. . . [T]he following facts and/or events were deemed to have been considered by the President in issuing Proclamation No. 216, as plucked from and extant in Proclamation No. 216 itself:

x x x x

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) "[L]awless 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."

6) "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."

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 adversely affected. The bridge and road blockades set up by the groups effectively deprive the government of its ability to deliver basic services to its citizens. Troop reinforcements have been hampered, preventing the government from 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 of Mindanao."

9) "Considering the networkand 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 prerogatives, 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 reached after a tactical consideration of the facts. In fine, the President satisfactorily discharged his burden of proof.^[2]

The last argument of petitioner, namely that the detainees were not caught in flagrante delicto and therefore the arrest was illegal was refuted in the Comment thus: "Again petitioner simply misses the point. As this Court correctly observed, the crimes of subversion and rebellion are continuing offenses. Besides this point involves an issue of fact."

. . . . [H]e (Dural) was comm1ttmg an offense, when arrested, because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership is penalized, and for subversion which, like rebellion is, under the doctrine of Garcia vs. Enrile, a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude . . .

x x x Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained.^[6]

After the successful Marawi Operation, the Basilan-based ASG is left with 74 members; the Maute Group with 30 members; the Maguid Group has 11; and the Turaifie Group has 22 members with a total of 166 firearms.

However, manpower increased by more or less 400, with almost the same strength that initially stormed Marawi City, through clandestine and decentralized recruitment of the Daesh-inspired groups at their respective areas of concentration.

ASG Basilan-based recruited more or less 43 new members in Basilan; more or less 250 members by the Maute Group in the Lanao provinces; 37 by the Maguid Group in Sarangani and Sultan Kudarat, and more or less 70 by the Turaifie Group in Maguindanao. These newly recruited personalities were motivated by clannish culture as they are relatives of terrorist personalities; revenge for their killed relatives/parents during the Marawi operations; financial gain as new recruits were given an amount ranging from PhP15,000.00 to 50,000.00; and, as radicalized converts.

These newly recruited members are undergoing trainings in tactics, markmanships and bombing operations at the different areas of Mount Cararao Complex, Butig, and Piagapo all of Lanao Del Sur. Recruits with high potentials were given instruction on IED-making and urban operations.

Furthermore, the situation has become complicated with the influx of Foreign Terrorist Fighters (FTFs), capitalizing on the porous maritime boundaries in Southern Philippines, in the guise as tourists and businessmen. As of this period, 48 FTFs were monitored joining the Daesh-inspired groups, particularly the Maute Group in Lanao and Turaifie Group in Central Mindanao. The closeness of these two groups is predominant with @ Abu DAR who has historically established links with Turaifie.

On Dawlah Islamiyah-initiated violent incidents, these have increased to 100% for the 2^nd Semester.^[8]

. . . . This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each other's acts. The theory is that every law, being the joint act of the Legislature and the Executive, has passed careful scrutiny to ensure that it is in accord with the fundamental law. This Court, however, may declare a law, or portions thereof, unconstitutional, where a petitioner has shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one. In other words, the grounds for nullity must be beyond reasonable doubt, for to doubt is to sustain.^[12]

. . . the source from which the power to proclaim Martial Law springs must be considered. Hence, if there is no Constitutional provision or statute expressly allowing an intrusion or limitation of a civil liberty, then it is not and will not be allowed.

Public defense can and should be attained without a total abrogation of all individual rights. Otherwise, "it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation." Thus, while this Court recognized in David that "arrests and seizures without judicial warrants" can be made during Martial Law, the circumstances justifying such warrantless arrests and seizures under the Rules of Court and jurisprudence must still obtain. Pertinently, Section 5, Rule 113 reads:

SECTION 5. Arrest Without Warrant; When Lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

As the basis for the declaration of Martial Law - rebellion - is a continuing crime, the authorities may resort to warrantless arrests of persons suspected of rebellion under the foregoing provision of the Rules of Court. It must, however, be emphasized that the suspicion of rebellion upon which a warrantless arrest is made must be based on a probable cause, i.e., the ground of suspicion is supported by personal knowledge of facts and circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person sought to be arrested has "committed or is actually committing" the crime of rebellion. Thus, parenthetically, the general arrest orders must be issued by the Armed Forces on the basis of probable cause. Alternatively, it must be shown that the person to be arrested was caught in flagrante delicto or has committed or is actually committing an overt act of rebellion or any other offense in the presence of the arresting officer.

In sustaining an arrest without a judicial warrant, Justice Holmes, in Moyer v. Peabody, ratiocinated that the "public danger warrants the substitution of executive process for judicial process." However, I subscribe to the position that even during Martial Law, the jurisdiction of and inquiry by the courts are merely postponed, not ousted or superseded. Hence, the same tests that would be applied by the civil courts in an inquiry into the validity of a government action must be applied by the military during a Martial Law.

In line with this, searches and seizures without judicial warrants can only be had in the following cases: (1) search of moving vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search); (6) search incidental to a lawful arrest; (7) exigent and emergency circumstance; and (8) search of vessels and aircraft, where, again, probable cause exists that an offense has been committed and the objects sought in connection with the offense are in the place sought to be searched.

In the restriction of the freedom of speech and of the press, the military must still be guided by the clear and present danger test - that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the military has a right to prevent. Thus, the military can prohibit the dissemination of vital information that can be used by the enemy, e.g., they can ban posts on social media if there is a clear and present danger that such posts will disclose their location. The same test, the presence of clear and present danger, governs the power of the military to disperse peaceable assemblies during Martial Law. As this Court held, tolerance is the rule and limitation is the exception. Otherwise stated, in the absence of clear and present danger, the military is bound by the rules of maximum tolerance under Batas Pambansa Blg. (BP) 880, otherwise known as the "The Public Assembly Act of 1985."

As to the "take-over of news media" mentioned in David, Section 17, Article XII of the 1987 Constitution states that: "In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest." Prescinding therefrom, this Court, in Agan, Jr. v. Philippine International Air Terminals Co., Inc., held that police power justifies a temporary "take over [of] the operation of any business affected with public interest" by the State in times of national emergency:

x x x x

This Court, however, has held that it is the legislature, not the executive, which is the constitutional repository of police power, the existence of a national emergency, such as a rebellion or invasion, notwithstanding. Accordingly, the power to temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest can only be done whenever there is a law passed by Congress authorizing the same. This Court, in David, explained as much:

x x x x

Indeed, the military must still be guided by law and jurisprudence and motivated by good faith in the exercise of the supreme force of the State even during a Martial law. Thus, in its endeavor to restore peace and preserve the state, the military must still make proper adjustments to the safeguards of constitutional liberty under the following legislations intended to protect human rights:

1. Republic Act No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers and Providing Penalties for Violations Thereof)

2. Republic Act No. 8371 (The Indigenous Peoples' Rights Act of 1997)

3. Republic Act No. 9201 (National Human Rights Consciousness Week Act of 2002)

4. Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)

5. Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004)

6. Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006)

7. Republic Act No. 9372 (Human Security Act of 2007)

8. Republic Act No. 9710 (The Magna Carta of Women)

9. Republic Act No. 9745 (Anti-Torture Act of 2009)

10. Republic Act No. 9851 (Philippine Act on Crimes against International Humanitarian Law, Genocide, and Other Crimes Against Humanity)

11. Republic Act No. 10121 (Philippine Disaster Risk Reduction and Management Act of 2010)

12. Republic Act No. 10168 (The Terrorism Financing Prevention and Suppression Act of 2012)

13. Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance Act of 2012)

14. Republic Act No. 10364 (Expanded Anti-Trafficking in Persons Act of 2012)

15. Republic Act No. 10368 (Human Rights Victims Reparation and Recognition Act of 2013)

16. Republic Act No. 10530 (The Red Cross and Other Emblems Act of 2013)

The continuous effectivity of the 1987 Constitution further provides a blueprint by which the military shall act with respect to the civilians and how it shall conduct its operations and actions during the effectivity ofMartial Law.

Under Section 2, Article II of the 1987 Constitution, the "generally accepted principles of international law [remains to be] part of the law of the land." Hence, conventions and treatises applicable to non-international armed conflicts including the Geneva Conventions and its Additional Protocols continue to impose the limits on the power and discretion of the armed forces.

Notably, Common Article 3 of the Geneva Conventions enumerates acts that remain prohibited despite the hostilities. It states:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above­ mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

   
Furthermore, the Fundamental Guarantees under Article 4 of the "Protocol Additional to the Geneva Conventions x x x relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)" remain binding:

1. All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.

2. Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever:

(a) violence to the life, health and physical or mental well­-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

(b) collective punishments;    

(c) taking of hostages;

(d) acts of terrorism;

(e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

(f) slavery and the slave trade in all their forms;   

(g) pillage;

(h) threats to commit any of the foregoing acts.

3. Children shall be provided with the care and aid they require, and in particular:

(a) they shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care;

(b) all appropriate steps shall be taken to facilitate the reunion of families temporarily separated;

(c) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities;

(d) the special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured;

(e) measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and well-being.

These international commitments are incorporated into our laws not only by virtue of Section 2, Article II of the 1987 Constitution, but also by the domestic legislations previously enumerated.

Without a doubt, state agents - the members of the armed forces - who abuse their power and discretion under the proclaimed Martial Law and thereby violate their duty as the "protector of the people and the State" are criminally and civilly liable. And here lies the ultimate safeguard against the possible abuses of this emergency power - the ultimate responsibility of the officers for acts done in the implementation of Martial Law. To whom much is given, much will be required.

As for concerns that a petition for certiorari, prohibition or habeas corpus imposes procedural constraints that may hinder the Court's factual review of the sufficiency of the basis for a declaration of martial law or the suspension of the privilege of habeas corpus, these may all be addressed with little difficulty. In the hierarchy of legal authorities binding on this Court, constitutional provisions must take precedence over rules of procedure. It is Section 18, Article VII of the 1987 Constitution which authorizes the Court to review factual issues in order to determine the sufficiency of the factual basis of a martial law declaration or a suspension of the privilege of the writ of habeas corpus and, as discussed above, the Court may employ the most suitable procedure in order to carry out its jurisdiction over the issue as mandated by the Constitution. Time and again, the Court has stressed that it has the inherent power to suspend its own rules when the interest of justice so requires.

The Court should be cautious that it does not take a position in these consolidated cases that needlessly restricts our people's judicial remedies nor carelessly clips our own authority to take cognizance of the issue of constitutional sufficiency under Section 18, Article VII in any appropriate action that may be filed with the Court. Such would be antagonistic to the clear intent of the framers of the 1987 Constitution to empower our citizens and the Judiciary as a vital protection against potential abuse of the executive power to declare martial law and suspend the privilege of the writ of habeas corpus. (Citation omitted.)

Sec. 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 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.

The suspension of the privilege of the writ 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, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. (Emphasis supplied.)

The concept of rebellion in our penal law was explained in the leading case of People v. Hernandez, where the Court ruled that the word "rebellion" evokes, not merely a challenge to the constituted authorities, but, also, civil war, on a bigger or lesser scale, with all the evils that go with it; and that all other crimes, which are committed either singly or collectively and as a necessary means to attain the purpose of rebellion, or in connection therewith and in furtherance thereof, constitute only the simple, not complex, crime of rebellion. The Court also underscored that political crimes are those directly aimed against the political order and that the decisive factor in determining whether a crime has been committed to achieve a political purpose is the intent or motive in its commission.

