ARTICLE VII [EXECUTIVE DEPARTMENT]

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. Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or suspension, which revocation
shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension,
convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of
the writ of habeas corpus.
The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged
for rebellion or offenses inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.

Aquino vs Enrile [59 SCRA183]

FACTS: The events which form the background of these nine petitions are related, either briefly
or in great detail, in the separate opinions filed by the individual Justices. The petitioners were
arrested and held pursuant to General Order No. 2 of the President (September 22, 1972), for
being participants or for having given aid and comfort in the conspiracy to seize political and
state power in the country and to take over the Government by force
General Order No. 2 was issued by the President in the exercise of the powers he assumed by
virtue of Proclamation No. 1081 (September 21, 1972) placing the entire country under martial
law.
ISSUE: The first major issue raised by the parties is whether this Court may inquire into the
validity of Proclamation No. 1081. Stated more concretely, is the existence of conditions claimed
to justify the exercise of the power to declare martial law subject to judicial inquiry? Is the
question political or justiciable in character?
RULING: Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold that the question is
political and therefore its determination is beyond the jurisdiction of this Court. The reasons are
given at length in the separate opinions they have respectively signed. Justice Fernandez adds
that as a member of the Convention that drafted the 1973 Constitution he believes that the
Convention put an imprimatur on the proposition that the validity of a martial law proclamation
and its continuation is political and non-justiciable in character.
Justice Barredo, on the other hand, believes that political questions are not per se beyond the
Courts jurisdiction, the judicial power vested in it by the Constitution being plenary and all-

ARTICLE VII [EXECUTIVE DEPARTMENT]

embracing, but that as a matter of policy implicit in the Constitution itself the Court should
abstain from interfering with the Executives Proclamation, dealing as it does with national
security, for which the responsibility is vested by the charter in him alone. But the Court should
act, Justice Barredo opines, when its abstention from acting would result in manifest and
palpable transgression of the Constitution proven by facts of judicial notice, no reception of
evidence being contemplated for purposes of such judicial action.
It may be noted that the postulate of non-justiciability as discussed in those opinions involves
disparate methods of approach. Justice Esguerra maintains that the findings of the President on
the existence of the grounds for the declaration of martial law are final and conclusive upon the
Courts. He disagrees vehemently with the ruling in Lansang vs. Garcia, 42 SCRA 448, December
11, 1971, and advocates a return to Barcelon vs. Baker, 5 Phil. 87 (1905), and Montenegro vs.
Castaeda, 91 Phil. 882 (1952). Justice Barredo, for his part, holds that Lansang need not be
overturned, indeed does not control in these cases. He draws a distinction between the power of
the President to suspend the privilege of the writ of habeas corpus, which was the issue in
Lansang, and his power to proclaim martial law, calling attention to the fact that while the Bill of
Rights prohibits suspension of the privilege except in the instances specified therein, it places no
such prohibition or qualification with respect to the declaration of martial law.
Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds that there is no
dispute as to the existence of a state of rebellion in the country, and on that premise emphasizes
the factor of necessity for the exercise by the President of his power under the Constitution to
declare

martial

law,

holding

that

the

decision

as

to

whether

or

not

there

is

such necessity is wholly confided to him and therefore is not subject to judicial inquiry, his
responsibility being directly to the people.
Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and Muoz Palma.
They hold that the constitutional sufficiency of the proclamation may be inquired into by the
Court, and would thus apply the principle laid down in Lansang although that case refers to the
power of the President to suspend the privilege of the writ of habeas corpus. The recognition of
justiciability accorded to the question in Lansang, it should be emphasized, is there expressly
distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to
ascertaining merely whether he (the President) has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. The
test is not whether the Presidents decision is correct but whether, in suspending the writ, he did
or did not act arbitrarily. Applying this test, the finding by the Justices just mentioned is that
there was no arbitrariness in the Presidents proclamation of martial law pursuant to the 1935
Constitution; and I concur with them in that finding. The factual bases for the suspension of the
privilege of the writ of habeas corpus, particularly in regard to the existence of a state of
rebellion in the country, had not disappeared, indeed had been exacerbated, as events shortly
before said proclamation clearly demonstrated. On this Point the Court is practically unanimous;
Justice Teehankee merely refrained from discussing it.
Insofar as my own opinion is concerned the cleavage in the Court on the issue of justiciability is
of not much more than academic interest for purposes of arriving at a judgment. I am not unduly

ARTICLE VII [EXECUTIVE DEPARTMENT]

exercised by Americas decisions on the subject written in another age and political clime, or by
theories of foreign authors in political science. The present state of martial law in the Philippines
is peculiarly Filipino and fits into no traditional patterns or judicial precedents.
In the first place I am convinced (as are the other Justices), without need of receiving evidence as
in an ordinary adversary court proceeding, that a state of rebellion existed in the country when
Proclamation No. 1081 was issued. It was a matter of contemporary history within the
cognizance not only of the courts but of all observant people residing here at the time. Many of
the facts and events recited in detail in the different Whereases of the proclamation are of
common knowledge. The state of rebellion continues up to the present. The argument that while
armed hostilities go on in several provinces in Mindanao there are none in other regions except in
isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the
country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It
does not consist simply of armed clashes between organized and identifiable groups on fields of
their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and
operating precisely where there is no actual fighting. Underground propaganda, through printed
news sheets or rumors disseminated in whispers; recruitment of armed and ideological
adherents, raising of funds, procurement of arms and material, fifth-column activities including
sabotage and intelligence all these are part of the rebellion which by their nature are usually
conducted far from the battle fronts. They cannot be counteracted effectively unless recognized
and dealt with in that context.
Secondly, my view, which coincides with that of other members of the Court as stated in their
opinions, is that the question of validity of Proclamation No. 1081 has been foreclosed by the
transitory provision of the 1973 Constitution [Art. XVII, Sec. 3(2)] that all proclamations, orders,
decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be
part of the law of the land and shall remain valid, legal, binding and effective even after the
ratification of this Constitution To be sure, there is an attempt in these cases to resuscitate
the issue of the effectivity of the new Constitution. All that, however, is behind us now. The
question has been laid to rest by our decision in Javellana vs. Executive Secretary (L-36142, 50
SCRA 30, March 31, 1973), and of course by the existing political realities both in the conduct of
national affairs and in our relations with other countries.
On the effect of the transitory provision Justice Muoz Palma withholds her assent to any
sweeping statement that the same in effect validated, in the constitutional sense, all such
proclamations, decrees, instructions, and acts promulgated, issued, or done by the incumbent
President. All that she concedes is that the transitory provision merely gives them
the imprimatur of a law but not of a constitutional mandate, and as such therefore are subject
to judicial review when proper under the Constitution.
Finally, the political-or-justiciable question controversy indeed, any inquiry by this Court in the
present cases into the constitutional sufficiency of the factual bases for the proclamation of
martial law has become moot and purposeless as a consequence of the general referendum of
July 27-28, 1973. The question propounded to the voters was: Under the (1973) Constitution,
the President, if he so desires, can continue in office beyond 1973. Do you want President Marcos

ARTICLE VII [EXECUTIVE DEPARTMENT]

to continue beyond 1973 and finish the reforms he initiated under Martial Law? The
overwhelming majority of those who cast their ballots, including citizens between 15 and 18
years, voted affirmatively on the proposal. The question was thereby removed from the area of
presidential power under the Constitution and transferred to the seat of sovereignty itself.
Whatever may be the nature of the exercise of that power by the President in the beginning
whether or not purely political and therefore non-justiciable this Court is precluded from
applying its judicial yardstick to the act of the sovereign.