G.R. No. 190293

EN BANC

G.R. No. 190293: PHILIP SIGFRID A. FORTUN and ALBERT LEE G. ANGELES, Petitioners, v. GLORIA MACAPAGAL-ARROYO, et al., Respondents.

G.R. No. 190294: DIDAGEN P. DILANGALEN, Petitioner, v. EDUARDO R. ERMITA, et al., Respondents.

G.R. No. 190301: NATIONAL UNION OF PEOPLES LAWYERS (NUPL) SECRETARY GENERAL NERI JAVIER COLMENARES, et al., Petitioners, v. PRESIDENT GLORIA MACAPAGAL-ARROYO, et al., Respondents.

G.R. No. 190302: JOSEPH NELSON A. LOYOLA, Petitioner, v. PRESIDENT GLORIA MACAPAGAL-ARROYO, et al., Respondents.

G.R. No. 190307: JOVITO R. SALONGA, et al., Petitioners, v. GLORIA MACAPAGAL-ARROYO, et al., Respondents.

G.R. No. 190356: BAILENG S. MANTAWIL, et al., Petitioners, v. THE EXECUTIVE SECRETARY, et al., Respondents.

G.R. No. 190380: CHRISTIAN MONSOD and CARLOS P. MEDINA, JR., Petitioners, v. EDUARDO R. ERMITA, Respondent.

Promulgated:

March 20, 2012

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DISSENTING OPINION

CARPIO, J.:

I dissent.

The Cases

These are consolidated petitions for the writs of certiorari and prohibition challenging the constitutionality of Presidential Proclamation No. 1959, which declared a state of martial law and suspended the privilege of the writ of habeas corpus in the Province of Maguindanao, except for identified areas of the Moro Islamic Liberation Front.

The Antecedents

In the morning of 23 November 2009, fifty-seven (57) innocent civilians met their tragic and untimely death in a gruesome massacre unequaled in recent history,¹ considered to be the Philippines worst case of election-related violence. Brutally killed were female family members of then Buluan Vice Mayor Esmael Toto Mangudadatu (Mangudadatu), including his wife and sisters, and members of the press who were part of a convoy on the way to Shariff Aguak in Maguindanao. Mangudadatus wife was bringing with her Mangudadatus certificate of candidacy for Governor of Maguindanao for filing with the Provincial Office of the Commission on Elections in Shariff Aguak. Five of the victims were not part of the convoy but happened to be traveling on the same highway.²

In its Consolidated Comment dated 14 December 2009, the Office of the Solicitor General (OSG), representing public respondents, narrated the harrowing events which unfolded on that fateful day of 23 November 2009, to wit:

x x x x

3. Vice Mayor Mangudadatu confirmed having received reports that his political rivals (Ampatuans) were planning to kill him upon his filing of a certificate of candidacy (COC) for the gubernatorial seat in Maguindanao. Believing that the presence of women and media personalities would deter any violent assault, he asked his wife and female relatives to file his COC and invited several media reporters to cover the event.

4. At around 10 a.m., the convoy stopped at a designated PNP checkpoint along the highway of Ampatuan, Maguindanao manned by the Maguindanao 1508^th Provincial Mobile Group, particularly, Eshmail Canapia and Takpan Dilon. While at a stop, they were approached by about one hundred (100) armed men. The armed men pointed their weapons at the members of the 1508^th Provincial Mobile Group manning the check point, and threatened them to refrain from interfering. The members of the convoy were then ordered to alight from their vehicles and to lie face down on the ground, as the armed men forcibly took their personal belongings. Subsequently, all members of the convoy were ordered to board their vehicles. They were eventually brought by the armed men to the hills in Barangay Masalay, Ampatuan, about 2.5 kilometers from the checkpoint.

5. At about the same time, Vice Mayor Mangudadatu received a call from his wife Genelyn who, in a trembling voice, told him that a group of more or less 100 armed men stopped their convoy, and that Datu Unsay Mayor Andal Ampatuan, Jr. was walking towards her, and was about to slap her face. After those last words were uttered, the phone line went dead and her cellphone could not be contacted any longer. Alarmed that his wife and relatives, as well as the media personalities were in grave danger, Vice Mayor Mangudadatu immediately reported the incident to the Armed Forces of the Philippines.

6. In the afternoon of the same day, soldiers aboard two army trucks led by Lt. Col. Rolando Nerona, Head of the Philippine Armys 64^th Infantry Battalion went to the town of Ampatuan to confirm the report. At around 3 p.m., they passed by the checkpoint along the highway in Ampatuan manned by the 1508^th Provincial Mobile Group and asked whether they were aware of the reported abduction. Members of the 1508^th Provincial Mobile Group denied having knowledge of what they have witnessed at around 10 in the morning purportedly out of fear of retaliation from the powerful Ampatuan clan. Nevertheless, P/CI Sukarno Adil Dicay, the head of the Mobile Group, instructed P/INSP Diongon to accompany the military on foot patrol as they conduct their operation relative to the reported abduction.

7. Upon reaching Barangay Masalay, Ampatuan, the soldiers on foot patrol found dead bodies, bloodied and scattered on the ground and inside the four (4) vehicles used by the convoy. Three (3) newly covered graves and a back hoe belonging to the Maguindanao Provincial Government parked nearby with its engine still running were found at the site. When the graves were dug up by the soldiers, twenty four (24) dead bodies were found in the first grave; six (6) dead bodies with three (3) vehicles, particularly a Toyota Vios with the seal of the Tacurong City Government, a Tamaraw FX and an L300 owned by the media outfit UNTV were found in the second grave; and five (5) more dead bodies were recovered from the third grave, yielding 35 buried dead bodies and, together with other cadavers, resulted in a total of fifty seven (57) fatalities.

8. x x x

9. Examination of the bodies revealed that most, if not all, of the female victims pants were found unzipped, and their sexual organs mutilated and mangled. Five (5) of them were tested positive for traces of semen, indicative of sexual abuse while some of the victims were shot in the genital area. The genitalia of Genelyn Mangudadatu was lacerated four (4) times, and blown off by a gun fire, and her body horrifyingly mutilated. Two of the women killed were pregnant, while another two were lawyers. Twenty-nine (29) of the casualties were media personnel. Almost all gun shot injuries were on the heads of the victims, rendering them unrecognizable albeit two (2) bodies remain unidentified. Those found in the graves were coarsely lumped like trash, and some of the victims were found hogtied. All the dead bodies bear marks of despicable torture, contempt and outrageous torment.³

A day after the carnage, on 24 November 2009, former President Gloria Macapagal-Arroyo (President Arroyo) issued Proclamation No. 1946, declaring a state of emergency in the provinces of Maguindanao and Sultan Kudarat, and in the City of Cotabato, to prevent and suppress the occurrence of similar other incidents of lawless violence in Central Mindanao. The full text of Proclamation No. 1946 reads:

DECLARING A STATE OF EMERGENCY IN CENTRAL MINDANAO

WHEREAS, on November 23, 2009, several persons, including women and members of media were killed in a violent incident which took place in Central Mindanao;

WHEREAS, there is an urgent need to prevent and suppress the occurrence of similar other incidents of lawless violence in Central Mindanao;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, 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. The Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato are hereby placed under a state of emergency for the purpose of preventing and suppressing lawless violence in the aforesaid jurisdiction.

SECTION 2. The Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) are hereby ordered to undertake such measures as may be allowed by the Constitution and by law to prevent and suppress all incidents of lawless violence in the said jurisdiction.

SECTION 3. The state of emergency covering the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato shall remain in force and effect until lifted or withdrawn by the President.⁴

On 4 December 2009, President Arroyo issued Proclamation No. 1959, declaring martial law and suspending the privilege of the writ of habeas corpus (writ) in the Province of Maguindanao, except for the identified areas of the Moro Islamic Liberation Front (MILF). The full text of Proclamation No. 1959, signed by President Arroyo and attested by Executive Secretary Eduardo Ermita, reads:

PROCLAMATION NO. 1959

PROCLAIMING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE PROVINCE OF MAGUINDANAO, EXCEPT FOR CERTAIN AREAS

WHEREAS, Proclamation No. 1946 was issued on 24 November 2009 declaring a state of emergency in the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato for the purpose of preventing and suppressing lawless violence in the aforesaid areas;

WHEREAS, Section 18, Art.VII of the Constitution provides that x x x In case of invasion or rebellion, when the public safety requires it, (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, R.A. No. 6986 ⁵ provides that the crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of x x x depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

WHEREAS, heavily armed groups in the province of Maguindanao have established positions to resist government troops, thereby depriving the Executive of its powers and prerogatives to enforce the laws of the land and to maintain public order and safety;

WHEREAS, the condition of peace and order in the province of Maguindanao has deteriorated to the extent that the local judicial system and other government mechanisms in the province are not functioning, thus endangering public safety;

WHEREAS, the Implementing Operational Guidelines of the GRP-MILF Agreement on the General Cessation of Hostilities dated 14 November 1997 provides that the following is considered a prohibited hostile act: x x x establishment of checkpoints except those necessary for the GRPs enforcement and maintenance of peace and order; and, for the defense and security of the MILF in their identified areas, as jointly determined by the GRP and MILF. x x x

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, 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 province of Maguindanao, except for the identified areas of the Moro Islamic Liberation Front as referred to in the Implementing Operational Guidelines of the GRP-MILF Agreement on the General Cessation of Hostilities.

