REPRESENTATIVES EDCEL C. LAGMAN, et al. v. HON. SALVADOR C.

MEDIALDEA,
EXECUTIVE SECRETARY, et al.
G.R. No. 231658, 04 July 2017, EN BANC
(Del Castillo, J.)

CASE DOCTRINE/ MAIN POINT:

It is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the
"range" of actual rebellion and public safety simply because rebellion and public safety have no
fixed physical dimensions. Their transitory and abstract nature defies precise measurements;
hence, the determination of the territorial scope of martial law could only be drawn from arbitrary,
not fixed, variables. The Constitution must have considered these limitations when it granted the
President wide leeway and flexibility in determining the territorial scope of martial law. 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 coming from different parts of
Mindanao. Thus, limiting the proclamation and/or suspension to the place where there is actual
rebellion would not only defeat the purpose of declaring martial law, it will make the exercise
thereof ineffective and useless.

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. The Report also highlighted
the strategic location of Marawi City and the crucial and significant role it plays in Mindanao, and
the Philippines as a whole. In addition, the Report pointed out the possible tragic repercussions
once Marawi City falls under the control of the lawless groups.

After the submission of the Report and the briefings, the Senate issued a resolution 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 House of Representatives likewise issued a
resolution expressing its full support to the President, as it finds no reason to revoke Proclamation
No. 216.

Invoking the third paragraph of Section 18, Article VII of the Constitution, various citizens filed
several petitions, essentially invoking the Court’s specific and special jurisdiction to review the
sufficiency of the factual basis of Proclamation No. 216; and seeking to nullify Proclamation No.
216 for being unconstitutional because it lacks sufficient factual basis.

ISSUES and RULING:

1. Are the instant petitions the "appropriate proceeding" covered by Paragraph 3, Section
18, Article VII of the Constitution?

YES. 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 pursuant to
Section 1 or Section 5 of Article VIII is likewise not applicable under the third paragraph of Section
18, Article VII considering the limited period within which the 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.

2. Is the President, in declaring martial law and suspending the privilege of the writ of habeas
corpus,:

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

NO. 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.

b. required to obtain the favorable recommendation thereon of the Secretary of National

Defense?

NO. 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.

c. required to take into account only the situation at the time of the proclamation, even if
subsequent events prove the situation to have not been accurately reported?

YES. Since the exercise of these powers is a judgment call of the President, the determination of
the Court as to whether there is sufficient factual basis for the exercise of the power to declare
martial law and/or suspend the privilege of the writ of habeas corpus, must be based only on facts
or information known by or 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 the written Report
submitted by him to Congress. These may be based on the 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.

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.

3. Is the power of the Court to review the sufficiency of the factual basis of the proclamation
of martial law or the suspension of the privilege of the writ of habeas corpus independent of
the actual actions that have been taken by Congress jointly or separately?

YES. The Court may strike down the presidential proclamation in an appropriate proceeding filed
by any citizen on the ground of lack 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 or suspension, 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 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.

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.

4. Were there sufficient factual basis for the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus?

YES. 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. What are the parameters for review?

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.

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

b. Who has the burden of proof?

After all, what the President needs to satisfy is only the standard of probable cause for a valid
declaration of martial law and suspension of the privilege of the writ of habeas corpus.

c. What is the threshold of evidence?

What the President needs to satisfy is only the standard of probable cause for a valid declaration
of martial law and suspension of the privilege of the writ of habeas corpus.

5. Is the exercise of the power of judicial review by the Court involves the calibration of
graduated powers granted the President as Commander-in-Chief?
NO. 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 Executive and an infringement on the
prerogative that solely, at least initially, lies with the President.

6. May Proclamation No. 216 be considered, vague, and thus null and void:

a. with its inclusion of “other rebel groups”?

NO. 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.

b. since it has no guidelines specifying its actual operational parameters within the entire
Mindanao region?

NO. 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 2017-2018
proclamation for being irrelevant to its review. Thus, any act committed under the said orders in
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 a trespassing into the sphere that is reserved exclusively for Congress in the
exercise of its power to revoke.

7. Are the armed hostilities mentioned in Proclamation No. 216 and in the Report of the
President to Congress sufficient bases; (a) for the existence of actual rebellion; or (b) for a
declaration of martial law or the suspension of the privilege of the writ of habeas corpus in
the entire Mindanao region?

