EN BANC

[G.R. No. 231658. December 5, 2017.]

REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY

C. ALEJANO, EMMANUEL A. BILLONES, AND TEDDY BRAWNER
BAGUILAT, JR., petitioners, vs. HON. SALVADOR C. MEDIALDEA,
EXECUTIVE SECRETARY; HON. DELFIN N. LORENZANA, SECRETARY OF
THE DEPARTMENT OF NATIONAL DEFENSE AND MARTIAL LAW
ADMINISTRATOR; AND GEN. EDUARDO AÑO, CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES AND MARTIAL LAW
IMPLEMENTOR, respondents.

[G.R. No. 231771. December 5, 2017.]

EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LINCUNA, ATELIANA U.

HIJOS, ROLAND A. COBRADO, CARL ANTHONY D. OLALO, ROY JIM
BALANGHIG, RENATO REYES, JR., CRISTINA E. PALABAY, AMARYLLIS
H. ENRIQUEZ, ACT TEACHERS' REPRESENTATIVE ANTONIO L. TINIO,
GABRIELA WOMEN'S PARTY REPRESENTATIVE ARLENE D. BROSAS,
KABATAAN PARTY-LIST REPRESENTATIVE SARAH JANE I. ELAGO, MAE
PANER, GABRIELA KRISTA DALENA, ANNA ISABELLE ESTEIN, MARK
VINCENT D. LIM, VENCER MARI CRISOSTOMO, JOVITA MONTES,
petitioners, vs. EXECUTIVE SECRETARY SALVADOR MEDIALDEA,
DEFENSE SECRETARY DELFIN LORENZANA, ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF LT. GENERAL EDUARDO AÑO,
PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL RONALD DELA
ROSA, respondents.

[G.R. No. 231774. December 5, 2017.]

NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD,

NORAISAH S. SANI, ZAHRIA P. MUTI-MAPANDI, petitioners, vs.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF
NATIONAL DEFENSE (DND) SECRETARY DELFIN N. LORENZANA,
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT (DILG)
SECRETARY (OFFICER-IN-CHARGE) CATALINO S. CUY, ARMED FORCES
OF THE PHILIPPINES (AFP) CHIEF OF STAFF GEN. EDUARDO M. AÑO,
 PHILIPPINE NATIONAL POLICE (PNP) CHIEF DIRECTOR GENERAL
RONALD M. DELA ROSA, NATIONAL SECURITY ADVISER HERMOGENES
C. ESPERON, JR., respondents.

RESOLUTION

DEL CASTILLO, J : p

On July 4, 2017, the Court rendered its Decision finding sufficient factual bases for
the issuance of Proclamation No. 216 and declaring it as constitutional. Petitioners timely
filed separate Motions for Reconsideration. The Office of the Solicitor General (OSG) also
filed its Comment.

After a careful review of the arguments raised by the parties, we find no reason to
reverse our July 4, 2017 Decision.

All three Motions for Reconsideration question two aspects of the July 4, 2017
Decision, i.e., the sufficiency of the factual bases of Proclamation No. 216 and the
parameters used in determining the sufficiency of the factual bases. Petitioners, however,
failed to present any substantial argument to convince us to reconsider our July 4, 2017
Decision.

Sufficiency of the Factual Bases of

Proclamation No. 216 has been
rendered moot by the expiration of the
said Proclamation.

Section 18, Article VII of the Constitution provides that "the President x x x 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 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."

From the foregoing, it is clear that the President's declaration of martial law and/or
suspension of the privilege of the writ of habeas corpus is effective for 60 days. As aptly
described by Commissioner Monsod, "this declaration has a time fuse. It is only good for a
maximum of 60 days. At the end of 60 days, it automatically terminates." 1 Any extension
thereof should be determined by Congress. The act of declaring martial law and/or
suspending the privilege of the writ of habeas corpus by the President, however, is separate
from the approval of the extension of the declaration and/or suspension by Congress. The
initial declaration of martial law and/or suspension of the writ of habeas corpus is determined
solely by the President, while the extension of the declaration and/or suspension, although
initiated by the President, is approved by Congress.

In this case, Proclamation No. 216 issued on May 23, 2017 expired on July 23, 2017.
Consequently, the issue of whether there were sufficient factual bases for the issuance of the
said Proclamation has been rendered moot by its expiration. We have consistently ruled that
a case becomes moot and academic when it "ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical value." 2
As correctly pointed out by the OSG, "the martial law and suspension of the privilege of the
writ of habeas corpus now in effect in Mindanao no longer finds basis in Proclamation No.
216" 3 but in Resolution of Both Houses No. 11 (RBH No. 11) adopted on July 22, 2017.
RBH No. 11 is totally different and distinct from Proclamation No. 216. The former is a joint
executive-legislative act while the latter is purely executive in nature.

The decision of the Congress to extend the same is of no moment. The approval of
the extension is a distinct and separate incident, over which we have no jurisdiction to review
as the instant Petition only pertains to the President's issuance of Proclamation No. 216.

Thus, considering the expiration of Proclamation No. 216 and considering further the
approval of the extension of the declaration of martial law and the suspension of the privilege
of the writ of habeas corpus by Congress, we find no reason to disturb our finding that there
were sufficient factual bases for the President's issuance of Proclamation No. 216.

