Sc petition martial law duterte

REPUBLIC OF THE PHILIPPINES SUPREME COURT OF THE PHILIPPINES PADRE FAURA, MANILA REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO, EMMANUEL A. BILLONES, TEDDY BRAWNER BAGUILAT, JR. AND EDGAR R. ERICE, 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,

G.R. NO. ___________ (PETITION UNDER THE THIRD PARAGRAPH OF SECTION 18 OF ARTICLE VII OF THE 1987 CONSTITUTION)

RESPONDENTS.

PETITION PETITIONERS, through counsel, respectfully manifest: I. NATURE OF THE PETITION 1.

This Petition is filed under the third paragraph of Section 18 of

Article VII of the Constitution which reads in full: “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 1

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

II. PARTIES

2.

Petitioner Rep. Edcel C. Lagman is the duly elected

Representative of the First District of Albay to the current 17 th Congress. He may be served with the processes of the Honorable Court at N-411 House of Representatives, Batasan Complex, Quezon City.

3.

Petitioner Rep. Tomasito S. Villarin is the duly elected

Representative of Partylist Akbayan Citizens’ Action Party to the 17 th Congress. He may be served with the processes of the Honorable Supreme Court at S-513 House of Representatives, Batasan Complex, Quezon City.

4.

Petitioner

Rep.

Gary

C.

Alejano

is

the

duly

elected

Representative of Partylist Magdalo to the 17th Congress. He may be served with the processes of the Honorable Supreme Court at S-114 House of Representatives, Batasan Complex, Quezon City.

5.

Petitioner Rep. Emmanuel A. Billones is the duly elected

Representative of the First District of Capiz to the 17 th Congress. He may be served with the processes of the Honorable Supreme Court at N-215 House of Representatives, Batasan Complex, Quezon City.

6.

Petitioner Rep. Teddy Brawner Baguilat, Jr. is the duly

elected Representative of the Lone District of Ifugao to the 17 th Congress.

He may be served with the processes of the Honorable Supreme Court at N315 House of Representatives, Batasan Complex, Quezon City.

2

7.

Petitioner

Rep.

Edgar

R.

Erice

is

the

duly

elected

Representative of the Second District of Caloocan to the 17 th Congress. He may be served with the processes of the Honorable Supreme Court at N-107 House of Representatives, Batasan Complex, Quezon City.

8.

Respondent Hon. Salvador C. Medialdea is the Executive

Secretary and may be served with summons and other processes of the Honorable Supreme Court at Malacañang, Manila.

9.

Respondent Hon. Delfin N. Lorenzana is the Secretary of the

Department of National Defense and Martial Law Administrator under General Order No. 1 dated 30 May 2017. He may be served with summons and other processes of the Honorable Supreme Court at Camp General Aguinaldo, Quezon City.

10.

Respondent Gen. Eduardo Año is the Chief of Staff of the

Armed Forces of the Philippines (AFP) and the Martial Law Implementor pursuant to General Order No. 1 dated 30 May 2017. He may be served with summons and other processes of the Honorable Supreme Court at Camp General Aguinaldo, Quezon City.

III. PRELIMINARY STATEMENT

11.

Thirty one (31) years after the ouster by People Power of the

late dictator Ferdinand Marcos and the effective end of martial law, the grim specter of repression, atrocities, injustice and corruption again bedevils the Filipino people with the unwarranted, precipitate and unconstitutional declaration of martial law and the suspension of the privilege of the writ of

habeas corpus in the whole of Mindanao under Proclamation No. 216 datelined “The Russian Federation, this 23 rd of May, in the year of our Lord 3

2017.” A clear copy of Proclamation No. 216 is attached as ANNEX “A” and a clear copy of President Rodrigo Duterte’s Report to the Congress on his declaration of Martial Law is attached as ANNEX “B”.

12.

The 1987 Constitution, which is acknowledged as an anti-martial

law Charter preventing the recurrence of martial law excesses, provides for sufficient safeguards delimiting the President’s power to impose martial law and suspend the privilege of the writ of habeas corpus.

13.

The following exacting safeguards are unequivocally enshrined in

Section 18 of Article VII of the 1987 Constitution: (a)

The requisite factual basis for declaration of martial law and the

suspension of the privilege of the writ of habeas corpus is only “in case of invasion or rebellion, when public safety requires it”. The alternative ground of “imminent danger” of rebellion or invasion as found in the 1935 and 1973 Constitution has been obliterated in the 1987 Constitution. (b)

The effectivity of martial law is limited to “a period not exceeding

sixty days”, unless extended by initiative of the President with the concurrence of the majority of all the Members of the House of Representatives and the Senate voting jointly. (c)

“Within forty-eight hours from the proclamation of martial law or

the suspension of privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress”. (d)

“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”. (Emphasis supplied).