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.⁶

On 6 December 2009, President Arroyo submitted her Report to Congress in accordance with the provision in Section 18, Article VII of the 1987 Constitution, which states that 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. In her Report, President Arroyo presented the following justifications for imposing martial law and suspending the writ in Maguindanao, to wit:

Pursuant to the provision of Section 18, Article VII of the 1987 Constitution, the President of the Republic of the Philippines is submitting the hereunder Report relative to Proclamation No. 1959 Proclaiming a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Province of Maguindanao, except for Certain Areas, which she issued on 04 December 2009, as required by public safety, after finding that lawless elements have taken up arms and committed public uprising against the duly constituted government and against the people of Maguindanao, for the purpose of removing from the allegiance to the Government or its laws, the Province of Maguindanao, and likewise depriving the Chief Executive of her powers and prerogatives to enforce the laws of the land and to maintain public order and safety, to the great damage, prejudice and detriment of the people in Maguindanao and the nation as a whole.

x x x

The capture of identified leader Mayor Andal Ampatuan, Jr. would have resulted in the expeditious apprehension and prosecution of all others involved in the gruesome massacre, but the situation proved the contrary. The Ampatuan group backed by formidable group of armed followers, have since used their strength and political position to deprive the Chief Executive of her power to enforce the law and to maintain public order and safety. More importantly, a separatist group based in Maguindanao has joined forces with the Ampatuans for this purpose. These are the facts:

1. Local government offices in the province of Maguindanao were closed and ranking local government officials refused to discharge their functions, which hindered the investigation and prosecution team from performing their tasks;

2. The Local Civil Registrar of Maguindanao refused to accept the registration of the death certificates of the victims purportedly upon the orders of Andal Ampatuan Sr.;

3. The local judicial system has been crippled by the absence or non-appearance of judges of local courts, thereby depriving the government of legal remedies in their prosecutorial responsibilities (i.e. issuance of warrants of searches, seizure and arrest). While the Supreme Court has designated an Acting Presiding Judge from another province, the normal judicial proceedings could not be carried out in view of threats to their lives or safety, prompting government to seek a change of venue of the criminal cases after informations have been filed.

Duly verified information disclosed that the Ampatuan group is behind the closing down of government offices, the refusal of local officials to discharge their functions and the simultaneous absence or non-appearance of judges in local courts.

Detailed accounts pertaining to the rebel armed groups and their active movements in Maguindanao have been confirmed:

I. As of November 29, 2009, it is estimated that there are about 2,413 armed combatants coming from the municipalities of Shariff Aguak, Datu Unsay, Datu Salibo, Mamasapano, Datu Saudi Ampatuan (Dikalungan), Sultan Sa Barungis, Datu Piang, Guindulungan, and Talayan, who are in possession of around 2,000 firearms/armaments.

II. The Ampatuan group has consolidated a group of rebels consisting of 2,413 heavily armed men, with 1,160 of them having been strategically deployed in Maguindanao. Validated information on the deployment of rebels are as follows:

I. Around five hundred (500) armed rebels with 2 Sanguko armored vehicles are in offensive position in the vicinity of Kakal, Ampatuan, Dimampao, Mamasapano and Sampao Ampatuan.

II. A group with more or less 200 armed rebels has moved from Old Maganoy into an offensive position.

III. More or less 80 fully armed rebels remain in Tuka, Mamasapano.

IV. More or less 50 fully armed rebels led by a former MNLF Commander are in offensive position in Barangay Baital, Rajah Buayan.

V. More or less 70 fully armed rebels with two (2) M60 LMG remain in offensive position in the vicinity of Barangay Kagwaran, Barangay Iginampong, Datu Unsay (right side of Salvo-General Santos City national highway).

VI. More or less 60 fully armed rebels with four (4) M60 LMG remain in offensive position in the vicinity of Kinugitan, the upper portion of Barangay Maitumaig, Datu Unsay.

VII. Kagui Akmad Ampatuan was sighted in Sultan Sa Barongis with 400 armed rebels. Locals heard him uttered PATAYAN NA KUNG PATAYAN.

VIII. More or less 100 armed rebels led by one of the identified leaders in the massacre have been sighted at the quarry of Barangay Lagpan, boundary of Rajah Buayan and Sultan Sa Barongis. The group is armed with one (1) 90RR, one (1) cal 50 LMG, two (2) cal 30 LMG, two (2) 60 mm mortar and assorted rifles.

The strength of the rebels is itself estimated to be around 800 with about 2,000 firearms (Fas). These forces are concentrated in the following areas in Maguindanao which are apparently also their political stronghold:

x x x

The existence of this armed rebellion is further highlighted by the recent recovery of high powered firearms and ammunitions from the 400 security escorts of Datu Andal Ampatuan Sr.

x x x

Indeed, the nature, quantity and quality of their weaponry, the movement of heavily armed rebels in strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay Municipal Hall, and fourteen other municipal halls, and the use of armored vehicles, tanks and patrol cars with unauthorized PNP/Police markings, all together confirm the existence of armed public uprising for the political purpose of:

1. removing allegiance from the national government of the Province of Maguindanao; and,

2. depriving the Chief Executive of her powers and prerogatives to enforce the laws of the land and to maintain public order and safety.

While the government is at present conducting legitimate operations to address the on-going rebellion, public safety still requires the continued implementation of martial law and the suspension of the privilege of the writ of habeas corpus in the Province of Maguindanao until the time that such rebellion is completely quelled.⁷ (Emphasis supplied)

In the meantime, the present petitions were filed impugning the constitutionality of Proclamation No. 1959.

1. G.R. No. 190293 is a petition for the issuance of a temporary restraining order and writs of prohibition and preliminary prohibitory injunction (1) to declare Proclamation No. 1959 or any act, directive or order arising from or connected to it as unconstitutional, and (2) to enjoin public respondents from further enforcing the same.

2. G.R. No. 190294 is a petition for certiorari assailing the constitutionality of Proclamation No. 1959 for gross insufficiency of the factual basis in proclaiming a state of martial law and suspending the [writ] in the Province of Maguindanao. It prayed for the issuance of a writ of prohibition under Section 2 of Rule 65 to enjoin and prohibit respondents from enforcing Proclamation No. 1959.

3. G.R. No. 190301 is a petition seeking the nullification of Proclamation No. 1959, proclaiming a state of martial law and suspending the [writ] in the province of Maguindanao, except for certain areas, as it is patently illegal and unconstitutional for lack of any factual basis.

4. G.R. No. 190302 is a petition for certiorari to declare Proclamation No. 1959 as null and void for being unconstitutional, and for prohibition to enjoin respondents from further actions or proceedings in enforcing or implementing Proclamation No. 1959.

5. G.R. No. 190307 is a petition for certiorari, prohibition, and mandamus with a prayer for a preliminary prohibitory injunction and/or a temporary restraining order, and/or a petition for review pursuant to Article VII, Section 18, paragraph 3 of the 1987 Constitution, asking the Court to declare that then Executive Secretary Eduardo Ermita committed grave abuse of discretion amounting to lack or excess of jurisdiction when he signed, in the name of President Arroyo, Proclamation No. 1959. The petition also prayed for the issuance of a Temporary Restraining Order and/or preliminary prohibitory injunction, prohibiting respondents, and anyone acting under their authority, stead, or behalf, from implementing Proclamation No. 1959 during the pendency of the case.

6. G.R. No. 190356 is a petition for prohibition, with an application for the issuance of a temporary restraining order and/or a writ of preliminary injunction, assailing the constitutionality and the sufficiency of the factual basis of Proclamation No. 1959, declaring a state of martial law in the province of Maguindanao (except for identified areas of the MILF) and suspending the writ in the same area.

7. G.R. No. 190380 is a petition for certiorari assailing the validity of Proclamation No. 1959, declaring a state of martial law in the province of Maguindanao, except for the identified areas of the MILF, and suspending the writ in the same area.

On 9 December 2009, Congress convened in joint session pursuant to Section 18, Article VII of the 1987 Constitution, which provides, The Congress, if not in session, shall, within twenty-four hours following such proclamation [of martial law] or suspension [of the writ], convene in accordance with its rules without need of a call.

Meanwhile, eight days after the declaration of martial law, on 12 December 2009, President Arroyo issued Proclamation No. 1963 lifting martial law and restoring the writ in Maguindanao. The full text of Proclamation No. 1963, signed by President Arroyo and attested by Executive Secretary Eduardo Ermita, reads:

PROCLAMATION NO. 1963

PROCLAIMING THE TERMINATION OF THE STATE OF MARTIAL LAW AND THE RESTORATION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE PROVINCE OF MAGUINDANAO

WHEREAS, by virtue of the powers granted under Section 18, Article VII of the Constitution, the President of the Philippines promulgated Proclamation No. 1959 on December 4, 2009, proclaiming a state of martial law and suspending the privilege of the writ of Habeas Corpus in the province of Maguindanao, except for certain areas;

WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have reported that over six hundred (600) persons who allegedly rose publicly and took up arms against the Government have surrendered or have been arrested or detained;

WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have reported that the areas where heavily armed groups in the province of Maguindanao established positions to resist government troops have been cleared;

WHEREAS, the court and prosecutors offices of Cotabato City have resumed normal working hours, paving the way for the criminal justice system in Maguindanao to be restored to normalcy;

WHEREAS, the Vice-Governor of the Autonomous Region of Muslim Mindanao has assumed as Acting Governor, paving the way for the restoration of the functioning of government mechanisms in the province of Maguindanao;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby revoke Proclamation No. 1959 and proclaim the termination of the state of martial law and the restoration of the privilege of the writ of habeas corpus in the province of Maguindanao; provided that Proclamation No. 1946 shall continue to be in force and effect.⁸

In the Resolutions dated 8 and 15 December 2009,⁹ the Court consolidated the petitions and required the Office of the Solicitor General and the respondents to comment on the petitions.

In a Resolution dated 12 January 2010, the Court resolved to appoint as amici curiae Justice Vicente Mendoza, Senator Joker Arroyo, and Father Joaquin Bernas, [S.J.] and request them to submit their respective Amicus Brief on the questions to be addressed by the parties.¹⁰

Meanwhile, on 9 December 2009, an Information for rebellion was filed before the Regional Trial Court, Branch 15, Cotabato City (RTC-Cotabato), against Ampatuan, et al.¹¹ The information reads:

That on or about 27^th day of November, 2009, and continuously thereafter, until the present time, in Maguindanao Province and within the jurisdiction of this Honorable Court, accused Datu Andal Ampatuan, Sr., Datu Zaldy Uy Ampatuan, Datu Akmad Tato Ampatuan, Datu Anwar Ampatuan and Datu Sajid Islam Uy Ampatuan as heads of the rebellion, conspiring, confederating and cooperating with each other, as well as with the other accused as participants or executing the commands of others in the rebellion and also with other John Does whose whereabouts and identities are still unknown, the said accused, who are heads of the rebellion, did then and there willfully, unlawfully and feloniously help, support, promote, maintain, cause, direct and/or command their co-accused who are their followers to rise publicly and take arms against the Republic of the Philippines, or otherwise participate in such armed public uprising, for the purpose of removing allegiance to the government or its laws, the territory of the Republic of the Philippines or any part thereof or depriving the Chief Executive of any of her powers or prerogatives as in fact they have been massing up armed men and organizing assemblies, as a necessary means to commit the crime of rebellion, and in furtherance thereof, have then and there committed acts preventing public prosecutors from being available to conduct inquest and preliminary investigations. There were massive formations of numerous armed civilians supported by armored vehicles and under the command of the Ampatuans who have formed a private army to resist government troops; that the local provincial government of Maguindanao could not function with their employees going on mass leave and their respective offices were closed and not functioning. The Regional Trial Courts of the area are not functioning, refused to accept the application for search warrants for violation of PD 1866 to authorize the search of the properties of the heads of the rebellion; and that there was undue delay in the issuance of court processes despite the exigency of the situation.

