misinterpretation, confusion.

The void-for-vagueness doctrine holds that a law is facially invalid if "men of common
intelligence must necessarily guess at its meaning and differ as to its application. "A statute or act
may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. In such instance,
the statute is repugnant to the Constitution in two respects: ( 1) it violates due process for failure
to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2)
it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.

The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment cases.142 A facial
challenge is allowed to be made to a vague statute and also to one which is overbroad because
of possible "chilling effect on protected speech that comes from statutes violating free speech. A
person who does not know whether his speech constitutes a crime under an overbroad or vague
law may simply restrain himself from speaking in order to avoid being charged of a crime. The
overbroad or vague law thus chills him into silence."

Clearly, facial review of Proclamation No. 216 on the grounds void for vagueness is
unwarranted. Proclamation No. 216 does not regulate speech, religious freedom, and other
fundamental rights that may be facial challenged. What it seeks to penalize is conduct, not
speech.

The contention that the phrase "other rebel groups" leaves Proclamation No. 216 open to broad
interpretation, misinterpretation, and confusion, cannot be sustained.

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The term "other rebel groups" in Proclamation No. 216 is not at all vague when viewed in the
context of the words that accompany it. Verily, the text of Proclamation No. 216 refers to "other
rebel groups" found in Proclamation No. 55, which it cited by way of reference in its Whereas
clauses.

Neither could Proclamation No. 216 be described as vague, and thus void, on the ground that it
has no guidelines specifying its actual operational parameters within the entire Mindanao region.
Besides, operational guidelines will serve only as mere tools for the implementation of the
proclamation.

Clearly, therefore, there is no need for the Court to determine the constitutionality of the
implementing and/or operational guidelines, general orders, arrest orders and other orders
issued after the proclamation for being, irrelevant to its review. Thus, any act committed under
the said orders i violation of the Constitution and the laws, such as criminal acts or human rights
violations, should be resolved in a separate proceeding. Finally, there is a risk that if the Court
wades into these areas, it would be deemed as trespassing into the sphere that is reserved
exclusively for Congress in the exercise of its power to revoke.

• NULLIFYING THE PROCLAMATION HAS AN ADVERSE EFFECT ON

PREVIOUS ACTIONS COMMENCED BY THE PRESIDENT PURSUANT TO THE
SITUATION.

o NO, IT WILL HAVE NO EFFECT ON THE PREVIOUS PROCLAMATION

AND OR DECISION OF PRESIDENT DUTERTE

The Court's ruling in these cases will not, in any way, affect the! President's declaration of a state
of national emergency on account of 1 lawless violence in Mindanao through Proclamation No.
55 dated September 4, 2016, where he called upon the Armed Forces and the Philippine
National1 Police (PNP) to undertake such measures to suppress any and all forms of lawless
violence in the Mindanao region, and to prevent such lawless violence from spreading and
escalating elsewhere in the Philippines

In Kulayan v. Tan, the Court ruled that the President's calling out power is in a different category
from the power to suspend the privilege of the writ of habeas corpus and the power to declare
martial law:

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

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In other words, the President may exercise the power to call out the Armed Forces independently
of the power to suspend the privilege of the writ of habeas corpus and to declare martial law,
although, of course, it may also be a prelude to a possible future exercise of the latter powers, as
in this case.

Even so, the Court's review of the President's declaration of martial law and his calling out the
Armed Forces necessarily entails separate proceedings instituted for that particular purpose.

As explained in Integrated Bar of the Philippines v. Zamora, the President's exercise of his power
to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion may
only be examined by the Court as to whether such power was exercised within permissible
constitutional limits or in a manner constituting grave abuse of discretion.

This locus standi requirement, however, need not be complied with in so far as the Court's
jurisdiction to review the sufficiency of the factual basis of the President's declaration of martial
law

But, even assuming arguendo that the Court finds no sufficient basis for the declaration of martial
law in this case, such ruling could not affect the President's exercise of his calling out power
through Proclamation No. 55.