4

(e)

The congressional “revocation shall not be set aside by the

President.” (f)

“The Congress, if not in Session, shall, within twenty-four hours

following such proclamation or suspension, convene in accordance with its rules without need for a call.” (Emphasis supplied). (g)

“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.” (Emphasis supplied). (h)

“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.” (i)

“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.” (j)

“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.”

14.

Six (6) days after President Duterte imposed martial law in

Mindanao, or on 29 May 2017, he arbitrarily and menacingly announced that

5

he will ignore the Supreme Court and the Congress in his enforcement of martial law, despite (a) the constitutional grant of authority to the Congress to jointly vote whether or not to revoke the martial law declaration and whether or not to extend the period of its effectivity; and (b) the specific grant of power and jurisdiction to the Supreme Court to review the sufficiency of the factual basis of the declaration of martial law or the suspension of the privilege of the writ of habeas corpus, and if found wanting, to nullify such proclamation or extension.

15.

President Duterte also added that the Supreme Court Justices

“do not know what is happening on the ground” because “they are not soldiers.” He also said that he is the one who knows.

16.

Until now, President Duterte has not personally retracted his

aforesaid gravely alarming statements, which are offensive to the Constitution and disrespectful to the co-equal departments of the government.

17.

The leaderships of the House of Representatives and the Senate,

supported by their respective supermajorities, refused and failed to comply with the constitutional mandate for both Chambers to vote jointly in joint session whether or not to revoke the President’s declaration of martial law, a dereliction of a constitutional duty which the petitioners individually and collectively condemned.

18.

In patent violation of the Constitution, the Senate separately

conducted an Executive Session on 29 May 2017 to hear the briefing of the representatives of the Executive Department and the police and military authorities relative to the declaration of martial law. Subsequently, 17 senators adopted Senate P.S. Resolution No. 388, entitled “RESOLUTION EXPRESSING

THE

SENSE

OF

THE

SENATE,

SUPPORTING

THE

6

PROCLAMATION NO. 216 DATED MAY 23, 2017, ENTITLED ‘DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO’ AND FINDING NO CAUSE TO REVOKE THE SAME”.

19.

Senate President Aquilino Pimentel III and Senators Vicente

Sotto III, Ralph Recto, Juan Edgardo Angara, Nancy Binay, Joseph Victor Ejercito, Sherwin Gatchalian, Richard Gordon, Gregorio Honasan, Panfilo Lacson, Loren Legarda, Emmanuel Pacquiao, Joel Villanueva, Cynthia Villar and Juan Miguel Zubiri signed the resolution. While

Senators Francis

Escudero and Grace Poe did not sign the resolution, they joined in the approval of the same. Attached as ANNEX “C” is a clear copy of Senate P.S. Resolution No. 388.

20.

The House of Representatives on May 31, 2017 converted itself

into a Committee of the Whole and heard the briefings in Executive Session of the officials of the Executive Department as well as of the military and police authorities relative to the proclamation of martial law. Subsequently, on the same day, the House of Representatives adopted by viva voce vote House Resolution No. 1050, entitled “RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO PRESIDENT RODRIGO DUTERTE AS IT FINDS NO REASON TO REVOKE PROCLAMATION NO. 216, ENTITLED ‘DECLARING AS STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO’”. Attached as ANNEX “D” is a clear copy of House Resolution No. 1050.

21.

The only signatures appearing in Resolution No. 1050 are those

of its three authors, namely, Speaker Pantaleon D. Alvarez, Majority Leader Rodolfo C. Fariñas and “Minority Leader” Danilo E. Suarez. Despite Majority Leader Fariñas’ undertaking that there would be nominal voting when House

7

Resolution No. 1050 would be presented to the plenary for approval, no such nominal voting was held. Hence, there is no record who and how many voted for the Resolution and concerned Representatives were not afforded the opportunity to explain their respective votes.

22.

The purpose of the Constitution in mandating a joint session of

the Congress is to afford the people to know the factual basis of martial law as deliberated and debated in the joint session. The right of the people to know was foreclosed by the separate Executive Sessions of the House of Representatives and the Senate. Meeting behind closed doors is anathema to the people’s right to know and be informed of the government’s actions.

Transparency, not secrecy, is paramount in a democratic representative government.

23.

Verily, both the political departments of the government – the

Executive and the Legislative – have patently violated the provisions of the Constitution on the requisites and limitations pertaining to the imposition of martial law.