While rebellion is considered as an act of terrorism under the law, the latter can be used to achieve a political end, such as removing from allegiance to the State any part of the national territory or overthrowing the duly constituted authorities. Even so, such lawless elements engaged in terrorism will never acquire any status recognized under International Humanitarian Law. Yet, acts of terrorism may be taken into account in the context of determining the necessity for a declaration of martial law within our constitutional framework.

Plainly then, rebellion can be committed through an offense or a violation of any special law so long as it is done as necessary means to attain, or in furtherance of, the purpose of rebellion. In Ponce Enrile v. Amin, the Court held that the offense of harboring or concealing a fugitive, or a violation of Presidential Decree No. 1829, if committed in furtherance of the purpose of rebellion, should be deemed to form part of the crime of rebellion instead of being punished separately. The Court explained:

All crimes, whether punishable under a special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as separate crimes in themselves. Thus:

"This does not detract, however, from the rule that the ingredients of a crime form part and parcel thereof, and hence, are absorbed by the same and cannot be punished either separately therefrom or by the application of Article 48 of the Revised Penal Code. x x x" (Citing People v. Hernandez)

The Hernandez and other related cases mention common crimes as absorbed in the crime of rebellion. These common crimes refer to all acts of violence such as murder, arson, robbery, kidnapping, etc. as provided in the Revised Penal Code. The attendant circumstances in the instant case, however, constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense.

In his dissenting opinion in Fortun, Justice Velasco states that the Constitution does not require precision in establishing the fact of rebellion. In support of this, he cites an excerpt from the Brief of Amicus Curiae Fr. Joaquin Bernas, S.J., as follows:

From all these it is submitted that the focus on public safety adds a nuance to the meaning of rebellion in the Constitution which is not found in the meaning of the same word in Article 134 of the Penal Code. The concern of the Penal Code, after all, is to punish acts of the past. But the concern of the Constitution is to counter threat to public safety both in the present and in the future arising from present and past acts. Such nuance, it is submitted, gives to the President a degree of flexibility for determining whether rebellion constitutionally exists as basis for martial law even if facts cannot obviously satisfy the requirements of the Penal Code whose concern is about past acts. To require that the President must first convince herself that there can be proof beyond reasonable doubt of the existence of rebellion as defined in the Penal Code and jurisprudence can severely restrict the President's capacity to safeguard public safety for the present and the future and can defeat the purpose of the Constitution.

What all these point to are that the twin requirements of "actual rebellion or invasion" and the demand of public safety are inseparably entwined. But whether there exists a need to take action in favour of public safety is a factual issue different in nature from trying to determine whether rebellion exists. The need of public safety is an issue whose existence, unlike the existence of rebellion, is not verifiable through the visual or tactile sense. Its existence can only be determined through the application of prudential estimation of what the consequences might be of existing armed movements. Thus, in deciding whether the President acted rightly or wrongly in finding that public safety called for the imposition of martial law, the Court cannot avoid asking whether the President acted wisely and prudently and not in grave abuse of discretion amounting to lack or excess of jurisdiction.  Such decision involves the verification of factors not as easily measurable as the demands of Article 134 of the Penal Code and can lead to a prudential judgment in favour of the necessity of imposing martial law to ensure public safety even in the face of uncertainty whether the Penal Code has been violated. This is the reason why courts in earlier jurisprudence were reluctant to override the executive's judgment.

In sum, since the President should not be bound to search for proof beyond reasonable doubt of the existence of rebellion and since deciding whether public safety demands action is a prudential matter, the function of the President is far from different from the function of a judge trying to decide whether to convict a person for rebellion or not. Put differently, looking for rebellion under the Penal Code is different from looking for rebellion under the Constitution.  x x x.^[2] (Emphasis supplied; citation omitted.)

It [rebellion] 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 materiel, 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.

WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but neverthess reported the following essential facts, which as Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion; Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi and Zamboanga Peninsula remain a serious security concern; and last, the new People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule[.]

x x x 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 any 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 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.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. [Emphasis Supplied]

All three petitions beseech the cognizance of this Court based on the third paragraph of Section 18, Article VII (Executive Department) of the 1987 Constitution which provides:

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 or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

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.

The Court agrees.

a) Jurisdiction must be specifically conferred by the Constitution or by law.

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.

b) "In an appropriate proceeding" does not refer to a petition for certiorari filed under Section 1 or 5 of Article VIII

It could not have been the intention of the framers of the Constitution that the phrase "in an appropriate proceeding" would refer to a Petition for Certiorari pursuant to Section 1 or Section 5 of Article VIII. 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 proclamation or suspension. It must be emphasized that under Section 18, Article VII, the Court is tasked to review the sufficiency of the factual basis of the President's exercise of emergency powers. Put differently, if this Court applies the standard of review used in a petition for certiorari, the same would emasculate its constitutional task under Section 18, Article VII.

The third paragraph of Section 18 suffices to confer on the Court the exclusive and original jurisdiction to determine the sufficiency of the factual bases of the proclamation of martial law. To equate the appropriate proceeding to the certiorari action authorized under Section 5(1), in relation to the second paragraph of Section 1, is erroneous. As earlier pointed out, the third paragraph of Section 18 defines the legal duty to review the sufficiency of the factual basis for the proclamation of martial law upon the filing of the petition for the purpose by any citizen. The Court has then to discharge the duty.

The silence of Section 5(1) on what the appropriate proceeding is should be of no consequence because Section 5 is not the sole repository of the cases or situations coming under the Court's jurisdiction.

x x x x

The check-and-balance constitutional design set down in Section 18 of Article VII of the 1987 Constitution establishes a structure of collaboration among the three great branches of the Government in the matter of the proclamation of martial law. Although the power of proclaiming martial law over the country or any part of it is exclusively lodged in the President, he or she is nonetheless required to report to Congress on the proclamation, and Congress shall then decide whether to revoke or extend the state of martial law. The Court, being a passive institution, may be called upon to review and determine the sufficiency of the factual basis of the proclamation, and whether the public safety requires it, only upon the petition for the purpose by any citizen.

The invocation of the third paragraph of Section 18 by the petitioning citizen suffices to initiate this Court's power to review the sufficiency of the factual bases of the declaration of martial law. This initiation, which triggers the inquiry or review by the Court, albeit unique, conforms to the constitutional design.

The appropriate proceeding, once commenced, should not focus on whether the President gravely abused his or her discretion or not in determining the necessity for proclaiming martial law. Instead, the 1987 Constitution mandates the Court to examine and sift through the factual basis relied upon by the President to justify his proclamation of martial law and to determine whether the factual basis is sufficient or not. To rule that a finding of grave abuse of discretion is essential is to confine the discharge of the duty by the Court within limits not considered at the time of the ratification of the 1987 Constitution. Doing so may also produce impractical results. Consider this hypothetical scenario. Supposing that the President cites 10 factual bases for his proclamation of martial law, and the Court, upon its assiduous review of the factual bases, considers nine of the 10 as manufactured or fabricated or inadequate, leaving but one as true or authentic. Under the thesis of the OSG, the Court would necessarily nullify the proclamation simply because the President was found to have gravely abused his or her discretion. The Court would thereby act indifferently towards the one true or authentic justification on the ground that the grave abuse of discretion as to the nine tainted the proclamation.

Moreover, the determination of sufficiency or insufficiency of the factual bases for the proclamation of martial law is usually a matter of validating the good judgment of the President of the facts or information known to or made available to him or her. This goes without saying that such facts must have occurred prior to or about the time the determination by the President is made. Whether or not such facts are later shown by subsequent events to be fabricated or false or inadequate is not a decisive factor unless the President is credibly shown to have known of the fabrication or falsity or inadequacy of the factual bases at the time he or she issued the proclamation of martial law. In that situation, the main consideration is definitely not whether or not grave abuse of discretion intervened.

My reading of the third paragraph of Section 18 tells me that the term appropriate proceeding is different from the proceedings or actions that the Court may take cognizance of under Section 5(1) or Section 1. My foremost reason for so holding is that the third paragraph of Section 18 textually mandates the Court to be a trier of facts, an office and function that the Court is not generally called upon to discharge under either Section 5(1) or Section 1. It is true that the Court is not always precluded from reviewing facts. There are occasions when it assumes the role of a trier of facts, like, to name some, in criminal appeals; in appeals from rulings of the Court of Appeals in proceedings for the writ of amparo; or when it sits as the Presidential Electoral Tribunal.

In fine, I deem it to be plainly erroneous to subsume the appropriate proceeding allowed in the third paragraph of Section 18 to the certiorari jurisdiction vested by Section 5(1) in relation to the expanded jurisdiction defined in second paragraph of Section 1.

First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion;

Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area;

Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato;

Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain a serious security concern;

and last the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerrilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule;^[4]

SR. TAN: Yes. Thank you.

The other question is also on the same section. Would martial law automatically give the President the power of legislation through decrees?

MR. SUMULONG: We will ask Commissioner Concepcion to answer.

MR. CONCEPCION: It is stated in Section 15:

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 . . .

The Commissioner's question is whether martial law decreases or increases the power of the President?

SR. TAN: Decreases?

MR. CONCEPCION: Not necessarily.

SR. TAN: So, what specific power is necessary before the President can proclaim martial law?

MR. CONCEPCION: In general, in case of invasion, the President would have all the powers of a general in the army.

MR. SUMULONG: We ask Commissioner Bernas to answer.

FR. BERNAS: That same question was asked during the meetings of the Committee: What precisely does martial law add to the power of the President to call on the armed forces? The first and second lines in this provision state:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies . . .

The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case Aquino vs. COMELEC where the Supreme Court said that in times of martial law, the President automatically has legislative power. So these two clauses denied that. A state of martial law does not suspend the operation of the Constitution; therefore, it does not suspend the principle of separation of powers.

The question now is: During martial law, can the President issue decrees? The answer we gave to that question in the Committee was: During martial law, the President may have the powers of a commanding general in a theatre of war. In actual war when there is fighting in an area, the President as the commanding general has the authority to issue orders which have the effect of law but strictly in a theatre of war, not in the situation we had during the period of martial law. In other words, there is an effort here to return to the traditional concept of martial law as it was developed especially in American jurisprudence, where martial law has reference to the theatre of war.

SR. TAN: Thank you.^[8]

x x x x

MR. FOZ: Thank you, Madam President.

May I go to the next question? This is about the declaration of martial law or the suspension of the privilege of the writ of habeas corpus on page 7, on the second to the last paragraph of Section 15. Is it possible to delete the clause "where civil courts are able to function"? In the earlier portion of the same sentence, it says, "nor supplant the functioning of the civil courts x x x" I was just thinking that if this provision states the effects of the declaration of martial law - one of which is that it does not supplant the functioning of the civil courts - I cannot see how civil courts would be unable to function even in a state of martial law.

MR. SUMULONG: May we refer that interpellation to Commissioner Bernas?

FR. BERNAS: This phrase was precisely put here because we have clarified the meaning of martial law; meaning, limiting it to martial law as it has existed in the jurisprudence in international law, that it is a law for the theater of war. In a theater of war, civil courts are unable to function. If in the actual theater of war civil courts, in fact, are unable to function, then the military commander is authorized to give jurisdiction even over civilians to military courts precisely because the civil courts are closed in that area But in the general area where the civil courts are opened then in no case can the military courts be given jurisdiction over civilians. This is in reference to a theater of war where the civil courts, in fact, are unable to function.