YES. A review of the facts available to the President 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 power and prerogatives
leading to 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. The President, in issuing Proclamation No. 216, had
sufficient factual bases tending to show that actual rebellion exists. The President’s conclusion
was reached after a tactical consideration of the facts. In fine, the President satisfactorily
discharged his burden of proof. After all, what the President needs to satisfy is only the standard
of probable cause for a valid declaration of martial law and suspension of the privilege of the writ
of habeas corpus.

8. Are terrorism or acts attributable to terrorism equivalent to actual rebellion and the
requirements of public safety sufficient to declare martial law or suspend the privilege of the
writ of habeas corpus?
YES. For a declaration of martial law or suspension of the privilege of the writ of habeas corpus
to be valid, there must be 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 establishment 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-Muslim or Christians were targeted, young
male Muslims were forced to join their group, medical services and delivery of basic services were
hampered, reinforcement of government troops and civilian movement were hindered, and the
security of the entire Mindanao Islands was compromised. Based on the foregoing, 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 writ of habeas
corpus.

9. Will nullifying Proclamation No. 216:

a. have the effect of recalling Proclamation No. 55 s. 2016?

NO. The calling out power is in a different category from the power to declare martial law and the
power to suspend the privilege of the writ of habeas corpus. The Court’s declaration of a state of
national emergency on account of lawless violence in Mindanao through Proclamation No. 55
dated September 4, 2016 where he called upon the Armed Forces and the Philippine National
Police (PNP) to undertake such measures to suppress any and all forms of lawless violence from
spreading and escalating elsewhere in the Philippines.

The President’s calling out power is in a different category from the power to suspend the writ of
habeas corpus and the power to declare martial law. 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 precluded to a
possible future exercise of the latter powers, as in this case.

b. also nullify the acts of the President in calling out the armed forces to quell lawless violence
in Marawi and other parts of the Mindanao region?

NO. Under the “operative fact doctrine”, the unconstitutional statute is recognized as an “operative
fact” before it is declared unconstitutional. The actual existence of a statute prior to such a
determination of constitutionality is an operative fact that may have consequence which cannot
always be erased by a new judicial declaration. The effect of the subsequent ruling as to the
invalidy may have to be considered in various aspects- with respect to particular regulations,
individual and corporate and particular conduct, private and official.

We revert back to the premise that the discretion to determine the territorial scope of martial law
lies with the President. The Constitution grants him the prerogative whether to put the entire
Philippines or any part thereof under martial law. There is no constitutional edict that martial law
should be confined only in the particular place where the armed public uprising actually transpired.
This is not only practical but also logical. Martial law is an urgent measure since at stake is the
nation's territorial sovereignty and survival. As such, the President has to respond quickly. After
the rebellion in the Court's compound, he need not wait for another rebellion to be mounted in
Quezon City before he could impose martial law thereat. If that is the case, then the President
would have to wait until every remote corner in the country is infested with rebels before he could
declare martial law in the entire Philippines. For sure, this is not the scenario envisioned by the
Constitution.

Going back to the illustration above, although the President is not required to impose martial law
only within the Court's compound because it is where the armed public uprising actually transpired,
he may do so if he sees fit. At the same time, however, he is not precluded from expanding the
coverage of martial law beyond the Court's compound. After all, rebellion is not confined within
predetermined bounds.

It is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the
"range" of actual rebellion and public safety simply because rebellion and public safety have no
fixed physical dimensions. Their transitory and abstract nature defies precise measurements;
hence, the determination of the territorial scope of martial law could only be drawn from arbitrary,
not fixed, variables. The Constitution must have considered these limitations when it granted the
President wide leeway and flexibility in determining the territorial scope of martial law. 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 coming from different parts of
Mindanao. Thus, limiting the proclamation and/or suspension to the place where there is actual
rebellion would not only defeat the purpose of declaring martial law, it will make the exercise
thereof ineffective and useless.

x x x 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.

DISSENTING OPINIONS:

JUSTICE CARPIO DISSENTING OPINION

Justice Carpio disagrees with the ponente that the 1987 Constitution does not provide the exact
territorial scope or coverage of martial law and that the proclamation of martial law throughout the
whole of Mindanao including areas outside of Marawi City is valid.