24.

The President’s proclamation of martial law in Mindanao has no

sufficient factual basis as it is feebly based on mostly contrived and/or inaccurate

facts,

self-serving

speculations,

enumeration

of

distant

occurrences and mere conclusions of fact and law on the purported existence of “rebellion or invasion”.

25.

On the other hand, both leaderships of the House of

Representatives

and

supermajorities, have

the

Senate,

supported

by

their

respective

utterly and unconscionably reneged on their

constitutional duty to vote jointly in joint session to determine by a majority of all the Members whether or not to revoke the declaration of martial law under Proclamation No. 216.

8

26.

The leaders of the Congress and the members of the

supermajority have abandoned and forfeited the first line of review to assess, on behalf of the sovereign people whom they represent, the adequacy of the factual and legal anchorage of the President’s imposition of martial law.

27.

Consequently, there is no other recourse but to petition the

Honorable Supreme Court to review the sufficiency of the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao and nullify said proclamation as flawed, illegal and unconstitutional for want of sufficient factual basis as required by the Constitution.

28.

In the case of Fortun and Angeles vs. Gloria Macapagal-

Arroyo, G.R. No. 190293, March 30, 2012 (consolidated with six other petitions) is relevant as the Supreme Court opined therein that: “It is evident that under the 1987 Constitution the President and the Congress act in tandem in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the power, not only sequentially, but in a sense jointly since, after the President has initiated the proclamation or the suspension, only the Congress can maintain the same based on its own evaluation of the situation on the ground, a power that the President does not have.

“Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political

9

question in the hands of Congress before it becomes a justiciable one in the hands of the Court.” (Emphasis supplied).

29.

Verily, the Congress has defaulted. The Honorable Supreme

Court’s exercise of jurisdiction is seasonable and imperative.

VI. GROUNDS RELIED UPON FOR THE PETITION A. THERE IS NO SUFFICIENT BASIS FOR THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS UNDER PROCLAMATION NO. 216 DATED 23 MAY 2017.

1. There is no revolution or invasion where the public safety requires the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in Marawi City or elsewhere in Mindanao.

2. Mere conclusions of fact and law on the pretended existence of rebellion and/or invasion will not serve as sufficient basis.

3. No less than the military establishment has admitted that the current armed conflict in Marawi City was government-initiated and the armed confrontation was precipitated by the military operation to neutralize or capture Isnilon Hapilon, a high profile terrorist commander, which was resisted by the Maute Group of terrorists.

4. Consequently, the alleged “siege” of Marawi City was actually an armed resistance by the Maute Group to shield Hapilon from capture, not to overrun Marawi and remove its allegiance from the Republic.

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5. The proffered rebellion and/or invasion is at most a threat akin to “imminent danger” which has been obliterated from the 1987 Constitution as an alternative ground for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus.

6. The alleged facts contained in Proclamation No. 216 and the President’s Report justifying the imposition of martial law and the suspension of the privilege of the writ of habeas corpus turned out to be mostly inaccurate, simulated, false and/or hyperbolic and the list of terrorist acts or incidence of violence are either distant or have been earlier solved with the apprehension and prosecution of the suspected culprits.

B. THE IMPOSITION OF MARTIAL LAW IS FLAWED BECAUSE PRESIDENT RODRIGO DUTERTE ACTED ALONE WITHOUT THE BENEFIT OF A RECOMMENDATION FROM DEFENSE SECRETARY DELFIN LORENZANA OR FROM ANY RANKING OFFICER OF THE ARMED FORCES OF THE PHILIPPINES AS IN FACT NO RECOMMENDATION WAS MENTIONED IN PROCLAMATION NO. 216, NEITHER WAS THERE ANY PRIOR CONSULTATION WITH HIS OFFICIAL ENTOURAGE IN MOSCOW WHICH INCLUDED, AMONG OTHERS, DEFENSE SECRETARY LORENZANA AND NATIONAL SECURITY ADVISER HERMOGENES ESPERON, JR., AS NO SUCH CONSULTATION WAS REFERRED TO IN THE PROCLAMATION, EVEN AS THE LACK OF RECOMMENDATION AND CONSULTATION HAS BEEN ADMITTED BY SEC. LORENZA DURING THE CONGRESSIONAL BRIEFINGS. C. THE BRIEFINGS MADE BY THE OFFICIALS OF THE EXECUTIVE DEPARTMENT AS WELL AS THE MILITARY AND POLICE AUTHORITIES WERE JUSTIFICATIONS AFTER THE FACT OF THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS, NOT AS FACTUAL BASES PRIOR TO THE ISSUANCE OF PROCLAMATION NO. 216.