MR. FOZ: It is a state of things brought about by the realities of the situation in that specified critical area.

FR. BERNAS: That is correct.

MR. FOZ: And it is not something that is brought about by a declaration of the Commander-in-Chief.

FR. BERNAS: It is not brought about by a declaration of the Commander in Chief. The understanding here is that the phrase "nor authorize the conferment of jurisdiction on military courts and agencies over civilians" has reference to the practice under the Marcos regime where military courts were given jurisdiction over civilians. We say here that we will never allow that except in areas where civil courts are, in fact, unable to function and it becomes necessary for some kind of court to function.

MR. FOZ: Thank you, Madam President.^[9]

WHEREAS, in a communication addressed to the Senate and the House of Representatives, President Rodrigo Roa Duterte requested the Congress of the Philippines "to further extend the proclamation of Martial Law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao for a period of one (1) year, from 01 January 2018 to 31 December 2018, or for such other period of time as the Congress may determine, in accordance with Section 18, Article VII of the 1987 Philippine Constitution";

WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but nevertheless reported the following essential facts, which as Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion; Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain a serious security concern; and last, the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule;

x x x x

WHEREAS, on December 13, 2017, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred forty (240) affirmative votes comprising the majority of all its Members, has determined that rebellion persists, and that public safety indubitably requires the further extension of the Proclamation of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao: Now, therefore, be it

Resolved by the Senate and the House of Representatives in a Joint Session Assembled, To further extend Proclamation No. 216, Series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" for a period of one (1) year from January 1, 2018 to December 31, 2018.

Section 18. x x x.

x x x x

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 or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Emphases and underscoring supplied)

[T]he parameter "sufficient factual basis" under Section 18, Article VII of the Constitution simply means that there is adequate proof to show that the President had complied with the two requisites to impose martial law. These requisites are: (1) that there exists an actual invasion or rebellion; and (2) that the public safety so requires the same.

There is adequate poof that the President complied with the first requisite if the elements of rebellion as defined in Article 134 of the RPC concur; this means that the rebellion is not merely imminent but has been actually consummated.

On the other hand, there is adequate proof that the President complied with the second requisite if it is shown that the public safety demands the imposition of martial law under a particular territorial extent; since public safety is a malleable concept, the Court should then gauge whether or not there is a reasonable need to impose martial law in light of the exigencies of the situation and concomitantly, whether its territorial extent is rationally commensurate to the said exigencies.^[7]

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.

x x x x (Emphasis and underscoring supplied)

"It is for the President as Commander-in-Chief of the Armed Forces to appraise these [classified evidence or documents/]reports and be satisfied that the public safety demands the suspension of the writ." Significantly, respect to these so-called classified documents is accorded even "when the authors of or witnesses to these documents may not be revealed."

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 position as Commander-in-Chief of the Armed Forces.^[14]

[I]n light of the nature of rebellion (1) as a movement, (2) as a complex net of intrigues and plots, (3) as a continuing crime, and (4) as a political offense, it is my view that this Court cannot confine the concept of rebellion to the actual exchange of fire between the accused rebels and the forces of the government. As above-intimated, the taking up of arms against the government is only what consummates the crime of rebellion in order to prosecute those accused thereof under the RPC. However, up until that movement stops (for instance, when the rebels surrender or are caught by government operatives), it is my opinion that the rebellion continues to survive in legal existence.

x x x x

[T]he crime of rebellion defies our ordinary impression that a crime's occurrence can be pinpointed to a definite territory, much less its existence bounded to a particular moment in time. Because of its nature, rebellion is hardly compatible with the norms of spatial and temporal limitability, as usually applied in our criminal law. It is in this specific light that we should understand the concept of an actual rebellion under the Constitution's martial law provision.^[17]

On 04 December 2017[,] I received a letter from Secretary of National Defense Delfin N. Lorenzana, as Martial Law Administrator, stating that "based on current security assessment made by the Chief of Staff, Armed Forces of the Philippines, the undersigned recommends the extension of Martial Law for another twelve (12) months or one (1) year beginning January 1, 2018 until December 31, 2018 covering the whole island of Mindanao primarily to ensure total eradication of DAESH­-inspired Da'awatul Islamiyab Waliyatul Masriq (DIWM), other like­minded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless (ALGs), and the communist terrorists (CTs) and their coddlers, supporters, and financiers x x x." A copy of Secretary Lorenzana's letter (together with a copy of the letter of AFP Chief Guerrero) is attached for your convenient reference.^[19]

The security assessment submitted by the AFP, supported by a similar assessment by the Philippine National Police (PNP), highlights certain essential facts that I, as Commander-in-Chief of all armed forces of the Philippines, have personal knowledge of.

First, despite the death of Hapilon and the Maute brothers, the remnants of their Groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion. You will please note that at least one hundred eighty-five (185) persons listed in the Martial Law Arrest Orders have remained at­large and, in all probability, are presently regrouping and consolidating their forces.

More specifically, the remnants of DAESH-inspired DIWM members and their allies, together with their protectors, supporters and sympathizers, have been monitored in their continued efforts towards radicalization/recruitment, financial and logistical build-up, as well as in their consolidation/ reorganization in Central Mindanao, particularly in the provinces of Maguindanao and North Cotabato and also in Sulu and Basilan. These activities are geared towards the conduct of intensified atrocities and armed public uprisings in support of their objective of establishing the foundation of a global Islamic caliphate and of a Wilayat not only in the Philippines but also in the whole of Southeast Asia.

Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area. Turaifie is said to be Hapilon's potential successor as Amir of DAESH [Wilayat] in the Philippines and Southeast Asia.

Third, the Bangsamoro Islamic Freedom Fighters (BIFF) [continues] to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato. For this year, the BIFF has initiated at least eighty-nine (89) violent incidents, mostly harassments and roadside bombings against government troops.

Fourth, the remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain as a serious security concern. Reports indicate that this year they have conducted at least forty­-three (43) acts of terrorism, including attacks using Improvised Explosive Devices (IEDs), harassments, and kidnappings which have resulted in the killing of eight (8) civilians, three (3) of whom were mercilessly beheaded.

Last, but certainly not the least, while the government was preoccupied with addressing the challenges posed by the DAESH-inspired DIWM and other Local Terrorist Groups (LTGs), the New People's Army (NPA) took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule.

x x x x^[20] (Emphases and underscoring supplied)

WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but nevertheless reported the following essential facts, which as Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion; Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting, the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters [continues] to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain a serious security concern; and last, the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule[.]

A further extension of the implementation of Martial Law and suspension of the privilege of the writ of habeas corpus in Mindanao will help the AFP, the [PNP], and all other law enforcement agencies to quell completely and put an end to the on-going rebellion in Mindanao and prevent the same from escalating to other parts of the country. Public safety indubitably requires such further extension, not only for the sake of security and public order, but more importantly to enable the government and the people of Mindanao to pursue the bigger task of rehabilitation and the promotion of a stable socio-economic growth and development.

For all these reasons, I ask the Congress of the Philippines to further extend the proclamation of Martial Law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao for a period of one (1) year, from 01 January 2018 to 31 December 2018, or for such other period of time as the Congress may determine, in accordance with Section 18, Article VII of the 1987 Philippine Constitution.^[36]

WHEREAS, on December 13, 2017, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred forty (240) affirmative votes comprising the majority of all its Members, has determined that rebellion persists;and that public safety indubitably requires the further extension of the Proclamation of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao: Now, therefore, be it.

Resolved by the Senate and the House of Representatives in a Joint Session Assembled, To further extend Proclamation No. 216, Series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" for a period of one (1) year from January 1, 2018 to December 31, 2018.^[37]

(a) No less than 185 persons in the Martial Law Arrest Orders have remained at large. Remnants of the Hapilon and Maute groups have been monitored by the AFP to be reorganizing and consolidating their forces in Central Mindanao, particularly in Maguindanao, North Cotabato, Sulu and Basilan, and strengthening their financial and logistical capability.

(b) After the military operation in Marawi City, the Basilan-based ASG, the Maute Group, the Maguid Group and the Turaifie Group, comprising the DAESH-affiliate Dawlah Islamiyah that was responsible for the Marawi siege, was left with 137 members and a total of 166 firearms. These rebels, however, were able to recruit 400 new members, more or less, in Basilan, the Lanao Provinces, Sarangani, Sultan Kudarat and Maguindanao.

(c) The new recruits have since been trained in marksmanship, bombing and tactics in different areas in Lanao del Sur. Recruits with great potential are trained in producing Improvised Explosive Devices (IEDs) and urban operations. These new members are motivated by their clannish culture, being relatives of terrorists, by revenge for relatives who perished in the Marawi operations, by money as they are paid P15,000.00 to P50,000.00, and by radical ideology.

(d) 48 FTFs have joined said rebel groups and are acting as instructors to the recruits. Foreign terrorists, from Southeast Asian countries, particularly from Indonesia and Malaysia, will continue to take advantage of the porous borders of the Philippines and enter the country illegally to join the remnants of the DAESH/ISIS-inspired rebel groups.

(e) In November 2017, 15 Indonesian and Malaysian DAESH­-inspired FTFs entered Southern Philippines to augment the remnants of the Maguid group in Sarangani province. In December 2017, 16 Indonesian DAESH-inspired FTFs entered the Southern Philippines to augment the ASG-Basilan and Maute groups in the Lanao province. In January 2018, an unidentified Egyptian DAESH figure was monitored in the Philippines.

(f) At least 32 FTFs were killed in the Marawi operations. Other FTFs attempted to enter the main battle area in Marawi, but failed because of checkpoints set up by government forces.

(g) "The DAESH-inspired DIWM groups and their allies continue to visibly offer armed resistance in other parts of Central, Western and Eastern Mindanao in spite of the neutralization of their key leaders and destruction of their forces in Marawi City." There were actually armed encounters with the remnants of said groups.

(h) "Other DAESH-inspired and like-minded threat groups such as the BIFF, AKP, DI-Maguid, DI-Toraype [Turaifie], and the ASG remain capable of staging similar atrocities and violent attacks against vulnerable targets in Mindanao, including the cities 'Of Davao, Cagayan de Oro, General Santos, Zamboanga, and Cotabato."

(i) The Turaifie [G]roup conducts roadside bombings and attacks against government forces, civilians and populated areas in Mindanao. The group plans to set off bombings in Cotabato.

(j) The Maute Group, along with foreign terrorists, were reported to be planning to bomb the cities of Zamboanga, Iligan, Cagayan de Oro and Davao.

(k) The remaining members of the ASG-Basilan have initiated five violent attacks that killed two civilians.

(l) In 2017, the remnants of the ASG in Basilan, Sulu, Tawi-Tawi and Zamboanga Peninsula, conducted 43 acts of violence, including IED attacks and kidnapping which resulted in the killing of eight innocent civilians, three of whom were mercilessly beheaded. Nine kidnap victims are still held in captivity.

(m) Hapilon's death fast-tracked the unification of the Sulu and Basilan-based ASG to achieve the common goal of establishing a DAESH-ISIS wilayat in Mindanao. This likely merger may spawn retaliatory attacks such as lED bombings, in urban areas, particularly in the cities of Zamboanga, Isabela and Lamitan.

