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Promulgated:
CARPIO, J.:
The Case
L-4
!
I
Dissenting Opinion 2 G.R. Nos. 231658, 231771 and
231774
c'
11. On April 2016, the [Islamic State of Iraq and Syria's] weekly
newsletter, Al Naba, announced the appointment of Abu Sayyaf leader
[Isnilon] Hapilon as the emir or leader of all ISIS forces in the Philippines.
xxx.
xx xx
22. On 23 May 2017, Hapilon was seen at the safe house of the
ISIS-inspired local rebel groups in Barangay Basak Malutlut, Marawi
City. A joint military and police operation to serve a warrant of arrest and
to capture Hapilon and the Maute Group operational leaders for
kidnapping for ransom was initiated. The focused military operation
started with an encounter at about 1:30 in the afternoon between
government forces and ISIS-inspired local rebel group members. This was
followed by a series of encounters throughout the day in different parts of
Marawi City.
xx xx
~
Dissenting Opinion 4 G.R. Nos. 231658, 231771 and
231774
DONE, in the Russian Federation, this 23rd day of May in the year
of our Lord[,] Two Thousand and Seventeen. 3
xx xx
Annex "A" of Lagman Petition; Annex "A" of Cullamat Petition; Annex "A" of Mohamad
Petition; Annex "IO" ofOSG Consolidated Comment.
~
I
Acronym ofa group's full Arabic name, al-Daw/a al-lslamiyafi al-Iraq wa al-Sham, translated as
"Islamic State in Iraq and Syria."
~.
Dissenting Opinion 6 G.R. Nos. 231658, 231771 and
231774
The BJMP directed its personnel at the Marawi City and other
affected areas to evacuate.
~
Dissenting Opinion 7 G.R. Nos. 231658, 231771 and
231774
There are reports that these lawless armed groups are searching
for Christian communities in Marawi City to execute
Christians. They are also preventing Maranaos from leaving
their homes and forcing young male Muslims to join their
groups.
~
! *
The Issue
Discussion
It/
Dissenting Opinion 9 G.R. Nos. 231658, 231771 and
231774
a special civil action for certiorari under Rule 65 of the Rules of Court. 6
I disagree.
Sec. 18. xx x.
xx xx
Second, the Court is vested by the 1987 Constitution with the power
to determine the "sufficiency of the factual basis" of the declaration of
martial law or suspension of the privilege of the writ. Indeed, the Court is
expressly authorized and tasked under paragraph 3, Section 18, Article VII
of the 1987 Constitution to be a trier of facts in the review petition.
Moreover, the standard of "sufficiency of factual basis" is a unique standard
applicable only to a review of the constitutionality of the declaration of
martial law or suspension of the privilege of the writ.
Third, the Court must decide the case within 30 days from the date of
filing of the petition. In contrast, all other cases brought to the Court shall be
resolved within 24 months, which period shall be reckoned from the date of
submission for resolution rather than the date of filing. 8
~:
Dissenting Opinion 10 G.R. Nos. 231658, 231771 and
231774
collegiate courts, and three months for all lower courts. (Emphasis supplied)
Julie's Franchise Corp. v. Ruiz, 614 Phil. 108, 117 (2009), citing Soriano v. Ombudsman, 610
Phil. 75 (2009) & Castro v. People, 581 Phil. 639 (2008).
10
De Vera v. De Vera, 602 Phil. 886, 877 (2009).
II
Id.
~
Dissenting Opinion 11 G.R. Nos. 231658, 231771 and
231774
12
OSG Consolidated Comment, pp. 23-26.
13
392 Phil. 618 (2000).
14
15
Id. at 642. ~
149 Phil. 547 (1971).
Dissenting Opinion 12 G.R. Nos. 231658, 231771 and
231774
Nowhere in the 1935 Constitution did it state that any citizen could
ask the Court to review the "sufficiency of the factual basis" of the
President's suspension of the privilege of the writ. In Lansang, 16 the Court
used its ordinary certiorari power to review the constitutionality of the
suspension of the privilege of the writ as the 1935 Constitution neither
contained the expanded certiorari power of the Court nor the "sufficiency of
the factual basis" standard now found in the 1987 Constitution. This is not
the situation in the present case. Applying the ordinary certiorari power
the Court used in Lansang to the present petitions is to erase from the
1987 Constitution the "sufficiency of the factual basis" standard
expressly written in paragraph 3, Section 18, Article VII of the 1987
Constitution, a standard specifically applicable to the review of the
imposition of martial law or the suspension of the privilege of the writ.
