October 5, 2017
So it
Lagman vs Medialdea
Sir G: So what happened?
Hannah: It is about the Proclamation of
President Duterte of Martial Law.
Sir G: Proclamation Number?
H: 216 sir.
S: Martial law lang?
H: And suspending the privilege of writ of
habeas corpus of Mindanao.
S: what -- the president declare martial law and
suspend the privilege of writ of habeas corpus in
the entire Mindanao?
H: It was stated in the report, that Mindanao has
been plagued with rebellion and lawless
violence which only escalated and worsened
with the passing of time. There was a
Zamboanga Siege, there was davao market
bombing, the Mamasapano carnage and other
bombing incidents in Cotabato, Sultan Kudarat,
and Basilan as additional factual bases of
martial law. Recently, there was a government
operation in…
S: All that historical arguments, had lay sieged
to these cities, hospital
S: Was he able to submit on time the report on
Congress? As required by the Constitution?
S: The Congress allowed its extension in the
whole Mindanao the declaration of Martial Law
or Suspension of Writ of Privilege.
H: Yes.
S: What did the Congress do with this report?
H: It can either extend or allow the suspension
of privilege of writ
S: What did the Congress do here?
H: it allowed its extension to the whole
Mindanao.
S: The senate, the Congress, expressed its full
support to the express declaration found it to be
satisfactory in accordance with the law.
found no compelling reason to revoke the same.
The house of representatives on the other hand,
also express their full support to the president
and found no ways not to revoke the
proclamation 216. And now because of this
petitions by several petitioners, Lagman,
Mohammad, etc
S: What were the allegations of these petitioners
against the proclamations?
H: Lagman said that the declaration of martial
law has no sufficient factual basis because there
is no rebellion or invasion in Minadanao. It
argues that acts of terrorism in Mindanao do not
constitute rebellion since there is no proof that
its purpose is to remove Mindanao or any part
thereof from allegiance to the Philippines, its
laws or its territory.
S: Take note, there is no sufficient factual basis,
gibutang ni sa Lagman petition. Because, this
petition was filed before the SC. And the job of
the SC is to determine if there is factual basis for
declaration of Martial Law.
They argued that the declaration of Martial law
has no factual basis because, there is no
rebellion or invasion. Only Terrorism. There is
no need to declare martial law if terrorism lang.
Also, they argued that there is no factual basis
because, the president’s report contained false,
inaccurate, contrieved and hyperbolic accounts.
What did they present to counter the facts
gathered by the executive department through
its own intelligence?
*Facebook accounts or online accounts, articles
stating wala man gi-overrun ning hospital, wala
may nangamatay na mga tao, etc. Should that
counter insofar as sufficient factual basis is
concerned?
H: The supposed rebellion described in the
proclamation of president Duterte -- but he said
that it is not applicable.
S: Nganong gicover sa entire president ang
Mindanao when the terroristic attacks are only
limited on an isolated place of Marawi. So, the
proclamation should have been limited to the
area alone. Mohammad on the other hand,
argues that this petition, that the president
should have exhausted his extraordinary
powers. Gusto niya before the president could
declare martial law, dapat giexercise niya ang
calling out powers, and then suspension of
privilege then martial law.
There has to be graduation of the exercise of
those powers dili pwede nang diretso. Though,
he argues that the president has no discretion to
choose which extraordinary power to use.
Now, on behalf of the government, it is the office
of the Solicitor-General arguing that there is
sufficient factual basis for the declaration of
martial law.
One of the arguments of SOLGEN is that
Section 18, Article VII, lays the basis on the
exercise of the powers of the president. This
provision failed to specify, the vehicle, mode or
remedy which the appropriate proceeding
mentioned there it may be resorted to.
In an appropriate proceeding, insofar as the SC
is concerned, when it is silent, it must refer to a
specific remedy.