(n) By AFP's assessment, the ISIS' regional leadership may remain in the Southern Philippines and with the defeat of ISIS in many parts of Syria and Iraq, some hardened fighters from the ASEAN may return to this region to continue their fight. The AFP also identified four potential leaders who may replace Hapilon as emir or leader of the ISIS forces in the Philippines. It warned that the Dawlah Islamiyah will attempt to replicate the Marawi siege in other cities of Mindanao and may conduct terrorist attacks in Metro Manila and Davao City as the seat of power of the Philippine Government. With the spotlight on terrorism shifting from the Middle East to Southeast Asia following the Marawi siege, the AFP likewise indicated that the influx of FTFs in the Southern Philippines will persist. The AFP further referred to possible lone-wolf attacks and atrocities from other DAESH-inspired rebel groups in vulnerable cities like Cagayan de Oro, Cotabato, Davao, General Santos, Iligan and Zamboanga.^[40]

WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a state of national emergency on account of lawless violence in Mindanao;

WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of invasion or rebellion, when the public safety requires it, he (the President) 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 x x x';

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 any 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';

WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent acts committed by the Maute terrorist group such as the attack on the military outpost in Butig, Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass jailbreak in Marawi City in August 2016, freeing their arrested comrades and other detainees;

WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby 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; and

WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim as follows:

SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not exceeding sixty days, effective as of the date hereof.

SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the duration of the state of martial law.

DONE in the Russian Federation, this 23rd day of May in the year of our Lord, Two Thousand and Seventeen.

Due to compelling reasons and based on current security assessment made by the Chief of Staff, Armed Forces of the Philippines, the undersigned recommends the extension of Martial Law for another 12 months or 1 year beginning January 1, 2018 until December 31, 2018 covering the whole island of Mindanao primarily to ensure total eradication of DAESH-inspired Da'awatul Islamiyah Waliyatul Masriq (DIWM), other like-minded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless Groups (ALGs), and the communist terrorists (CTs) and their coddlers, supporters and financiers, and to ensure speedy rehabilitation, recovery and reconstruction efforts in Marawi, and the attainment of lasting peace, stability, economic development and prosperity in Mindanao.

The previous Martial Law declaration which is still in effect until end of December 2017 has resulted in remarkable achievements, such as the death of Hapilon and the Maute brothers. However, the remnants of their groups were monitored to be continuously rebuilding their organization through the recruitment and training of new members/fighters. Likewise, there are also other terrorist groups, such as the TURAIFIE, monitored to be planning to conduct terrorist activities in some parts of Mindanao, and there are data that indicate that armed struggle in Mindanao is still relatively strong.

This proposed second extension of implementation of Martial Law in Mindanao coupled with continued suspension of the privilege of the writ of habeas corpus will significantly help not only the AFP, but also other stakeholders in quelling and putting an end to the on-going DAESH­-inspired DIWM groups and communist terrorists-staged rebellion, and in restoring public order, safety, and stability in Mindanao.

The DAESH-Inspired DIWM groups and allies continue to visibly offer armed resistance in other parts of Central, Western, and Eastern Mindanao in spite of the neutralization of their key leaders and destruction of their forces in Marawi City;

Other DAESH-Inspired DIWM groups and allies continue to visibly offer armed resistance in other parts of Central, Western, and Eastern Mindanao in spite of the neutralization of their key leaders and destruction of their forces in Marawi City;

Other DAESH-inspired and like-minded threat groups such as BIFF, AKP, DI-Maguid, DI-Toraype, and the ASG remain capable of staging similar atrocities and violent attacks against vulnerable targets in Mindanao, including the cities of Davao, Cagayan de Oro, General Santos, Zamboanga and Cotabato;

The CTs have been pursuing and intensifying their political mobilization (army, party and mass base building, rallies, pickets and demonstrations, financial and logistical build up), terrorism against innocent civilians and private entities, and guerrilla warfare against the security sector, and public government infrastructures;

The need to intensify the campaign against the CTs is necessary in order to defeat their strategy, stop their extortion, defeat their armed component, and to stop their recruitment activities;

The threats being posed by the CTs, the ASG, and the presence of remnants, protectors, supporters and sympathizers of the DAESH/DIWM pose a clear and imminent danger to public safety and hinders the speedy rehabilitation, recovery and reconstruction efforts in Marawi City, and the attainment of lasting peace, stability, economic development and prosperity in Mindanao;

The 2^nd extension of the implementation of Martial Law coupled with the continued suspension of the privilege of the writ of habeas corpus in Mindanao will significantly help not only the AFP, but also other stakeholders in quelling and putting an end to the on-going DAESH-­inspired DIWM groups and CT-staged rebellion, and in restoring public order, safety, and stability in Mindanao; and

In seeking for another extension, the AFP is ready, willing and able to perform anew its mandated task in the same manner that it had dutifully done so for the whole duration of Martial Law to date, without any reported human rights violation and/or incident of abuse of authority.

WHEREAS, the Senate and the House of Representatives, in a Special Joint Session held on July 22, 2017, extended the Proclamation of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao until December 31, 2017;

WHEREAS, in a communication addressed to the Senate and the House of Representatives, President Rodrigo Roa Duterte requested the Congress of the Philippines "to further extend the proclamation of Martial Law and the suspension of the privilege of the writ ofhabeas corpus in the whole of Mindanao for a period of one (1) year, from 01 January 2018 to 31 December 2018, or for such other period of time as the Congress may determine, in accordance with Section 18, Article VII of the 1987 Philippine Constitution";

WHEREAS, the President informed the Congress of the Philippines of the remarkable progress made during the period of Martial Law, but nevertheless reported the following essential facts, which as Commander-in-Chief of all armed forces of the Philippines, he has personal knowledge of: First, despite the death of Hapilon and the Maute brothers, the remnants of their groups have continued to rebuild their organization through the recruitment and training of new members and fighters to carry on the rebellion. Second, the Turaifie Group has likewise been monitored to be planning to conduct bombings, notably targeting the Cotabato area; Third, the Bangsamoro Islamic Freedom Fighters continue to defy the government by perpetrating at least fifteen (15) violent incidents during the Martial Law period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu Sayyaf Group in Basilan, Sulu, Tawi-Tawi, and Zamboanga Peninsula remain a serious security concern; and last, the New People's Army took advantage of the situation and intensified their decades-long rebellion against the government and stepped up terrorist acts against innocent civilians and private entities, as well as guerrilla warfare against the security sector and public and government infrastructure, purposely to seize political power through violent means and supplant the country's democratic form of government with Communist rule;

WHEREAS, Section 18, Article VII of the 1987 Constitution authorizes the Congress of the Philippines to extend, at the initiative of the President, such proclamation or suspension for a period to be determined by the Congress of the Philippines, if the invasion or rebellion shall persist and public safety requires it;

WHEREAS, on December 13, 2017, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint Session, by two hundred forty (240) affirmative votes comprising the majority of all its Members, has determined that rebellion persists, and that public safety indubitably requires the further extension of the Proclamation of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao; Now, therefore, be it

Resolved by the Senate and the House of Representatives in a Joint Session Assembled, To further extend Proclamation No. 216, Series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao" for a period of one (1) year from January 1, 2018 to December 31, 2018.

He shall be responsible for the faithful execution of the laws of the Philippine Islands and of the United States operative within the Philippine Islands, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the Islands, or summon the posse comitatus, or call out the militia or other locally created armed forces, to prevent or suppress lawless violence, invasion, insurrection, or rebellion; and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privileges of the writ of habeas corpus, or place the Islands, or any part thereof, under martial law: Provided, That whenever the Governor General shall exercise this authority, he shall at once notify the President of the United States thereof, together with the attending facts and circumstances, and the President shall have power modify or vacate the action of the Governor-General. He shall annually and at such other times as he may be required make such official report of the transactions of the Government of the Philippine Islands to an executive department of the United States to be designated by the President, and his said annual report shall be transmitted to the Congress of the United States; and he shall perform such additional duties and functions as may in pursuance of law be delegated or assigned to him by the President.^[28] (Emphasis supplied)

Section 10

...

(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.^[29]

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that "(t)he privilege of the writ of habeas corpus shall not be suspended . . . ." It is only by way of exception that it permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" -or, under Art. VII of the Constitution, "imminent danger thereof" - "when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." Far from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, corifined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.^[33] (Emphasis supplied)

Section 11. 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.

In times of war or national emergency, the legislature may surrender a part of its power of legislation to the President. Would it not be as proper and wholly acceptable to lay down the principle that during such crises, the judiciary should be less jealous of its power and more trusting of the Executive in the exercise of its emergency powers in recognition of the same necessity? Verily, the existence of the emergencies should be left to President's sole and unfettered determination. His exercise of the power to suspend the privilege of the writ of habeas corpus on the occasion thereof, should also be beyond judicial review. Arbitrariness, as a ground for judicial inquiry of presidential acts and decisions, sounds good in theory but impractical and unrealistic, considering how well-nigh impossible it is for the courts to contradict the finding of the President on the existence of the emergency that gives occasion for the exercise of the power to suspend the privilege of the writ. For the Court to insist on reviewing Presidential action on the ground of arbitrariness may only result in a violent collision of two jealous powers with tragic consequences, by all means to be avoided, in favor of adhering to the more desirable and long-tested doctrine of "political question" in reference to the power of judicial review.

Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the reexamination of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro vs. Castañeda.^[37] (Citations omitted)

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 ofhabeas 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 any 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 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.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

The framers also intended for the Congress to have a considerably broader review power than the Judiciary and to play an active role following the President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus. Unlike the Court which can only act upon an appropriate proceeding filed by any citizen, Congress may, by voting jointly and upon a majority vote, revoke such proclamation or suspension. The decision to revoke is not premised on how factually correct the President's invocation ofhis Commander-in-Chief powers are, rather, Congress is permitted a wider latitude in how it chooses to respond to the President's proclamation or suspension. While the Court is limited to reviewing the sufficiency of the factual basis behind the President's proclamation or suspension, Congress does not operate under such constraints and can strike down the President's exercise of his Commander-in-Chief powers as it pleases without running afoul of the Constitution.

With its veto power and power to extend the duration of martial law upon the President's initiative and as a representative of its constituents, Congress is also expected to continuously monitor and review the situation on the areas affected by martial law. Unlike the Court which is mandated to promulgate its decision within thirty (30) days from the time a petition questioning the proclamation is filed, Congress is not saddled with a similar duty. While the Court is mandated to look into the sufficiency of the factual basis and whether or not the proclamation was attended with grave abuse of discretion, Congress deals primarily with the wisdom behind the proclamation or suspension. Much deference is thus accorded to Congress and is treated as the President's co-equal when it comes to determining the wisdom behind the imposition or continued imposition of martial law or suspension of the writ.^[44]

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. (Emphasis supplied)

The term martial law refers to a summary form of criminal justice, exercised under direct or delegated royal authority by the military or police forces of the Crown, which is independent of the established processes of the common law courts, the ecclesiastical courts, and the courts which administered the civil law in England. Martial law is not a body of substantive law, but rather summary powers employed when the ordinary rule of law is suspended. "It is not law," wrote Sir Matthew Hale, "but something rather indulged than allowed as a law . . . and that only in cases of necessity."

. . . .