D.

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THE POWERPOINT PRESENTATION DURING THE BRIEFING BEFORE THE COMMITTEE OF THE WHOLE OF THE HOUSE OF REPRESENTATIVES CONTAINED DATA NOT SUPPORTIVE OF THE DECLARATION OF MARTIAL LAW, BUT DID NOT CONTAIN INFORMATION INVOLVING NATIONAL SECURITY TO JUSTIFY AN “EXECUTIVE SESSION”.

E. A CONSTITUTIONAL INFRACTION OF THE PRESIDENT IN HIS DECLARATION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS JUSTICIABLE AND TRANSCENDS THE NARROW AMBIT OF A POLITICAL QUESTION.

VII. DISCUSSION

A. THERE IS NO SUFFICIENT BASIS FOR THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS UNDER PROCLAMATION NO. 216 DATED 23 MAY 2017.

1. There is no revolution or invasion where the public safety requires the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in Marawi City or elsewhere in Mindanao.

2. Mere conclusions of fact and law on the pretended existence of rebellion and/or

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invasion will not serve as sufficient basis.

30.

Numbers “1” and “2” under Ground “A” will be discussed

together because they are interrelated.

31.

There is in fact no rebellion or invasion in Marawi City nor in any

other part of Mindanao.

32.

While Proclamation No. 216 and the President’s Report

concentrated on “rebellion”, there was no emphasis on “invasion”, which is obviously inexistent.

33.

Both the Proclamation and Report highlighted acts of terrorism

which did not or do not constitute rebellion. As admitted by Justice Secretary Vitaliano Aguirre during the briefing before the House Committee of the Whole, acts of terrorism do not automatically constitute rebellion.

34.

Article 134 of the Revised Penal Code, as amended by Republic

Act No. 6968, defines the crime of rebellion as follows: "Article 134. Rebellion or insurrection – How committed . – The crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives."

35.

Accordingly, the elements of rebellion are: (a) rising and taking

arms against the Government; and (b) for the purpose of [i] removing from the allegiance to the Government or its laws, the territory of the Philippines or any part thereof, of any body of land, naval or other armed forces, or [ii]

13

depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

36.

While the first element of “rising and taking arms against the

Government” may be present in Marawi City, there is absolutely no credible and sufficient factual basis for the second element of culpable purpose.

37.

In justifying the element of culpable purpose for rebellion,

Proclamation No. 216 asserted that the Maute terrorist group “started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas thereby openly attempting to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao constituting the crime of rebellion”.

38.

Likewise, the President’s Report to the Congress on his

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

habeas corpus in Mindanao reiterated that “the brazen display of DAESH flags constitute(s) a clear, pronounced, and unmistakable intent to remove Marawi City and eventually the rest of Mindanao from its allegiance to the Government.”

39.

The mere fact that the Maute group flied the ISIS or Daesh flag

is not indicative of removing Marawi City from its allegiance to the Republic of the Philippines or depriving the President of his powers and prerogatives.

At most, it was cheap propaganda.

40.

Joseph Franco, an analyst specializing on violent extremism, in

an interview with Vera Files published in the Philippine Star official website on 31 May 2017 said that the “Maute group is more of the clan’s private militia latching into the IS brand theatrically to inflate perceived capability.”

14

It was also only after the declaration of martial law that Secretary Lorenzana labeled the group as “Maute ISIS”.

41.

No less than the representatives of the defense and military

authorities when confronted during the briefing before the House Committee of the Whole if there is an ISIS threat in the country or Marawi City, refused to answer categorically that such threat exists. The evasive answer is that “there is ISIS in the Philippines”, referring most probably to the handful of foreign “fighters” who were identified by the military as ISIS provocateurs.

42.

After quoting Article 134 of the Revised Penal Code, as amended,

on rebellion, Proclamation No. 216 concluded without appropriate factual basis that rebellion is being committed in Marawi City for the purpose of removing it from its allegiance to the Republic of the Philippines and depriving the President of his powers and prerogatives.

43.

Verily, the assertions both in the Proclamation and Report of the

President are mere conclusions of fact and law bereft of sufficient and credible factual basis.

44.

A classic example of this conclusion of fact and law appears in

the President’s Report which self-servingly stated that Proclamation No. 216 was issued “after finding that lawless armed groups have taken up arms and committed public uprising against the duly constituted government and against the people of Mindanao for the purpose of removing Mindanao – starting with the City of Marawi, Lanao del Sur – from its allegiance to the Government and its laws and depriving the Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, to the great damage, prejudice, and detriment of the people therein and the nation as a whole.”