CONTRARY TO LAW.¹²

On the next day, 10 December 2009, accused Ampatuan, et al. filed an Urgent Omnibus Motion, which included a motion for judicial determination of probable cause for the offense charged. On the same day, the Acting Presiding Judge of RTC-Cotabato issued an Order, stating that the Court needs time to go over the resolution finding probable cause against the accused Datu Andal Ampatuan, Sr., [et al.].

On 1 February 2010, the Regional Trial Court of Quezon City received the records of the case, pursuant to the Supreme Courts En Banc Resolution, dated 12 January 2010, which ordered the transfer of venue of the rebellion case to Quezon City. The case, docketed as Criminal Case No. Q-10-162667 and entitled People of the Philippines v. Datu Andal Ampatuan, Sr., et al., was raffled to Branch 77 of the Regional Trial Court of Quezon City (RTC-Quezon City) on 2 February 2010.

On 3 February 2010, the accused filed an Urgent Motion praying for the issuance of an order suspending the transfer of custody of all the accused pending the resolution of their motion for judicial determination of probable cause.

On 26 March 2010, the RTC-Quezon City dismissed the charge of rebellion for lack of probable cause, to wit:

After a careful and judicious scrutiny of the evidence forming part of the records and those adduced by the prosecution during the hearing on the motion for judicial determination of probable cause, the Court is convinced that there exist[s] no probable cause to hold under detention and to indict the accused for rebellion.

x x x x

Rebellion under Article 134 of the Revised Penal Code is committed

[B]y rising publicly 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, or 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.

The elements of the offense are:

1. That there be a (a) public uprising and (b) taking arms against the Government; and

2. That the purpose of the uprising or movement is either

(a) to remove from the allegiance to said Government or its laws:

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.

x x x x

The essential element of public armed uprising against the government is lacking. There were no masses or multitudes involving crowd action done in furtherance of a political end. So, even assuming that there was uprising, there is no showing that the purpose of the uprising is political, that is, to overthrow the duly constituted government in order to establish another form of government. In other words, the second element is also absent.

x x x x

x x x It is quite interesting that the prosecution failed to present any particular instance where the accused had directly or indirectly prevented government prosecutors from performing their job relative to the prosecution of the suspects in the infamous Maguindanao massacre.

On the contrary, documentary evidence on record shows that the alleged principal suspect in the mass killings, Datu Andal Ampatuan, Jr., was made to undergo inquest proceedings at General Santos City, immediately after he was taken into custody by law enforcement authorities. This alone belies the prosecutions theory that the prosecutors were not available to conduct inquest and preliminary investigations relative to the mass killings in the Municipality of Ampatuan, Province of Maguindanao.

x x x x

x x x [T]he intelligence reports presented by the military and police are unfounded. The reports do not suggest that the alleged armed groups loyal to the accused are initiating violent and hostile actions, whether directly or indirectly, against government security forces. Even the discovery and confiscation of large cache of firearm and ammunitions, allegedly belonging to the Ampatuans, cannot be considered as an act of rebellion. In fact, the firearms and ammunitions were subsequently unearthed, recovered and confiscated from different places. The government security forces should have been able to engage and neutralize the reported armed groups on the basis of its intelligence reports confirming their size, strength and whereabouts.

x x x x

The statements of prosecution witnesses Mangacop and Dingcong are general allegations. Their statements do not show that the accused were responsible for the mass leave of officials and employees of the local government units. There is no evidence to show that the accused actually prevented the local officials and employees from reporting to their offices.

The evidence will show that the Department of Interior and Local Government and the Philippine National Police closed down these offices, without any justifiable reasons. In fact, there were news footages which showed that many employees were caught by surprise on the unexpected closure of their offices.

x x x x

It is alleged in the Information that the courts were no longer functioning in Cotabato City and in Maguindanao province, which have jurisdiction over the place of the commission of the massacre. The factual circumstances, however, belie said allegation. This Court takes judicial notice of the fact that no less than the Supreme Court of the Republic of the Philippines had denied the allegation that civilian courts were or are no longer functioning in Maguindanao.

x x x x

WHEREFORE, premises considered, the Court finds that there exists no probable cause to indict and hold under detention the accused for rebellion. Accordingly, the instant case is hereby dismissed and the accused-movants are hereby ordered released from further detention, unless they are held by a court of law for other lawful cause/s.

Let this Order be served personally upon the accused-movants, through the responsible officers of the law having custody over them, who are hereby directed to release the accused from detention immediately upon receipt hereof.

SO ORDERED.¹³

In an Order dated 28 May 2010, the RTC-Quezon City denied the prosecutions motion for reconsideration of the Order dated 26 March 2010.

The DOJ filed a petition for certiorari ¹⁴ before the Court of Appeals assailing the dismissal of the rebellion charges against accused Ampatuan, et al.

In a Decision promulgated on 15 December 2011,¹⁵ the Court of Appeals denied the petition for certiorari. Quoting the findings of the RTC-Quezon City, the Court of Appeals held that there is no probable cause as there is no showing that all the elements of the crime of rebellion are present. The Court of Appeals stated that a review of its own narration of events only lends to the belief that the rebellion existed only in the minds of the complainants. The Court of Appeals ruled that there was no armed public uprising, finding no proof that armed groups were massing up and were planning to instigate civil disobedience and to challenge the government authorities for political ends.

The Issues

The crux of the present controversy is the constitutionality of Proclamation No. 1959, declaring martial law and suspending the writ in Maguindanao. The threshold issue before this Court is whether there is sufficient factual basis for the issuance of Proclamation No. 1959 based on the stringent requirements set forth in Section 18, Article VII of the 1987 Constitution.

In its 15 December 2009 Resolution, the Court additionally posed the following questions for resolution:

1. Whether the issuance of Proclamation No. 1963, lifting martial law and restoring the writ in Maguindanao, rendered the issues raised in the present petitions moot and academic;

2. Whether the term rebellion in Section 18, Article VII of the 1987 Constitution has the same meaning as the term rebellion that is defined in Article 134 of the Revised Penal Code;

3. Whether the declaration of martial law or the suspension of the writ authorizes warrantless arrests, searches and seizures;

4. Whether the declaration of martial law or the suspension of the writ is a joint and sequential function of the President and Congress such that, without Congressional action on the proclamation either affirming or revoking it, the President having in the meantime lifted the declaration and restored the writ, this Court has nothing to review;

5. If the constitutional power of this Court to review the factual basis of the declaration of martial law or suspension of the writ can be exercised simultaneously with the constitutional power of Congress to revoke the declaration or suspension, and the decision of this Court conflicts with the decision of Congress, which decision shall prevail; and

6. Whether this Courts determination of the sufficiency of the factual basis of the declaration of martial law or suspension of the writ, which in the meantime has been lifted and restored, respectively, would be essential to the resolution of issues concerning the validity of related acts that the government committed during the time martial law was in force.

In its Comment Re: Resolution dated 15 December 2009, the OSG raised the issue of whether petitioners possess legal standing to challenge the constitutionality of Proclamation No. 1959.

Discussion

I dissent from the majority's dismissal of the petitions as moot. I find Proclamation No. 1959 unconstitutional for lack of factual basis as required in Section 18, Article VII of the 1987 Constitution for the declaration of martial law and suspension of the writ. The majority in effect refuses to exercise this Courts constitutional power in Section 18 of Article VII, to 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.

Before proceeding to the substantive issues, I shall first discuss the issue on locus standi.

In its Comment Re: Resolution dated 15 December 2009, the OSG questioned the legal standing of petitioners in challenging the constitutionality of Proclamation No. 1959. The OSG argued that the phrase any citizen in Section 18, Article VII of the 1987 Constitution must be read in conjunction with the phrase appropriate proceeding. Since petitioners deemed the original actions for certiorari and prohibition as the appropriate proceeding referred to in Section 18, Article VII of the Constitution, petitioners must satisfy the requirements under Rule 65 of the Rules of Court, one of which is the institution of the action by the aggrieved party. The OSG pointed out that none of the petitioners qualify as an aggrieved party.

This is error.

Legal standing or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.¹⁶ In case of a suit questioning the sufficiency of the factual basis of the proclamation of martial law or suspension of the writ, such as here, Section 18, Article VII of the Constitution expressly 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 of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Emphasis supplied)

It is clear that the Constitution explicitly clothes any citizen with the legal standing to challenge the constitutionality of the declaration of martial law or suspension of the writ. The Constitution does not make any distinction as to who can bring such an action. As discussed in the deliberations of the Constitutional Commission, the citizen who can challenge the declaration of martial law or suspension of the writ need not even be a taxpayer.¹⁷ This was deliberately designed to arrest, without further delay, the grave effects of an illegal declaration of martial law or suspension of the writ, and to provide immediate relief to those aggrieved by the same. Accordingly, petitioners, being Filipino citizens, possess legal standing to file the present petitions assailing the sufficiency of the factual basis of Proclamation No. 1959.

Moreover, given the transcendental importance of the issues raised in the present petitions, the Court may relax the standing requirement and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review.¹⁸ The Court has held:

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases, where we had occasion to rule:

x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they [involved] only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. We have since then applied the exception in many other cases.¹⁹ (Emphasis supplied)

Whether the issuance of Proclamation No. 1963,

lifting martial law and restoring the writ in the province of Maguindanao,

rendered the issues raised in the petitions moot and academic.