However, although the Motions for Reconsideration are dismissible on the ground of
mootness, we deem it prudent to emphasize our discussion on the parameters for
determining the sufficiency of factual basis for the declaration of martial law and/or the
suspension of the privilege of the writ of habeas corpus.

The Constitution requires sufficiency of

factual basis, not accuracy.

Petitioners, in essence, posit that the Court is required to determine the accuracy of
the factual basis of the President for the declaration of martial law and/or the suspension of
the privilege of the writ of habeas corpus. To recall, we held that "the parameters for
determining the sufficiency of factual basis are as follows: 1) actual rebellion or invasion; 2)
public safety requires it; the first two requirements must concur; and 3) there is probable
cause for the President to believe that there is actual rebellion or invasion." 4 Moreover, we
stated in the assailed Decision that "the phrase 'sufficiency of factual basis' in Section 18,
Article VII of the Constitution should be understood as the only test for judicial review of the
President's power to declare martial law and suspend the privilege of the writ of habeas
corpus." 5 Requiring the Court to determine the accuracy of the factual basis of the President
contravenes the Constitution as Section 18, Article VII only requires the Court to determine
the sufficiency of the factual basis. Accuracy is not the same as sufficiency as the former
requires a higher degree of standard. As we have explained in our July 4, 2017 Decision:
In determining the sufficiency of the factual basis of the declaration and/or
the suspension, the Court should look into the full complement or totality of the
factual basis, and not piecemeal or individually. Neither should the Court expect
absolute correctness of the facts stated in the proclamation and in the written
Report as the President could not be expected to verify the accuracy and veracity
of all facts reported to him due to the urgency of the situation. To require precision
in the President's appreciation of facts would unduly burden him and therefore
impede the process of his decision-making. Such a requirement will practically
necessitate the President to be on the ground to confirm the correctness of the
reports submitted to him within a period that only the circumstances obtaining
would be able to dictate. Such a scenario, of course, would not only place the
President in peril but would also defeat the very purpose of the grant of emergency
powers upon him, that is, to borrow the words of Justice Antonio T. Carpio in
Fortun, to 'immediately put an end to the root cause of the emergency'. Possibly, by
the time the President is satisfied with the correctness of the facts in his
possession, it would be too late in the day as the invasion or rebellion could have
already escalated to a level that is hard, if not impossible, to curtail.

Besides, the framers of the 1987 Constitution considered intelligence

reports of military officers as credible evidence that the President can appraise and
to which he can anchor his judgment, as appears to be the case here.

At this point, it is wise to quote the pertinent portions of the Dissenting

Opinion of Justice Presbitero J. Velasco, Jr. in Fortun:

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.

Corollary, as the President is expected to decide quickly on whether there

is a need to proclaim martial law even only on the basis of intelligence reports, it is
irrelevant, for purposes of the Court's review, if subsequent events prove that the
situation had not been accurately reported to him. After all, the Court's review is
confined to the sufficiency, not accuracy, of the information at hand during the
declaration or suspension; subsequent events do not have any bearing insofar as
the Court's review is concerned. x x x

Hence, the maxim falsus in uno, falsus in omnibus finds no application in

this case. Falsities of and/or inaccuracies in some of the facts stated in the
proclamation and written report are not enough reasons for the Court to invalidate
the declaration and/or suspension as long as there are other facts in the
proclamation and the written Report that support the conclusion that there is
an actual invasion or rebellion and that public safety requires the declaration
and/or suspension.

In sum, the Court's power to review is limited to the determination of

whether the President in declaring martial law and suspending the privilege
of the writ of habeas corpus had sufficient factual basis. Thus, our review
would be limited to an examination on whether the President acted within the
bounds set by the Constitution, i.e., whether the facts in his possession prior
 to and at the time of the declaration or suspension are sufficient for him to
declare martial law or suspend the privilege of the writ of habeas corpus. 6
(Emphasis supplied)

This is consistent with our ruling that "the President only needs to convince himself
that there is probable cause or evidence showing that more likely than not a rebellion was
committed or is being committed." 7 The standard of proof of probable cause does not
require absolute truth. Since "martial law is a matter of urgency x x x the President x x x is
not expected to completely validate all the information he received before declaring martial
law or suspending the privilege of the writ of habeas corpus." 8

Notably, out of the several facts advanced by the President as basis for Proclamation
No. 216, only five of them were being questioned by the petitioners. However, they were not
even successful in their refutation since their "counter-evidence were derived solely from
unverified news articles on the internet, with neither the authors nor the sources shown
to have affirmed the contents thereof. It was not even shown that efforts were made to
secure such affirmation albeit the circumstances proved futile." 9 Even granting that the
petitioners were successful in their attempt to refute the aforesaid five incidents, there are
other facts sufficient to serve as factual basis for the declaration of martial law and
suspension of the privilege of the writ of habeas corpus.