The ponente states:

[M]artial law is a flexible concept; that the "precise extent or range of the rebellion [cannot] be
measured by exact metes and bounds;" that public safety requirement cannot be quantified or
measured by metes and bounds; that the Constitution does not provide that the territorial scope or
coverage of martial law should be confined only to those areas where the armed public uprising
actually transpired; that it will be impractical to expand the territorial application of martial law
each time the coverage of actual rebellion expands and in direct proportion therewith; and, that
there is always a possibility that the rebellion and other accompanying hostilities will spill over.2

He stated that the ponente is wrong in holding that the 1987 Constitution does not provide for the
exact territorial scope of martial law and that the President has the latitude to determine the
territorial scope of martial law and the suspension of the privilege of the writ.1âwphi1 Section 18,
Article VII of the 1987 Constitution provides:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part thereof under martial law. (Emphasis
supplied)

The letter and intent of the 1987 Constitution is that the territorial scope of the President's
proclamation of martial law and the suspension of the privilege of the writ must be confined
only to the territory where actual rebellion exists. The absence of an actual rebellion as defined
by the Revised Penal Code prohibits the President, acting as Commander-in-Chief, from declaring
martial law or suspending the privilege of the writ in any territory of the Philippines. In short,
actual rebellion must exist in a particular territory in the Philippines before the President is
authorized by the Constitution to declare martial law or suspend the privilege of the writ in
a particular territory.

Proclamation No. 216 and the President's Report to Congress do not show the existence of actual
rebellion outside of Marawi City. In fact, the Proclamation itself states that the Maute-Hapilon
armed fighters in Marawi City intended to remove "this part of Mindanao," referring to Marawi
City, from Philippine sovereignty. The Proclamation itself admits that only "this part of
Mindanao," referring to Marawi City, is the subject of separation from Philippine sovereignty by
the rebels.

To extend the territorial scope of martial law to areas outside of Marawi City where there is
no actual rebellion would uphold a clear violation of the letter and intent of the 1987
Constitution.

Although ARTICLE VII Section 10. of the 1935 Constitution states that:

(2) The President shall be commander-in-chief of all armed forces of the Philippines, and,
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion or
imminent danger thereof, when the public safety requires it, he may suspend the privilege of
the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law.
This no longer holds true under the 1987 Constitution. With the intentional removal of
"imminent danger" as a ground to declare martial law, the President cannot proclaim martial law
or suspend the privilege of the writ because of a possibility of a "spill-over of hostilities" outside
the place of actual rebellion. As I stated in my Dissenting Opinion:

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

JUSTICE CAGUIOA DISSENTING OPINION

The petition for the review of the

sufficiency of factual basis of Proclamation
No. 216 is not mooted by its expiration.

Justice Caguioa had summarized in my Dissent to the July 4, 2017 Decision the essence of the
Court's duty to review under Section 18 is, thus:

x x x to embrace and actively participate in the neutral, straightforward, apolitical fact-checking

mechanism that is mandated by Section 18, Article VII of the Constitution, and accordingly
determine the sufficiency of the factual basis of the declaration of martial law or suspension of the
privilege of the writ of habeas corpus. The Court, under Section 18, steps in, receives the
submissions relating to the factual basis of the declaration of martial law or suspension of the
privilege of the writ, and then renders a decision on the question of whether there is sufficient
factual basis for the declaration of martial law or suspension of the privilege of the writ. Nothing
more.

To be sure, the Court will even ascribe good faith to the Executive in its decision to declare martial
law or suspend the privilege of the writ of habeas corpus. But that does not diminish the Court's
duty to say, if it so finds, that there is insufficient factual basis for the declaration of martial law
and suspension of the privilege of the writ of habeas corpus. That is the essence of the Court's duty
under Section 18.

In discharging this duty, the Court does not assign blame, ascribe grave abuse or determine
that there was a culpable violation of the Constitution. It is in the courageous and faithful
discharge of this duty that the Court fulfills the most important task of achieving a proper balance
between freedom and order in our society.
Since Section 18 is a neutral straightforward fact-checking mechanism, any nullification
necessarily does not ascribe any grave abuse or attribute any culpable violation of the Constitution
to the Executive. Meaning, the fact that Section 18 checks for sufficiency and not mere
arbitrariness does not, as it was not intended to, denigrate the power of the Executive to act swiftly
and decisively to ensure public safety in the face of emergency. Thus, the Executive will not be
exposed to any kind of liability should the Court, in fulfilling its mandate under Section 18,
make a finding that there were no sufficient facts for the declaration of martial law or the
suspension of the privilege of the writ.