The majority dismisses the petitions on mootness, agreeing with respondents' contention that the issuance of Proclamation No. 1963, lifting martial law and restoring the writ in the province of Maguindanao, rendered the issues raised in the present petitions moot and academic. Respondents maintain that the petitions have ceased to present an actual case or controversy with the lifting of martial law and the restoration of the writ, the sufficiency of the factual basis of which is the subject of these petitions. Proclamation No. 1963 is allegedly a supervening event that rendered of no practical use or value the consolidated petitions.

As a rule, courts may exercise their review power only when there is an actual case or controversy, which involves a conflict of legal claims susceptible of judicial resolution. Such a case must be definite and concrete, touching the legal relations of parties having conflicting legal interests; a real, as opposed to an imagined, controversy calling for a specific relief.²⁰

Corollarily, courts generally decline jurisdiction over a moot and academic case or outrightly dismiss it on the ground of mootness. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that assuming jurisdiction over the same, and eventually deciding it, would be of no practical use or value.²¹

In David v. Arroyo,²² this Court held that the moot and academic principle is not a magical formula that automatically dissuades courts in resolving a case. Courts are not prevented from deciding cases, otherwise moot and academic, if (1) there is a grave violation of the Constitution;²³ (2) the situation is of exceptional character and of paramount public interest;²⁴ (3) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;²⁵ and (4) the case is capable of repetition yet evading review.²⁶

In Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP),²⁷ the Court ruled that once a suit is filed, the Court cannot automatically be deprived of its jurisdiction over a case by the mere expedient of the doer voluntarily ceasing to perform the challenged conduct. Otherwise, the doer would be dictating when this Court should relinquish its jurisdiction over a case. Further, a case is not mooted when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation.²⁸

Contrary to the majority opinion, the present petitions fall squarely under these exceptions, justifying this Courts exercise of its review power.

First, whether Proclamation No. 1959 complied with the requirements under Section 18, Article VII of the Constitution is without doubt an extremely serious constitutional question. In order to forestall any form of abuse in the exercise of the Presidents extraordinary emergency powers, as what happened during the Martial Law regime under former President Ferdinand Marcos (President Marcos), the 1987 Constitution has carefully put in place specific safeguards, which the President must strictly observe. Any declaration of martial law or suspension of the writ falling short of the constitutional requirements must be stricken down as a matter of constitutional duty by this Court.

Second, whether the President exercised her Commander-in-Chief powers in accordance with the Constitution indisputably presents a transcendental issue fully imbued with public interest. I agree with amicus curiae Father Joaquin Bernas opinion: The practice of martial rule can have a profoundly disturbing effect on the life, liberty and fortunes of people. Likewise, the actions taken by the police and military during the period when martial law is in effect can have serious consequences on fundamental rights.²⁹

Third, the issue on the constitutionality of Proclamation No. 1959 unquestionably requires formulation of controlling principles to guide the Executive, Legislature, and the public.

The Presidents issuance of Proclamation No. 1959 generated strong reactions from various sectors of society. This, of course, is an expected response from a nation whose painful memory of the dark past remains fresh. The nation remembers that martial law was the vehicle of President Marcos to seize unlimited State power, which resulted in gross and wanton violations of fundamental human rights of the people. That era saw the collapse of the rule of law and what reigned supreme was a one man-rule for the dictators own personal benefit.

The present controversy, being the first case under the 1987 Constitution involving the Presidents exercise of the power to declare martial law and suspend the writ, provides this Court with a rare opportunity,³⁰ which it must forthwith seize, to formulate controlling principles for the guidance of all sectors concerned, most specially the Executive which is in charge of enforcing the emergency measures. Dismissing the petitions on the ground of mootness will most certainly deprive the entire nation of instructive and valuable principles on this extremely crucial national issue.

Fourth, the present case is capable of repetition yet evading review. I agree with Father Bernas view: [H]istory clearly attests that the events that can lead to martial law, as well as the imposition of martial law itself, and the suspension of the privilege together with actions taken by military and police during a period of martial law are capable of repetition and are too important to allow to escape review through the simple expedient of the President lifting a challenged proclamation.³¹

Fifth, the respondents or doers voluntary cessation of the questioned act does not by itself deprive the Court of its jurisdiction once the suit is filed. In this case, President Arroyo, after eight days from the issuance of Proclamation No. 1959, issued Proclamation No. 1963 revoking Proclamation No. 1959. President Arroyos lifting of martial law and restoration of the writ translate to a voluntary cessation of the very acts complained of in the present petitions. However, the present petitions were filed with this Court while Proclamation No. 1959 was still in effect and before Proclamation No. 1963 was issued, thus foreclosing any legal strategy to divest this Court of its jurisdiction by the mere cessation or withdrawal of the challenged act.

Moreover, the fact that every declaration of martial law or suspension of the writ will involve its own set of circumstances peculiar to the necessity of time, events or participants should not preclude this Court from reviewing the Presidents use of such emergency powers. Whatever are the circumstances surrounding each declaration of martial law or suspension of the writ, the declaration or suspension will always be governed by the same safeguards and limitations prescribed in the same provisions of the Constitution. Failing to determine the constitutionality of Proclamation No. 1959 by dismissing the cases on the ground of mootness sets a very dangerous precedent to the leaders of this country that they could easily impose martial law or suspend the writ without any factual or legal basis at all, and before this Court could review such declaration, they would simply lift the same and escape possible judicial rebuke.

II.

Whether the term rebellion in Section 18, Article VII of the 1987 Constitution has the same meaning as the term rebellion that is

defined in Article 134 of the Revised Penal Code.

Article 134 of the Revised Penal Code, as amended by Republic Act No. 6968,³² defines the crime of rebellion, thus:

Art. 134. Rebellion or insurrection; How committed. The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

The Constitution, however, does not provide any definition of the term rebellion. Portions of the first paragraph of Section 18, Article VII of the Constitution, where the term rebellion appears, read:

Respondents submit that the term rebellion must, for constitutional law purposes, be applied in such manner as to be amply responsive to the call of the times. Respondents point out that the deliberations of the 1986 Constitutional Commission reveal that the concept of the term rebellion depends much on its magnitude and scope, as determined by the President based on prevailing circumstances.³³

I disagree. The term rebellion in Section 18, Article VII of the 1987 Constitution must be understood as having the same meaning as the crime of rebellion that is defined in Article 134 of the Revised Penal Code, as amended.

First, this is the clear import of the last two paragraphs of Section 18, Article VII of the Constitution, which explicitly state:

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

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

For a person to be judicially charged for rebellion, there must necessarily be a statute defining rebellion. There is no statute defining rebellion other than the Revised Penal Code. Hence, one can be judicially charged with rebellion only if one is suspected of having committed acts defined as rebellion in Article 134 of the Revised Penal Code.³⁴

Second, the Revised Penal Code definition of rebellion is the only legal definition of rebellion known and understood by the Filipino people when they ratified the 1987 Constitution. Indisputably, the Filipino people recognize and are familiar with only one meaning of rebellion, that is, the definition provided in Article 134 of the Revised Penal Code. To depart from such meaning is to betray the Filipino peoples understanding of the term rebellion when they ratified the Constitution. There can be no question that the Constitution does not derive its force from the convention which framed it, but from the people who ratified it.³⁵

Third, one of the Whereas clauses of Proclamation No. 1959 expressly cites the Revised Penal Code definition of rebellion, belying the governments claim that the Revised Penal Code definition of rebellion merely guided the President in issuing Proclamation No. 1959.

In SANLAKAS v. Executive Secretary,³⁶ where the Court regarded President Arroyos declaration of a state of rebellion in Proclamation No. 427 a superfluity,³⁷ the term rebellion in said proclamation referred to the crime of rebellion as defined in Article 134 of the Revised Penal Code. Proclamation No. 427 pertinently reads:

DECLARING A STATE OF REBELLION

WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered firearms and explosives, acting upon the instigation and command and direction of known and unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared withdrawal of support for, and took arms against the duly constituted Government, and continue to rise publicly and show open hostility, for the purpose of removing allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her powers and prerogatives which constitute the crime of rebellion punishable under Article 134 of the Revised Penal Code, as amended; x x x (Emphasis supplied)

In issuing Proclamation No. 427, President Arroyo relied on the Revised Penal Code definition of rebellion in declaring a state of rebellion. In other words, President Arroyo understood that, for purposes of declaring a state of rebellion, the term rebellion found in the Constitution refers to the crime of rebellion defined in Article 134 of the Revised Penal Code.

In exercising the Commander-in-Chief powers under the Constitution, every President must insure the existence of the elements of the crime of rebellion, which are: (1) there is a (a) public uprising and (b) taking arms against the Government; and (2) the purpose of the uprising or movement is either (a) to remove from the allegiance to the Government or its laws: (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.³⁸

To repeat, the term rebellion in Section 18, Article VII of the Constitution must be understood to have the same meaning as the crime of rebellion defined in Article 134 of the Revised Penal Code. Ascribing another meaning to the term rebellion for constitutional law purposes, more specifically in imposing martial law and suspending the writ, different from the definition in Article 134 of the Revised Penal Code, overstretches its definition without any standards, invites unnecessary confusion, and undeniably defeats the intention of the Constitution to restrain the extraordinary Commander-in-Chief powers of the President.

Since the term rebellion in Section 18, Article VII of the Constitution pertains to the crime of rebellion as defined in Article 134 of the Revised Penal Code, the next question turns on the kind of proof required for a valid declaration of martial law and suspension of the writ.

While the Constitution expressly provides strict safeguards against any potential abuse of the Presidents emergency powers, the Constitution does not compel the President to produce such amount of proof as to unduly burden and effectively incapacitate her from exercising such powers.

Definitely, the President need not gather proof beyond reasonable doubt, which is the standard of proof required for convicting an accused charged with a criminal offense. Section 2, Rule 133 of the Rules of Court defines proof beyond reasonable doubt as follows:

Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.