SOLGEN here argued that the remedy here is
not a mere complaint that was issued and filed
before the SC and that it must follow the
proceedings for petition for certiorari.
Petition for certiorari determines if there is grave
abuse of discretion and that is what the
SOLGEN wants to impress upon the SC. This is
the standard SC -- must be used.
When you say grave abuse of discretion, it is
more difficult to prove that there is grave abuse
of discretion than to prove that there is or no
factual basis. That is higher standard of proof
when we follow petition for certiorari. That’s
what the SOLGEN wants. Mas taas ang
standard, mas maglisud ang SC, mamaintain
ang validity sa martial law.
SOLGEN argues that the review, courts should
use the lengths of grave abuse of discretion and
not the yardstick of correctness of facts.
Arbitrariness should be the standard in
reviewing the sufficiency of factual basis.
Also, SOLGEN argued here that the facts that
the courts would be limited to review are only
those which are available to the president at the
time that decision is made.
It should not be based on the facts after the
decision has made. President has no power of
foresight.
The SOLGEN countered against the evidence
that mere citation of reports, articles are not
sufficient evidence because these cannot be
verified.
Are the appropriate proceedings under Article
VII, Section 18, tama ba ning ilahang gihimo? Or
should they have followed the requirements for
petition for certiorari as arguments? Also,
whether the president declaring martial law and
suspending the privilege is factually correct?
Now, also was there a sufficient factual basis for
the proclamation of martial law or suspension of
privilege?
Before the conclusion, what is the parameter for
review? Unsa ang requirement na mag-guide,
or evidence in determining whether or not tama
ba na magdeclare siya ug martial law.
So, gidiscuss sa SC. Does the exercise of the
power of judicial review of SC involved the
calibration of powers granted the president as
Commander-in-Chief, namely calling out
powers, suspension of privilege.., and
declaration of martial law.
WON it was warranted that the martial law
declaration covered the entire island of
Mindanao.
The court said as to the issue on the
appropriate proceedings, it was not agreed with
the position of the SOLGEN. The court said, that
what petitioners did, mao ni siya ang
appropriate proceeding under Section 18,
Article VII. This provides that the SC may review
in an appropriate proceeding filed by any citizen.
What is the basis? It was the argument na kining
mga petitioners that jurisdiction of this court, it is
a sui generis. It has no reference to any other
kind of remedy. It is different from the rest. It is
a special and specific jurisdiction of the
Supreme Court different from that iterated in the
Articles of the Constitution.
The court said that they are correct. Why?
Jurisdiction on the power of court of the tribunal
here decided on this matter that is --- of the
Constitution or by the law. Here, the jurisdiction
was granted by the SC and that is the power to
review in appropriate proceeding, sufficiency in
factual basis in proclamation of martial law.
Following the basis on jurisdiction sa SC. There
is no reference on this article whatsoever as to
dapat certiorari ang gamiton, etc.
It reveals that it grants to the court the power to
determine the sufficiency of the factual basis of
the martial law.
Nganong mali man na petition for certiorari as
asserted by the SOLGEN? The court said, that
the phrase, “in an appropriate proceeding”
does not refer to the petition for certiorari. It
could not have been the intention of the framers
of the Constitution to interpret the phrase, under
Article VII of the Constitution. The standard
review for certiorari is whether the respondent
has acted or committed any grave abuse of
discretion or lack or excess of jurisdiction. That
(petition for certiorari) is not the proper tool to
review the sufficiency of the factual basis of the
proclamation.
The court did not pass to determine WON the
abuse through this proceeding ang iyang
discretion in doing so.
If the court applies to the standard review and
use the petition for certiorari, it would
emasculate its constitutional task under Section
18, Article VII. It would be more difficult for the
Supreme Court because, lahi sya na standard.
Dili na facts. Now, we are talking about abuse of
discretion which is more extensive or more
difficult.