The veracity and accuracy of the factual

basis offered by the Executive is
inextricably linked to the review of its
sufficiency.

This appears to be the where the case turns. The ponencia, in drawing distinctions between a
review of sufficiency and accuracy, adverts to Justice Velasco's Dissenting Opinion in Fortun v.
Macapagal-Arroyo9 :

President Arroyo cannot be blamed for relying upon the information given to her by the
Armed Forces of the Philippines and the Philippine National Police, considering that the matter of
the supposed armed uprising was within their realm of competence, and that a state of emergency
has also been declared in Central Mindanao to prevent lawless violence similar to the
"Maguindanao massacre," which may be an indication that there is a threat to public safety
warranting a declaration of martial law or suspension of the writ.

Certainly, the President cannot be expected to risk being too late before declaring martial law
or suspending the writ of habeas corpus. The Constitution, as couched, does not require
precision in establishing the fact of rebellion. The President is called to act as public safety
requires.

This justification misses the mark. Since the function of the Court's Section 18 review is NOT to
ascribe fault to the Executive in declaring martial law or suspending the writ of habeas corpus, but
to determine the sufficiency of the factual basis for the proclamation of martial law - an anomalous
situation that directly affects the operations of government and the enjoyment of the people of their
civil liberties within the scope of its implementation - with a view of either upholding or nullifying
the same, a finding of sufficient factual basis should necessarily mean sufficient truthful,
accurate, or at the very least, credible, factual basis. This is because the Court's judgment is not
temporally-bound to the time the proclamation was issued - the ultimate question not being the
liability of the Executive for the proclamation or suspension, but whether the abnormal state of
affairs should continue.

Again, and in fine, a Section 18 review functions not to fix blame, but to be an avenue for the
restoration of the normal workings of government and the enjoyment of individual liberties should
there be showing of insufficient factual basis. In a democracy like ours, a ruling that directly affects
these terminal values requires no less than accuracy and truth. The Court must uphold this standard.
JUSTICE LEONEN DISSENTING OPINION

1. 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.”

2. 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.

a) 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.

c) The vagueness of Proclamation No. 216 hides its real intent. The Operational Directive for the
Implementation of Martial Law issued by the Chief of Staff of the AFP orders his forces to
“dismantle the NPA, other terror-linked private armed groups, illegal drug syndicates, peace
spoilers, and other lawless armed groups.” Arresting illegal drug syndicates and so-called
“peace spoilers” under Martial Law unduly expands Proclamation No. 216 as the factual basis
for the declaration of the Martial Law do not cover these illegal acts for its proclamation. These
acts do not fall within “rebellion” and cannot serve as justification for arrests but are made
possible because of a vague and overly broad Proclamation.

d) Due to lack of guidance from Proclamation No. 216, the AFP as implementor of Martial Law
defines it as taking over of civilian government. This allows the real possibility of military
governors or installing the military as head of local, provincial, or regional government.

3. 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.

a) 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.

b) 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.

c) 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.

4. 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.

5. 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. “We should temper our fears
with reason. Otherwise, we succumb to the effects of the weapons of terror. We should dissent—
even resist—when offered the farce that Martial Law is necessary because it is only an
exclamation point.”

JUSTICE SERENO DISSENTING OPINION

The President was unable to lay down sufficient factual basis to declare martial law and suspend
the privilege of the writ of habeas corpus in the entire islands group of Mindanao in
Proclamation No. 216. Neither was he able to accomplish that in his Report to Congress dated 25
May 2017. At most, he was able to establish the existence of actual rebellion, and the danger to
public safety, in Marawi City.

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

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

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

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

Involving the Abu Sayyaf Group

This is part of the continuous perpetration of attacks by the rebel group throughout the province
of Sulu, wherein it is known to primarily operate. Aside from the encounters between the rebels
and the army, such as that which occurred just last April 2017, there had been numerous
assassinations of members of the armed forces and police in the province.

Involving the Maute Group

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

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

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

Involving the Bangsamoro Islamic Freedom Fighters (BIFF)

About 100 BIFF members were reportedly closing in on the military detachment
in Barangay Gadong, Datu Salibo, on 4 May 2017 but government forces used air strikes to
drive them away

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

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

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