Proof beyond reasonable doubt is the highest quantum of evidence, and to require the President to establish the existence of rebellion or invasion with such amount of proof before declaring martial law or suspending the writ amounts to an excessive restriction on the Presidents power to act as to practically tie her hands and disable her from effectively protecting the nation against threats to public safety.³⁹

Neither clear and convincing evidence, which is employed in either criminal or civil cases, is indispensable for a lawful declaration of martial law or suspension of the writ. This amount of proof likewise unduly restrains the President in exercising her emergency powers, as it requires proof greater than preponderance of evidence although not beyond reasonable doubt.⁴⁰

Not even preponderance of evidence,⁴¹ which is the degree of proof necessary in civil cases, is demanded for a lawful declaration of martial law.

By preponderance of evidence is meant that the evidence as a whole adduced by one side is superior to that of the other. It refers to the weight, credit and value of the aggregate evidence on either side and is usually considered to be synonymous with the term greater weight of evidence or greater weight of the credible evidence. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.⁴²

Weighing the superiority of the evidence on hand, from at least two opposing sides, before she can act and impose martial law or suspend the writ unreasonably curtails the Presidents emergency powers.

Similarly, substantial evidence constitutes an unnecessary restriction on the Presidents use of her emergency powers. Substantial evidence is the amount of proof required in administrative or quasi-judicial cases, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.⁴³

I am of the view that probable cause of the existence of either invasion or rebellion suffices and satisfies the standard of proof for a valid declaration of martial law and suspension of the writ.

Probable cause is the same amount of proof required for the filing of a criminal information by the prosecutor and for the issuance of an arrest warrant by a judge. Probable cause has been defined as a set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested.⁴⁴

In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction.⁴⁵ (Emphasis supplied)

Probable cause, basically premised on common sense, is the most reasonable, most practical, and most expedient standard by which the President can fully ascertain the existence or non-existence of rebellion, necessary for a declaration of martial law or suspension of the writ. Therefore, lacking probable cause of the existence of rebellion, a declaration of martial law or suspension of the writ is without any basis and thus, unconstitutional.

The requirement of probable cause for the declaration of martial law or suspension of the writ is consistent with Section 18, Article VII of the Constitution. It is only upon the existence of probable cause that a person can be judicially charged under the last two paragraphs of Section 18, Article VII, to wit:

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

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

III.

Whether the declaration of martial law or the suspension

of the writ authorizes warrantless arrests, searches and seizures.

Section 18, Article VII of the Constitution partially states:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

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

The 1935 and 1973 Constitutions did not contain a similar provision. Obviously, this new provision in the 1987 Constitution was envisioned by the framers of the Constitution to serve as an essential safeguard against potential abuses in the exercise of the Presidents emergency powers.

The Constitution now expressly declares, A state of martial law does not suspend the operation of the Constitution. Neither does a state of martial law supplant the functioning of the civil courts or legislative assemblies. Nor does it authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, or automatically suspend the writ. There is therefore no dispute that the constitutional guarantees under the Bill of Rights remain fully operative and continue to accord the people its mantle of protection during a state of martial law. In case the writ is also suspended, the suspension applies only to those judicially charged for rebellion or offenses directly connected with invasion.

Considering the non-suspension of the operation of the Constitution during a state of martial law, a declaration of martial law does not authorize warrantless arrests, searches and seizures, in derogation of Section 2, Article III of the Constitution, which provides:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Warrantless arrests, search and seizure are valid only in instances where such acts are justified, i.e., those enumerated in Section 5, Rule 113 of the Rules of Court.⁴⁶

In Pequet v. Tangonan,⁴⁷ decided during the Martial Law regime under former President Marcos, the Court stressed that military personnel, in effecting arrests, must strictly observe the applicable Rules of Court and settled jurisprudence, thus:

Martial law has precisely been provided in both the 1935 Charter and the present Constitution to assure that the State is not powerless to cope with invasion, insurrection or rebellion or any imminent danger of its occurrence. When resort to it is therefore justified, it is precisely in accordance with and not in defiance of the fundamental law. There is all the more reason then for the rule of law to be followed. For as was so eloquently proclaimed in Ex parte Milligan: The Constitution is a law for rulers and for people equally in war and in peace and covers with the shield of its protection all classes of men at all times and under all circumstances. It is true, of course, as admitted by Willoughby, who would limit the scope of martial law power, that the military personnel are called upon to assist in the maintenance of peace and order and the enforcement of legal norms. They can therefore act like ordinary peace officers. In effecting arrests, however, they are not free to ignore, but are precisely bound by, the applicable Rules of Court and doctrinal pronouncements. (Emphasis supplied)

In Aberca v. Ver,⁴⁸ the Court emphasized that the suspension of the writ does not give imprimatur to warrantless arrests in violation of the Constitution. In that case, which involved the issue of whether the suspension of the writ bars a civil action for damages for illegal searches and for other human rights violations committed by the military, the Court held:

At the heart of petitioners complaint is Article 32 of the Civil Code which provides:

x x x x

It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield borrowing the words of Chief Justice Claudio Teehankee to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. x x x

x x x x

It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, to prevent or suppress lawless violence, insurrection, rebellion and subversion in accordance with Proclamation No. 2054 of President Marcos, despite the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre-emptive strikes against alleged communist terrorist underground houses. But this cannot be construed as a blanket license or a roving commission untramelled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times.

x x x x

This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their mission with vigor. We have no quarrel with their duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert our democratic institutions and imperil their very existence. What we are merely trying to say is that in carrying out this task and mission, constitutional and legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. x x x

We do not agree. We find merit in petitioners contention that the suspension of the privilege of the writ of habeas corpus does not destroy petitioners right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty.⁴⁹ (Emphasis supplied)

IV.

Whether the declaration of martial law or suspension of

the writ is a joint and sequential function of the

President and Congress such that, without Congressional action

on the proclamation or suspension either affirming or revoking it,

the President having in the meantime lifted the same,

this Court has nothing to review.

Section 18, Article VII of the 1987 Constitution provides:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

The Constitution vests exclusively in the President, as Commander-in-Chief, the emergency powers to declare martial law or suspend the writ in cases of rebellion or invasion, when the public safety requires it. The imposition of martial law or suspension of the writ takes effect the moment it is declared by the President. No other act is needed for the perfection of the declaration of martial law or the suspension of the writ. As amicus curiae retired Justice Mendoza states:

A declaration of martial law by the President alone is complete by itself and does not require for its validity the approval or concurrence of Congress. It is a power placed solely in the keeping of the President to enable him to secure the people from harm and restore the public order so that they can enjoy their freedoms. Because it is liable to abuse, it is made subject to check by Congress and/or the [Supreme Court].

The power of Congress is to revoke not to confirm or ratify, much less to approve, the Presidents action declaring martial law or suspending the privilege of the writ of habeas corpus. It is a veto power, just as the power of the judiciary to review the Presidents action is a veto power on the Executives action.

It is clear, therefore, that the Presidents power to declare martial law or suspend the writ is independent, separate, and distinct from any constitutionally mandated act to be performed by either the Legislature or the Judiciary. It is neither joint nor sequential with Congress power to revoke the declaration or suspension or to extend it upon the initiative of the President. Accordingly, even if Congress has not acted upon the Presidents declaration or suspension, the Court may review the declaration or suspension in an appropriate proceeding filed by any citizen. Otherwise stated, Congress inaction on the declaration or suspension is not determinative of the Courts exercise of its review power under Section 18, Article VII of the Constitution.

To hold that the power of this Court to review the Presidents declaration of martial law or suspension of the writ is sequential, or joint, with the review power of Congress is to make it impossible for this Court to decide a case challenging the declaration or suspension within thirty days from its filing, as mandated by the Constitution. Congress has no deadline when to revoke the Presidents declaration or suspension. Congress may not even do anything with the Presidents declaration or suspension and merely allow it to lapse after 60 days. On the other hand, the Constitution mandates that this Court must promulgate its decision thereon within thirty days from [the] filing of the case. Clearly, the Courts review power is neither sequential nor joint with the review power of Congress.

Moreover, the Presidents lifting of the declaration or suspension before this Court could decide the case within the 30-day period does not operate to divest this Court of its jurisdiction over the case. A party cannot simply oust the Courts jurisdiction, already acquired, by a partys own unilateral act. The Presidents lifting of the declaration or suspension merely means that this Court does not have to decide the case within the 30-day period, as the urgency of deciding has ceased. Certainly, the Court is not divested of its jurisdiction simply because the urgency of deciding a case has ceased.

If the constitutional power of this Court to review the factual basis

of the declaration of martial law or suspension of the writ can be exercised simultaneously with the constitutional power of Congress to revoke the declaration or suspension, and the decision of this Court conflicts with the decision of Congress, which decision shall prevail.

The President has the sole and exclusive power to declare martial law or suspend the writ. This power of the President is subject to review separately by Congress and the Supreme Court. Justice Mendoza stresses, Thus, Congress and this Court have separate spheres of competence. They do not act jointly and sequentially but independently of each other.⁵⁰ Father Bernas points out, Since the powers of Congress and the Court are independent of each other, there is nothing to prevent Congress and the Court from simultaneously exercising their separate powers.⁵¹

In the exercise by the Court and Congress of their separate review powers under Section 18, Article VII of the Constitution, three possible scenarios may arise.

First, the Presidents martial law declaration or suspension of the writ is questioned in the Supreme Court without Congress acting on the same. Such a situation generates no conflict between the Supreme Court and Congress. There is no question that the Supreme Court can annul such declaration or suspension if it lacks factual basis. Congress, whose only power under Section 18, Article VII of the Constitution is to revoke the declaration or suspension on any ground, is left with nothing to revoke if the Court has already annulled the declaration or suspension.

Second, Congress decides first to revoke the martial law declaration or suspension of the writ. Since the Constitution does not limit the grounds for congressional revocation, Congress can revoke the declaration or suspension for policy reasons, or plainly for being insignificant, as for instance it involves only one barangay rebelling, or if it finds no actual rebellion. In this case, the Supreme Court is left with nothing to act on as the revocation by Congress takes effect immediately. The Supreme Court must respect the revocation by Congress even if the Court believes a rebellion exists because Congress has the unlimited power to revoke the declaration or suspension.