The court emphasize na gibutang ning mga
conditions sa constitution insofar as the SC is
concerned to review, for safeguarding from
abuses of the president and to pertain that by
subjecting to a different standard from that
under the Constitution. Mawala ang purpose na
maging safeguard siya.
The most important objective of the review
power here is the curtailment of the extent of the
powers of the Commander in chief.
The court declared, this proceeding is a sui
generis proceeding. The unique features of
the 3rd paragraph of Section 18 Article VII would
be subsumed under Section 1 of Article VIII. It is
Separate and different from that enumerated.
There is no reference as to old law review.
What about argument by the SOLGEN? But
before SC should act on the matter, it should
differ the action on the acts on the executive and
Congress.
As stated before that declaration of martial law
and suspension of privilege of writ, it is a joint
act made by the president and the congress.
The president declares it, the congress may
hold or extend it.
According to the SOLGEN dapat mag differ ka
SC kung mao ning nakita sa President and as
supported by the congress then you should
support that. The court said that is not correct, it
has its own independent review mechanism or
powers under the SC. He may not defer as we
also stated before in IBP vs ZAMORA that the
court would only act after or if the congress has
finished** on its duty to examine the report of the
president. That Doctrine is no longer controlling.
The court did not suppose to stand by the
moment that a petition or complaint is filed
before any citizen questioning the factual basis
of the martial law -- it can already do its job, The
power to review by the court and congress
therefore are not totally different but are likewise
independent of each other. The power of the
review and exercise are independent on
revocation of the Congress. So the court here
re-examined, reconsidered and set aside its
pronouncement in Fortun vs GMA - in that
pronouncement, maghulat daw ang SC sa
action sa Congress. The court willingly but --- its
own power to surrender the same congress, as
well as -- from its bounden duty to review. It set
itself as the entity which is only constant by. The
court said it is acted aberration.
Katong giargue sa mga petitioners that the
President should not exercise the lesser powers
instead of going directly to martial law. The court
said that is beyond the SC to do. It cannot direct
the president to calibrate his action. Their power
to judicial review insofar as the factual basis is
concerned, the issuances does not extend the
calibration of the president’s decision which
among these powers he will avail of. Dili pwede
ang SC ang magbuot sa president because the
power is given to the president. Take note that,
Before the president declared martial law.
Gideclare sa niya or gi-Exercise calling out
powers in Marawi and later on Martial law. And
either way, he did use first lesser damaging
powers and he did not resort directly to martial
law.
What happens in Martial Law? Why are we so
afraid with the Martial Law?
In the Marcos regime, the president was given
legislative powers so that he had control on
legislative, executive and congress. Imagine
you are the one creating the law, you are the
one going to implement that law. You just issue
a law. The police can confiscate ipHone 7 or 8,
then iexecute niya by directing the police to
execute this law. So that is why, it was so fearful
during that time. The SC said what happens in
martial law, the president exercises police
power, which is normally the function of the
legislature. He exercises police power with the
military assistance to ensure public safety.
He can ask AFP to aid the policemen.
Under a valid declaration Martial Law, the
president may order the arrest and seizures of
citizens without judicial declaration or without
warrants, ban public assemblies, take over
news and media, etc. That is during the time of
MARCOS.
Under 1987 Constitution it is NOT allowed,
restricted na ang power. As the provision states,
It will not supplant the operation of the civil
courts and legislative assemblies and will not
stop the functioning.
Rights are preserved during martial law.
The Supreme Court cannot decide for the
president himself. Kung unsang power ang gi-
exercise, it is under his discretion. The court
cannot force him to use the power, etc.
Another question presented here is that
nagdeclare si president before ug Proclamation
No. 55- calling out of forces. Proclamation 216-
declaring martial law. What happens if P 216,
would be nullified by the SC? Will it effect or
recall P55? The court said it will not effect
because they are distinct from each other.
Now we go to the power of SC to review.
What is the SC asked to review? Is it required to
check WON the facts upon which the president
used to declare martial law would be absolutely
correct?