15

45.

It is truly unfortunate that after paraphrasing the penal provision

on rebellion and using its inculpatory phraseology the aforesaid errant conclusion was made without any factual mooring.

46.

An unwarranted and baseless conclusion of fact and law has no

legal pedigree.

A. THERE IS NO SUFFICIENT BASIS FOR THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS UNDER PROCLAMATION NO. 216 DATED 23 MAY 2017.

3. No less than the military establishment has admitted that the current armed conflict in Marawi City was government-initiated and the armed confrontation was precipitated by the military operation to neutralize or capture Isnilon Hapilon, a high profile terrorist commander, which was resisted by the Maute Group of terrorists.

4. Consequently, the alleged “siege” of Marawi City was actually an armed resistance by the Maute Group to shield Hapilon from capture, not to overrun Marawi and

16

remove its allegiance from the Republic.

47.

When Lt. Gen. Salvador Mison, Jr., Deputy Chief of Staff, was

interpellated during the briefing before the House Committee of the Whole, he unqualifiedly admitted that the current armed conflict in Marawi City was “government-initiated”. This was confirmatory of the admission by the military establishment during the briefing that what precipitated the ongoing armed confrontation in Marawi City was the military operation to neutralize or capture Isnilon Hapilon, a high-profile terrorist commander, which was resisted by the Maute group.

48.

No less than the President’s Report also stated that “On 23 May

2017, a government operation to capture Isnilon Hapilon, senior leader of the ASG, and Maute Group operational leaders Abdullah and Omark Hayang Maute, was confronted with armed resistance which escalated into open hostility against the government.”

49.

Consequently, it is clear that the armed resistance by the Maute

group was not to lay “siege” on Marawi City but to shield terrorist leaders Hapilon and the Maute brothers.

50.

Verily, the armed uprising in Marawi City was not to remove the

latter from its allegiance to the Republic of the Philippines but to protect Hapilon and the Maute brothers from capture.

A. THERE IS NO SUFFICIENT BASIS FOR THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS UNDER PROCLAMATION NO. 216 DATED 23 MAY 2017.

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5. The proffered rebellion and/or invasion is at most a threat akin to “imminent danger” which has been obliterated from the 1987 Constitution as an alternative ground for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus.

51.

At most, there could be a threat of rebellion in Marawi City or the

capacity of the Maute Group to launch a rebellion, which presumption does not manifest the actual existence of rebellion.

52.

Such threat or capability of the Maute Group to stage a rebellion

is mentioned in Proclamation No. 216 which stated that “This recent attack shows the capacity of the Maute Group and other rebel groups to sow terror and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.”

53.

The foregoing assertion was reiterated in the President’s Report

which stated that “this recent attack shows the capability of the Maute Group and other rebel groups to sow terror and cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.”

54.

The alleged capacity or threat of rebellion is akin to “imminent

danger” of rebellion, which is not anymore a ground for declaring martial law or suspending the privilege of the writ of habeas corpus.

55.

While the 1935 and 1973 Constitutions specifically made

“imminent danger” an alternative ground for the President to declare martial

18

law and suspend the privilege the of the writ of habeas corpus, the 1987 Constitution deleted or obliterated such additional ground, to wit:  Section 11 of Article VII of the 1935 Constitution provides: SEC. 11. (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, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.  Section 9 of Article VII of the 1973 Constitution provides: SEC. 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.  Section 18 of Article VII of the 1987 Constitution provides: Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.

In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.

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56.

The deletion of the alternative ground of “imminent danger

thereof” is a further safeguard delimiting the subject extraordinary emergency power of the President.

57.

“Imminent danger” is inordinately subjective so much so that it

can be prone to abuse and it is difficult to unravel or untie.

58.

Consequently, what the Constitution explicitly requires is the

objective actuality of rebellion or invasion, not the subjective eventuality, threat or “imminent danger thereof”.

59.

There is no actual rebellion in Marawi City or elsewhere in

Mindanao.

A. THERE IS NO SUFFICIENT BASIS FOR THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS UNDER PROCLAMATION NO. 216 DATED 23 MAY 2017.

6. The alleged facts contained in Proclamation No. 216 and the President’s Report justifying the imposition of martial law and the suspension of the privilege of the writ of habeas corpus turned out to be mostly inaccurate, simulated, false and/or hyperbolic and the list of terrorist acts or incidence of violence are either distant or have been earlier solved with the apprehension and

20

prosecution of the suspected culprits.