Neither would the nullification of Proclamation No. 216 result in the nullification of the acts of
the President done pursuant thereto. Under the "operative fact doctrine," the unconstitutional
statute is recognized as an "operative fact" before it is declared unconstitutional.158

'The actual existence of a statute prior to such a determination of constitutionality, is an

operative fact and may have consequences which cannot always be erased by a new judicial
declaration.

• SCOPE OF THE POWER TO REVIEW

o ONLY TO FACTUAL BASIS EXISTING PRIOR TO PROCLAMATION

Th 1987 Constitution, by providing only for judicial review based on the determination of the
sufficiency of the factual bases, has in fact done away with the test of arbitrariness as provided in
Lansang.

Similarly, under the doctrine of contemporaneous construction, the framers of the 1987
Constitution are presumed to know the prevailing jurisprudence at the time they were drafting
the Constitution. Thus, the phrase "sufficiency of factual basis" in Section 18, Article VII of the
Constitution should be understood as the only test for judicial review of the. President's power to
declare martial law and suspend the privilege of the writ of habeas corpus under Section 18,
Article VII of the Constitution. The Court does not need to satisfy itself that the President's

14
decision is correct, rather it only needs to determine whether the President's decision had
sufficient factual bases.

As Commander-in-Chief, the President has the sole discretion to declare martial law and/or to
suspend the privilege of the writ of habeas corpus, subject to the revocation of Congress and the
review of this Court Since the exercise of these powers is a judgment call of the President, the '
determination of this Court as to whether there is sufficient factual basis for the exercise of such,
must be based only on facts or information known by o available to the President at the time he
made the declaration or suspension which facts or information are found in the proclamation as
well as that written Report submitted by him to Congress. These may be based on that situation
existing at the time the declaration was made or past events. As to how far the past events should
be from the present depends on the President

As to what facts must be stated in the proclamation and the written Report is up to the President.
As Commander-in-Chief, he has sole discretion to determine what to include and what not to
include in the proclamation and the written Report taking into account the urgency of the
situation as well as national security. He cannot be forced to divulge intelligence reports and
confidential information that may prejudice the operations and the safety of the military.

Similarly, events that happened after the issuance of the proclamation, which are included in the
written report, cannot be considered in determining the sufficiency of the factual basis of the
declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus
since these happened after the President had already issued the proclamation. If at all, they may
be used only as tools, guides or reference in the Court's determination of the sufficiency of
factual basis, but not as part or component of the portfolio of the factual basis itself.

In determining the sufficiency of the factual basis of the declaration and/or the suspension, the
Court should look into the full complement or totality of the factual basis, and not piecemeal or
individually. Neither should the Court expect absolute correctness of the facts stated in the
proclamation and in the written Report as the President could not be expected to verify the
accuracy and veracity of all facts reported to him due to the urgency of the situation. To require
precision in the President's appreciation of facts would unduly burden him and therefore impede
the process of his decision-making. Such a requirement will practically necessitate the President
to be on the ground to confirm the correctness of the reports submitted to him within a period
that only the circumstances obtaining would be able to dictate. Such a scenario, of course, would
not only place the President in peril but would also defeat the very purpose of the grant of
emergency powers upon him.

Corollary, as the President is expected to decide quickly on whether there is a need to proclaim
martial law even only on the basis of intelligence reports, it is irrelevant, for purposes of the
Court's review, if subsequent events prove that the situation had not been accurately reported to
him.

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In sum, the Court's power to review is limited to the determination of whether the President in
declaring martial law and suspending the privilege of the writ of habeas corpus had sufficient
factual basis. Thus, our review would be limited to an examination on whether the President
acted within the bounds set by the Constitution, i.e., whether the facts in his possession prior to
and at the time of the declaration or suspension are sufficient for him to declare martial law or
suspend the privilege of the writ of habeas corpus.