There is absolutely no basis to petitioners' claim that the Court abdicated its power to
review. To be sure, our findings that there was sufficient factual basis for the issuance of
Proclamation No. 216 and that there was probable cause, that is, that more likely than not,
rebellion exists and that public safety requires the declaration of martial law and suspension
of the privilege of the writ of habeas corpus, were reached after due consideration of the
facts, events, and information enumerated in the proclamation and report to Congress. The
Court did not content itself with the examination only of the pleadings/documents submitted
by the parties. In addition, it conducted a closed-door session where it tried to ferret
additional information, confirmation and clarification from the resource persons, particularly
Secretary of National Defense Delfin Lorenzana and Armed Forces of the Philippines Chief
of Staff Eduardo Año. At this juncture, it must be stated that the Court is not even obliged to
summon witnesses as long as it satisfies itself with the sufficiency of the factual basis; it is
purely discretionary on its part whether to call additional witnesses. In any event, reliance on
so-called intelligence reports, even without presentation of its author, is proper and allowed
by law.

The Court's acknowledgment of the President's superior data gathering apparatus,

and the fact that it has given the Executive much leeway and flexibility, should never be
understood as a prelude to surrendering the judicial power to review. The Court never
intended to concede its power to verify the sufficiency of factual basis for the declaration of
martial law and suspension of the privilege of the writ of habeas corpus. The leeway and
flexibility accorded to the Executive must be construed in the context of the present set up
wherein the declaration of martial law and suspension of the privilege of the writ of habeas
corpus are grounded on actual invasion or rebellion, not on imminent threat or danger
thereof; as such, time is of the essence for the President to act quickly to protect the country.
It is also a recognition of the unassailable fact that as Commander-in-Chief, the President
has access to confidential information. In fact, Fr. Joaquin Bernas even opined that the Court
might have to rely on the fact-finding capabilities of the Executive; in turn, the Executive
should share its findings with the Court if it wants to convince the latter of the propriety of its
action. 10 Moreover, it is based on the understanding that martial law is a flexible concept;
that "the precise extent or range of the rebellion [cannot] be measured by exact metes and
bounds;" 11 that public safety requirement cannot be quantified or measured by metes and
bounds; that the Constitution does not provide that the territorial scope or coverage of martial
law should be confined only to those areas where the armed public uprising actually
transpired; that it will be impractical to expand the territorial application of martial law each
time the coverage of actual rebellion expands and in direct proportion therewith; and, that
there is always a possibility that the rebellion and other accompanying hostilities will spill
over.

As regards the other arguments raised by petitioners, the same are a mere rehash
which have already been considered and found to have no merit.

WHEREFORE, petitioners' Motions for Reconsideration are hereby DENIED WITH

FINALITY for mootness and lack of merit.

No further pleadings shall be entertained.

Let entry of judgment be made in n immediately.

SO ORDERED.

Velasco, Jr., Leonardo-de Castro, Peralta, Martires, Tijam and Reyes, Jr., JJ.,
concur.

Sereno, C.J., I reiterate my Dissent.

Carpio, J., See Dissenting Opinion.

Bersamin, * J., This is to certify that J. Bersamin left his vote of concurrence. — C.J.
Sereno

Perlas-Bernabe, J., I concur in the result to deny the MR. On the merits, I maintain
my separate opinion.

Leonen, J., I reiterate my earlier dissent in the main opinion.

Jardeleza, ** J., is on leave.

Caguioa, J., See Separate Dissent.

Gesmundo, ** J., This is to certify that J. Gesmundo left his vote of concurrence. —
C.J. Sereno

Separate Opinions
CARPIO, J., dissenting opinion:

The Motion for Reconsideration seeks to review the 4 July 2017 Decision of this
Court declaring valid Presidential Proclamation No. 216 dated 23 May 2017 which declared a
state of martial law and suspended the privilege of the writ of habeas corpus (writ) in the
whole Mindanao group of islands. Exercising this Court's power to review the sufficiency of
the factual basis of the proclamation of martial law and suspension of the privilege of the writ
under the third paragraph of Section 18, Article VII of the 1987 Constitution, this Court
sustained the validity of the territorial application of martial law in Marawi City and the whole
Mindanao group of islands.

In the 4 July 2017 Decision, the ponente held that there is "no constitutional edict that
martial law should be confined only in the particular place where the armed public uprising
actually transpired." 1 The ponente gave two reasons for this: (1) as a crime, rebellion has a
unique character of absorbing other crimes punishable under the Revised Penal Code and
other special laws which may be committed outside the particular place where the actual
rebellion transpired; and (2) the prerogative to declare martial law lies with the President,
meaning he has a wide leeway and flexibility in determining the territorial scope of martial
law.

I disagree with the ponente that the 1987 Constitution does not provide the exact
territorial scope or coverage of martial law and that the proclamation of martial law
throughout the whole of Mindanao including areas outside of Marawi City is valid. The
ponente states:

[M]artial law is a flexible concept; that the "precise extent or range of the rebellion
[cannot] be measured by exact metes and bounds;" that public safety requirement
cannot be quantified or measured by metes and bounds; that the Constitution does
not provide that the territorial scope or coverage of martial law should be confined
only to those areas where the armed public uprising actually transpired; that it will
be impractical to expand the territorial application of martial law each time the
coverage of actual rebellion expands and in direct proportion therewith; and, that
there is always a possibility that the rebellion and other accompanying hostilities
will spill over. 2

