Arnaez, Jam Ember C.

J.D. - 4
Justice Carpio’s Dissenting Opinion

The court ruled that the Court’s power to review the factual basis of martial law is sui
generis. It is a separate power from the Court’s power to review based on grave abuse of
discretion. The proper proceeding therefore is not limited to certiorari but is to refer to any
complaint, petition or any matter to be referred to the court for resolution.

Carpio also contended that the proper proceeding should not be limited to certiorari for
the reason that the power of review being sui generis, thus, it is different from the Court’s power
to review grave abuse of discretion.

The Court ruled that (a) the power to review is only limited to the pleadings and to the
facts available to the President prior to or during the declaration of the state of Martial Law; (b)
the Court ruled that the constitution did not intend congress nor any other official to interfere a
priori to the declaration of martial law. Hence, the recommendation of the Secretary of Defence
is not a requisite for the valid declaration of martial law; (c) and since the power to review is
limited only to facts prior to or subsisting during the time of the declaration of martial law, the
court may not rule on the factual basis of the declaration based on facts which were proven or
discovered subsequent to the declaration.

Carpio did not agree. The duty of the court is to determine whether or not the President
was arbitrary and if the facts Presented and used by the President were credible. What the
constitution requires is not that the declaration be based on facts but that those facts must be
“sufficient” to serve as basis for the same. The test to be employed is not one for “grave abuse of
discretion” but one to “test sufficiency of facts” which would entail the review of the connection
of the facts alleged in relation to the necessity and appropriateness of the employment of martial
law powers.

The Court unanimously ruled in the affirmative the Court’s power of review is
independent of the actual actions taken by the House and Senate. The Court ruled that the power
of review is separate from and independent of the power to revoke of Congress. The court made
a distinction between the power to review and the power to revoke.

The Court ruled in the affirmative to the question of whether or not the review is limited
to facts prior to or during the declaration, however, it also held that while the power to review is
limited to facts prior or during the declaration of martial law, the power of congress is not limited
to such and congress may take into consideration facts subsequent to the declaration. Further, the
court clarified that the power to review is a passive power invoked only when a citizen files a
proceeding with the court whereas the power to revoke is an active power which may be
employed by congress on its own.

The Court also reversed its pronouncement in the Macapagal case which ruled that the
power of review may only be exercised when congress has failed to exercise its power.
Accordingly, the Court clarified that such pronouncement has clipped the powers of the Courts
contrary to the intent of the constitution of empowering the Court as an additional safeguard
against abuse of martial law.

The Court ruled that: (a) the parameters for review is to determine if the declaration is
“within the proper bounds” set by the constitution, that is, whether or not the President has
Arnaez, Jam Ember C.
J.D. - 4

complied with the requisite condition set by the Constitution; (b) Although this was one of the
issues raised, this was not however well threshed out in the Court’s ruling. The Court did
however rule that the review is limited to the sufficiency and not the precision or correctness of
the facts sued as basis to declare martial law; the court further ruled that to require the President
to verify every fact presented to him would be to add an unnecessary burden which would negate
the emergency nature of the declaration; (c) the Court ruled that the threshold of evidence
required for the President s merely probable cause which may be based even on past events.

Carpio disagreed and contended that the burden of proof falls upon the government. The
doctrine of presumption of regularity and the general rule on burden of proof does not apply to
this case. The power of review is a sui generis power designed primarily to counter and prevent
the abusive use of the martial law powers. It must be the government, who has access to the
information, who shall be responsible for divulging the same if the review power is to live up to
its purpose. It is not the people, who do not have access to the same reports and machinery who
should be burdened to prove the insufficiency of the factual basis of martial law.

Carpio agreed that the quantum of evidence to be used should be probable cause as
martial law powers are meant to be employed in emergencies.

On this issue, the Court ruled in the negative to the question whether the exercise of the
power of judicial review by this Court involves the calibration of graduated powers granted the
President Commander-in-Chief, namely: calling out powers, suspension of the privilege of the
writ of habeas corpus, and declaration of martial law. The President need not apply calling out
power, the suspension of the writ of habeas corpus and martial law in a graduated manner. The
application of these powers by the President lies on his discretion, and limited only by the
occurrence of the condition set forth in the constitution.

Carpio ruled with the majority for the sixth, seventh and eight issues. Carpio argues that
there are grounds for declaring martial law over Marawi City but not to the whole of Mindanao.
Carpio explains that the constitution requires that martial law may only be declared when two
conditions exist: that there is the existence of actual rebellion; that public safety requires it. There
two requisites are present in Marawi City as there is the presence of actual uprising and there is a
need to defend civilian lives. The constitution is explicit, it is only by actual and not threat of
uprising which may serve as basis for the declaration of Martial law, and while an actual uprising
did indeed happen in Marawi City, the same is not true for the rest of Mindanao. The threat of
rebellion or invasion in the rest of Mindanao is not a valid ground for the imposition of Martial
law in those areas. Carpio emphasized that rebellion does not require mass gathering or uprising
and that even with the limited number of fighters, the same may still be considered as rebellion
for the purpose of declaring Martial Law.