Applying the ordinary certiorari review power in Lansang to the present
petitions is to drastically revise paragraph 3, Section 18, Article VII of the
1987 Constitution, an act obviously beyond the power of the Court to do.
As to who bears the burden of proof, the OSG argues that petitioners
must show proof of the sufficiency of the factual basis, being the parties who
allege. 17 Moreover, the OSG argues that the presumption of regularity
accorded to acts of the President 18 likewise pu~s the burden of proof on
peti ti one rs.
I disagree.
The Court cannot simply trust blindly the President when he declares
martial law or suspends the privilege of the writ. While the 1987
G:onstitution vests the totality of executive power in one person only, the
same Constitution also specifically empowers the Court to "review" the
"sufficiency of the factual basis" of the President's declaration of martial law
or suspension of the privilege of the writ if it is subsequently questioned by
any citizen. To "review" the "sufficiency of the factual basis" for the
declaration of martial law or suspension of the privilege of the writ means:
(1) to make a finding of fact that there is or there is no actual rebellion or
invasion, and if there is, (2) to determine whether public safety requires the
declaration of martial law or suspension of the privilege of the writ to
suppress the rebellion or invasion.
19
Supra.
A .i
Dissenting Opinion 14 G.R. Nos. 231658, 231771 and
.231774
discretion because the President has the prerogative to decide how to deal
with the rebellion - whether only to call out the armed forces to suppress the
rebellion, or to declare martial law - with or without the suspension of the
1
privilege of the writ. If the President decides only to call out the armed
forces, the review power of the Court under the "sufficiency of the factual
basis" standard does not apply because this standard, as paragraph 3,
Section 18, Article VII of the 1987 Constitution itself states, applies only in
case martial law is imposed or the privilege of the writ is suspended.
That the intent of the 1987 Constitution is exactly what its letter says
is explained in the deliberations of the Constitutional Commission, to wit:
FR. BERNAS. x x x. When he (the President) judges that it is
necessary to impose martial law or suspend the privilege of the writ of
habeas corpus, his judgment is subject to review. We are making it
subject to review by the Supreme Court and subject to concurrence by
the National Assembly. xx x. 20 (Emphasis supplied)
~
Dissenting Opinion 15 G.R. Nos. 231658, 231771 and
231774
The President need not gather proof beyond reasonable doubt, the
highest quantum of evidence, which is the standard required for convicting
an accused charged with a criminal offense under Section 2, Rule 133 of the
Rules of Court. 22 To require the President to establish the existence of
rebellion or invasion with such amount of proof before declaring martial law
or suspending the privilege of the writ constitutes an excessive restriction on
"the President's power to act as to practically tie (his) hands and disable
(him) from effectively protecting the nation .against threats to public
safety. " 23
21
The following discussion on the quantum of evidence is taken from the Dissenting Opinion of
Justice Antonio T. Carpio in Fortun v. Macapagal-Arroyo, 684 Phil. 526, 595-598 (2012).
22
Section 2, Rule 133 of the Rules of Court reads in its entirety:
Sec. 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled
to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond
reasonable doubt does not mean such a degree of proof, excluding possibility of error,
produces absolute certainly. Moral certainly only is requited, or that degree of proof
which produces conviction in an unprejudiced mind.
23
Fortun, supra, at 596, quoting from the Brief of Amicus Curiae Father Joaquin Bernas, S.J.
24
In Manalo v. Roldan-Confesor, 290 Phil 311, 323 (1992), the Court held:
Clear and convincing proof is "x x x more than mere preponderance, but not to the
extent of such certainty as is required beyond reasonable doubt as in criminal cases xxx"
while substantial evidence "x x x consists of more than a mere scintilla of evidence but
may be somewhat less than a preponderance x x x." Consequently, in the hierarchy of
evidentiary values, We find proof beyond reasonable doubt at the highest level, followed
by clear and convincing evidence, preponderance of evidence, and substantial evidence,
in that order. (Citations omitted)
v
Dissenting Opinion 16 G.R. Nos. 231658, 231771 and
231774
Probable cause is the same amount of proof required for the filing of a
criminal information by the prosecutor and for the issuance of an arrest
warrant by a judge. Probable cause has been defined as a "set of facts and
circumstances as would lead a reasonably discreet and prudent man to
believe that the offense charged in the Information or any offense included
therein has been committed by the person sought to be arrested. " 28 In Viudez
II v. Court ofAppeals,29 the Court explained:
x x x. In determining probable cause, the average man weighs
the facts and circumstances without resorting t~ the calibrations of the
rules of evidence of which he has no technical knowledge. He relies on
common sense. A finding of probable cause needs only to rest on evidence
showing that, more likely than not, a crime has been committed and that it
25
Section 1, Rule 133 ofthe Rules of Court reads in its entirety:
Sec. 1. Preponderance of evidence, how determined - In civil cases, the party
having the burden of proof must establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of the evidence on the issues
involved lies, the court may consider all the facts and circumstances of the case, the
witnesses' manner of testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their interest or want of
interest, and also their personal credibility so far as the same may legitimately appear
upon trial. The court may also consider the number of witnesses, though the
preponderance is not necessarily with the greater number.
