EN BANC

Agenda of March 20, 2012

Item No. 86

 

G.R. No. 190293

Philip Sigfrid A. Fortun, et al. v. Gloria Macapagal-Arroyo, et al.

 

G.R. No. 190294

Didagen P. Dilangalen v. Eduardo R. Ermita, et al.

 

G.R. No. 190301

National Union of Peoples Lawyers (NUPL) Secretary General Neri Javier Colmenares, et al. v. President Gloria Macapagal-Arroyo, et al.

 

G.R. No. 190302

Joseph Nelson Q. Loyola v. Her Excellency President Gloria Macapagal-Arroyo, et al.

 

G.R. No. 190307

Jovito R. Salonga v. Gloria Macapagal-Arroyo, et al.

 

G.R. No. 190356

Baileng S. Mantawil v. The Executive Secretary, et al.

 

G.R. No. 190380

Christian Monsod, et al. v. Eduardo R. Ermita, in his capacity as Executive Secretary

 

 

 

SEPARATE OPINION

 

 

I concur in the resulting dismissal of these petitions, more than by reason of their mootness but because I find our action overdue, it being my well-thought-out position that the constitutional authority of the Supreme Court to review the sufficiency of the factual basis of Proclamation No. 1959 has expired and is no more.

 

Proclamation No. 1959 declaring martial law and suspending the privilege of the writ of habeas corpus in the Province of Maguindanao was issued by then President Gloria Macapagal Arroyo on 4 December 2009. In compliance with the mandate of Section 18, Article VII of the present Constitution, she submitted her Report to Congress on 6 December 2009 or within forty-eight hours from the proclamation.

 

Seven petitions, now before the Court, were filed disputing the constitutionality of the Proclamation. In the Resolutions of 8 and 15 December 2009, the Court consolidated the petitions and required the Office of the Solicitor General to comment on the petitions. By that time, 15 December 2009, President Arroyo has, on 12 December 2009, already issued Proclamation No. 1963 lifting martial law and restoring the privilege of the writ of habeas corpus in Maguindanao.[1]

 

The authority of this Court to act on the petitions is embodied in the third paragraph of Section 18, Article VII of the 1987 Constitution which states:

 

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

 

 

Clearly, the mandate is both grant and limitation of authority. For while the Court, upon a proceeding filed by any citizen, may review the sufficiency of the factual basis of the proclamation of martial law by the President, or even its extension by Congress, it can only do so within thirty days from filing of the proceeding, the period within which it MUST PROMULGATE its decision.

 

Over two (2) years have passed since the seven petitions at bar were filed. Today, unquestionably, the Constitutional authority granted to the Court to decide the petitions had lapsed.

 

 

 

 

 

It must be made clear that I do not rely, for my position, on the act of the doer[2] voluntarily ceasing to perform the challenged conduct or, precisely, on the lifting of martial law by Proclamation No. 1963. Indeed, from the time of lifting on 12 December 2009 up to the thirtieth day following the filing of the instant petitions, Proclamation No. 1959 may be reviewed for all the reasons mentioned in the ponencia against which I do not now dissent. The Court did not say during the permitted time of pronouncement what the majority now deems needed saying. Thereafter, and today, no opinion as judgment is constitutionally permissible.

 

Neither can I join the submission that the question of constitutionality of Proclamation No. 1959 requires formulation of controlling principles to guide the Executive, Legislative and the public.

 

Respectfully, I submit that each and every exercise by the President of his commander-in-chiefship[3] must, if review by this Court be asked and called for, be examined under the current events and the present affairs that determine the presence of the necessity of such exercise.

 

All the decisions of the actors covered by Section 18 of Article VII must be done within the tight and narrow time frames in the provision. These framed periods, I submit, emphasize the imperative for currency of the decision that each must make, as indeed, the presidential proclamation, aside from having been subjected to constitutional checks, has been given limited life.

 

The present limitations of the power to declare martial law, including the consequent circumscription of the legislative and judicial participation in the exercise of the power, themselves limit the occasion and need for formulation of controlling principles to guide the Executive, Legislative and the public. The way and manner by which the Constitution provided for the commander-in-chief clause

 

require decisions for the present, not guidelines for the future. I respectfully submit that the Court cannot now define for the future the sufficiency of the factual basis of the possibly coming proclamations of martial law. I cannot see how such a pre-determination can prevent an unconstitutional imposition of martial law better than the requirement, already constitutionalized, that the President must within forty-eight hours, submit a report in person or in writing to Congress which can, by a majority of all its members revoke, the imposition.

 

WHEREFORE, the cases are declared closed and terminated by constitutional rescript.

 

 

JOSE PORTUGAL PEREZ

Associate Justice


[1] This and the immediately preceding paragraph were taken from the ponencia of Justice Antonio T. Carpio.

[2] Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain (GRP), 568 SCRA 402, cited by Justice Antonio T. Carpio, p. 27 of ponencia.

[3] Term used by Bernas, SJ., The 1987 Constitution of the Philippines and Commentary, 2003 Ed., p. 865.