From the beginnings of summary procedure against rebels in the reign of Edward I until the mid-sixteenth century, martial law was regarded in both its forms as the extraordinary usages of war, to be employed only in time of war or open rebellion in the realm, and never as an adjunct of the regular criminal law. Beginning in the mid-1550s, however, the Crown began to claim the authority to expand the hitherto carefully circumscribed jurisdiction of martial law beyond situations of war or open rebellion and into territory which had been the exclusive domain of the criminal law . . .

The acts of rebellion of which armed bodies of the people have been guilty during the last few days at different points of the territory of this province, seriously disturbing public tranquility, make it imperative that the most severe and exemplary measures be taken to suppress at its inception an attempt as criminal as futile.^[52]

1. The respective Ministers of State shall, subject to the authority of the President, exercise direct supervision and control over all district, provincial, and other local governmental agencies in the Philippines when performing functions or discharging duties affecting matters within the jurisdiction of his Ministry and may, subject to revocation by the President, issue such orders as may be necessary therefor.
   
   
2. The Philippines shall be divided into nine Military Districts, seven to correspond to the seven Administrative Districts created under Ordinance No. 31, dated August 26, 1944; the eight, to compromise the City of Manila; and the ninth, the City of Cavite and the provinces of Bulacan, Rizal, Cavite, and Pa1awan.
   
   
3. The Commissioners for each of said Administrative Districts shall have command, respectively, of the first seven military districts herein created, and shall bear the title of Military Governor; and the Mayors and Provincial Governors of the cities and provinces compromised therein shall be their principal deputies, with the title of deputy city or provincial military governor, as the case may be. The Mayor of the City of Manila shall be Military Governor for the eight Military District; and the Vice-Minister of Home Affairs, in addition to his other duties, shall be the Military Governor for the ninth Military District.
   
   
4. All existing laws shall continue in force and effect until amended or repealed by the president, and all the existing civil agencies of an executive character shall continue exercising their agencies of an executive character shall continue exercising their powers and performing their functions and duties, unless they are inconsistent with the terms of this Proclamation or incompatible with the expeditions and effective enforcement of the martial law herein declared.
   
   
5. It shall be the duty of the Military Governors to suppress treason, sedition, disorder and violence; and to cause to be punished all disturbances of public peace and all offenders against the criminal laws; and also to protect persons in their legitimate rights. To this end and until otherwise decreed, the existing courts of justice shall assume jurisdiction and try offenders without unnecessary delay and in a summary manner, in accordance with such procedural rules as may be prescribed by the Minister of Justice. The decisions of courts of justice of the different categories in criminal cases within their original jurisdiction shall be final and unappealable. Provided, however, That no sentence of death shall be carried into effect without the approval of the President.
   
   
6. The existing courts of justice shall continue to be invested with, and shall exercise, the same jurisdiction in civil actions and special proceedings as are now provided in existing laws, unless otherwise directed by the President of the Republic of the Philippines.
   
   
7. The several agencies of the Government of the Republic of the Philippines are hereby authorized to call upon the armed forces of the Republic to give such aid, protection, and assistance as may be necessary to enable them safely and efficiently to exercise their powers and discharge their duties; and all such forces of the Republic are required promptly to obey such call.
   
   
8. The proclamation of martial law being an emergency measure demanded by imperative necessity, it shall continue as long as the need for it exists and shall terminate upon proclamation of the President of the Republic of the Philippines.^[55]
   

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defmed in Article I, Section 1 of the Constitution under martial law and, in my capacity as their commander-in-chief, do hereby command the armed forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.

In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered released by me or by my duly designated representative.^[59] (Emphases supplied)

The next day, on September 22, 1972, President Marcos promulgated General Order Nos. 1 to 6, detailing the powers he would be exercising under martial law.

General Order No. 1 gave President Marcos the power to "govern the nation and direct the operation of the entire Government, including all its agencies and instrumentalities, in [his] capacity and . . . exercise all the powers and prerogatives appurtenant and incident to [his] position as such Commander-in-Chief of the Armed Forces of the Philippines."

General Order No. 2 ordered the arrest of several individuals. The same was followed by General Order No. 3, which stated that "all executive departments, bureaus, offices, agencies, and instrumentalities of the National Government, government-owned or controlled corporations, as well as governments of all the provinces, cities, municipalities, and barrios throughout the land shall continue to function under their present officers and employees and in accordance with existing laws." However, General Order No. 3 removed from the jurisdiction of the judiciary the following cases:

1. Those involving the validity, legality or constitutionality of Proclamation No. 1081 dated September 21, 1972, or of any decree, order or acts issued, promulgated or [performed] by me or by my duly designated representative pursuant thereto. (As amended by General Order No. 3-A, dated September 24, 1972).

2. Those involving the validity, legality or constitutionality of any rules, orders or acts issued, promulgated or performed by public servants pursuant to decrees, orders, rules and regulations issued and promulgated by me or by my duly designated representative pursuant to Proclamation No. 1081, dated Sept. 21, 1972.

3. Those involving crimes against national security and the law of nations.

4. Those involving crimes against the fundamental laws of the State.

5. Those involving crimes against public order.

6. Those crimes involving usurpation of authority, rank, title, and improper use of names, uniforms, and insignia.

7. Those involving crimes committed by public officers.

General Order No. 4 imposed the curfew between the hours of 12 midnight and 4 o'clock in the morning wherein no person in the Philippines was allowed to move about outside his or her residence unless he or she is authorized in writing to do so by the military commander-in-­charge of his or her area of residence. General Order No. 4 further stated that any violation of the same would lead to the arrest and detention of the person in the nearest military camp and the person would be released not later than 12 o'clock noon the following day.

General Order No. 5 ordered that:

all rallies, demonstrations, and other forms of group actions by persons within the geographical limits of the Philippines, including strikes and picketing in vital industries such as companies engaged in manufacture or processing as well as in the distribution of fuel, gas, gasoline, and fuel or lubricating oil, in companies engaged in the production or processing of essential commodities or products for exports, and in companies engaged in banking of any kind, as well as in hospitals and in schools and colleges, are strictly prohibited and any person violating this order shall forthwith be arrested and taken into custody and held for the duration of the national emergency or until he or she is otherwise ordered released by me or by my designated representative.

General Order No. 6 imposed that "no person shall keep, possess, or carry outside of his residence any firearm unless such person is duly authorized to keep, possess, or carry such firearm and any person violating this order shall forthwith be arrested and taken into custody . . ."

Martial law arises from necessity, when the civil government cannot maintain peace and order, and the powers to be exercised respond to that necessity. However, under his version of martial law, President Marcos placed all his actions beyond judicial review and vested in himself the power to "legally," by virtue of his General Orders, do anything, without limitation. It was clearly not necessary to make President Marcos a dictator to enable civil government to maintain peace and order. President Marcos also prohibited the expression of dissent, prohibiting "rallies, demonstrations, and other forms of group actions" in the premises not only of public utilities, but schools, colleges, and even companies engaged in the production of products of exports. Clearly, these powers were not necessary to enable the civil government to execute its functions and maintain peace and order, but rather, to enable him to continue as self­made dictator.

President Marcos' implementation of martial law was a total abuse and bastardization of the concept of martial law. A reading of the powers which President Marcos intended to exercise makes it abundantly clear that there was no public necessity that demanded that the President be given those powers. Martial law was a stratagem. It was an artifice to hide the weaknesses of his leadership as people rose up to challenge him. It was ruse to perpetuate himself in power despite the term limitations in the 1973 Constitution.^[61]

JUSTICE LEONEN:

Okay. Just very quickly, in one year's time, what is the objective?

GENERAL GUERRERO:

The objective is to quell the rebellion.

JUSTICE LEONEN:

Zero, no combatant. What do you mean "quell the rebellion", General? I think you are in the . . .

GENERAL GUERRERO:

Ideally, Sir, it is, we should say there should be no remnants but ah . . .

JUSTICE LEONEN:

So if there are remnants there will be an extension of Martial Law.

GENERAL GUERRERO:

As I have said, ideally, but we are just realistic. We cannot reduce them to zero. What is more important is for us to be able to reduce them to a significant level where they can no longer be considered as a threat.

JUSTICE LEONEN:

I think some of us have encountered "engagements with the anned forces." And we know for a fact that you conduct roadmaps in order to set your targets for particular periods.

GENERAL GUERRERO:

Yes, Your Honor.

JUSTICE LEONEN:

So, may we know what the target is under Martial Law, what exactly, how much degradation of forces are you looking at?

GENERAL GUERRERO:

You have to understand, Your Honor, that Martial Law is just a snapshot of the entire campaign plan.

JUSTICE LEONEN:

Yes, so within one year . . .

GENERAL GUERRERO:

Martial Law came as a necessity because of the developments in the security situation.

JUSTICE LEONEN:

I understand but . . .

GENERAL GUERRERO:

The original campaign plan stated for a duration of 2017 to 2022 but we have broken down our activities by months, by years, by quarters.

JUSTICE LEONEN:

Okay, so the original plan was 2017 to 2022 did not envision Martial Law, is that not correct?

GENERAL GUERRERO:

Yes, Your Honor.

JUSTICE LEONEN:

And now with Martial Law, it is going to be speeded up, is that not correct?

GENERAL GUERRERO:

That is our hope, Your Honor, for us to be able to fast track the accomplishment of our mission.

JUSTICE LEONEN:

So, what is the target in 2018?

GENERAL GUERRERO:

The target for 2018 is for us to reduce, to finish the remaining ISIS rebels here in Mindanao, and there are others . . .

JUSTICE LEONEN:

You realize, of course, that we are the only country in the world that has that for a target, for a realistic target . . .

GENERAL GUERRERO:

Pardon me, Your Honor.

JUSTICE LEONEN:

We are the only country in the world, all countries will want to remove all ISIS inspired. But even the United States, and I will show you later, has said that it is close to improbable unless you actually dig human rights violation in order to remove all of it but, for course, it will increase the rebellion in case you want to do so. But if you really want a realistic target, it cannot be zero . . .

GENERAL GUERRERO:

Clearly, Your Honor.

JUSTICE LEONEN:

. . . unless you're saying, General, that after 2018, if there is a single communist existing, a single Daesh person existing, or the rag tag team of the BIFF existing, that there will still be an extension of Martial Law.

GENERAL GUERRERO:

Your Honor, the problem is not only military. Talking about reducing the number of the armed elements to zero is impossible for as long as we do not address the root cause of the problem.

JUSTICE LEONEN:

Okay. So, under Martial Law you will have control of social welfare.

GENERAL GUERRERO:

Not control, Your Honor. Clearly we have not vested with that authority and we do not intend to arrogate such function upon ourselves.

JUSTICE LEONEN:

Good. So, nice to hear that from you but then isn't that the actual situation without Martial Law?

GENERAL GUERRERO:

I do not know, I cannot speak for the Department of Social Welfare and Development, Your Honor.

. . .

JUSTICE LEONEN:

Yes, so what did Martial Law add?

GENERAL GUERRERO:

As I have said, it has given us enhanced authority, Your Honor.

JUSTICE LEONEN:

Yes, but the enhanced authority is not clear but perhaps I should ask that of the Solicitor General to be fair to you because you are in . . .

GENERAL GUERRERO:

Let me just explain, Your Honor.

JUSTICE LEONEN:

Yes.

GENERAL GUERRERO:

What today is multi-dimensional. What you see in Marawi is only one dimension of the war that is tactical.

JUSTICE LEONEN:

Yes.

GENERAL GUERRERO:

Beneath the tactical warfare that is very obvious and very apparent are underlying elements . . .

