G.R. No. 190293

EN BANC

G.R. No. 190293 (Philip Sigfrid A. Fortun and Albert Lee G. Angeles v. Gloria Macapagal-Arroyo, as Commander-in-Chief and President of the Republic of the Philippines, et al.)

G.R. No. 190294 (Didagen P. Dilangalen v. Eduardo R. Ermita in his capacity as Executive Secretary, 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, Raul C. Pangalangan, H. Harry L. Roque, Jr., et al. v. Gloria Macapagal-Arroyo, in his [sic] capacity as President of the Republic of the Philippines, et al.)

G.R. No. 190356 (Baileng S. Mantawil, Dengco Saban, Engr. October Chio, et al. v. The Executive Secretary, The Secretary of National Defense, The Secretary of Justice, et al.)

G.R. No. 190380 (Christian Monsod and Carlos P. Medina, Jr. v. Eduardo R. Ermita, in his capacity as Executive Secretary)

Promulgated:

March 20, 2012

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DISSENTING OPINION

VELASCO, JR., J.:

The martial law era has left the country with harrowing memories of a dark past, thus invoking passionate sentiments from the people and bringing forth remarkable vigilance as a lesson learned, and only rightfully so. Nonetheless, legal discourse must be made within bounds, as must always be the case in a civilized society governed by the rule of law and not of men. It is on the basis of the foregoing precept that I am constrained to register my dissent in the instant case.

As can be gathered from the ponencia, the controversy in the instant case revolves around the issuance by then President Gloria Macapagal-Arroyo (President Arroyo) of Proclamation No. 1959,[1] which declared a state of martial law and suspended the privilege of the writ of habeas corpus in the province of Maguindanao, except for certain identified areas of the Moro Islamic Liberation Front.

To recall, the issuance of Proclamation No. 1959 was precipitated by the chilling and loathsome killing, on November 23, 2009, of 57 innocent civilians, including the wife of then Buluan Vice-Mayor Esmail “Toto” Mangudadatu (Mangudadatu), who was supposed to file the latter’s certificate of candidacy for Governor of Maguindanao with the Provincial Office of the Commission on Elections in Shariff Aguak, accompanied by Mangudadatu’s relatives, lawyers and members of the press, among others. The victims included five others who only happened to be travelling on the same highway traversed by the Mangudadatu convoy.

As a consequence of the detestable killings tagged by media as the “Maguindanao massacre,” President Arroyo immediately issued Proclamation No. 1946[2] on the following day, November 24, 2009, by which a state of emergency was declared 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.” This was followed with the issuance of the assailed Proclamation No. 1959 on December 4, 2009.

Subsequently, on December 6, 2009, President Arroyo submitted her Report[3] to Congress in compliance with Section 18, Article VII of the 1987 Constitution.

Meanwhile, the instant petitions were filed challenging the constitutionality of Proclamation No. 1959.

Also consonant with Sec. 18, Art. VII of the 1987 Constitution, Congress convened in joint session on December 9, 2009.

Eventually, on December 12, 2009, President Arroyo lifted martial law and restored the privilege of the writ of habeas corpus in Maguindanao with the issuance of Proclamation No. 1963.[4]

Justiciability of the instant petitions

In the majority opinion, the Court declined to rule on the constitutionality of Proclamation No. 1959, racionating that “given the prompt lifting of the proclamation before Congress could review it and before any serious question affecting the rights and liberties of Maguindanao’s inhabitants could arise, the Court deems any review of its constitutionality the equivalent of beating a dead horse.”

It is my view that, despite the lifting of the martial law and restoration of the privilege of the writ, the Court must take the bull by the horn to guide, explain and elucidate to the executive branch, the legislative branch, the bar, and more importantly the public on the parameters of a declaration of martial law.

Indeed, it is a well-settled rule that this Court may only adjudicate actual and current controversies.[5] This is because the Court is “not empowered to decide moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the result as to the thing in issue in the case before it.”[6] Nonetheless, this “moot and academic” rule admits of exceptions. As We wrote in David v. Arroyo:

The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.[7] (Emphasis supplied.)

All the aforementioned exceptions are present in this case. First, in the instant petitions, it was alleged that the issuance of Proclamation No. 1959 is violative of the Constitution. Second, it is indubitable that the issues raised affect the public’s interest as they may have an unsettling effect on the fundamental rights of the people. Third, the Court has the duty to formulate controlling principles concerning issues which involve the declaration of martial law and suspension of the privilege of the writ of habeas corpus to guide the bench, the bar, and the public. And fourth, the assailed proclamation is capable of repetition yet evading review. Considerably, the instant petitions are subject to judicial review.