Third, the Supreme Court decides first and rules that there is factual basis for the declaration of martial law or suspension of the writ. In such a situation, Congress can still revoke the declaration or suspension as its power under the Constitution is broader insofar as the declaration or suspension is concerned. Congress cannot be prevented by the Court from revoking the Presidents decision because it is not for the Court to determine what to do with an existing factual situation. x x x Congress has been given unlimited power to revoke the Presidents decision.⁵² In short, even if there is an actual rebellion, whether affirmed or not by the Supreme Court, Congress has the power to revoke the Presidents declaration or suspension.

In the present controversy, Congress failed to act on Proclamation No. 1959 when it commenced its Joint Session on 9 December 2009 until the lifting of the martial law declaration and restoration of the writ on 12 December 2009. Congress non-revocation of Proclamation No. 1959 categorizes the present case under the first scenario. In such a situation, where no conflict ensues, Congress inaction on Proclamation No. 1959 does not preclude this Court from ruling on the sufficiency of the factual basis of the declaration of martial law and suspension of the writ.

VI.

Whether this Courts determination of the sufficiency of the factual basis

of the declaration of martial law and suspension of the writ,

which in the meantime have been lifted, would be essential

to the resolution of issues concerning the validity of related acts

that the government committed during the time

that martial law and the suspension of the writ were in force.

Indisputably, unlawful acts may be committed during martial law or suspension of the writ, not only by the rebels, but also by government forces who are duty bound to enforce the declaration or suspension and immediately put an end to the root cause of the emergency. Various acts carried out by government forces during martial law or suspension of the writ in the guise of protecting public safety may in reality amount to serious abuses of power and authority. Whatever the Courts decision will be on the sufficiency of the factual basis of the Presidents declaration or suspension does not preclude those aggrieved by such illegal acts from pursuing any course of legal action available to them. Therefore, the determination by this Court of the sufficiency of the factual basis of the declaration or suspension is not essential to the resolution of issues concerning the validity of related acts that government forces may have committed during the emergency.

VII.

Whether Proclamation No. 1959 has sufficient factual basis.

The full text of Section 18, Article VII of the 1987 Constitution reads:

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

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

The Commander-in-Chief provisions of the 1935 and 1973 Constitutions, on the other hand, respectively state:

Section 10(2), Article VII of the 1935 Constitution

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.

Section 12, Article IX of the 1973 Constitution

SEC. 12. The Prime Minister 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 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.

Notably, the 1935 and 1973 Constitutions only specify the instances when martial law may be declared or when the writ may be suspended.

The 1987 Constitution, on the other hand, not only explicitly includes the specific grounds for the activation of such emergency powers, but also imposes express limitations on the exercise of such powers. Upon the Presidents declaration of martial law or suspension of the writ, the following safeguards are automatically set into motion: (1) the duration of martial law or suspension of the writ is limited to a period not exceeding sixty days; (2) the President is mandated to submit a report to Congress within forty-eight hours from the declaration or suspension; and (3) the declaration or suspension is subject to review by Congress, which may revoke such declaration or suspension. If Congress is not in session, it shall convene within 24 hours without need for call.⁵³ In addition, the sufficiency of the factual basis of the declaration, suspension, or their extension is subject to review by the Supreme Court in an appropriate proceeding.

The mechanism and limitations laid down in Section 18, Article VII of the Constitution in declaring martial law or suspending the writ were introduced precisely to preclude a repetition of the kind of martial law imposed by President Marcos, which ushered in a permanent authoritarian regime. As Father Bernas wrote in his book:

The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand Marcos to impose authoritarian rule on the Philippines from 1972 to 1986. Supreme Court decisions during that period upholding the actions taken by Mr. Marcos made authoritarian rule part of Philippine constitutional jurisprudence. The members of the Constitutional Commission, very much aware of these facts, went about reformulating the Commander-in-Chief powers with a view to dismantling what had been constructed during the authoritarian years. The new formula included revised grounds for the activation of emergency powers, the manner of activating them, the scope of the powers, and review of presidential action.⁵⁴

Consistent with the framers intent to reformulate the Commander-in-Chief powers of the President, the 1987 Constitution requires the concurrence of two conditions in declaring martial law or suspending the writ, namely, (1) an actual invasion or rebellion, and (2) public safety requires the exercise of such power.⁵⁵ The Constitution no longer allows imminent danger of rebellion or invasion as a ground for the declaration or suspension, which the 1935 and 1973 Constitutions expressly permitted.

In the present case, President Arroyo grounded the declaration of martial law and suspension of the writ on the existence of rebellion in Maguindanao. In her Report submitted to Congress, President Arroyo cited the following instances as constitutive of rebellion:

2. The Local Civil Registrar of Maguindanao refused to accept the registration of the death certificates of the victims purportedly upon the orders of Andal Ampatuan Sr.;

x x x x

(1) removing allegiance from the national government of the Province of Maguindanao; and,

(2) depriving the Chief Executive of her powers and prerogatives to enforce the laws of the land and to maintain public order and safety.

The question now is whether there was probable cause, which is the required quantum of proof, to declare the existence of rebellion justifying the Presidents declaration of martial law and suspension of the writ.

The answer is in the negative.

The contemporaneous public statements made by the Presidents alter egos explaining the grounds for the issuance of Proclamation No. 1959 negate rather than establish the existence of an actual rebellion in Maguindanao.

During the interpellations in the Joint Session of Congress, convened pursuant to the provisions of Section 18, Article VII of the Constitution, then Executive Secretary Eduardo Ermita admitted the absence of an actual rebellion in Maguindanao, to wit:

REP. LAGMAN. Mr. Speaker, Mr. President, a perusal of the text of Proclamation No. 1959 would show the absence of a clear and categorical finding or determination that actual rebellion is occurring in Maguindanao. Would that be an accurate observation of a reading of the text of Proclamation No. 1959?

MR. ERMITA. Your Honor, you may be correct that there was no actual rebellion going on. However, all the indicators that rebellion is, indeed, being committed and happening on the ground is because of the presence of the armed groups that prevent authorities from being able to do its duty of even effecting the arrest of those who should be arrested in spite of the testimonies of witnesses.

REP. LAGMAN. Well, we are happy to note that there is an admission that there was no actual rebellion in Maguindanao. But the presence of armed groups would be indicative of lawless violence which is not synonymous to rebellion. As a matter of fact, the Maguindanao situationer which was made by Police Director Andres Caro was premised on a statement that this was the worst election-related violence an act of gross lawlessness but definitely not related to rebellion.

x x x x ⁵⁷ (Emphasis supplied)

Also, during the Joint Session, then Senator (now President) Benigno S. Aquino III pointed out the public statements made by former Department of Interior and Local Government Secretary Ronaldo V. Puno, then Armed Forces of the Philippines spokesperson Lt. Col. Romeo Brawner, and former Defense Secretary Norberto Gonzales admitting there was no need for martial law:

THE SENATE PRESIDENT. With the indulgence of the Chamber and the Speaker, may we request now to allow the distinguished Gentleman from Tarlac, Senator Benigno Noynoy Aquino III the floor.

SEN. AQUINO. Thank you, Mr. President. May I direct my first question to Secretary Puno. And this is to lay the proper predicate for our first question. The newspaper has been quoting Secretary Puno as not having recommended the imposition of martial law prior to its imposition in Maguindanao. May we know if this was a correct attribution to the Honorable Secretary.

MR. PUNO. Until, Your Honor, Mr. Speaker, Mr. Senate President, until the situation developed where police officers went absent on leave and joined the rebel forces, and a significant segment of the civilian armed volunteers of the local governments constituted themselves into a rebel group, until that time I did not believe that it was necessary that martial law be declared. But upon receipt of a report from the Armed Forces of the Philippines and the briefing conducted with the National Security Council, where it was made clear that a separate rebel armed group had already been organized, we concurred, Your Honor, with the recommendation on martial law.

SEN. AQUINO. For the record, Mr. Senate President and Mr. Speaker, the AFP, we understand, through the spokesperson, Lt. Col. Romeo Brawner, declared on 13 November 2009 that there is no need for the declaration of martial law in Maguindanao or elsewhere in the country because the AFP and PNP are on top of the situation. He was quoted as saying, and we quote: We now have a level of normalcy in the Province of Maguindanao, primarily because of the occupation by our government forces and our law enforcement agencies of the seats of government. Secretary Norberto Gonzales, who unfortunately is not present, declared on December 1, 2009 that the governments effort to contain the tension in the province is holding ground. We also have now the admission by the honorable Secretary Puno that prior to the undated national security briefing, he was also of the opinion that martial law was not necessary in Maguindanao. x x x ⁵⁸

Even before the interpellations in Congress, then Executive Secretary Ermita publicly confirmed the inadequacies of Proclamation No. 1959:

Well have to get the report from the field from the AFP and PNP that the conditions that prompted the President to issue the proclamation, have improved, and therefore, the threat of further lawlessness and probability of rebellion is already down.⁵⁹ (Emphasis supplied)

Significantly, at a press conference, then Secretary of Justice Agnes Devanadera declared, We noticed and observed there was a rebellion in the offing. In another press briefing, Devanadera stated that rebellion which does not necessarily involve a physical takeover by armed elements as argued by some critics of the Presidents order, was looming in Maguindanao.⁶⁰ In short, the Department of Justice Secretary, who is the principal legal officer of the Arroyo administration, publicly admitted that there was only a looming rebellion, a rebellion in the offing, in Maguindanao.

Likewise, in a press conference, the AFP Chief of Staff claimed that armed groups, numbering between 40 to 400 men and spread out in the province, planned to prevent the arrest of members of the Ampatuan family, the prime suspects in the Maguindanao massacre. He stated, Based on the reports we received, there were a lot of groupings of armed groups in different places. We also received reports that they have plans to undertake hostile action if ever government officials, the Ampatuans particularly, were taken in custody. We felt this was very imminent threat, thats why we recommended this proclamation.⁶¹

Then Defense Secretary Norberto Gonzales was quoted as stating that the recommendation to declare martial law in Maguindanao is a sensitive matter that needs to be studied.⁶² In an interview, Gonzales said, titingnan natin (we will see) how the situation develops there.⁶³ He further stated, As of now, I think whatever the government is doing so far is really effective. We will wait for the results of the work of Secretary Devanadera of Justice and also Secretary Puno of DILG. So, so far maganda naman yun takbo ng ating operation doon.⁶⁴ Gonzales added, Yung tungkol sa martial law, alam mo sensitive na bagay yan kaya pag-aaralan natin.⁶⁵

The admissions and public statements made by members of the Cabinet, who are the Presidents alter egos, as well as the public assessments made by the highest ranking military officials, clearly demonstrate that instead of being anchored on the existence of an actual rebellion, Proclamation No. 1959 was based on a mere threat, or at best an imminent threat of rebellion, or a rebellion in the offing.⁶⁶ This undeniably runs counter to the letter and intent of the Constitution. A looming rebellion is analogous to imminent danger of rebellion, which was deliberately eliminated by the framers of the 1987 Constitution as a ground for the declaration of martial law precisely to avoid a repetition of the misguided and oppressive martial law imposed by former President Marcos.