JUSTICE LEONEN:

Yes.

GENERAL GUERRERO:

Elements that involve politics . . .

JUSTICE LEONEN:

Yes.

GENERAL GUERRERO:

. . . legal, informational, cyber, political, diplomatic, economical and technological.

. . . .

JUSTICE LEONEN:

Okay. So, the group in Basilan is severely degraded, is that not correct?

GENERAL GUERRERO:

I beg your pardon, Your Honor?

JUSTICE LEONEN:

The group in Basilan is severely degraded, the Basilan ASG, because this was the Hapilon group. And most of them transferred to Marawi, is that not correct?

GENERAL GUERRERO: You have to understand, Your Honor, that the figures I have presented are figures based on intelligence reports that we have gathered on the ground. They are not accurate. In fact, they have only accounted for regulars, armed regulars, but we have not accounted for sympathizers, Your Honor.

JUSTICE LEONEN: The intelligence reports are not accurate.

GENERAL GUERRERO: Yes, Your Honor.

JUSTICE LEONEN: And we are relying on the accuracy of the presentation of the Army to declare Martial Law or for the sufficiency of facts. What do you mean "they are not accurate"?

GENERAL GUERRERO: It is not accurate in a sense that we cannot guarantee the one hundred percent exactness of the figures that they are presenting.

JUSTICE LEONEN: Okay. So, the army presented figures, of course, not one hundred percent with confidence, and now these conclusions of fact have been presented to the Court. So, are we not relying on facts which have no sufficiency in basis?

GENERAL GUERRERO: Your Honor, the intelligence process is a tedious process. It is not guess work, Your Honor.

JUSTICE LEONEN: But part of it is.^[66]

CHIEF JUSTICE SERENO:

So, the martial law administrator is the Secretary?

GENERAL GUERRERO:

Yes, Your Honor.

CHIEF JUSTICE SERENO:

Okay. Because you are the implementor you can immediately just say to the agencies, We need this, evacuate, they will immediately follow because you are the martial law implementor, is that correct?

GENERAL GUERRERO:

My implementation of martial law, Your Honor, is dependent on the powers that are, or authorities that are vested in me by the President.

CHIEF JUSTICE SERENO:

Okay. So, what makes it easier, is it psychological? That's why I've been asking since yesterday, is it psychological, the calling out powers on steroids?

GENERAL GUERRERO:

Yes, Your Honor.

CHIEF JUSTICE SERENO:

So, it's psychological?

GENERAL GUERRERO:

It's partly psychological, Your Honor.

CHIEF JUSTICE SERENO:

Okay, partly psychological. What do you think makes people more cooperative in a martial law setting?

GENERAL GUERRERO:

It's the fact that a, a strong authority is in charge.

CHIEF JUSTICE SERENO:

A what?

GENERAL GUERRERO: A strong authority is in charge.^[67]

The rules on pleading speak of two (2) kinds of facts: the first, the "ultimate facts", and the second, the "evidentiary facts." In Remitere vs. Vda. de Yulo, the tenn "ultimate facts" was defined and explained as follows:

"The term 'ultimate facts' as used in Sec. 3, Rule 3 of the Rules of Court, means the essential facts constituting the plaintiff's cause of action. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient . . . ." (Moran, Rules of Court, Vol. 1, 1963 ed., p. 213).

"Ultimate facts are important and substantial facts which either directly fonn the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant. The tenn does not refer to the details of probative matter or particulars of evidence by which these material elements are to be established. It refers to principal, determinate, constitutive facts, upon the existence of which, the entire cause of action rests."

while the term "evidentiary fact" has been defined in the following tenor:

"Those facts which are necessary for determination of the ultimate facts; they are the premises upon which conclusions of ultimate facts are based. Womack v. Industrial Comm., 168 Colo. 364, 451 P.2d 761, 764. Facts which furnish evidence of existence of some other fact."^[70]

Basic is the rule that bare allegations, unsubstantiated by evidence, are not equivalent to proof, i.e., mere allegations are not evidence. Based on the records, this Court finds that there exists insufficient factual or legal basis to conclude that Felipe's sexual infidelity and irresponsibility can be equated with psychological incapacity as contemplated by law. We reiterate that there was no other evidence adduced. Aside from the psychologist, petitioner did not present other witnesses to substantiate her allegations on Felipe's infidelity notwithstanding the fact that she claimed that their relatives saw him with other women. Her testimony, therefore, is considered self-serving and had no serious evidentiary value.

It bears repeating that the trial courts, as in all the other cases they try, must always base their judgments not solely on the expert opinions presented by the parties but on the totality of evidence adduced in the course of their proceedings.^[77]

Notably, Dra. dela Llana anchors her claim mainly on three pieces of evidence: (1) the pictures of her damaged car, (2) the medical certificate dated November 20, 2000, and (3) her testimonial evidence. However, none of these pieces of evidence show the causal relation between the vehicular accident and the whiplash injury. In other words, Dra. dela Llana, during trial, did not adduce the factum probans or the evidentiary facts by which the factum probandum or the ultimate fact can be established, as fully discussed below.

Dra. dela Llana contends that the pictures of the damaged car show that the massive impact of the collision caused her whiplash injury. We are not persuaded by this bare claim. Her insistence that these pictures show the causation grossly belies common logic. These pictures indeed demonstrate the impact of the collision. However, it is a far-fetched assumption that the whiplash injury can also be inferred from these pictures.

Before proceeding further, it is well to note that the factum probandum petitioner is trying to establish here is still the alleged intercalation of the Deeds of Donation on blank pieces of paper containing the signatures of Consuelo. The factum probans this time around is the alleged payment of the Donors Tax after the death of Consuelo.

Firstly, it is apparent at once that there is a failure of the factum probans, even if successfully proven, to prove in turn the factum probandum. As intimated by respondents, payment of the Donors Tax after the death of Consuelo does not necessarily prove the alleged intercalation of the Deeds of Donation on blank pieces of paper containing the signatures of Consuelo.

Secondly, petitioner failed to prove this factum probandum.

Ariston, Jr. never testified that Consuelo herself physically and personally delivered PCIB Check No. A144-73211 to the BIR. He instead testified that the check was prepared and issued by Consuelo during her lifetime, but that he, Ariston, Jr., physically and personally delivered the same to the BIR. On the query, however, as to whether it was delivered to the BIR before or after the death of Consuelo, petitioner and respondents presented all the conflicting evidence we enumerated above.

The party asserting a fact has the burden of proving it. Petitioner, however, merely formulated conjectures based on the evidence he presented, and did not bother to present Nestor Espenilla to explain the consecutive numbers of the RTRs or what be meant with the words on even date in his certification. Neither did petitioner present any evidence that the records of the BIR Commissioner were falsified or antedated, thus, letting the presumption that a public official had regularly performed his duties stand. This is in contrast to respondents direct evidence attesting to the payment of said tax during the lifetime of Consuelo. With respect to respondents evidence, all that petitioner could offer in rebuttal is another speculation totally unsupported by evidence: the alleged fabrication thereof.

The Court rules in favor of petitioners.

Petitioners contend first off that the CA erred in its holding that the partitions of Lot 733 and later of the divided unit Lot 733-C following the Galang Plan were actually the partitions of the pro-indiviso shares of its co-owners effectively conveying to them their respective specific shares in the property.

We agree with petitioners.

First, the CA's holding aforestated is neither supported by, nor deducible from, the evidentiary facts on record. He who alleges must prove it. Respondents have the burden to substantiate the factum probandum of their complaint or the ultimate fact which is their claimed ownership over the lots in question. They were, however, unsuccessful in adducing the factum probans or the evidentiary facts by which the factum probandum or ultimate fact can be established.

Even assuming arguendo that the xerox copies presented by the prosecution as secondary evidence are not allowable in court, still the absence thereof does not warrant the acquittal of appellant. In People vs. Comia, where this particular issue was involved, the Court held that the complainants' failure to ask for receipts for the fees they paid to the accused therein, as well as their consequent failure to present receipts before the trial court as proof of the said payments, is not fatal to their case. The complainants duly proved by their respective testimonies that said accused was involved in the entire recruitment process. Their testimonies in this regard, being clear and positive, were declared sufficient to establish that factum probandum.

Indeed, the trial court was justified and correct in accepting the version of the prosecution witnesses, their statements being positive and affirmative in nature. This is more worthy of credit than the mere uncorroborated and self-serving denials of appellant. The lame defense consisting of such bare denials by appellant cannot overcome the evidence presented by the prosecution proving her guilt beyond reasonable doubt.

Signals Intelligence (SIGINT) refers to the interception of communications between individuals and "electronic transmissions that can be collected by ships, planes, ground sites, or satellites."

Human Intelligence (HUMINT) refers to information collected from human sources either through witness interviews or clandestine operations.

By the term itself, Open-Source Intelligence (OSINT) refers to readily­accessible information within the public domain. Open-Source Intelligence sources include "traditional media, Internet forums and media, government publications, and professional or academic papers."

Newspapers and radio and television broadcasts are more specific examples of Open-Source Intelligence sources from which intelligence analysts may collect data.

Geospatial Intelligence (GEOINT) pertains to imagery of activities on earth. An example of geospatial intelligence is a "satellite photo of a foreign military base with topography[.]"

Lastly, Measures and Signatures Intelligence (MASINT) refers to "scientific and highly technical intelligence obtained by identifying and analyzing environmental byproducts of developments of interests, such as weapons tests." Measures and Signatures Intelligence has been helpful in "identify[ing] chemical weapons and pinpoint[ing] the specific features of unknown weapons systems."^[83] (Citations omitted)

JUSTICE LEONEN:

Were you introduced to the different factions inside the BIFF?

CONGRESSMAN LAGMAN:

No, Your Honor.

JUSTICE LEONEN:

Were you introduced to the different factions of the Abu Sayyaf Group?

CONGRESSMAN LAGMAN:

No, Your Honor.

JUSTICE LEONEN:

In other words, in the entirety of the deliberations in the extension of Martial Law, the Congress did not have the opportunity to act, look at the context of the intelligence information given to you.

CONGRESSMAN LAGMAN: The time given to us was too short that we could not exhaust all the possible questions we have to ask.

JUSTICE LEONEN:

You are not aware that the Abu Sayyaf Group, not its entirety, not all of them are affiliated with ISIS or ISIS-inspired groups.

CONGRESSMAN LAGMAN:

There was no detail of this, Your Honor.

JUSTICE LEONEN:

No information about that?

CONGRESSMAN LAGMAN:

No information.

JUSTICE LEONEN:

You are not aware of the strength of the AKP as of December of last year? That in the reports of the intelligence, they say that there are about 7, 8 or 9 individuals only under the AKP, based on intelligence reports that were given to the Supreme Court.

CONGRESSMAN LAGMAN:

That was not part of the briefing and that was not deliberated upon during joint session.

JUSTICE LEONEN:

And you are not aware of what the 185 skirmishes were and whether the army was walloped, or it was the enemy that was walloped, 180 plus skirmishes with the Abu Sayyaf and the NPAs.

CONGRESSMAN LAGMAN:

There was a litany of skirmishes as said in this letter, as well as in the briefings, but no details were given to us.

JUSTICE LEONEN:

So, you were not told that in most of these skirmishes, in fact almost all, the army prevailed.

CONGRESSMAN LAGMAN:

No, Your Honor, we were not informed of that.