While I disagree with the majority, I wish, however, to take exception to certain suppositions and discourse made in the dissent of Justice Carpio. In particular, I refer to his discussion on hypothetical situations concerning the simultaneous exercise of the power to review by this Court and by the Congress, as well as to the proposition that “[i]n 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.”

Simultaneous exercise by the Court and the Congress

of their constitutional power to review

One of the matters traversed by the dissent of Justice Carpio is “[i]f 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 the Congress to revoke the declaration of martial law or suspension of the writ, and if the decision of this Court conflicts with the decision of Congress, which decision shall prevail[?]”[8]

In addressing this issue, Justice Carpio, in his dissent, considered three scenarios, to wit:

First, the President’s 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 initial declaration or suspension on any ground, is left with nothing to revoke if the Court has already annulled the declaration.

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 President’s 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 President’s decision.” In short, even if there is an actual rebellion, whether affirmed or not by the Supreme Court, Congress has the power to revoke the President’s declaration or suspension. (Italics in the original; citations omitted.)

With the exception of the first, the two other possible scenarios adverted to that may arise from the action or inaction of the two co-equal branches of the government upon the declaration by the President of martial law or suspension of the writ cannot be resolved in the present case. Otherwise, this Court would, in effect, be making a ruling on a hypothetical state of facts which the Court is proscribed from doing.

As We have mentioned in Albay Electric Cooperative, Inc. v. Santelices, “[i]t is a rule almost unanimously observed that courts of justice will take cognizance only of justiciable controversies wherein actual and not merely hypothetical issues are involved.”[9] The reason behind this requisite is “to prevent the courts through avoidance of premature adjudication from entangling themselves in abstract disagreements, and for us to be satisfied that the case does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.”[10]

Further, the discussions made in Justice Carpio’s dissent, and curiously, even in the majority opinion itself, fail to take into consideration the powers of review by this Court under its expanded jurisdiction as conferred by Sec. 1, Art. VIII of the Constitution, “which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government.”[11]

In his dissent, Justice Carpio explicitly declares that “Congress has the unlimited power to revoke the declaration or suspension.” Similarly, the majority, in justifying the Court’s refusal to exercise its judicial power of review, states that “[o]nly when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart.” Irresistibly implied in these statements is that once Congress acts and reviews the declaration of martial law and suspension of the privilege of the writ, this Court becomes powerless to make further inquiry on the sufficiency of the factual basis of the proclamation in an appropriate proceeding filed by any citizen as mandated under Sec. 18, Art. VII of the Constitution.

The categorical statements made in both the majority opinion and in Justice Carpio’s dissent minimize, if not totally disregard, the power of this Court to pass upon the constitutionality of acts of Congress under its expanded jurisdiction under the Constitution. The significance of this Court’s power to review under its “expanded certiorari jurisdiction” was extensively discussed in Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.:

As indicated in Angara v. Electoral Commission, judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government x x x.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, “x x x judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them.” To him, “[j]udicial review is the chief, indeed the only, medium of participation – or instrument of intervention – of the judiciary in that balancing operation.”

To ensure the potency of the power of judicial review to curb grave abuse of discretion by “any branch or instrumentalities of government,” the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its history, into block letter law the so-called “expanded certiorari jurisdiction” of this Court x x x.

x x x x

There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr., this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara, in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda, this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra, it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson, it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco, it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission, it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and “one section is not to be allowed to defeat another.” Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.[12] (Emphasis in the original; citations omitted.)

Indeed, the Court does not have the authority to pass upon the wisdom behind the acts of the Congress. Nonetheless, the Court is not powerless to review the legality of the manner by which such acts have been arrived at in order to determine whether Congress has transgressed the reasonable bounds of its power.[13] This is an obligation which the Court cannot, and should not, abdicate.

Moreover, by indicating that Congress, if it so decides to act, has an unlimited power to revoke the declaration of a state of martial law or suspension of the privilege of the writ unfettered by this Court’s power to review, We are treading on treacherous grounds by handing over such an unbridled discretion to Congress. Such statement, to me, partakes of an obiter without precedential value, being unnecessary to resolve the issues and arrive at a proper decision in the present case. This matter should instead be addressed at the proper case and at the proper time.

President Arroyo’s alleged indisputable violation

of the explicit provisions of the Constitution

With due respect to Justice Carpio, I cannot join him in his contention that “President Arroyo indisputably violated the explicit provisions of Section 18, Article VII of the Constitution” for declaring martial law and suspending the writ in Maguindanao in the absence of an actual rebellion. The magnification is uncalled for.