• IS THERE REBELLION

o YES, THERE IS REBELLION

Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual
basis for the declaration of martial law and/or the suspension of the privilege of the writ of
habeas corpus, "namely (1) actual invasion or rebellion, and (2) public safety requires the
exercise of such power."170 Without the concurrence of the two conditions, the President's
declaration of martial law and/or suspension of the privilege of the writ of habeas corpus must be
struck down

Thus, rebellion as mentioned in the Constitution could only refer t~ rebellion as defined under
Article 134 of the RPC. To give it a different definition would not only create confusion but
would also give the President wide latitude of discretion, which may be abused -a situation that
the constitution seeks to prevent

Thus, for rebellion to exist, the following elements must be present, to wit: "(l) there is a (a)
public uprising and (b) taking arms against the Government; and (2) the purpose of the uprising
or movement is either (a) to remove from the allegiance to the Government or its laws: (i) the
territory of the Philippines or any part thereof; or (ii) any body of land, naval, or other armed
forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their
powers and prerogatives."

Fortun v. President Macapagal-Arroyo, concluded that the President needs only to satisfy
probable cause as the standard of proof in determining the existence of either invasion or
rebellion for purposes of declaring martial law, and that probable cause is the most reasonable,
most practical and most expedient standard by which the President can fully ascertain the
existence or non-existence of rebellion necessary for a declaration of martial law or suspension
of the writ. This is because unlike other standards of proof, which, in order to be met, would
require much from the President and therefore unduly restrain his exercise of emergency powers,
the requirement of probable cause is much simpler.

At this juncture, it bears to emphasize that the purpose of judicial review is not the determination
of accuracy or veracity of the facts upon which the President anchored his declaration of martial
law or suspension of the privilege of the writ of habeas corpus; rather, only the sufficiency of the
factual basis as to convince the President that there is probable cause that rebellion exists. It must

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also be reiterated that martial law is a matter of urgency and much leeway and flexibility should
be accorded the President As such, he is not expected to completely validate all the information
h~ received before declaring martial law or suspending the privilege of the writ of habeas corpus.

Petitioners concede that there is an armed public uprising in Marawi City. 179 However, they
insist that the armed hostilities do not constitute rebellion in the absence of the element of
culpable political purpose, i.e., the removal from the allegiance to the Philippine Government or
its laws: (i) the territory of the Philippines or any part thereof; or (ii) any body of land, naval, or
other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any
of their powers and prerogatives.

After the assessment by the President of the aforementioned facts, he arrived at the following
conclusions, as mentioned in Proclamation No. 216 and the Report:

1) The Maute Group is "openly attempting to remove from the allegiance to the
Philippine Government this part of Mindanao and deprive the Chief Executive of his
powers and prerogatives to enforce the laws of the land and to maintain public order and
safety in Mindanao, constituting the crime of rebellion."

2) "Lawless armed groups have taken up arms and committed public uprising against the
duly constituted government and against the people of Mindanao, for the purpose of
removing Mindanao -starting with the City of Marawi, Lanao del Sur -from its allegiance
to the Government and its laws and depriving the Chief Executive of his powers and
prerogatives to enforce the laws of the land and to maintain public order and safety in
Mindanao, to the great damage, prejudice, and detriment of the people therein and the
nation as a whole."

3) The May 23, 2017 events "put on public display the groups' clear intention to establish
an Islamic State and their capability to deprive the duly constituted authorities -the
President, foremost -of their powers and prerogatives. "

4) "These activities constitute not simply a display of force, but a clear attempt to
establish the groups' seat of power in Marawi City for their planned establishment of a
DAESH wilayat or province covering the entire Mindanao."

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

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

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

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

I 9) "Considering the network and alliance-building activities among terrorist groups,

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

Thus, the President deduced from the facts available to him that there was an armed public
uprising, the culpable purpose of which was to remove from the allegiance to the Philippine
Government a portion of its territory and to deprive the Chief Executive of any of his powers and
prerogative, leading the President to believe that there was probable cause that the crime of
rebellion was and is being committed and that public safety requires the imposition of martial
law and suspension of the privilege of the writ of habeas corpus.

A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing
Proclamation No. 216, had sufficient factual ' bases tending to show that actual rebellion exists.
The President's conclusion, that there was an armed public uprising, the culpable purpose of
which was the removal from the allegiance of the Philippine Government a portion of its
territory and the deprivation of the President from performing his powers and prerogatives, was

18
reached after a tactical consideration of the facts. In fine, the President satisfactorily discharged
his burden of proof.