26
Raymundo v. Lunaria, 590 Phil 546, 553 (2008).
27
Section 5, Rule 133 ofthe Rules of Court provides:
Sec. 5. Substantial evidence. - In cases filed before administrative or quasi-judicial
bodies, a fact may be deemed established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might accept as adequate to justify
a conclusion.
28
Santos v. Orda, Jr., 634 Phil 452, 461 (2010).
29
Viudez II v. Court ofAppeals, 606 Phil. 337 (2009).
~
Dissenting Opinion 17 G.R. Nos. 231658, 231771 and
231774
xx xx
30
Id. at 349.
31
OSG Memorandum, pp. 49-51; TSN, 14 June 2017, pp. 210-211.
32
Aguilar v. Department ofJustice, 717 Phil 789, 800 (2013).
33
People v. Court ofAppeals, 361 Phil 401, 410-413 (1999).
v
Dissenting Opinion 18 G.R. Nos. 231658, 231771 and
231774 '
34
The definition of rebellion under the Revised Penal Code is the only legal definition of rebellion
known and understood by the Filipino people when they ratified the 1987 Constitution.
35
Proclamation No. 216 states in part:
"WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968,
provides that "the crime of rebellion or insurrection is committed by rising and taking
arms against the Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Republic of the Philippines or ay part thereof,
of any body of land, naval or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives"
36
An Act Punishing the Crime of Coup D'etat by Amending Articles 134, 135 and 136 of Chapter
One, Title Three of Act Numbered Thirty-Eight Hundred and Fifteen, Otherwise Known as The
Revised Penal Code, and for Other Purposes.
~
"
Dissenting Opinion 19 G.R. Nos. 231658, 231771 and
231774
This is the specific review power that the framers of the 1987
Constitution and the people who ratified the 1987 Constitution expressly
tasked the Court as a checking mechanism to any abusive use by the
President of his Commander-in-Chief power to declare martial law or
suspend the privilege of the writ. Needless to say, the Court has no option
c' but to perform its solemn constitutional duty in the present petitions.
l-t/
Dissenting Opinion 21 G.R. Nos. 231658, 231771 and
231774
law and suspension of the privilege of the writ, .I find that probable cause
exists that there is actual rebellion in Marawi City and that public safety
requires the declaration of martial law and suspension of the privilege of the
writ in Marawi City to suppress the rebellion.
The armed and public uprising in Marawi City by 400 to 500 Maute-
Hapilon armed fighters, with the announced intention to impose Shariah
Law in Marawi City and make it an Islamic State, is concrete and
indisputable evidence of actual rebellion. The OSG cites People v.
Geronimo, 39 People v. Lovedioro, 40 and Ladlad v. Velasco 41 in support of its
position that rebellion is a crime of masses and multitudes. However, the
Maute-Hapilon armed fighters in Marawi City, numbering no more than 500,
do not constitute masses or multitudes. Neither do they command masses or
multitudes of followers in Marawi City. Nevertheless, rebellion may be
committed even by a single armed fighter who publicly takes up arms
against the government to remove a certain territory from allegiance to the
Government. Rebellion is not necessarily a crime of masses or multitudes.
0
40
320 Phil. 481 (1995).
41
Supra note 37, at 329.
I
I
Dissenting Opinion 22 G.R. Nos. 231658, 231771 and
231774
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" is the subject of separation
from Philippine sovereignty by the rebels. The President's Report did not
mention any other city, province or territory in Mindanao, other than
Marawi City, that had a similar public uprising by a rebel group, an
element of actual rebellion. Thus, the President's Report concludes that
"based on various verified intelligence reports from the AFP and the
PNP, there exists a strategic mass action of lawless armed groups in
Marawi City."