When We speak of “violation” in reference to a law, it pertains to an act of breaking or dishonoring the law.[14] The use of said word, coupled with the ascription of the term “indisputable,” somehow implies that an act was done intentionally or wilfully. At worst, its use can even be suggestive of bad faith on the part of the doer.

In the case at bar, there is neither any allegation nor proof that President Arroyo acted in bad faith when she declared martial law and suspended the writ of habeas corpus in Maguindanao. There was also no showing that there was a deliberate or intentional attempt on the part of President Arroyo to break or dishonor the Constitution by issuing the assailed proclamation. On the contrary, what is extant from the records is that President Arroyo made such declaration and suspension on the basis of intelligence reports that lawless elements have taken up arms and committed public uprising against the government and the people of Maguindanao for the purpose of 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.

President Arroyo cannot be blamed for relying upon the information given to her by the Armed Forces of the Philippines and the Philippine National Police, considering that the matter of the supposed armed uprising was within their realm of competence, and that a state of emergency has also been declared in Central Mindanao to prevent lawless violence similar to the “Maguindanao massacre,” which may be an indication that there is a threat to the public safety warranting a declaration of martial law or suspension of the writ.

Certainly, the President cannot be expected to risk being too late before declaring martial law or suspending the writ of habeas corpus. The Constitution, as couched, does not require precision in establishing the fact of rebellion. The President is called to act as public safety requires.

The following excerpts from the Brief of Amicus Curiae of Fr. Joaquin Bernas, S.J. is illuminating:

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

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

In sum, since the President should not be bound to search for proof beyond reasonable doubt of the existence of rebellion and since deciding whether public safety demands action is a prudential matter, the function of the President is far from different from the function of a judge trying to decide whether to convict a person for rebellion or not. Put differently, looking for rebellion under the Penal Code is different from looking for rebellion under the Constitution.[15]

Significantly, the President has the discretion to make a declaration of martial law or suspension of the writ of habeas corpus based on information or facts available or gathered by the President’s office. It would be preposterous to impose upon the President to be physically present at the place where a threat to public safety is alleged to exist as a condition to make such declaration or suspension.

In the present case, it should not escape the attention of the Court that President Arroyo complied with the reportorial requirement in Sec. 18, Art. VII of the 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.” Further, it appearing thereafter that when President Arroyo subsequently received intelligence reports on the advisability of lifting martial law or restoring the writ of habeas corpus in Maguindanao, she immediately issued the corresponding proclamation.

To a certain extent, I conform to Justice Carpio’s dissent as to the unconstitutionality of Proclamation No. 1959. To my mind, however, it is one thing to declare a decree issued by the President as unconstitutional, and it is another to pronounce that she indisputably violated the Constitution. Notably, the power to issue the subject decree is expressly granted the President. There is also compliance with the report required after the issuance of said decree. However, the issuance of the subject decree may not be sustained after due consideration of the circumstances which may or may not support such decree.

This dissent fears that overbearing declarations may later create an unwarranted limitation on the power of a President to respond to exigencies and requirements of public safety. We must recognize that as society progresses, then so may the manner and means of endangering the very existence of our society develop. This Court is fortunate for having the benefit of hindsight. This benefit may not be equally shared by the President, who is tasked to act with a sense of urgency based on best judgment as facts develop and events unfold. We may only be judges of the past. But history will be harsh on a President who is not up to the challenge and declines, or worse, fails to act when so required.

I, therefore, vote to declare Proclamation No. 1959 unconstitutional, but as heretofore qualified.

PRESBITERO J. VELASCO, JR.

Associate Justice

[5] Pormento v. Estrada, G.R. No. 191988, August 31, 2010, 629 SCRA 530, 533; citing Honig v. Doe, 484 U.S. 305 (1988).

[7] G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, May 3, 2006, 489 SCRA 160.

[8] Rollo (G.R. No. 190293), pp. 192-194. Resolution dated December 15, 2009.

[9] G.R. No. 132540, April 16, 2009, 585 SCRA 103, 118-119; citing Jaafar v. Commission on Elections, 364 Phil 322, 327-328 (1999); emphasis supplied.

[10] Separate Opinion of Justice Nachura in De Castro v. Judicial and Bar Council, G.R. Nos. 191002, 191032, 191057, A.M. No. 10-2-5-SC, G.R. Nos. 191149, 191342 & 191420, March 17, 2010, 615 SCRA 666, 780; citing Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A. 2d 709 (2004).

[11] Coseteng v. Mitra, G.R. No. 86649, July 12, 1990, 187 SCRA 377, 383.

[12] G.R. No. 160261, November 10, 2003, 415 SCRA 44, 123-124, 132-133.

[14] Black’s Law Dictionary (9^th ed., 2010).