The ponente is wrong in holding that the 1987 Constitution does not provide for the
exact territorial scope of martial law and that the President has the latitude to determine the
territorial scope of martial law and the suspension of the privilege of the writ. 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.
(Emphasis supplied)

Before the President can declare martial law or suspend the privilege of the writ, the
1987 Constitution requires that the President establish the following: (1) the existence of
actual rebellion or invasion; and (2) public safety requires the declaration of martial
law or suspension of the privilege of the writ to suppress the rebellion or invasion.
Needless to say, the presence of an actual rebellion is necessary before the President is
authorized by the Constitution to declare martial law in any part of the country.
 According to the Revised Penal Code, actual rebellion exists when the following
elements concur: (1) there is (a) a public uprising and (b) taking up of arms against the
Government; and (2) the purpose of the uprising is either (a) to remove from the allegiance
to the Government or its laws: (i) the territory of the Philippines or any part thereof; or (ii) 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. 3

The letter and intent of the 1987 Constitution is that the territorial scope of the
President's proclamation of martial law and the suspension of the privilege of the writ
must be confined only to the territory where actual rebellion exists. The absence of an
actual rebellion as defined by the Revised Penal Code prohibits the President, acting as
Commander-in-Chief, from declaring martial law or suspending the privilege of the writ in any
territory of the Philippines. In short, actual rebellion must exist in a particular territory in
the Philippines before the President is authorized by the Constitution to declare
martial law or suspend the privilege of the writ in a particular territory.

Proclamation No. 216 and the President's Report to Congress do not show the
existence of actual rebellion outside of Marawi City. In fact, the Proclamation itself states that
the Maute-Hapilon armed fighters in Marawi City intended to remove "this part of
Mindanao," referring to Marawi City, from Philippine sovereignty. The Proclamation itself
admits that only "this part of Mindanao," referring to Marawi City, is the subject of separation
from Philippine sovereignty by the rebels. The President's Report did not mention any other
city, province, or territory in Mindanao, other than Marawi City, that had a similar public
uprising by a rebel group, an element of actual rebellion. Thus, the President's Report
concludes that "based on various verified intelligence reports from the AFP and the PNP,
there exists a strategic mass action of lawless armed groups in Marawi City." 4 To extend
the territorial scope of martial law to areas outside of Marawi City where there is no
actual rebellion would uphold a clear violation of the letter and intent of the 1987
Constitution.

By way of background, the concept of martial law was first introduced into the
organic law of the Philippines through the Philippine Autonomy Act of 1916 or the Jones Law.
5 Under the law, the Governor-General of the Philippine Islands may place the Islands or any

part thereof under martial law in case of rebellion or imminent danger thereof and public
safety requires it:

Section 21.

xxx xxx xxx

[The Governor-General of the Philippine Islands] shall be responsible for the faithful
execution of the laws of the Philippine Islands and of the United States operative
within the Philippine Islands, and whenever it becomes necessary he may call upon
the commanders of the military and naval forces of the United States in the Islands,
or summon the posse comitatus, or call out the militia or other locally created
armed forces, to prevent or suppress lawless violence, invasion, insurrection, or
rebellion; and he may, in case of rebellion or invasion, or imminent danger
thereof, when the public safety requires it, suspend the privileges of the writ of
habeas corpus, or place the Islands, or any part thereof, under martial law:
Provided, That whenever the Governor-General shall exercise this authority, he
 shall at once notify the President of the United States thereof, together with the
attending facts and circumstances, and the President shall have power to modify or
vacate the action of the Governor-General. (Emphasis supplied)

With the passage of the Tydings-McDuffie Act or the Philippine Independence Act,
the 1935 Constitution was subsequently enacted. Section 10 (2), Article VII of the 1935
Constitution, as amended, provided for the power of the President to place the country or
any part thereof under martial law in case of rebellion or imminent danger thereof and public
safety requires it:

ARTICLE VII

Executive Department

Section 10. xxxx

(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.
(Boldfacing and underscoring supplied)

The text of paragraph 2, Section 10, Article VII of the 1935 Constitution was
reproduced in Section 9, Article VII of the 1973 Constitution:

ARTICLE VII

The President and Vice-President

Section 9. 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.
(Emphasis supplied)

As I stated in my Dissenting Opinion to the 4 July 2017 Decision, the 1987

Constitution gives the President the discretion and prerogative to decide how to deal with an
actual rebellion. The President may either call out the armed forces to suppress the rebellion
or he may declare martial law, with or without the suspension of the privilege of the writ. 6
However, he does not have a wide leeway in determining the territorial scope of martial law.
Section 18, Article VII of the 1987 Constitution is clear that martial law must be founded on
two factual bases: (1) the existence of actual rebellion or invasion; and (2) public safety
requires the declaration of martial law or suspension of the privilege of the writ to suppress
rebellion or invasion. These two factual bases cannot be stretched to mean that martial law
can be proclaimed or the privilege of the writ may be suspended in those areas outside of
Marawi City where "there is [a] possibility that the rebellion and other accompanying
hostilities will spill over" 7 (as held by the ponente). The President cannot proclaim martial
law or suspend the privilege of the writ in areas outside of Marawi City simply because of the
possibility that the rebels might escape to areas outside of Marawi City.
 Indeed, the Jones Law, 8 the 1935 Constitution, and the 1973 Constitution seemed to
have conferred to the President the absolute prerogative to determine the territorial scope of
martial law because of the phrase "the Philippines or any part thereof." However, this
seeming absolute discretion must also be interpreted in relation to the legal reality then that
the "imminent danger" of rebellion was a valid ground to declare martial law. In other words,
the three organic laws expressly empowered the President to place the entire country under
martial law, even if the rebellion was limited to a particular locality, because of the "imminent
danger" that it would spread or spill over outside the place of actual rebellion.