60.

Falsus in uno, falsus in omnibus (making a falsehood in a

material matter makes the entire statement or declaration a falsity).

61.

The foregoing legal maxim applies to the President’s Report to

the Congress on his declaration of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao as it contained false, inaccurate, contrived and hyperbolic accounts.

62.

The President’s Report underscored that the “Maute Group also

attacked Amai Pakpak Hospital and hoisted the DAESH flag there, among other several locations. As 0600H of 24 May 2017, members of the Maute Group were seen guarding the entry gates of the Amai Pakpak Hospital.

They held hostage the employees of the hospital and took over the PhilHealth office located thereat.”

63.

Dr. Amer Saber, the Chief of the Amai Pakpak Medical Center

(APMC), categorically denied that the medical facility was overrun by members of the Maute Group. Saber, however, confirmed that a team of Maute fighters asked permission to bring in an injured member at the start of the firefight on Tuesday afternoon, 23 May 2017. Saber added that "They were very courteous and even greeted us with 'Assalam Alaikum'”. Saber also said that during the time the Maute members were at the medical center, personnel did not feel they were harassed by the Maute fighters and the latter “even asked if they can pray [inside the hospital].”

(Jigger J.

Jerusalem - @inquirerdotnet, Inquirer Mindanao 03:24 PM May 28, 2017.

Republished on May 29, 2017 on www.sunstar.com.ph) 64.

Saber’s statement was consistent with that of Philippine National

Police Spokesman Senior Superintendent Dionardo Carlos who said that “the terrorists did not take over the hospital and went there to seek medical

21

assistance for a member”. (“Fact Check: Inconsistencies in Duterte’s Martial Law Report”, Janvic Mateo, philstar.com, May 31, 2017, 10:50am).

65. groups

The President’s Report also highlighted that “Lawless armed likewise

ransacked

the

Landbank

of

the

Philippines

and

commandeered one of its armored vehicles.” The bank clarified that its Marawi City branch was not ransacked. The bank also confirmed that the seized armored vehicle is owned by a third party provider and was empty at that time. (Ibid).

66.

The President’s Report also stated that the Senator Ninoy Aquino

College Foundation and the Marawi Central Elementary Pilot School “were also burned”. It appears that the Senator Ninoy Aquino College Foundation remains intact as of 24 May 2017 and Marawi City Schools Divisions Assistant Superintendent Ana Alonto denied that the Marawi Central Elementary Pilot School was burned by the terrorists. Department of Education Assistant Secretary Tonisito Umali also said that they have not received any report of damage caused by fire at the Marawi Central Elementary Pilot School. (Ibid).

67.

Other falsities: President Duterte, upon his arrival from Russia on

24 May 2017, claimed that the police chief of Malabang town in Lanao del Sur was beheaded by the terrorists. However, a few days later, Malabang town police chief Senior Inspector Romeo Enriquez surfaced and said he was alive. On the other hand, in a press briefing on 23 May 2017 in Moscow, Defense Secretary Lorenzana claimed that the Marawi City Hall and part of the Mindanao Sate University (MSU) compound were among those occupied by the Maute Group. However, earlier that day, the AFP already denied that the City Hall was occupied and MSU Vice President for Academic Affairs Alma Berowa assured that the University is safe from the ongoing conflict, citing information from the military.

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68.

Indeed, these patent falsities render the President’s report

entirely unreliable and sufficient factual basis untenable.

69.

The reference in Proclamation No. 216 to the attack on the

military outpost in Butig, Lanao del Sur in February 2016 and the mass jail break in Marawi City in August 2016 as well as the reference in the President’s Report to the Zamboanga siege, Davao Market bombing, the Mamasapano carnage and other bombings in Cotabato, Sultan Kudarat and Basilan are far distant from the present conflict in Marawi City and/or these previous violent incidents have been previously solved with the arrest and prosecution of the suspected culprits. It is too late in the day to make them as bases for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao.

B. THE IMPOSITION OF MARTIAL LAW IS FLAWED BECAUSE PRESIDENT RODRIGO DUTERTE ACTED ALONE WITHOUT THE BENEFIT OF A RECOMMENDATION FROM DEFENSE SECRETARY DELFIN LORENZANA OR FROM ANY RANKING OFFICER OF THE ARMED FORCES OF THE PHILIPPINES AS IN FACT NO RECOMMENDATION WAS MENTIONED IN PROCLAMATION NO. 216, NEITHER WAS THERE ANY PRIOR CONSULTATION WITH HIS OFFICIAL ENTOURAGE IN MOSCOW WHICH INCLUDED, AMONG OTHERS, DEFENSE SECRETARY LORENZANA AND NATIONAL SECURITY ADVISER HERMOGENES ESPERON, JR., AS NO SUCH CONSULTATION WAS REFERRED TO IN THE 23

PROCLAMATION, EVEN AS THE LACK OF RECOMMENDATION AND CONSULTATION HAS BEEN ADMITTED BY SEC. LORENZA DURING THE CONGRESSIONAL BRIEFINGS.