JUSTICE LEONEN:

And you were told that because there were so many skirmishes, they needed Martial Law.

CONGRESSMAN LAGMAN:

That's correct, Your Honor.^[85]

[T]he remnants of DAESH-inspired DIWM members and their allies, together with their protectors, supporters and sympathizers, have been monitored in their continued efforts towards radicalization/recruitment, financial and logistical build-up, as well as in their consolidation/reorganization in Central Mindanao, particularly in the provinces of Maguindanao and North Cotabato and also in Sulu and Basilan.^[89]

WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del Sur, established several checkpoints within the City, burned down certain government and private facilities and inflicted casualties on the part of Government forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby 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; and

WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.^[124]

From 23 May 2017 to 10 July 2017, the AFP's operations had neutralized three hundred seventy-nine (379) out of the estimated six hundred (600) DIWM rebels, and had recovered three hundred twenty­ nine (329) fireanns. Around one thousand seven hundred twenty-two (1,722) residents of Marawi City had been rescued and a total of sixteen (16) barangays had been declared clear of DIWM presence. During clearing operations conducted by the AFP, approximately Seventy-Five Million Pesos (P75,000,000.00) in cash and cheques were recovered from a house in Marawi City.

Operations against other rebel groups likewise yielded positive results. Against the BIFF, eighteen (18) members had been neutralized and two (2) had been arrested. Against the ASG, twenty-three (23) had been neutralized, five (5) apprehended, forty-one (41) surrendered to government forces, and forty-seven (47) fireanns had been recovered.^[128]

As the government's security forces intensified efforts during the implementation of Martial Law, one hundred eleven (111) members of the New People's Army (NPA) had been encountered and neutralized, while eighty-five (85) fireanns had been recovered from them.^[129]

Apart from these, at least fifty-nine (59) arson incidents have been carried out by the NPA in Mindanao this year, targeting businesses and private establishments and destroying an estimated P2.2 billion-worth of properties. Of these, the most significant were the attack on Lapanday Food Corporation in Davao City on 09 April 2017 and the burning of facilities and equipment of Mil-Oro Mining and Frasec Ventures Corporation in Mati City, Davao Oriental on 06 May 2017, which resulted in the destruction of properties valued at P1.85 billion and P109 million, respectively.

As a direct result of these atrocities on the part of the NPA, I was constrained to issue Proclamation No. 360 on 23 November 2017 declaring the termination of peace negotiations with the National Democratic Front-Communist Party of the Philippines-New People's Army (NDF-CPP-NPA) effective immediately. I followed this up with Proclamation No. 374 on 05 December 2017, where I declared the CPP­-NPA as a designated/identified terrorist organization under the Terrorism Financing Prevention and Suppression Act of 2012, and the issuance of a directive to the Secretary of Justice to file a petition in the appropriate court praying to proscribe the NDF-CPP-NPA as a terrorist organization under the Human Security Act of 2007.^[130]

JUSTICE CARPIO:

Thank you. Counsel, let['s] settle it. Just one more point. In the original declaration of martial law, only the Maute rebellion was mentioned specifically, correct?

SOLICITOR GENERAL CALIDA:

There were others, Your Honor.

JUSTICE CARPIO:

And other rebels? But not, no other specific rebellions? Maute or Maute group DAES is ISIS inspired, but no other rebels?

SOLICITOR GENERAL CALIDA:

Yes, Your Honor.

JUSTICE CARPIO:

Okay, so no specific mention of CPP-NPA rebellion. It's just other rebels.

SOLICITOR GENERAL CALIDA:

Yes, but it is subsume[d) under that term, Your Honor.

JUSTICE CARPIO:

Yes, okay. Now, in the first extension. There was also no mention of CPP-NPA specifically it was not mentioned. Correct?

SOLICITOR GENERAL CALIDA:

Actually, Your Honor, the president mentioned it, Your Honor. And may I read for the record.

JUSTICE CARPIO:

First extension?

SOLICITOR GENERAL CALIDA:

Yes, Your Honor.

JUSTICE CARPIO:

As the government security forces intensified efforts during the implementation of martial law, one hundred eleven members of the New People's Army (NPA) had been encountered and neutralized while eighty­ five firearms have been recovered from them.

JUSTICE CARPIO:

But what was the first extension merely extended the initial declaration. Correct?

SOLICITOR GENERAL CALIDA:

Yes, Your Honor.

JUSTICE CARPIO:

So what governs is the initial declaration? Because you were just extending it.

SOLICITOR GENERAL CALIDA:

Yes, Your Honor. But I mentioned the term.

JUSTICE CARPIO:

Yes.

SOLICITOR GENERAL CALIDA:

And other rebel groups includes the NPA, Your Honor.

JUSTICE CARPIO:

Yeah, but the first proclamation of the President in the first declaration mentions other rebels.

SOLICITOR GENERAL CALIDA:

Yes, Your Honor.

JUSTICE CARPIO:

Without specifying what these other rebels are, other rebels aside from the Maute Group, there were other rebels.

SOLICITOR GENERAL CALIDA:

Yes, Your Honor.

JUSTICE CARPIO:

Now, in this second extension, it says now, CPP-NPA?

SOLICITOR GENERAL CALIDA:

Yes, Your Honor.

JUSTICE CARPIO:

Now, my question is, when the Constitution says that if the rebellion persists, then Congress may extend. When you use the word persist and extend, you referring to the original ground for declaration of martial law. Correct?

SOLICITOR GENERAL CALIDA:

Yes, Your Honor. But as I've said, it covers the NPA because the Court can take judicial notice the oldest rebel group in the Philippines is the NPA. They have been fighting the government way back in 1960s, Your Honor.

JUSTICE CARPIO:

You are saying that when the Congress approved or approved the extension, the first extension, they were also referring to the CPP-NPA rebellion? Is that what you are saying?

SOLICITOR GENERAL CALIDA:

That is what I assumed, Your Honor.

JUSTICE CARPIO:

Okay, and also this Court, also when the Court approved.

SOLICITOR GENERAL CALIDA:

Yes, Your Honor.^[131]

. . . .

JUSTICE LEONEN: I'll move on to a different point and just a point of fact. During the confidential hearings on the first Martial Law Petition, Lagman v. Medialdea, you were present, correct?

SOLICITOR GENERAL CALIDA:

I was, Your Honor.

JUSTICE LEONEN:

Okay, that is not confidential. Will you confirm that there was no presentation during the confidential briefing on the CPP-NPA?

SOLICITOR GENERAL CALIDA:

Well, at that time, Your Honor, because of the on-going peace negotiations, we did not want to, you know . . . when we are in a negotiating mode, Your Honor, you want to be in the . . . (interrupted)

JUSTICE LEONEN:

I understand but my question is a bit factual that to convince the Court that there was a necessity for the proclamation of Martial Law in Lagman v. Medialdea, one, that was last year, there was no presentation of the CPP NPA's strength and "atrocities".

SOLICITOR GENERAL CALIDA:

I think the focus there was the Marawi S[ie]ge, Your Honor, and the Daesh inspired rebellious groups, Muslim groups, Your Honor.^[132]

. . . .

JUSTICE LEONEN:

Extension of Martial Law. By the way, was the NPA or the existence of the NPA, the basis for the initial proclamation of Martial Law?

ATTY. COLMENARES:

It was stated as an initial, in the initial proclamation, your Honor. It only stated, in fact, the entire proclamation it only stated the events in Marawi and the Maute, Your Honor.

JUSTICE LEONEN:

Because my reading might have been mistaken of the proclamation, there might have been several paragraphs which were not there, but are you sure that in Proclamation 216, there is no mention of the NPA at all?

ATTY. COLMENARES:

Yes, there was no mention, Your Honor, I think it was only three pages. In fact, the proclamation merely alleged that there is rebellion as shown by the examples of Maute activities in Marawi. And in fact, the proclamation, Your Honor, in fact even failed to allege that public safety requires the imposition of Martial Law, Your Honor.^[133]

This year, the CTs perpetrated a total of 385 atrocities (both terrorism and guerrilla warfare) in Mindanao, which resulted in 41 KIA and 62 WIA on the part of government forces. On the part of the civilians, these atrocities resulted in the killing of 23 and the wounding of 6. The most recent was the November 9, 2017 ambush in Talakag, Bukidnon, resulting in the killing of 1 PNP personnel and wounding of 3 others as well as the killing of a four-month old infant and the wounding of 2 civilians.

Apart from these, 59 arson incidents were carried out by the NPA in Mindanao for this year, targeting businesses and private establishments that destroyed an estimated Php2.2B-worth of properties. Of these, the most significant were the April 9, 2017 attack on Lapanday Food Corporation in Davao City and the May 6, 2017 burning of facilities and equipment of Mil-Oro Mining and Frasec Ventures Corporation in Mati City, Davao Oriental which resulted in PhP1.85B and PhP109M-worth of properties destroyed.^[136]

A thorough appreciation of the current situation requires assessing progress in different fields of action and different geographic theatres . . .

. . . In some areas, counterterrorism efforts have been successful; in others, less so. And for every plus or minus entry, there is a "however". Moreover, as shown in the preceding discussion, the situation has been and continues to be dynamic.

On the plus side, our worst fears have not been realized. There have been no more 9/11s, none of the worst cases that post-9/11 extrapolations suggested. The 9/11 attacks now appear to be a statistical outlier, not a forerunner of further escalation. Terrorists have not used weapons of mass destruction, as many expected they would do. (At least they have not used them yet, many would add.) While the Islamic State appears to have recruited some chemical weapons specialists, the terrorist arsenal remains primitive, although lethal within bounds.

Contrary to the inflated rhetoric of some in government, the operational capabilities of al-Qa'ida and the Islamic State remain limited. Both enterprises are beneficiaries of fortune (they would argue, of "God's will"). They are successful opportunists. The Islamic State's military success in Syria and Iraq reflects the collapse of the government's forces, not military prowess. With its legions of foreign fighters and deep financial pockets, the Islamic State theoretically could launch a global terrorist offensive, but the surge would probably be brief. This is not, as some have suggested, World War III.

Neither al-Qa'ida nor the Islamic State has become a mass movement, although both organizations attract sympathy in Muslim countries. The vast majority of Muslims polled over the years express negative views of jihadist organizations, but a significant minority expresses favorable views of al-Qa'ida and, more recently, of the Islamic State . . .

The constellation of jihadist groups is not as meaningful as it appears to be. Competing for endorsements, al-Qa'ida and the Islamic State have attracted declarations of loyalty from local groups across Africa, the Middle East, and Asia and have established a host of affiliates, provinces, and jihadist footholds. This is growth by acquisition and branding. A lot of it is public relations. Many of these groups are the products of long-standing local grievances and conflicts that would continue if there were no al-Qa'ida or Islamic State. Some are organizational assertions that represent only a handful of militants. The militants share a banner but are, for the most part, focused on local quarrels rather than a global jihad. There is no central command. There are no joint operations. The groups operate autonomously. Their connections in many cases are tenuous, although, with time, they could evolve into something more connected. The split between al-Qa'ida and the Islamic State has divided the groups. A number of them are beset by further internal divisions.

Like all terrorists, jihadis can kill, destroy, disrupt, alarm, and oblige governments to divert vast resources to secure against their attacks, but terrorists cannot translate their attacks into permanent political gain. Yet this is not the way they measure things. They tend to see their mission as continuing operations to demonstrate their commitment and awaken others.