0 '
The President's Report expressly states that the Maute-Hapilon
armed fighters were waging rebellion first in Marawi City as a prelude
or "precedent" to waging rebellion in the rest of Mindanao. This is a
clear admission that the rebellion was only in Marawi City and had yet to
spread to the rest of Mindanao. The President's Report declares:
rebel groups to sow terror, and cause death and damage to property, not only
in Marawi City but also in other parts of Mindanao. Of the same tenor, the
President's Report considers the siege of Marawi City as a precedent or
starting point to the spread of control by the Maute-Hapilon group over the
entire Mindanao.
43
II RECORD, supra note 7, at 412.
v
Dissenting Opinion 24 G.R. Nos. 231658, 231771 and
231774
The rebels who escape Marawi City may be issued a warrant of arrest
anywhere within the Philippines without the need to declare martial law or
suspend the privilege of the writ outside of Marawi City. The re,bels may
even be arrested by a civilian pursuant to the provision on warrantless arrests
44
Supra note 39, at 96.
4;
Supra note 40, at 488. ~
Dissenting Opinion 25 .G.R. Nos. 231658, 231771 and
231774
under the Rules of Court. To allow martial law in the whole of Mindanao on
the sole basis of securing the arrest of rebels who escape Marawi City would
not only violate the 1987 Constitution, but also render useless the provisions
of the Revised Penal Code and the Rules of Court. The act of the rebels in
fleeing or escaping to other territories outside of the place of rebellion will
certainly not constitute armed public uprising for the purpose of removing
from allegiance to the Philippines the territory where the rebels flee or
escape to.
46
Section 3 of R.A. No. 9372, otherwise known as the Human Security Act of 2007, defines
terrorism in this wise:
Sec. 3. Terrorism. - Any person who commits an act punishable under any of the
following provisions of the Revised Penal Code:
a. xx x.
xx xx
d. Article 248 (Murder);
e. Article 267 (Kidnapping and Serious Illegal Detention);
f. Article 324 (Crimes Involving Destruction), or under
I. Presidential Decree No. 1613 (The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and Hazardous
and Nuclear Waste Control Act of 1990);
xx xx
6. Presidential Decree No. 1866, as amended (Decree
Codifying the Laws on Illegal and Unlawful Possession,
Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Ammunitions or Explosives)
thereby sowing and creating 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 shall be guilty of the crime of terrorism and shall suffer the
penalty of forty (40) years of imprisonment, without the benefit of parole as
provided for under Act No. 4103, otherwise known as the Indeterminate
v
Sentence Law, as amended.
Sec. 4. Conspiracy to Commit Terrorism. - Persons who conspire to commit the crime of
terrorism shall suffer the penalty of forty (40) years of imprisonment.
Dissenting Opinion 26 G.R. Nos. 231658, 231771 and
231774
Counsel for petitioners and the OSG share the view that martial law
under the 1987 Constitution does not significantly give the President
additional powers.
v
47
265 Phil. 325 (1990).
48
Id. at 336.
49
RULES OF CouRT, Rule 113, Sec. 5.
Dissenting Opinion 27 G.R. Nos. 231658, 231771 and
231774
Under Section 18, Article VII of the 1987' Constitution, "[a] state of
martial law does not suspend the operation of the Constitution," including
Article III on the Bill of Rights. However, these rights are not absolute and
their continued enjoyment is subject to certain limitations, as may be
prescribed by law. Among these are the right to privacy of communication
and the freedom to travel, both of which can be restricted through a law
when public safety requires it. Article III, or the Bill of Rights, of the 1987
Constitution provides:
xx xx
Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impai~ed except in the interest
v
Dissenting Opinion 28 G.R. Nos. 231658, 231771 and
231774
v
Dissenting Opinion 29 G.R. Nos. 231658, 231771 and
231774
or any of the authorized consular officers may, after due hearing and in their
proper discretion, refuse to issue a passport, or restrict its use or withdraw or cancel
a passport: Provided, however, That such act shall not mean a loss or doubt on the
person's citizenship: Provided, further, That the issuance of a passport may not be denied
if the safety and interest of the Filipino citizen is at stake: Provided, finally, That refusal
54
or cancellation of a passport would not prevent the issuance of a Travel Document to
allow for a safe return journey by a Filipino to the Philippines.