This no longer holds true under the 1987 Constitution. With the intentional
removal of "imminent danger" as a ground to declare martial law, the President cannot
proclaim martial law or suspend the privilege of the writ because of a possibility of a "spill-
over of hostilities" outside the place of actual rebellion. As I stated in my Dissenting Opinion:

Moreover, imminent danger or threat of rebellion or invasion is not

sufficient. The 1987 Constitution requires the existence of actual rebellion or
actual invasion. "Imminent danger" as a ground to declare martial law or suspend
the privilege of the writ, which was present in both the 1935 and 1973
Constitutions, was intentionally removed in the 1987 Constitution. By the intentional
deletion of the words "imminent danger" in the 1987 Constitution, the President can
no longer use imminent danger of rebellion or invasion as a ground to declare
martial law or suspend the privilege of the writ. Thus, the President cannot proclaim
martial law or suspend the privilege of the writ absent an actual rebellion or
actual invasion. This is the clear, indisputable letter and intent of the 1987
Constitution. 9

xxx xxx xxx

x x x. The fear that the rebellion in Marawi City will spread to other areas in
Mindanao is a mere danger or threat and may not even amount to an imminent
danger or threat. In any event, to allow martial law outside Marawi City on the basis
of an imminent danger or threat would unlawfully reinstate the ground of "imminent
danger" of rebellion or invasion, a ground that was intentionally removed from the
1987 Constitution. 10 (Emphasis supplied)

To validate the President's action of declaring martial law outside of Marawi City on
the basis of a "spill-over of hostilities" would unlawfully reinstate "imminent danger," a ground
not present in the 1987 Constitution, as a ground to declare martial law or suspend the
privilege of the writ. To reiterate, the President must be confined strictly to the existence
of the two elements under Section 18, Article VII of the 1987 Constitution of actual
rebellion or invasion and the satisfaction of the public safety requirement for the
declaration of martial law and the suspension of the privilege of the writ in any part of
the Philippines. The two elements under the Constitution are only present in Marawi
City and are absent in geographic areas of Mindanao outside of Marawi City.

ACCORDINGLY, I vote to PARTIALLY GRANT the Motion for Reconsideration in

G.R. Nos. 231658, 231771, and 231774, and DECLARE Proclamation No. 216
UNCONSTITUTIONAL as to geographic areas of Mindanao outside of Marawi City, for
failure to comply with Section 18, Article VII of the 1987 Constitution. Proclamation No. 216
is valid, effective, and CONSTITUTIONAL only within Marawi City.
CAGUIOA, J., dissenting opinion:

I maintain my dissent.

I maintain that no sufficient factual basis was shown for the declaration of martial law
and suspension of the writ of habeas corpus over the entire Mindanao. As well, I maintain
that the Court's review under Section 18 to determine the sufficiency of factual basis
necessarily requires an examination of the veracity and accuracy of the factual basis offered
by the Executive.

To reiterate, Section 18, being a neutral and straightforward fact-checking

mechanism, serves the functions of (1) preventing the concentration in one person — the
Executive — of the power to put in place a rule that significantly implicates civil liberties, (2)
providing the sovereign people a forum to be informed of the factual basis of the Executive's
decision, and (3) at the very least, assuring the people that a separate department
independent of the Executive may be called upon to determine for itself the propriety of the
declaration of martial law and suspension of the privilege of the writ. 1

This is what is owed to the sovereign people in this case.

The petition for the review of the

sufficiency of factual basis of Proclamation
No. 216 is not mooted by its expiration.

In International Service for the Acquisition of Agri-Biotech Applications, Inc. v.

Greenpeace Southeast Asia (Phils.), 2 the Court explained:

An action is considered 'moot' when it no longer presents a justiciable

controversy because the issues involved have become academic or dead, or when
the matter in dispute has already been resolved and hence, one is not entitled to
judicial intervention unless the issue is likely to be raised again between the
parties. Time and again, courts have refrained from even expressing an opinion in
a case where the issues have become moot and academic, there being no more
justiciable controversy to speak of, so that a determination thereof would be of no
practical use or value.

Nonetheless, 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 the
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." x x x 3

Guided by these exceptions, the Court had ruled on the case and ultimately enjoined
the field testing of Bt talong despite its termination. Similarly, the Court ruled on the
constitutionality of the Memorandum of Agreement on the Ancestral Domain Aspect (MOA-
AD) of the GRP-MILF Tripoli Agreement on Peace of 2001 despite the government's claim of
satisfaction of the reliefs prayed for in Province of North Cotabato v. Government of the
Republic of the Philippines Peace Panel on Ancestral Domain (GRP), 4 certain provisions in
the national budget despite the end of the fiscal year for which the law was passed in Belgica
v. Ochoa, 5 and a declaration of a state of emergency and the corresponding implementing
General Order despite their having been lifted in David v. Macapagal-Arroyo, 6 among the
catena of cases where the issue of mootness was raised.