There is absolutely nothing which shows that the Ampatuans and their armed followers, at any point in time, intended to overthrow the government. On the contrary, the Ampatuans were publicly known as very close political allies of President Arroyo. There is not a single instance where the Ampatuans denounced, expressly or impliedly, the government, or attempted to remove allegiance to the government or its laws or to deprive the President or Congress of any of their powers. Based on the records, what the government clearly established, among others, were (1) the existence of the Ampatuans private army; and (2) the Ampatuans vast collection of high powered firearms and ammunitions.

These shocking discoveries, however, do not amount to rebellion as defined in Article 134 of the Revised Penal Code. Based on the statements made by ranking government and military officials, and as clearly found by the RTC-Quezon City in Criminal Case No. Q-10-162667 and affirmed by the Court of Appeals, there was no public uprising and taking arms against the government for the purpose of removing from the allegiance to the government or its laws the territory of the Philippines or any part thereof, or depriving the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives. The Ampatuans amassing of weaponry, including their collection of armored cars, tanks and patrol cars, merely highlights this political clans unbelievably excessive power and influence under the Arroyo administration.

To repeat, only in case of actual invasion or rebellion, when public safety requires it, may the President declare martial law or suspend the writ. In declaring martial law and suspending the writ in Maguindanao in the absence of an actual rebellion, President Arroyo indisputably violated the explicit provisions of Section 18, Article VII of the Constitution.

Conclusion

Thirty-seven years after President Marcos Proclamation No. 1081, President Arroyo issued Proclamation No. 1959 declaring martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao, except in MILF identified areas. President Marcos martial law, justified to counteract the Communist insurgency in the country,⁶⁷ turned out to be a vehicle to establish a one-man authoritarian rule in the country. Expectedly, President Arroyos Proclamation No. 1959 refreshed the nations bitter memories of the tyranny during the Martial Law regime of President Marcos, and sparked the publics vigilance to prevent a possible recurrence of that horrible past.

In issuing Proclamation No. 1959, President Arroyo exercised the most awesome and powerful among her graduated Commander-in-Chief powers to suppress a supposed rebellion in Maguindanao, following the massacre of 57 civilians in the worst election-related violence in the countrys history. Since then, the government branded the Ampatuans, the alleged masterminds of the massacre, as rebels orchestrating the overthrow of the Arroyo administration. However, the events before, during, and after the massacre negate the existence of an armed uprising aimed at bringing down the government, but rather point to a surfeit of impunity and abuse of power of a political clan closely allied with the Arroyo administration. In short, Proclamation No. 1959 was issued without an actual rebellion justifying the same.

Apparently, President Arroyo resorted to martial law and suspension of the writ, not to quell a purported rebellion because there was absolutely none, but to show her indignation over the gruesome massacre and her swift response in addressing the difficult situation involving her close political allies. She was reported to be under pressure to deliver, amid rising public outrage and international condemnation of the massacre.⁶⁸ However, mounting pressure to bring the murderers to justice, without any invasion or rebellion in Maguindanao, does not warrant the imposition of martial law or suspension of the writ. Rather, what the nation expects, and what the victims and their families truly deserve, is the speedy and credible investigation and prosecution, and eventually the conviction, of the merciless killers.

In sum, Proclamation No. 1959 was anchored on a non-existent rebellion. Based on the events before, during and after the Maguindanao massacre, there was obviously no rebellion justifying the declaration of martial law and suspension of the writ. The discovery of the Ampatuans private army and massive weaponry does not establish an armed public uprising aimed at overthrowing the government. Neither do the closure of government offices and the reluctance of the local government officials and employees to report for work indicate a rebellion.

The Constitution is clear. Only in case of actual invasion or rebellion, when public safety requires it, can a state of martial law be declared or the privilege of the writ of habeas corpus be suspended. Proclamation No. 1959 cannot be justified on the basis of a threatened, imminent, or looming rebellion, which ground was intentionally deleted by the framers of the 1987 Constitution. Considering the non-existence of an actual rebellion in Maguindanao, Proclamation No. 1959 is unconstitutional for lack of factual basis as required under Section 18, Article VII of the Constitution for the declaration of martial law and suspension of the privilege of the writ of habeas corpus.

Accordingly, I vote to GRANT the petitions and DECLARE Proclamation No. 1959 UNCONSTITUTIONAL for failure to comply with Section 18, Article VII of the Constitution.

ANTONIO T. CARPIO

Associate Justice

1Presidential Adviser for Mindanao Jesus Durezas statement reported in Philippine Daily Inquirer on 23 November 2009 (http://newsinfo.inquirer.net/breakingnews/nation/view/20091123-237934/Wife-of-gubernatorial-bet-35-killed-in-Maguindanao [accessed on 4 November 2011], Wife of gubernatorial bet, 35 killed in Maguindanao Palace adviser calls for state of emergency) and in Philippine Star on 24 November 2009 (http://www.philstar.com/article.aspx?articleid=526314 [accessed on 4 November 2011];Maguindanaomassacre).

The mass murder of the journalists was tagged as the darkest point of democracy and free press in this recent time. (Statement of NUJP Cebu Chapter President Rico Lucena reported in philstar.com with title Maguindanao death toll now 46: Emergency rule in two provinces (http://www.philstar.com/article.aspx?articleid=526616 [accessed on 4 November 2011]).

The massacre was considered one of the deadliest single events for the press in memory" and the Philippines the worlds worst place to be a journalist, according to international press freedom watchdog Committee to Protect Journalists (CPJ). (http://www.gmanews.tv/story/177821/the-ampatuan-massacre-a-map-and-timeline [accessed on 4 November 2011])

2Fifty-five of the casualties were identified as follows:

Bai Genelyn T. Mangudadatu Wife of Mangudadatu
Bai Eden Mangudadatu Sister/Vice Mayor, Mangudadatu, Maguindanao
Pinky Balaiman Cousin of Mangudadatu
Mamotavia Mangudadatu Aunt
Bai Farida Mangudadatu Youngest sister
Rowena Ante Mangudadatu Relative
Faridah Sabdula Sister
Soraida Vernan Cousin
Raida Sapalon Abdul Cousin
Rahima Puto Palawan Relative
Lailan Ella Balayman Relative
Walida Ali Kalim Relative
Atty. Concepcion Brizuela Lawyer
Atty. Cynthia Oquendo Ogano Lawyer
Cataleno Oquendo Father of Atty. Cynthia Oquendo
Marife Montano Saksi News, Gensan
Alejandro Bong Reblando Manila Bulletin, Gensan
Mc Delbert Mac Mac Areola UNTV Gensan
Rey Marisco Periodico Ini, Koronadal City
Bienvenido Jun Lagarta Prontierra News, Koronadal City
Napoleon Salaysay Mindanao Gazette
Eugene Depillano UNTV Gen San
Rosell Morales News Focus
Arturo Betia Periodico Ini, Gen San
Noel Decena Periodico Ini
John Caniba Periodico Ini
Junpee Gatchalian DXGO, Davao City
Victor Nunez UNTV Gen San
Andres Teodoro Central Mindanao Inquirer
Romeo Capelo Midland Review, Tacurong City
Joy Duhay Gold Star Daily
Ronnie Perante Gold Star Daily, Koronadal City
Benjie Adolfo Gold Star Daily, Koronadal City
Ian Subang Socsargen Today, Gen San
Joel Parcon Prontiera News, Koronadal City
Robello Bataluna Gold Star Daily, Koronadal City
Lindo Lipugan Mindanao Daily Gazette, Davao City
Ernesto Maravilla Bombo Radyo, Koronadal City
Henry Araneta Radio DZRH, Gen San
Fernando Razon Periodico Ini, Gen San
Hannibal Cachuela Punto News, Koronadal City
Lea Dalmacio Socsargen News, Gensan
Marites Cablitas News Focus, Gensan
Gina Dela Cruz Saksi News, Gensan
Anthony Ridao Government employee
Mariam Calimbol Civilian
Norton Sidic Edza Driver
Jephon C. Cadagdagon Civilian
Abdillah Ayada Driver
Joselito Evardo Civilian
Cecille Lechonsito Civilian
Wilhelm Palabrica Government Employee
Mercy Palabrica Government Employee
Daryll Vincent Delos Reyes Government Employee
Eduardo Nonie Lechonsito Government Employee

3Rollo (G.R. No. 190293), pp. 105-109.

4Id. at 185.

5Should be Republic Act No. 6968, which is An Act Punishing the Crime of Coup Dtat by Amending Articles 134, 135 and 136 of Chapter One, Title Three of Act Numbered Thirty-Eight Hundred and Fifteen, Otherwise Known as the Revised Penal Code, and for Other Purposes. Republic Act No. 6986 is titled An Act Establishing a High School in Barangay Dulop, Municipality of Dumingag, Province of Zamboanga Del Sur, to be Known as the Dulop High School, and Appropriating Funds Therefor.

6Rollo (G.R. No. 190293), pp. 186-187.

7Id. at 163-164, 173-177, 182.

8Rollo (G.R. No. 190293), pp. 190-191.

9Rollo (G..R. No. 190293), pp. 83-84; rollo (G.R. No. 190356), p. 55.

10Rollo (G.R. No. 190293), p. 407.