522 Phil. 705 (2006). v
Dissenting Opinion 30 G.R. Nos. 231658, 231771 and
231774
~
55
Id. at 790-792.
Dissenting Opinion 31 G.R. Nos. 231658, 231771 and
231774
xx xx
56
57
supervision of the President or her duly designl:!-ted representative who
Id. at 788-789, 793-794.
R.A. No. 6826, Sec. 1.
vi
Dissenting Opinion 32 G.R. Nos. 231658, 231771 and
231774
~
60
Section 18, Article VII of the 1987 Constitution reads in pertinent part:
Dissenting Opinion 34 G.R. Nos. 231658, 231771 and
231774
a state of martial law does not suspend the operation of the 1987
Constitution and it is Congress that is empowered by law "to define,
prescribe, and apportion the jurisdiction of various courts." 61 To date, no
statute confers jurisdiction on military courts and agencies over civilians
where civil courts are unable to function. On the contrary, Republic Act No.
7055 62 even strengthened civilian supremacy over the military by returning
to the civil courts the jurisdiction over certain offenses involving members
of the Armed Forces of the Philippines, other persons subject to military law,
and the members of the Philippine National Police, repealing for the purpose
certain presidential decrees promulgated during the Marcos dictatorship.
A Final Word
h-
Dissenting Opinion 35 G.R. Nos. 231658, 231771 and
231774
public and official statement seriously for this is no trivial matter. When
President Ferdinand Marcos declared martial law in 1972 under the 193 5
Constitution, he abolished Congress, shut down media, imprisoned leaders
of the political opposition, packed the Supreme Court with his law school
classmates and loyalists, and ruled by decree - thereby making himself a
dictator for over 13 years until the people ousted him from power in 1986.
The Court cannot simply gloss over this Presidential mindset that has
been publicly broadcasted to the nation and to the world. Any sign of
acquiescence by the Court to this Presidential mindset could be fatal to the
survival of the 1987 Constitution and our democracy. The Court cannot play
with the fire of martial law which could turn into ashes the very Constitution
that members of the Court are sworn to preserve and defend, a tragic event
that once befell the Court in 1972 and brought the Court to its lowest point
in its history. The Court must never allow the 1972 debacle to be ever
repeated again. With this wisdom from hindsight, the Court must now stand
firm and apply the clear letter and intent of the 1987 Constitution without
fear or favor, for the nation and history demand no less from every member
of the Court.
The decision of the Court in the present petitions has far reaching
ramifications on the future of our civil liberties and our democratic society
under the rule of law. For in deciding the present petitions, the Court
prescribes the fundamental rules governing the exercise of the Commander-
in-Chief powers under the 1987 Constitution not only for the incumbent
President but also for all future Presidents. The Court should not mercilessly
inflict on the Filipino people the constant fear of a recurrence of the
nightmarish martial law of Marcos.
Just hours after the Decision in the present petitions was announced
on 4 July 2017, President Duterte told media th'1;t he declared a Mindanao-
wide martial law to prevent a "spillover':
"When you declare martial law, you have to use your coconut, the
grey matter between your ears. It's easy to escape because there is no
division in terms of land. You can go anywhere, there can be a
spillover," he added. 64
Associate Justice
64
Trisha Macas, Duterte on SC decL~ion: Mindanao-wide martial law really needed to prevent
sp iilover <http: //www. gma network.co m/n ews/n ews/n a tio n/616846/du terte-o n-sc-decis ion-
m a rtial-la w- rea II y-n eeded-to-prevent-spillover/story/> [last accessed July 5, 2017]. See also
Sandy Araneta, Macon Ramos-Araneta & Marice! V. Cruz, Duterte, allies, foes give mixed
reactions <http://manilastandard.net/news/top-stories/241072/d uterte-allies-foes-give-m ixed-
reactions.htm I> [last accessed July 5, 2017]; Dharel Placido, Duterte says he was right to place
entire Mindanao under martial law <http://news.abs-cbn.com/news/07/04/17 /duterte-says-he-
was-right-to-place-entire-mindanao-under-martial-law> [last accessed July 5, 2017]; Nestor
Corrales, Duterte: I respect dissenting opzntons on Mindanao martial law
<http ://newsin fo. inquirer. n et/910896/d uterte-i-res pect-d issentin g-o pinions-on-min da nao-
ma rtia 1-la w> [last accessed July 5, 2017].