This case falls within the second, third, and fourth exceptions. First, the state of
martial law and suspension of the writ of habeas corpus is an exception to the normal
workings of our system of government and involves paramount public interest in view of the
attendant curtailment of civil liberties. Second, the issues raised by the petitions require
formulation of controlling principles to guide the bench, the bar and the public, more
specifically, the agents of the Executive department, the police, and the military, with respect
to the nature and threshold of evidence required in a Section 18 petition, and the scope of
and standards in the implementation of martial law, among others. Lastly, the events (e.g.,
skirmishes, kidnappings, explosions) that led to the issuance of Proclamation No. 216 are
neither rare nor exceptional so as to foreclose the possibility of repetition.

The first exception is irrelevant in a Section 18 review because its function is not to
determine a grave violation of the Constitution. In this regard, I had summarized in my
Dissent to the July 4, 2017 Decision the essence of the Court's duty to review under Section
18 is, thus:
x x x to embrace and actively participate in the neutral, straightforward,
apolitical fact-checking mechanism that is mandated by Section 18, Article VII of
the Constitution, and accordingly determine the sufficiency of the factual basis of
the declaration of martial law or suspension of the privilege of the writ of habeas
corpus. The Court, under Section 18, steps in, receives the submissions relating to
the factual basis of the declaration of martial law or suspension of the privilege of
the writ, and then renders a decision on the question of whether there is sufficient
factual basis for the declaration of martial law or suspension of the privilege of the
writ. Nothing more.

To be sure, the Court will even ascribe good faith to the Executive in its
decision to declare martial law or suspend the privilege of the writ of habeas
corpus. But that does not diminish the Court's duty to say, if it so finds, that there is
insufficient factual basis for the declaration of martial law and suspension of the
privilege of the writ of habeas corpus. That is the essence of the Court's duty under
Section 18.

In discharging this duty, the Court does not assign blame, ascribe
grave abuse or determine that there was a culpable violation of the
Constitution. It is in the courageous and faithful discharge of this duty that the
Court fulfills the most important task of achieving a proper balance between
freedom and order in our society. It is in this way that the Court honors the sacrifice
of lives of the country's brave soldiers — that they gave their last breath not just to
suppress lawless violence, but in defense of freedom and the Constitution that they
too swore to uphold. 7 (Emphasis supplied)

And:
Since Section 18 is a neutral straightforward fact-checking mechanism,
any nullification necessarily does not ascribe any grave abuse or attribute any
culpable violation of the Constitution to the Executive. Meaning, the fact that
 Section 18 checks for sufficiency and not mere arbitrariness does not, as it was not
intended to, denigrate the power of the Executive to act swiftly and decisively to
ensure public safety in the face of emergency. Thus, the Executive will not be
exposed to any kind of liability should the Court, in fulfilling its mandate
under Section 18, make a finding that there were no sufficient facts for the
declaration of martial law or the suspension of the privilege of the writ. 8
(Emphasis supplied)

The veracity and accuracy of the factual

basis offered by the Executive is
inextricably linked to the review of its
sufficiency.

This appears to be the where the case turns. The ponencia, in drawing distinctions
between a review of sufficiency and accuracy, adverts to Justice Velasco's Dissenting
Opinion in Fortun v. Macapagal-Arroyo: 9

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 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. 10 (Emphasis
supplied)

This justification misses the mark. Since the function of the Court's Section 18 review
is NOT to ascribe fault to the Executive in declaring martial law or suspending the writ of
habeas corpus, but to determine the sufficiency of the factual basis for the proclamation of
martial law — an anomalous situation that directly affects the operations of government and
the enjoyment of the people of their civil liberties within the scope of its implementation —
with a view of either upholding or nullifying the same, a finding of sufficient factual basis
should necessarily mean sufficient truthful, accurate, or at the very least, credible,
factual basis. This is because the Court's judgment is not temporally-bound to the time the
proclamation was issued — the ultimate question not being the liability of the Executive for
the proclamation or suspension, but whether the abnormal state of affairs should continue.
The transitory nature of the actions of the legislative and judicial branches was discussed by
the framers, thus:
MR. BENGZON:

And if the Supreme Court promulgates its decision ahead of Congress, Congress is
foreclosed because the Supreme Court has 30 days within which to look into
the factual basis. If the Supreme Court comes out with the decision one way
or the other without Congress having acted on the matter, is Congress
foreclosed?
 FR. BERNAS:

The decision of the Supreme Court will be based on its assessment of the
factual situation. Necessarily, therefore, the judgment of the Supreme
Court on that is a transitory judgment because the factual situation can
change. So, while the decision of the Supreme Court may be valid at that
certain point of time, the situation may change so that Congress should be
authorized to do something about it.

MR. BENGZON:

Does the Gentleman mean the decision of the Supreme Court then would just be
something transitory?

FR. BERNAS:

Precisely.

MR. BENGZON:

It does not mean that if the Supreme Court revokes or decides against the
declaration of martial law, the Congress can no longer say, "no, we want
martial law to continue" because the circumstances can change.