The Islamic State is losing territory and can be defeated. With coalition air support and other external assistance, government forces in Iraq and U.S.-backed Kurdish and Arab fighters in Syria have been able to retake territory held by the Islamic State. Progress is slow, though faster than many analysts initially anticipated. This is not just a military challenge; it is also an effort to put something in place to govern recovered towns and cities.

Al-Qa'ida Central's command has been reduced to exhorting others to fight. The Islamic State has made very effective use of social media to reach a broader audience. Its advertisement of atrocity as evidence of its authenticity appears to have been a magnet for marginal and psychologically disturbed individuals. Jihadist ideology has become a conveyer of individual discontents.^[144] (Emphasis in the original)

• Effective: we will regularly assess the progress we are making and the outcomes of this strategy;

• Proportionate: we will ensure that the resources allocated to CONTEST, and the powers that are used for counter-terrorism work are proportionate to the risks we face and necessary to reduce those risks to a level we judge is acceptable;

• Transparent: wherever possible and consistent with our security we will seek to make more information available about the threats we face, the options we have and the response we have decided on;

. . . .

• Flexible: terrorists will seek new tactics to exploit vulnerabilities in our protective security; we will regularly re-assess the risks we face and ensure that risk assessment is the foundation of our work;

• Collaborative: countering terrorism requires a local, national and international response. We will continue to work with foreign governments, the private sector, non-governmental organisations and the public; and

• Value for money: to deliver a counter-terrorism that is sustainable over the long term we will try to reduce costs while we maintain our core capabilities.^[145]

• Respond to the ideological challenge of terrorism and the threat we face from those who promote it;

• Prevent people from being drawn into terrorism and ensure that they are given appropriate advice and support; and

• Work with a wide range of sectors (including education, criminal justice, faith, charities, the internet and health) where there are risks of radicalisation which we need to address.^[150]

• Strengthen UK border security;

• Reduce the vulnerability of the transport network;

• Increase the resilience of the UK's infrastructure; and

• Improve protective security for crowded places.^[152]

• Continue to build generic capabilities to respond to and recover from a wide range of terrorist and other civil emergencies;

• Improve preparedness for the highest impact risks in the National Risk Assessment;

• Improve the ability of the emergency services to work together during aterroristattack;and

• Enhance communications and information sharing for terrorist attacks.^[154]

• A mapping of university-based recruitment into extremist based both on detainee data as well as research in tertiary institutions by researchers who understand the distinctions among different streams of Islam.

• A compilation of the narratives used to draw recruits into pro-ISIS activity, both in religious study discussions as well as during military training.

• A systematic focus on cities other than Cotabato where radical cells were known to be active, using detainee information to try and draw a more complete picture of how these cells worked. We know, for example, that the organization initially known as Khilafah Islamiyah Mindanao (KIM) was founded in Cagayan de Oro by a man who became part of Maute's inner circle in Marawi, Ustadz Humam Abdul Najid alias Owayda (also known as Wai). Mapping the connections in Cagayan and understanding Owayda's role there remain essential.

• A mapping of mosques known to have hosted discussions with pro­ISIS preachers. The Salaf mosque in Cotabato is one example but there will surely be many others. Local ulama councils may want to work out a mechanism by which they can share information about known extremists to try and prevent mosques and other institutions from being recruitment centers.

• A detailed understanding of the role of women and why and through whom women became involved as financiers, propagandists and combatants.^[158]

Caution must be exercised in having a complete hands-off approach on matters involving grave abuse of discretion of a co-equal branch. This Court has come a long way from our pronouncements in Mabanag v. Vito.

In Mabanag, the Congress voted on the "Resolution of Both Houses Proposing an Amendment to the [1935] Constitution of the Philippines to be Appended as an Ordinance Thereto." The Resolution proposed to amend the 1935 Constitution to give way for the American parity rights provision, which granted United States citizens equal rights with Filipinos in the exploitation of our country's natural resources and the operation of public utilities, contrary to Articles XIII and XIV of the 1935 Philippine Constitution.

Article XV, Section 1 of the 1935 Constitution required the affrrmative votes of three-fourths (3/4) of all members of the Senate and the House, voting separately, before a proposed constitutional amendment could be submitted to the people for approval or disapprovaL The Senate was then composed of 24 members while the House had 98 members. Two (2) House representatives later resigned, leaving the House membership with only 96 representatives. Following the Constitutional mandate, the required votes to pass the Resolution were 18 Senators and 72 Representatives.

The Senate suspended three (3) Senators from the Nacionalista Party, namely, Ramon Diokno, Jose O. Vera, and Jose E. Romero, for alleged irregularity in their elections. Meanwhile, the House also excluded eight (8) representatives from taking their seats. Although these eight (8) representatives were not formally suspended, the House nevertheless excluded them from participating for the same reason. Due to the suspension of the Senators and Representatives, only 16 out of the required 18 Senators and 68 out of the 72 Representatives voted in favor of the Resolution.

Mabanag recognized that had the excluded members of Congress been allowed to vote, then the parity amendment that gave the Americans rights to our natural resources, which this Court ruled impacted on our sovereignty, would not have been enacted.

Nevertheless, the absence of the necessary votes of three-fourths (3/4) of either branch of Congress, voting separately, did not prevent Congress from passing the Resolution. Petitioners thus assailed the Resolution for being unconstitutional. This Court, ruling under the 1935 Constitution upheld the enactment despite the patent violation of Article XV, Section 1.

Mabanag ruled that Congress in joint session already certified that both Houses adopted the Resolution, which was already an enrolled bill. Thus, this Court had no more power to review as it was a political question:

In view of the foregoing considerations, we deem it unnecessary to decide the question of whether the senators and representatives who were ignored in the computation of the necessary three-fourths vote were members of Congress within the meaning of Section 1 of Article XV of the Philippine Constitution.

Justice Perfecto's dissent, however, considered the matter a constitutional question - that is to say, deciding whether respondents violated the requirements of Article XV of the 1935 Constitution was within this Court's jurisdiction.

Subsequent rulings have since delimited and clarified the political question doctrine, especially under the 1987 Constitution. It bears stressing that Article VIII, Section 1 explicitly grants this Court the power "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

We cannot again shy away from this constitutional mandate.

The rule of law must still prevail in curbing any attempt to suppress the minority and eliminate dissent.

In Estrada v. Desierto:

To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this [C]ourt not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. (Emphasis supplied)

Any attempt by the dominant to silence dissent and take over an entire institution finds no room under the 1987 Constitution. Parliamentary practice and the Rules of the House of Representatives cannot be overruled in favor of personal agenda.

It is understandable for the majority in any deliberative body to push their advantages to the consternation of the minority. However, in a representative democracy marked with opportunities for deliberation, the complete annihilation of any dissenting voice, no matter how reasonable, is a prelude to many forms of authoritarianism. While politics speaks in numbers, many among our citizens can only hope that those political numbers are the result of mature discernment. Maturity in politics is marked by a courageous attitude to be open to the genuine opposition, who will aggressively point out the weaknesses of the administration, in an orderly fashion, within parliamentary forwns. After all, if the true interest of the public is in mind, even the administration will benefit by criticism.^[160]

RULE V

CONSIDERATION OF THE LETTER OF THE PRESIDENT DATED DECEMBER 8, 2017 CALLING UPON THE CONGRESS OF THE PHILIPPINES "TO FURTHER EXTEND THE PROCLAMATION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO FOR A PERIOD OF ONE (1) YEAR, FROM 01 JANUARY 2018 TO 31 DECEMBER 2018, OR FOR SUCH OTHER PERIOD OF TIME AS THE CONGRESS MAY DETERMINE, IN ACCORDANCE WITH SECTION 18, ARTICLE VII OF THE 1987 PHILIPPINE CONSTITUTION"

SEC. 6. The relevant agencies of the Executive Department shall report to the Joint Session on the factual basis of the letter of the President calling upon Congress to further extend the period of Proclamation No. 216, Series of 2017.

SEC. 7. Any member of Congress may interpellate the resource persons for not more than three (3) minutes excluding the time of the answer of the resource persons.

JUSTICE LEONEN:

. . . .

Congressman Lagman, I am sure that you were given the operational orders or the OPORD while you were conducting the congressional hearings that you were given the OPORD, the Operational Directive of the Chief of Staff to the Service Command for the extension of Martial Law, is that not correct?

CONGRESSMAN LAGMAN:

Well, we were given the letter of the President . . .

JUSTICE LEONEN:

I'm sorry Congressman Lagman. So, the only thing given to you as Congressmen was the letter of the President.

CONGRESSMAN LAGMAN:

With the annexes of the recommendation both of the Secretary of National Defense and the . . .

JUSTICE LEONEN:

Let me get this right. So, the Congress decided on the basis of a letter of the President, the annex was the letter of the Chief of Staff and the . . .

CONGRESSMAN LAGMAN:

And also of the Secretary of National Defense.

JUSTICE LEONEN:

In other words, was there intelligence information given to each member of the House and the Senate when they reviewed the factual basis of the assertions in the letter?

CONGRESSMAN LAGMAN:

There was a briefing before we had the joint session but definitely no confidential information was given to the members.

JUSTICE LEONEN:

The briefing was in power point, correct?

CONGRESSMAN LAGMAN:

No, Your Honor . . .

JUSTICE LEONEN:

So, it was just . . .

CONGRESSMAN LAGMAN:

That was before, wala . . . .

JUSTICE LEONEN:

So, let me again go back. So, Congress relied on a briefing but was not given materials when it actually voted for the extension of Martial Law in the entirety of Mindanao for one year. You were relying on the letter of the President, the letter of the SND, the letter of the Chief of Staff, and the words that were given only during the briefing, am I not correct?

CONGRESSMAN LAGMAN:

Those were the only documents in the briefing conducted but during the joint session, we were allowed to make some interpellation and inquiries on the Executive Panel but it was very limited. We were only given three minutes.

JUSTICE LEONEN:

Three minutes.

CONGRESSMAN LAGMAN:

Three minutes.^[162]

11. Petitioner Lagman was present during the entire joint session of the Congress on December 13, 2017 when the request of the President for a yearlong extension of martial law and the suspension of the writ in Mindanao was summarily granted by the Congress. He is absolutely certain there was no PowerPoint presentation made by the resource persons from the military and police establishments and executive department during the joint session.

12. He was also present during the all-Member caucus of the House of Representatives held in the afternoon of December 12, 2017 when the military and police establishments briefed the Members of the House of Representatives on the security situation in Mindanao. There was a PowerPoint presentation made principally by General Alex Monteagudo, the Chief of the National Intelligence Coordinating Agency (NICA). But the caucus was not the body charged with approving the extension.

13. The PowerPoint presentation, which included the assessment/conclusions of the military-police establishment, was not substantiated by independent hard data and validated accounts. It was bereft of verified and verifiable basis. It was not supported by documentary evidence. Verily, the PowerPoint presentation lacks the disclosure of the factual data on which it was based.

14. When sensitive questions were asked, the usual answer was that they involved classified information which are confidential in nature and any disclosure may endanger national security.

15. It was during his briefing that General Monteagudo said that "Marawi is only the tip of the iceberg", an understatement to justify alleged looming bigger terrorist threats and attacks. This estimation was not backed up with facts.

. . . .

19. It is false for the Solicitor General to claim that Petitioner Lagman was absent in either or both the briefing and joint session.^[163]