ORAL ARGUMENT

(Delivered by Rep. Edcel C. Lagman before the Supreme Court en banc on 13 June 2017 on behalf of the Petitioners in G.R. No. 231658)

PRELIMINARY STATEMENT

1. The latest survey of Pulse Asia from December 6 to 11, 2016 documents Filipinos’ aversion to the revival of martial law, with 74% against its imposition and only 12% in favor.

The survey results in Mindanao are even more revealing with 75% against and only 11% in favor, despite the fact that various acts of terrorism were committed in Mindanao proximate to the survey period, like the bombing of the Roxas Night Market in Davao City on September 2, 2016 which resulted in President Duterte’s declaration of a “state of lawlessness” over the entire country the following day.

Clearly, the people have not forgotten the atrocities, repression and corruption during the martial law regime of President Marcos.

Seven in 10 Filipinos reject martial law even at a time of violence and terrorism. But the President ignored this overwhelmingly anti-martial law sentiment when he imposed martial law in the whole of Mindanao, the very region where the martial law rejection is highest, even higher than the national average.

2. Petitioners unequivocally condemn the acts of terrorism committed and being committed by the Maute Group and the Abu Sayyaf Group. The full force of the Armed Forces must be used to subdue these terrorists.

However, confronting and defeating them does not need the imposition of martial law where there is no actual “invasion or rebellion” when the “public safety” requires such imposition or suspension.

Moreover, martial law will inevitably result in abuses, atrocities and repression of human rights and civil liberties reminiscent of Marcos’ martial law.

The repetition of such excesses is ominous in the wake of President Duterte’s statement that the martial law of Marcos was “very good” and he would replicate it with equal harshness.

ARGUMENTS

Your Honors, let me now address issues 1, 2, 3 and 8 contained in the Honorable Court’s advisory.

Instant Petitions are the Appropriate Proceeding

1. The three petitions at bar are the “appropriate proceeding” covered by the Constitution granting to the Honorable Court the jurisdiction to review the sufficiency of the factual basis of the proclamation of martial law or the suspension of the writ.

This special and specific grant of jurisdiction is different from the expanded power of judicial review by the Honorable Court under Section 1 of Article VIII “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government.”

The President must be factually correct although not arbitrary

2. This brings me to Issue No. 2. It is respectfully submitted that when the President declares martial law or suspends the writ, the sufficiency of the factual basis of his proclamation or suspension is justiciable and reviewable by the Honorable Court. The President must be factually correct relative to the sufficiency of the factual basis. He may not be arbitrary or capricious in his appreciation of the facts because what is being challenged is the sufficiency of the factual basis of his imposition or suspension, irrespective of whether he acted arbitrarily or with grave abuse of discretion, a question which is relevant in certiorari or prohibition cases.

The President must not act in solitude

Although the Constitution does not specifically require any recommendation or consultation prior to the President’s declaration of martial law, it is obvious and imperative that his exercise of this extraordinary emergency power should be preceded by appropriate recommendation from and thorough consultation with the ranking defense and military officials who are responsible for validating intelligence reports. Hence, the imperativeness of their recommendation after prior discussions and consultations with them.

It was Defense Secretary Lorenzana himself who admitted that there was no such recommendation or consultation with respect to the issuance of Proclamation No. 216, as none was mentioned in the Proclamation and Report.

The President cannot act in solitude because his extreme action would affect the multitude.

The only relevant facts are those obtaining at the time of the issuance of Proclamation 216

The President is required to take into account only the situation at the time of the proclamation of martial law or the suspension of the writ even if subsequent events prove the situation not to have been accurately reported. In the same token, conditions which are the aftermath of the declaration or suspension cannot be used to justify an errant declaration or suspension which was done bereft of sufficient factual basis.

The escalating number of victims of the armed confrontation in Marawi City, including soldiers, innocent civilians and hapless children, damage to private and public property and unprecedented violations of human rights and civil liberties are the tragic aftermath of the declaration of martial law and the suspension of the writ, which were not the real facts on the ground when Proclamation No. 216 was issued.

The video clip purportedly depicting a planning session of the Maute brothers and Hapilon to lay “siege” on Marawi City was recovered on the second day after the proclamation. Consequently, it was not an input as factual basis for the declaration and suspension. Moreover, it was a planned terrorist offensive which is akin to an imminent danger of rebellion which has been deleted in the 1987 Constitution as an alternative ground for declaring martial law or suspending the writ.

Verily, in assessing and reviewing the sufficiency of the factual basis of the declaration or suspension, such sufficiency must indubitably appear in the President’s Proclamation and Report to the Congress. Meandering outside the periphery of these principal documents must not be allowed. Otherwise, post-declaration “justifications” can continue in perpetuity.

Since the Congress has defaulted, perforce the SC must adjudicate

3. The power of the Congress to convene and vote jointly whether or not to revoke the declaration of martial law or the suspension of the writ and the jurisdiction of the Supreme Court to review the sufficiency of the factual basis of the declaration and suspension are concurrent, where time is of the essence because the proclamation is immediately effective. There is a school of thought as enunciated in the majority decision in Fortun vs. Macapagal-Arroyo that the two powers are sequential wherein the Congress must first act. But this sequential calibration is now academic because the Congress has reneged on its mandated duty. Consequently, it is now imperative for the Supreme Court to exercise its special and specific jurisdiction to review the sufficiency of the factual basis of the subject declaration and suspension.

Terrorism does not equate to rebellion

4. Acts of terrorism are not necessarily equivalent to actual rebellion and the consequent requirement of securing public safety to justify the assailed declaration and suspension. No less than Justice Secretary Aguirre admitted that acts of terrorism do not automatically constitute rebellion. It is for this reason that the Human Security Act of 2007 (R.A. No. 9372), was enacted to punish acts of terrorism.

Moreover, the inculpatory elements of rebellion under Article 134 of the Revised Penal Code are different from the elements of terrorism. Rebellion has a culpable purpose: removing the Philippines or a part thereof from allegiance to the Republic or preventing the President or the Legislature from exercising their powers and prerogatives.

This culpable purpose is utterly absent in the alleged “rebellion” in Marawi City and elsewhere in Mindanao.

Defense and military officials have 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 Hapilon, which was resisted by the Maute Group.

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

No less than the President’s Report to the Congress confirmed that “On 23 May 2017, a government operation to capture Isnilon Hapilon, senior leader of the ASG and Maute Group operational leaders Abdullah and Omarkhayam Maute, was confronted with armed resistance which escalated into open hostility against the government.”

When asked during the military briefing before the House Committee of the Whole on the variance between the Zamboanga siege and the current Marawi “siege”, Deputy Chief of Staff Lt. Gen. Salvador Mison, Jr. said that in the “Zamboanga siege sila po ang pumasok. Sa Marawi, tayo po ang nagsimula.” He added that the armed conflict in Marawi City was “government-initiated” as differentiated from the Zamboanga siege.

Verily, there is no actual rebellion in Marawi City and elsewhere in Mindanao absent the culpable purpose.

CONCLUDING STATEMENT

The nullification by the Supreme Court of Proclamation No. 216 will give meaning and efficacy to the multiple safeguards enshrined in the Constitution to prevent the recurrence of the misuse and abuse of martial law.