The court said, that the phrase, “sufficiency of
factual basis” under Section 18 Article VII
should be understood only test for judicial
review.
It does not aid to satisfy itself that the president’s
decision is correct. Rather, it only needs to
determine whether the decision had sufficient
factual basis. The court said here that is what’s
required in the Constitution, sufficiency of the
factual basis not absolute correctness basis.
Sufficient ba ang facts na gigamit ni president?
Because the president has the sole discretion to
exercise these powers and this involves the
judgment on which only he can exercise. And
relating to the argument of SOLGEN, the court
would be limited to the facts stated in the
pleadings as well as the facts happened only
before the declaration of martial law in order to
determine whether or not there is sufficient
factual basis for it. Now, what about the
petitioner’s point na mali daw ang report na
gihatag ni president sa congress.
The court said that it is not required to look
piecemeal. It has to look on the totality,
correctness, or rather the totality of facts
presented to the president.
Now, there should have to inspect the absolute
correctness of the facts stated in the
proclamation and in the written report aas the
president has not expected to verify the
accuracy and truthfulness of the facts according
to him due to the accuracy of the situation.
To require the precision and the president’s
appreciation of facts would have duly burden
him and it could require him to be on the line of
fire, etc.
So, maybe, absolute correctness is not the
standard and that only -- sufficient factual basis.
If we require him that such report to be
absolutely correct, it would practically or truly
burden the president and impede the process of
his decision-making.
Take note: Dili pwede na absolute correctness
daw.
Therefore, the maxim, “falsus in uno, falsus in
omnibus” finds no application in this case.
As long as the proclamation to support the
conclusion that there is an actual invasion or
rebellion, and it requires him that’s the standard.
WHAT ARE THE PARAMETERS FOR
DETERMINING THE SUFFICIENCY OF THE
FACTUAL BASIS FOR THE DECLARATION:
-Actual Rebellion or invasion
-Public Safety that requires it.
- PROBABLE CAUSE
In this case, what is your reference to the term
“rebellion” because this is what the president
is claiming.
So the court made reference to the provisions of
the Revised Penal Code insofar as rebellion is
concerned. Article 134 -- what are the elements
of rebellion?
Elements of Rebellion:
1.) There is a public uprising and taking arms
against the government.
2.) The purpose of an uprising is either to
remove from the allegiance to the
government from its laws, the territory of the
Philippines or in any part thereof, any body
of land, naval or other armed forces or to
deprive the chief executive or congress,
wholly or partially, of any of their powers and
prerogatives
Since there is a necessity for the chief executive
here to determine whether or not actual
rebellion exists, what is the standard that he
should use to determine that actual rebellion
exist? What is the legal proof? PROBABLE
CAUSE.
Probable cause is the analogous standard of
proof for the president that there is actual
rebellion
Take note as we discussed before, there are
four quanta of evidence:
Substantial evidence
Preponderance
Clear and convincing evidence
Proof Beyond Reasonable Doubt.
Probable cause is below substantial evidence
so it is the lowest in the hierarchy.
Why PROBABLE CAUSE?
It necessitates an average mind to weigh the
facts and circumstances without resorting to the
calibration on rules of evidence of which it is on
technical knowledge. It relies on common-
sense and it needs only to rest on evidence
showing that more likely than not, a crime
has been committed.
To subject the president that emergency
situation, it would defeat that power to require
him, to satisfy the higher standard of proof will
restrict his exercise of emergency powers.
The correctness in determining the sufficiency
of factual basis insofar as sui generis is
concerned: Actual Rebellion or invasion,
Public Safety that requires it, There is
PROBABLE CAUSE that president will prove
that there is actual rebellion or invasion.
So, based on those parameters, was there
factual basis for the president to declare martial
law and suspend the privilege of writ?
The courts said, THERE IS SUFFICIENT
BASIS.