70.

From all indications, President Duterte acted alone when he

issued Proclamation No. 216.

71.

Defense Secretary Lorenzana in his briefings before the Senate

and the House of Representatives admitted and reiterated that he did not recommend to the President the imposition of martial law under Proclamation No. 216.

72.

No official from the military establishment testified that there

was any recommendation from Chief of Staff AĂąo or other ranking officials of the Armed Forces of the Philippines.

73.

Secretary Lorenzana also added that the President did not

consult with the members of his official entourage in Moscow that included, among others, Secretary Lorenzana, Chief of Staff AĂąo, Executive Secretary Medialdea and National Security Adviser Esperon, Jr. 74.

In

fact,

Proclamation

No.

216

did

not

mention

any

recommendation from or consultation with any concerned military, police and executive officials.

75.

In the absence of any recommendation from the defense and

military authorities and without prior consultation with them, the President acted on his own perception and consequently the Proclamation lacks

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sufficient factual basis as it is bereft of official advice, counsel and coordination.

C. THE BRIEFINGS MADE BY THE OFFICIALS OF THE EXECUTIVE DEPARTMENT AS WELL AS THE MILITARY AND POLICE AUTHORITIES WERE JUSTIFICATIONS AFTER THE FACT OF THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS, NOT AS FACTUAL BASES PRIOR TO THE ISSUANCE OF PROCLAMATION NO. 216.

D. THE POWERPOINT PRESENTATION DURING THE BRIEFING BEFORE THE COMMITTEE OF THE WHOLE OF THE HOUSE OF REPRESENTATIVES CONTAINED DATA NOT SUPPORTIVE OF THE DECLARATION OF MARTIAL LAW, BUT DID NOT CONTAIN INFORMATION INVOLVING NATIONAL SECURITY TO JUSTIFY AN “EXECUTIVE SESSION”.

76.

The officials of the Executive Department as well as the military

and police authorities made the Congressional briefings to justify the President’s declaration of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao, and not to provide adequate factual anchorage for such declaration and suspension.

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77.

Despite the proffered justifications, the PowerPoint presentation

during the briefing before the House Committee of the Whole contained data not supportive of the declaration and suspension like the following: a.

The police/military had previously preempted the grand plan of armed terrorists (Maute Group and Abu Sayyaf Group) to take over Marawi City and other parts of Mindanao.

b.

There is no monitored hostile plan of the Moro Islamic Liberation Front (MILF).

c.

In the slide presented showing the number of foreign fighters allied with ISIS, while other countries had definite numbers of fighters, the entry for the Philippines read “undetermined”, indicating uncertain or meager force to assist in the launching of a rebellion.

E. A CONSTITUTIONAL INFRACTION OF THE PRESIDENT IN HIS DECLARATION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS JUSTICIABLE AND TRANSCENDS THE NARROW AMBIT OF A POLITICAL QUESTION. 78.

The specific and special jurisdiction of the Honorable Supreme

Court to review the factual basis for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus is conferred by the Constitution under the third paragraph of Section 18 of Article VII as the ultimate safeguard against any presidential abuse of extraordinary emergency power.

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79.

As held in Fortun vs. Macapagal-Arroyo, supra, the

appropriate proceedings filed by any citizen is justiciable.

80.

Verily, the justiciability of the instant petition is outside the

narrow ambit of a political question.

PRAYER

ACCORDINGLY, it is respectfully prayed of the Honorable Supreme Court to: 1.

Exercise its specific and special jurisdiction to review the

sufficiency of the factual basis of Proclamation No. 216 dated 23 May 2017 which imposed martial law and suspended the privilege of the writ of habeas

corpus in the whole of Mindanao; and 2.

After due proceedings, issue a Decision voiding and nullifying

Proclamation No. 216 dated 23 May 2017 for utter lack of sufficient factual basis.

Petitioners pray for other just and equitable reliefs.