The allegation in the Lagman Petition that the facts stated in Proclamation No. 216 and the report
is false, inaccurate, simulated, and/ or hyperbolic, does not persuade. As mentioned, the Court is
not concern d about absolute correctness, accuracy, or precision of the facts because to do so
would unduly tie the hands of the President in responding to an urgent situation.

Moreover, the alleged false and/or inaccurate statements are just pieces and parcels of the
Report; along with these alleged false data is arsenal of other independent facts showing that
more likely than not, actual rebellion exists, and public safety requires the declaration of martial
law r suspension of the privilege of the writ of habeas corpus.

Invasion or rebellion alone may justify resort to the calling out power but definitely not the
declaration of martial law or suspension of the privilege of the writ of habeas corpus. For a
declaration of martial law or suspension of the privilege of the writ of habeas corpus to be valid,
there must be a concurrence of actual rebellion or invasion and the public safety requirement. In
his Report, the President noted that the acts of violence perpetrated by the ASG and the Maute
Group were directed not only against government forces or establishments but likewise against
civilians and their properties. In addition and in relation to the armed hostilities, bomb threats
were issued; road blockades and checkpoints were set up; schools and churches were burned;
civilian hostages were taken and killed; non-Muslims or Christians were targeted; young male
Muslims were forced to join their group; medical services and delivery of basic services were
hampered; reinforcements of government troops and civilian movement were hindered; and the
security of the entire Mindanao Island was compromised.

Based on the foregoing, we hold that the parameters for the declaration of martial law and
suspension of the privilege of the writ f habeas corpus have been properly and fully complied
with. Proclamation No. 216 has sufficient factual basis there being probable cause to believe that
rebellion exists and that public safety requires the martial law declaration and the suspension of
the privilege of the writ of habeas corpus

To be sure, the facts mentioned in the Proclamation and the Report are far from being exhaustive
or all-encompassing. At this juncture, it may not be amiss to state that as Commander-in-Chief,
the President has possession of documents and information classified as "confidential", the
contents of which cannot be included in the Proclamation or Report for reasons of national
security. These documents may contain information detailing the position of government troops
and rebels, stock of firearms or ammunitions, ground commands and operations, names of
suspects and sympathizers, etc. , In fact, during the closed door session held by the Court, some
information came to light, although not mentioned in the Proclamation or Report. But then again,
the discretion whether to include the same in the Proclamation or Report is the judgment call of

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the President. In fact, petitioners concede to this. During the oral argument, petitioner Lagman
admitted that "the assertion of facts [in the Proclamation and Report] is the call of the President

In fine, not only does the President have a wide array of information before him, he also has the
right, prerogative, and the means to access vital, relevant, and confidential data, concomitant
with his positions Commander-in-Chief of the Armed Forces.

Section 18, Article VII of the Constitution states that "in case of invasion or rebellion, when the
public safety requires it, the President may suspend the privilege of writ of habeas corpus or
place the Philippines or any part thereof under martial law." Clearly, the Constitution grants to
the President the discretion to determine the territorial coverage of martial law and the
suspension of the privilege of the writ of habeas corpus. He may put the entire Philippines or
only a part thereof under martial law.

The significance of martial law should not be undermined by unjustified fears and past
experience. After all, martial law is critical and crucial to the promotion of public safety, the
preservation of the nation's sovereignty and ultimately, the survival of our country. It is vital for
the protection of the country not only against internal enemies but also against those enemies~
lurking from beyond our shores

Conscious of those fears and apprehensions, the Constitution placed several safeguards which
effectively watered down the power to declare martial law. The 1987 Constitution "clipped the
powers of the Commander-in-Chief because of the experience with the previous regime." Not
only were the grounds limited to actual invasion and rebellion, but its duration was likewise fixed
at 60 days, unless soon revoked, nullified, or extended; at the same time, it is subject to the veto
powers of the Court and Congress.

Public safety, which is another component element for the declaration of martial law, "involves
the prevention of and protection from events that could endanger the safety of the general public
from significant danger, injury/harm, or damage, such as crimes or disasters." Public safety is an
abstract term; it does not take any physical form. Plainly, its range, extent or scope could not be
physically measured by metes and bounds.