The SC deferred to the executive the factual
findings. It was stated that the intelligence
reports of the executive are much wider than
Supreme Court. Executives are more capable
than SC. The SC is limited on the findings,
pleading, oral arguments and executive
sessions.
In any case, the courts said, that Judicial
Review, is not the determination of accuracy or
veracity of the facts upon which the President
anchored his declaration of martial law and
suspension, rather, only sufficiency of the
factual basis as to convince the president that
there is probable cause that rebellion exists.
The court said, THERE IS REBELLION.
There is an extensive listing of the acts which
convinced the president that there is actual
rebellion in that locality to declare martial law.
The court said, that it will only consider those
facts and events which have aspired on or
before the time of the declaration of the martial
law. DILI PWEDE AFTER.
The courts are satisfied as well na, ang factual
findings ang gibasehan enough or sufficient for
him to declare the martial law. It similarly led the
court to uphold the president in issuing the
proclamation with sufficient factual basis that
actual rebellion exists.
After all, the president was satisfied that only the
standard probable cause. The court found out
that the president, using that standard saw that
there is probable cause that rebellion actually
existed, or being committed in Marawi.
The argument of petitioners na mali mali daw
ang reports, the court said again that it is not
concerned with the absolute correctness.
The document presented by these petitioners
were from unverified news articles on the
internet, with neither the authors nor the sources
shown to have affirmed the contents thereof and
these have No Probative Value.
Even Lagman admitted that he was not aware
or that he had no personal knowledge of the
incidents happened and were written in the
petition.
Why entire Mindanao ang gi-cover? Why not
marawi alone?
The court said that:
1. The overriding and paramount of concern of
martial law is the protection of the security of the
nation and the good and safety of the public.
The president is not limited to declaring martial
law in a specific area, he can cover the entire
Philippines.
The court had an illustration here, nganong
required man nga entire Philippines? To
illustrate:
A contingent armed with a high-powered
firearms, publicly assembled in Padre Fauna,
Ermita, Manila where the court’s compound is
situated. They overpowered the guards, entered
the Court’s premises and hoisted the ISIS flag.
Their only request is political: Wanting to
remove the allegiance to the Philippine
government a part of the territory of the
Philippines, particularly the Court’s compound
and establish it as an ISIS-territory. Now can we
say that rebellion is only confined to the court’s
compound?
The court said, NO. The possibility that there are
other rebels positioned nearby buildings or the
compound of Hospitals or the Manila Science
High School, could not be discounted. There is
no way of knowing that all participants in the
rebellion went and stayed inside the Court’s
compound.
The court said that it was proper for the
president to cover the entire Mindanao for the
coverage of Martial Law. In this event, it is in
the president’s discretion to declare martial law.
The court in conclusion, declared that indeed
there was sufficient factual basis for the
declaration of martial law in the entire
Mindanao. So the proclamations were valid.
What are the other powers of the President?
Emergency Powers-Article VI, Section 23,
Also in Article XII:
The Congress, in running times of war or other
national emergency, The Congress made by
law, authorizing the President for an indefinite
period and subject to some restrictions that he
may prescribe. Exercise powers necessary or
proper to carry out and declare its national policy
The president has the power to contract or
guarantee foreign loans.
Going back to the emergency powers, what are
the requirements before the president can take
over private enterprises?
-There must be war, or declaration of war or
emergency.
- There must be law, authorizing the president.
(The exercise of the president must be within the
parameters prescribed by Congress to the law.)
-The president must only do so pursuant to
national interest.
Another power is the power to contract or
guarantee foreign loans under Article VII,
Section 20 and Article XII, Section 21.
Article VII, Section 20: The president may
contract or guarantee foreign loans on behalf of
the Republic of the Philippines, with the prior
concurrence of the Monetary Board, and subject
to such limitations as may be provided by law.