FR. BERNAS:

The Congress can still come in because the factual situation can change.

MR. BENGZON:

Thank you, Madam President. 11 (Emphasis supplied)

In the same manner that the Congress has the latitude to extend martial law in the
event that factual circumstances change despite a theoretical antecedent contrary judgment
on the part of the Court, the latter, in parity of reasoning, can and should declare the
proclamation as having been issued without sufficient basis if the facts relied upon by the
Executive in the proclamation have been shown to be false or inaccurate during the
pendency of the Court's review. As a consequence, the proclamation or suspension is
nullified, and the normal workings of government shall be restored. This is the only
reasonable interpretation.

Therefore, I harken back to my previous discussion on this point:

As well, in the same manner that the Court is not limited to the four corners
of Proclamation No. 216 or the President's report to Congress, it is similarly not
temporally bound to the time of proclamation to determine the sufficiency of the
factual basis for both the existence of rebellion and the requirements of public
safety. In other words, if enough of the factual basis relied upon for the existence of
rebellion or requirements of public safety are shown to have been inaccurate or no
longer obtaining at the time of the review to the extent that the factual basis is no
longer sufficient for the declaration of martial law or suspension of the privilege of
the writ, then there is nothing that prevents the Court from nullifying the
proclamation.

In the same manner, if the circumstances had changed enough to furnish

sufficient factual basis at the time of the review, then the proclamation could be
upheld though there might have been insufficient factual basis at the outset. A
 contrary interpretation will defeat and render illusory the purpose of review.

To illustrate, say a citizen files a Section 18 petition on day 1 of the

proclamation, and during the review it was shown that while sufficient factual basis
existed at the outset (for both rebellion and public necessity) such no longer existed
at the time the Court promulgates its decision at say, day 30 — then it makes no
sense to uphold the proclamation and allow the declaration of martial law or
suspension of the privilege of the writ to continue for another thirty days, assuming
it is not lifted earlier.

Conversely, if it was shown that while there was insufficient factual basis at
the outset, circumstances had changed during the period of review resulting in a
finding that there is now sufficient factual basis for the declaration of martial law or
suspension of the privilege of the writ, then the Court is called upon to uphold the
proclamation. 12

The ponencia pushes a false dichotomy of "accuracy" versus "sufficiency" that reeks
of avoidance. In a court of law, the judge deals with evidence. As defined, evidence is the
means of ascertaining in a judicial proceeding the truth respecting a matter of fact. 13
Inescapably, therefore, truth, veracity, and accuracy are indispensable qualities of the
evidence that the Court shall accept to support a finding of a certain fact — in this
case, the existence of the twin requirements for the declaration and suspension.

Otherwise, if any fact offered by a party is acceptable despite being false or

inaccurate, the laying down of the nature and quantum of evidence required in a Section 18
review becomes illusory. Furthermore, a finding of sufficiency of factual basis from the Court
that does not carry with it what would otherwise be the silent premise in every other judicial
proceeding that the evidence relied upon is true, accurate, or at the very least
"credible" 14 falls short of its duty under Section 18 — which is, again, to determine not
whether the Executive committed error in issuing the declaration or suspension but whether
there is sufficient factual basis to warrant the continuation of the abnormal state of affairs that
such declaration or suspension brings about. I reiterate my discussion on this point:
The use of the word "sufficiency," signals that the Court's role in the neutral
straightforward fact-checking mechanism of Section 18 is precisely to check post
facto, and with the full benefit of hindsight, the validity of the declaration of martial
law or suspension of the privilege of the writ, based upon the presentation by the
Executive of the sufficient factual basis therefor (i.e., evidence tending to show the
requirements of the declaration of martial law or suspension of the privilege of the
writ: actual rebellion or invasion, and requirements of public safety). This means
that the Court is also called upon to investigate the accuracy of the facts forming
the basis of the proclamation — whether there is actual rebellion and whether the
declaration of martial law and the suspension of the privilege of the writ are
necessary to ensure public safety.

For truly, without ascertaining the accuracy of the factual basis offered for the
proclamation, the Court is sending a perverse message that the Executive, in this case and
in future Section 18 reviews that may come before it, may offer any and all kinds of "factual"
bases, without regard to accuracy. It is truly baffling how the majority's concession of the
Executive's superior "competence," "logistical machinery," and "superior data gathering
apparatus" does not equate to the Court imposing upon the Executive the obligation to
produce before the Court sufficient evidence that is true, accurate, or at the very least,
credible. This superiority must lead the Court to raise the bar instead of lower it. Else, it
leads precisely to a nugatory Court finding I already adverted to:

x x x The Executive needs to reveal so much of its factual basis for the
declaration of martial law and suspension of the privilege of the writ so that it
produces in the mind of the Court the conclusion that the declaration and
suspension meets the requirements of the Constitution. Otherwise, the Court's
finding of sufficiency becomes anchored upon bare allegations, or silence. In
any proceeding, mere allegation or claim is not evidence; neither is it
equivalent to proof. 15 (Emphasis supplied)

The holding that the review of sufficiency of factual basis does not involve an
examination of the accuracy of factual basis is but one degree removed from allowing the
use of presumptions of constitutionality and regularity in a Section 18 review, which, as well, I
have already described as incompatible to the nature of the exercise:
x x x The presumption disposes of the need to present evidence — which
is totally opposite to the fact-checking exercise of Section 18; to be sure, reliance
on the presumption in the face of an express constitutional requirement amounts to
a failure by the Executive to show sufficient factual basis, and judicial
rubberstamping on the part of the Court. 16 (Emphasis supplied)

Again, and in fine, a Section 18 review functions not to fix blame, but to be an
avenue for the restoration of the normal workings of government and the enjoyment of
individual liberties should there be showing of insufficient factual basis. 17 In a democracy
like ours, a ruling that directly affects these terminal values requires no less than accuracy
and truth. The Court must uphold this standard.