11The accused are: Datu Andal Ampatuan, Sr., Datu Zaldy Uy Ampatuan, Datu Akmad Tato Ampatuan, Datu Anwar Ampatuan, and Datu Sajid Islam Uy Ampatuan, as persons who allegedly promoted, maintained or headed the rebellion; and Kusain Akmad Sakilan, Jovel Vista Lopez, Rommy Gimba Mamay, Sammy Duyo Villanueva, Ibrahim Tukya Abdulkadir, Samil Manalo Mindo, Goldo B. Ampatuan, Amaikugao Obab Dalgan, Billy Cabaya Gabriel, Jr., Abdulla Kaliangat Ampatuan, Moneb Smair Ibrahim, Umpa Ugka Yarka, Manding Abdulkadir, Dekay Idra Ulama, Kapid Gabriel Cabay, Koka Batong Managilid, Sammy Ganda Macabuat, Duca Lendungan Amban, Akmad Abdullah Ulilisen and several John Does, as participants or the persons executing the commands of others in a rebellion or insurrection. (RTC-Quezon City Order dated 26 March 2010, pp. 3-4).

12RTC-Quezon City Order dated 26 March 2010, p. 4.

13RTC-Quezon City Order dated 26 March 2010, pp. 10-13, 15-16, 18. Penned by Presiding Judge Vivencio S. Baclig.

14 Under Rule 65 of the 1997 Rules of Procedure. Docketed as CA-G.R. SP No. 115168.

15Penned by Associate Justice Elihu A. Ybaez, and concurred in by Associate Justices Fernanda Lampas Peralta and Francisco P. Acosta.

16SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482, 507 (2004), citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 618 (2000).

17Bernas, The Intent of the 1986 Constitution Writers, 1995 Edition, p. 474.

18David v. Arroyo, 522 Phil. 705, 757-759 (2006). See Chavez v. Public Estates Authority, 433 Phil. 506 (2002), Bagong Alyansang Makabayan v. Zamora, 396 Phil. 623 (2000).

19Lim v. Executive Secretary, 430 Phil. 555, 570-571 (2002) citing Bagong Alyansang Makabayan v. Zamora, supra.

20David v. Arroyo, supra note 18 at 753.

21Id. at 753.

22Id. at 754.

23Id., citing Province of Batangas v. Romulo, 473 Phil. 806 (2004).

24Id., citing Lacson v. Perez, 410 Phil. 78 (2001).

25Id., citing Province of Batangas v. Romulo, supra.

26Id., citing Albaa v. Commission on Elections, 478 Phil. 941 (2004); Acop v. Guingona, Jr., 433 Phil. 62 (2002); SANLAKAS v. Executive Secretary Reyes, supra note 16.

27G.R. Nos. 183591, 183752, 183893, 183951, 183962, 14 October 2008, 568 SCRA 402.

28Id.

29Rollo (G.R. No. 190293), p. 508; Brief of Amicus Curiae Father Joaquin Bernas, S.J.

30Retired Chief Justice Panganiban called this a historic moment and reminded the Court of its duty to uphold the Constitution. He writes:

The Court faces a historic moment. It cannot cower or cop-out or hide behind legalisms. Worse, in a false sense of gratitude, it should not invent legal excuses to justify or cover plainly unconstitutional acts. Rare is the opportunity for greatness. Let the Court not squander the moment. Let it perform its duty forthrightly and uphold the Constitution.

(http://opinion.inquirer.net/inquireropinion/columns/view/20091220-243027/Uphold-the-Constitution [accessed on 4 November 2011], With Due Respect: Uphold the Constitution)

31Rollo (G.R. No. 190293), p. 509; Brief of Amicus Curiae Father Joaquin Bernas, S.J.

32An Act Punishing the Crime of Coup Dtat by Amending Articles 134, 135 And 136 of Chapter One, Title Three of Act Numbered Thirty-Eight Hundred and Fifteen, Otherwise Known as The Revised Penal Code, and for Other Purposes.

33Rollo (G.R. No. 190293), p. 138.

34Id. at 493, Amicus Memorandum of Justice Vicente V. Mendoza.

35See retired Chief Justice Punos separate concurring opinion in United Pepsi-Cola Supervisory Union v. Judge Laguesma, 351 Phil. 244, 292 (1998), citing Cooley, Treatise on Constitutional Limitations, Vol. 1, pp. 142-143 [1927]; also cited in Willoughby, The Constitutional Law of the United States, Sec. 32, pp. 54-55, Vol. 1 [1929].

36Supra note 16.

37Id. at 520. The Court stated that [a] declaration of a state of rebellion is an utter superfluity. At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it.

38See Ladlad v. Velasco, G.R. Nos. 172070-72, 1 June 2007, 523 SCRA 318, 336.

39 Rollo (G.R. No. 190293), p. 512, Brief of Amicus Curiae Father Joaquin Bernas, S.J.

40Manalo v. Roldan-Confesor, G.R. No. 102358, 19 November 1992, 215 SCRA 808, 819. The Court held therein:

Clear and convincing proof is x x x more than mere preponderance, but not to extent of such certainty as is required beyond reasonable doubt as in criminal cases x x x while substantial evidence x x x consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance x x x Consequently, in the hierarchy of evidentiary values, We find proof beyond reasonable doubt at the highest level, followed by clear and convincing evidence, preponderance of evidence, and substantial evidence, in that order. (Citations omitted)

41Section 1, Rule 133 of the Rules of Court provides:

SECTION 1. Preponderance of evidence, how determined. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

42 Raymundo v. Lunaria, G.R. No. 171036, 17 October 2008, 569 SCRA 526.

43Section 5, Rule 133 of the Rules of Court provides:

SECTION 5. Substantial evidence. ‒ In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

44Santos v. Orda, Jr., G.R. No. 189402, 6 May 2010, 620 SCRA 375, 384.

45Viudez II v. Court of Appeals, G.R. No. 152889, 5 June 2009, 588 SCRA 345, 357.

46Sec. 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.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

In addition, jurisprudence tells us that in the following instances,a warrantless search and seizure is valid.

(1) search incidental to a lawful arrest,

(2) search of moving vehicles,

(3) seizure in plain view,

(4) customs search, and

(5) waiver by the accused themselves of their right against unreasonable search and seizure.

See Manalili v. Court of Appeals, 345 Phil. 632, 645-646 (1997), citing People v. Lacerna, 344 Phil. 100 (1997).

Stop-and-frisk is also another exception to the general rule against a search without a warrant (Posadas v. Court of Appeals, G.R. No. 89139, 2 August 1990, 188 SCRA 288, 292-293, cited in Manalili).

47160 Phil. 906, 909 (1975); citations omitted.

48243 Phil. 735 (1988).

49Id. at 743-745, 748-749.

50Id. at 497, Brief of Amicus Curiae Retired Associate Justice Vicente V. Mendoza.

51Id. at 523, Brief of Amicus Curiae Father Joaquin Bernas, S.J.

52Id. at 524, Brief of Amicus Curiae Father Joaquin Bernas, S.J.

53See Senate P.S. Resolution No. 1522.

54Bernas, The Intent of the 1986 Constitution Writers, 1995 Edition, p. 456.

55SANLAKAS v. Executive Secretary, supra note 16. See Section 15, Article III of the 1987 Constitution. In Velasco v. Court of Appeals, 315 Phil. 757 (1995), the Court declared that the privilege of the writ of habeas corpus cannot be suspended except in cases of invasion or rebellion when the public safety requires it.

56Rollo (G.R. No. 190293), pp. 163-164, 173-177, 182.

57Transcript of Plenary Proceedings, Joint Session of the Congress of the Republic of the Philippines, 9 December 2009. See also Ermita: ML proclaimed without actual rebellion, The Philippine Star, 11 December 2009 (http://www.philstar.com/Article.aspx?articleId=531416&publicationSubCategoryId=63 [accessed on 4 November 2011], where the following report appeared:

Executive Secretary Eduardo Ermita admitted Wednesday night that President Arroyo proclaimed martial law in Maguindanao without an actual rebellion taking place in the province as required by the Constitution.

But in response to questions raised by Albay Rep. Edcel Lagman, Ermita pointed to the presence of armed groups supporting the Ampatuan family that were preventing the authorities from enforcing the law, which, he added, was frustrating the ends of justice.

Ermita said the government considered the presence or massing of the Ampatuans armed followers as rebellion, one of only two grounds under the Constitution, aside from invasion, for the imposition of martial law.

Ermita though conceded there was no actual rebellion taking place, in the sense of people taking up arms to withdraw allegiance from the central government or prevent it from enforcing the law.

Lagman said that Ermitas answers to his questions and Justice Secretary Agnes Devanaderas statement that there was rebellion in Maguindanao was only looming prove that Mrs. Arroyo received bad legal advice in imposing martial rule in the province.

The President has enough powers under the commander-in-chief provision of the Constitution to quell a looming rebellion or neutralize the presence or massing of armed loyalists of the Ampatuans. She is authorized to call on the Armed Forces to accomplish that objective, Lagman said.

Lagman pointed out the absence of rebellion in Maguindanao as defined under the Revised Penal Code.

What happened there was lawlessness. It was just a partisan conflict that did not require the imposition of martial law, he said.

58Transcript of Plenary Proceedings, Joint Session of the Congress of the Republic of the Philippines, 9 December 2009.

59Quoted in the Petition in G.R. No. 190307, p. 15, citing http://www.abs-cbnnews.com/nation/12/04/09/arroyo-orders-martial-law-maguindanao [accessed on 10 November 2011], Arroyo proclaims martial law in Maguindanao.

60http://www.philstar.com/Article.aspx?articleid=529869 [accessed on 4 November 2011], DOJ: Rebellion was looming.

61Mantawil Petition (G.R. No. 190356), pp. 8-9.

62http://www.mb.com.ph/node/231907/martial-law-idea-need [accessed on 4 November 2011], Martial law idea needs study Gonzales.

63Id.

64Id.

65Id.

66http://newsinfo.inquirer.net/breakingnews/nation/view/20091205-240273/A-rebellion-was-in-the-offingjustice-chief [accessed on 4 November 2011], A rebellion was in the offingjustice chief.

67Proclamation No. 1081 (PROCLAIMING A STATE OF MARTIAL LAW IN THE PHILIPPINES), 21 September 1972.

68http://www.time.com/time/world/article/0,8599,1943191,00.html [accessed on 4 November 2011], Behind the Philippines Maguindanao Massacre, by Alastair McIndoe.