Perhaps another reason why the territorial scope of martial law should not necessarily be limited
to the particular vicinity where the armed public uprising actually transpired, is because of the
unique characteristic of rebellion as a crime. "The crime of rebellion consists of many acts. It is a
vast movement of men and a complex net of intrigues and plots. Acts committed in furtherance
of rebellion, though crimes in themselves.

Moreover, the President's duty to maintain peace and public safety is not limited only to the place
where there is actual rebellion; it extends to other areas where the present hostilities are in danger
of spilling over. It 'is not intended merely to prevent the escape of lawless elements from Marawi
City, but also to avoid enemy reinforcements and to cut their supply lines

20
The Court can only act within the confines of its power. For the Court to overreach is to infringe
upon another's territory. Clearly, the power to determine the scope of territorial application
belongs to the President. "The Court cannot indulge in judicial legislation without violating the
principle of separation of powers, and, hence, undermining the foundation of our republican
system

To reiterate, the Court is not equipped with the competence and logistical machinery to
determine the strategical value of other places in the military's efforts to quell the rebellion and
restore peace. It would be engaging in an act of adventurism if it dares to embark on a mission of
deciphering the territorial metes and bounds of martial law.

Thus, there is reasonable basis to believe that Marawi is only the staging point of the rebellion,
both for symbolic and strategic reasons. , Marawi may not be the target but the whole of
Mindanao. As mentioned in the Report, "lawless armed groups have historically used provinces
adjoining Marawi City as escape routes, supply lines, and backdoor passages;"there is also the
plan to establish a wilayat in Mindanao by staging the siege of Marawi. The report that prior to
May 23, 2017, Abdullah Maute had already dispatched some of his men to various places in
Mindanao, such as Marawi, Iligan, and Cagayan de Oro for bombing operations, car-napping,
and the murder of military and police personnel, must also be considered. Indeed, there is some
semblance of truth to the contention that Marawi is only the start, and Mindanao the end.

Moreover, considering the widespread atrocities in Mindanao and the linkages established
among rebel groups, the armed uprising that was initially staged in Marawi cannot be justified
as confined only to Marawi. The Court therefore will not simply disregard the events that
happened during the Davao City bombing, the Mamasapano massacre, the Zamboanga City
siege, and the countless bombings in Cotabato, Sultan Kudarat, Sulµ, and Basilan, among
others. The Court cannot simply take the battle of Marawi in isolation. As a crime without
predetermined bounds, the President has reasonable basis to believe that the declaration of
martial law, as well as the suspension of the privilege of the writ of habeas corpus in the whole
of Mindanao, is most necessary, effective, and called for by the circumstances.

In determining what crime was committed, we have to look into the main objective of the
malefactors. If it is political, such as for the purpose of severing the allegiance of Mindanao to
the Philippine Government to establish a wilayat therein, the crime is rebellion. If, on the other
hand, the primary objective is to sow and create a condition of widespread and extraordinary fear
and panic among the populace in order to coerce the government to give in to an unlawful
demand, the crime is terrorism. Here, we have already explained and ruled that the President did
not err in believing that what is going on in Marawi City is one contemplated under the crime of
rebellion.

In any case, even assuming that the insurgency in Marawi City can also be characterized as
terrorism, the same will not in any manner affect Proclamation No. 216. Section 2 of Republic

21
Act (RA) No. 9372, otherwise known as the Human Security Act of 2007 expressly provides that
"nothing in this Act shall be interpreted as a curtailment, restriction or diminution of
constitutionally recognized powers of the executive branch of the government." Thus, as long as
the President complies with all the requirements of Section 18, Article VII, the existence of
terrorism cannot prevent him from exercising his extraordinary power of proclaiming martial '
law or suspending the privilege of the writ of habeas corpus.

Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that rebellion and
terrorism are mutually exclusive of each other and that they cannot co-exist together. RA 93 72
does not expressly or impliedly repeal Art. 134 of the RPC. And while rebellion is one of the
predicate crimes of terrorism, one cannot absorb the other as they have different elements. 300

Verily, the Court upholds the validity of the declaration of martial law and suspension of the
privilege of the writ of habeas corpus in the entire Mindanao region.

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