Therefore, I vote to grant the Motions for Reconsideration and to declare the
proclamation of martial law over the entire Mindanao as having been issued without sufficient
factual basis, and the proclamation can be justified only in Lanao del Sur, Maguindanao, and
Sulu.

Footnotes

* On official leave.

** On leave.

1. II RECORD, CONSTITUTIONAL COMMISSION 476 (July 30, 1986).

2. Agriex Co., Ltd. v. Commissioner Villanueva, 742 Phil. 574, 583 (2014).

3. Comment of the Office of the Solicitor General, pp. 7-8; rollo (G.R. No. 231658), Vol. 2,
pp. 1419-1420.

4. Decision, p. 53; id. at 857.

5. Id. at 48; id. at 852.

6. Id. at 49-51; id. at 853-855.

7. Id. at 53; id. at 857.

8. Id. at 54; id. at 858.

9. Id. at 63; id. at 867.

10. Id. at 68; id. at 872.

11. Id. at 72; id. at 876.

CARPIO, J., dissenting opinion:

1. Decision, p. 73.

2. Resolution, p. 7.

3. Ladlad v. Velasco, 551 Phil. 313, 329 (2007).

4. Decision, p. 7.

5. See Justice Leonen's Concurring and Dissenting Opinion in Padilla v. Congress of the
Philippines, G.R. Nos. 231671 and 231694, 25 July 2017.

6. Justice Antonio T. Carpio's Dissenting Opinion, p. 14.

7. Resolution, p. 7.

8. Under the Jones Law, it is the Governor-General who may place the Philippines or any
part thereof under martial law. The President of the United States shall have the power to
modify or vacate the action of the Governor-General.

9. Justice Antonio T. Carpio's Dissenting Opinion, p. 19.

10. Id. at 23.

CAGUIOA, J., dissenting opinion:

1. J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, G.R. Nos. 231658, 231771 &
231774, p. 5.

2. 774 Phil. 508 (2015) [En Banc; Per J. Villarama, Jr.].

3. Id. at 577-578.

4. 589 Phil. 387 (2008) [En Banc, Per J. Carpio Morales].

5. 721 Phil. 416 (2013) [En Banc, Per J. Perlas-Bernabe].

6. 522 Phil. 705 (2006) [En Banc, Per J. Sandoval-Gutierrez].

7. J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 1, at 24.

8. Id. at 11.

9. 684 Phil. 526, 620-631 (2012) [En Banc, Per J. Abad].

10. Id. at 629.

11. II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND

DEBATES, p. 494 (1986).

12. J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 1, at 12.

13. Rule 128, Section 1. Evidence defined. — Evidence is the means, sanctioned by
these Rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact.
14. MR. NATIVIDAD. And the Commissioner said that in case of subversion, sedition or
imminent danger of rebellion or invasion, that would be the causus beli for the suspension
of the privilege of the writ of habeas corpus. But I wonder whether or not the
Commissioner would consider intelligence reports of military officers as evidence
of imminent danger of rebellion or invasion because this is usually the evidence
presented.

MR. PADILLA. Yes, as credible evidence, especially if they are based on actual reports
and investigation of facts that might soon happen.

MR. NATIVIDAD. Then the difficulty here is, of course, that the authors and the witnesses in
intelligence reports may not be forthcoming under the rule of classified evidence or
documents. Does the Commissioner still accept that as evidence?

MR. PADILLA. It is for the President as commander-in-chief of the Armed Forces to appraise
these reports and be satisfied that the public safety demands the suspension of the writ.
After all, this can also be raised before the Supreme Court as in the declaration of martial
law because it will no longer be, as the former Solicitor General always contended, a
political issue. It becomes now a justiciable issue. The Supreme Court may even
investigate the factual background in support of the suspension of the writ or the
declaration of martial law. (Emphasis supplied) II RECORD OF THE CONSTITUTIONAL
COMMISSION: PROCEEDINGS AND DEBATES, p. 470 (1986).

15. J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 1, at 8.

16. J. Caguioa, Dissenting Opinion, Lagman v. Medialdea, supra note 1, at 8.

17. "[I]f the Executive satisfies the requirement of showing sufficient factual basis, then the
proclamation is upheld, and the sovereign people are either informed of the factual basis
or assured that such has been reviewed by the Court. If the Executive fails to show
sufficient factual basis, then the proclamation is nullified and the people are restored to
full enjoyment of their civil liberties." J. Caguioa, Dissenting Opinion, Lagman v.
Medialdea, supra note 1, at 11.

n Note from the Publisher: Copied verbatim from the official copy.