The Monetary Board shall, within 30 days from
the end of every quarter of the calendar year,
submit to the Congress a complete report of its
decision on applications for loans to be
contracted or guaranteed by the Government or
government-owned and controlled corporations
which would have the effect of increasing the
foreign debt, and containing other matters as
may be provided by law.
Article XII, Section 21: Foreign loans may only
be incurred in accordance with law and the
regulation of the monetary authority. Information
on foreign loans obtained or guaranteed by the
Government shall be made available to the
public.
CONSTANTINO vs CUISIA
This involves the entering of the President to
loan contract to a certain republic.
And because of that, Naa tay utang.
Now there is this financing program and there
has to be some sort of restructuring.
So, there was formulation of the Philippine debt
negotiating team to restructure the loan. And in
the course thereof, naay mga loan agreements,
transforming the loan from this form to another
form and that was being questioned by the
petitioners.
The court emphasized in this case that the
constitution allows the president to contract and
guarantee foreign loans and it cannot ascribe to
the Constitution, restrictions that duly burden
the powers of the president.
Ginaquestion diri ang form ng loans entered into
a restructuring to ballooning loans. Naay buy-
back scheme, etc.
The court said here that it cannot prescribe or
put meanings and restrictions that could have
duly burden the President. Now, clear that which
the constitution allowed full exercise of the
powers of the president therein.
What are the RESTRICTIONS stated in the
Constitution before the president can
contract foreign loans?
-There must be prior concurrence to Monetary
Board
-It is subject to limitations as may be provided
by law.
Here, the limitations were observed, naay prior
concurrence of the Monetary Board, and there
is a law allowing the president or his
representative to contract foreign loans in the
form of EAR bonds.
Can the power of the president to enter foreign
loans, restructure loans be delegated? YES.
Qualified Political Agency.
He could delegate the power. If we do not follow
the doctrine of Qualified Agency, where the alter
egos of the president are more capable of
representing the country,
In this matter, it will negate the very existence of
cabinet positions and even hamper the
president’s effectivity in running the
Government.
Who is the president’s alter ego here?
SECRETARY OF FINANCE.
Because he has the duty pertaining to the sound
and efficient management of financial resources
of the government.
There are acts however that it cannot be
delegated by the President.
Personal to it, he cannot delegate the power to
pardon. However, in the power to contract
foreign debts does not fall in the exceptional
class. So, pwede i-delegate.
Now, is the power of the Secretary absolute? Of
course not. The president can still control the
actions of the Secretary and set aside.
First of all, the president can actually hold
approval or maintain his financial program, etc.
This is because they are operating through the
Doctrine of Qualified Agency. Any form of abuse
will be controlled or lessen because the
president can review and even set aside their
acts.
Now, what is the legal basis for restructuring the
program. Here, there is RA 245. There is a law
for such program.
The president also has the power for foreign
affairs. He is the head of the Republic. He alone
represents the country- foreign affairs.
Among these power of foreign affairs is the
power in the involvement of treaty-making. What
is the job of the president insofar as the treaty-
making is concerned?
The executive to the president enters into
agreements, treaties. It is the job of the
president to ratify the treaty. It is the job of the
senate to concur on the treaty.
BAYAN vs ZAMORA
This deals with the VFA, questioning its
constitutionality.
So, the court discussed what is VFA, and that it
made reference to appropriate constitutional
provision insofar as this agreement is
concerned.
The court mentioned Article XVIII, Section 25
that foreign military bases and other facilities,
should not be allowed by the president, except
under a treaty duly concurred by the Senate.
Article VII, Section 21. That for treaties to be
valid, they must be concurred in by at least two-
thirds of all the members of the Senate.
Was the VFA validly concurred by the Senate
here? YES. The 2/3 requirement was met.
Now what is the job of the president. Take note
that there is a discussion as to treaty-making
process. The job of the president is to ratify the
treaty. It is an executive act. The Senate
concurs in a way, a legislative act. The power of
ratifying is vested in the President and not on the
legislature.