Quezon City, for Manila 03 June 2017

LAGMAN LAGMAN & MONES LAW FIRM Counsel for the Petitioners 2/F Tempus Place Condominium Makatarungan cor. Matalino Sts., Brgy. Central, Diliman, Quezon City Telefax: 433-5353

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lagmanlaw@gmail.com

EDCEL GRECO A. B. LAGMAN Roll of Attorney’s No. 45738 24 May 2001 PTR No. 3309045/Quezon City/16 August 2016 IBP Lifetime No. 012364 16 January 2014/Albay Chapter MCLE Compliance No. V No. 000288 Mobile No. 09163324958

VERIFICATION AND CERTIFICATION ON NON-FORUM SHOPPING We, Representatives Edcel C. Lagman, Tomasito S. Villarin, Gary C. Alejano, Emmanuel A. Billones, Teddy Brawner Baguilat, Jr. and Edgar R. Erice, all of legal age, Filipino citizens and with respective addresses stated in the foregoing petition, after having been duly sworn in accordance with law, depose and state that: 1. We are the Petitioners in the foregoing Petition under the third paragraph of Section 18 of Article VII of the 1987 Constitution; 2. We have caused the preparation and filing of the foregoing Petition; we have read the subject pleading and we understand the import of the same; and the allegations therein are true and correct of our personal knowledge as well as based on authentic records and/or documents;

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3. We hereby certify that (a) we have not heretofore commenced any action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or different Divisions thereof or any other tribunal or agency, (b) to the best of our knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or different Divisions thereof or any other tribunal or agency; (c) if there is such other actions or proceedings pending, we shall state the status of the same; and (d) if we should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different Divisions thereof or any other tribunal or agency, we undertake to promptly inform the Honorable Supreme Court of that fact within five (5) days therefrom.

IN WITNESS WHEREOF, we have hereunto affixed our signatures this 3 day of June 2016 in Quezon City, Metro Manila. rd

EDCEL C. LAGMAN Affiant-Petitioner Senior Citizens ID No. 84506 Issued at Quezon City Issued on 09 July 2007

TOMASITO S. VILLARIN Affiant-Petitioner Driver’s License No. NO4-96-375883

GARY C. ALEJANO Affiant-Petitioner Phil. Passport No. EB8312593 Issued at DFA, Manila Issued on 05 June 2013

EMMANUEL A. BILLONES Affiant-Petitioner Senior Citizens ID No. 059623 Issued at Roxas City Issued on 11 June 2012

TEDDY BRAWNER BAGUILAT, JR. Affiant-Petitioner Driver’s License No. PO-02-005827 Issued at Lamut, Ifugao Issued on 13 February 2015

EDGAR R. ERICE Affiant-Petitioner Phil Passport No. EC3661981 Issued at DFA, Manila Issued on 20 March 2015

Issued at Quezon City Issued on 18 February 2015

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SUBSCRIBED AND SWORN to before me this 3 rd day of June 2017 in Quezon City, Philippines, affiant-petitioners exhibited their governmentissued IDs printed under their respective names.

WITNESS MY HAND AND SEAL on the place and date above-written.

Notary Public Doc. No. ________; Page No. ________; Book No. ________; Series of 2016

AFFIDAVIT OF SERVICE/MAILING I, ROWENA ESTACIO, a member of the legal staff of Lagman Lagman and Mones Law Office with office address at 2/F Tempus Place I, Condominium Makatarungan and Matalino Sts. Diliman, Quezon City, after being duly sworn, depose and state: That on 05 June 2017, I caused the mailing of the pleading hereunder described by registered mail with return card in accordance with Section 13, Rule 13 of the Rules of Court: PETITION UNDER THE THIRD PARAGRAPH OF SECTION 18 OF ARTICLE VII OF THE 1987 CONSTITUTION by depositing a copy each in the post office in a sealed envelope, postage prepaid, under respectively, Registry Nos. ______________________, plainly addressed to: Hon. Salvador C. Medialdea 30

Office of the Executive Secretary Malacañang, Manila Hon. Delfin N. Lorenzana Office of the Secretary Department of National Defense Camp General Aguinaldo, Quezon City General Eduardo Año Office of the Chief of Staff Armed Forces of the Philippines Camp General Aguinaldo, Quezon City.

TO THE TRUTH OF THE FOREGOING, I have signed this Affidavit on 05 June 2017 at Quezon City, Philippines. _______________ (Affiant) SUBSCRIBED AND SWORN TO before me this 5th day of June 2017 in Quezon City, Philippines. The affiant, who is personally known to me being my legal stall, personally appeared and signed the foregoing instrument in my presence.

WITNESS MY HAND AND SEAL. NOTARY PUBLIC DOC. NO. ________ PAGE NO. ________ BOOK NO. ________ SERIES OF 2017

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