G.R. No.
L-409 January 30, 1947 may be suspended is the exercise of the rights of sovereignty with the control and
ANASTACIO LAUREL, petitioner,
vs.
ERIBERTO MISA, respondent.
Claro M. Recto and Querube C. Makalintal for petitioner.
First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent.
RESOLUTION
In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the
petition for habeas corpusfiled by Anastacio Laurel and based on a theory that a
Filipino citizen who adhered to the enemy giving the latter aid and comfort during
the Japanese occupation cannot be prosecuted for the crime of treason defined and
penalized by article 114 of the Revised Penal Code, for the reason (1) that the
sovereignty of the legitimate government in the Philippines and, consequently, the
correlative allegiance of Filipino citizens thereto was then suspended; and (2) that
there was a change of sovereignty over these Islands upon the proclamation of the
Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified and temporary, but an
absolute and permanent allegiance, which consists in the obligation of fidelity and
obedience to his government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and temporary allegiance
which a foreigner owes to the government or sovereign of the territory wherein he
resides, so long as he remains there, in return for the protection he receives, and
which consists in the obedience to the laws of the government or sovereign.
(Carlisle vs. Unite States, 21 Law. ed., 429; Secretary of State Webster Report to the
President of the United States in the case of Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance of the inhabitants of a
territory occupied by the enemy of their legitimate government or sovereign is not
abrogated or severed by the enemy occupation, because the sovereignty of the
government or sovereign de jure is not transferred thereby to the occupier, as we
have held in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113)
and of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not transferred to the
occupant it must necessarily remain vested in the legitimate government; that the
sovereignty vested in the titular government (which is the supreme power which
governs a body politic or society which constitute the state) must be distinguished
from the exercise of the rights inherent thereto, and may be destroyed, or severed
and transferred to another, but it cannot be suspended because the existence of
sovereignty cannot be suspended without putting it out of existence or divesting
the possessor thereof at least during the so-called period of suspension; that what
government of the territory occupied by the enemy passes temporarily to the
occupant; that the subsistence of the sovereignty of the legitimate government in a
territory occupied by the military forces of the enemy during the war, "although the
former is in fact prevented from exercising the supremacy over them" is one of the
"rules of international law of our times"; (II Oppenheim, 6th Lauterpacht ed., 1944,
p. 482), recognized, by necessary implication, in articles 23, 44, 45, and 52 of Hague
Regulation; and that, as a corollary of the conclusion that the sovereignty itself is
not suspended and subsists during the enemy occupation, the allegiance of the
inhabitants to their legitimate government or sovereign subsists, and therefore
there is no such thing as suspended allegiance, the basic theory on which the whole
fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United State was
suspended in Castine, set forth in the decision in the case of United States vs. Rice,
4 Wheaton, 246, 253, decided in 1819, and quoted in our decision in the cases of Co
Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra, in
connection with the question, not of sovereignty, but of the existence of a
government de factotherein and its power to promulgate rules and laws in the
occupied territory, must have been based, either on the theory adopted
subsequently in the Hague Convention of 1907, that the military occupation of an
enemy territory does not transfer the sovereignty to the occupant; that, in the first
case, the word "sovereignty" used therein should be construed to mean the
exercise of the rights of sovereignty, because as this remains vested in the
legitimate government and is not transferred to the occupier, it cannot be
suspended without putting it out of existence or divesting said government thereof;
and that in the second case, that is, if the said conclusion or doctrine refers to the
suspension of the sovereignty itself, it has become obsolete after the adoption of
the Hague Regulations in 1907, and therefore it can not be applied to the present
case;
Considering that even adopting the words "temporarily allegiance," repudiated by
Oppenheim and other publicists, as descriptive of the relations borne by the
inhabitants of the territory occupied by the enemy toward the military government
established over them, such allegiance may, at most, be considered similar to the
temporary allegiance which a foreigner owes to the government or sovereign of the
territory wherein he resides in return for the protection he receives as above
described, and does not do away with the absolute and permanent allegiance which
the citizen residing in a foreign country owes to his own government or sovereign;
that just as a citizen or subject of a government or sovereign may be prosecuted for
and convicted of treason committed in a foreign country, in the same way an
inhabitant of a territory occupied by the military forces of the enemy may commit
1
treason against his own legitimate government or sovereign if he adheres to the
enemies of the latter by giving them aid and comfort; and that if the allegiance of a
citizen or subject to his government or sovereign is nothing more than obedience to
its laws in return for the protection he receives, it would necessarily follow that a
citizen who resides in a foreign country or state would, on one hand, ipso
factoacquire the citizenship thereof since he has enforce public order and regulate
the social and commercial life, in return for the protection he receives, and would,
on the other hand, lose his original citizenship, because he would not be bound to
obey most of the laws of his own government or sovereign, and would not receive,
while in a foreign country, the protection he is entitled to in his own;
Considering that, as a corollary of the suspension of the exercise of the rights of
sovereignty by the legitimate government in the territory occupied by the enemy
military forces, because the authority of the legitimate power to govern has passed
into the hands of the occupant (Article 43, Hague Regulations), the political laws
which prescribe the reciprocal rights, duties and obligation of government and
citizens, are suspended or in abeyance during military occupation (Co Kim
cham vs. Valdez Tan Keh and dizon, supra), for the only reason that as they
exclusively bear relation to the ousted legitimate government, they are inoperative
or not applicable to the government established by the occupant; that the crimes
against national security, such as treason and espionage; inciting to war,
correspondence with hostile country, flight to enemy's country, as well as those
against public order, such as rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear relation to, and are
penalized by our Revised Penal Code as crimes against the legitimate government,
are also suspended or become inapplicable as against the occupant, because they
can not be committed against the latter (Peralta vs. Director of Prisons, supra); and
that, while the offenses against public order to be preserved by the legitimate
government were inapplicable as offenses against the invader for the reason above
stated, unless adopted by him, were also inoperative as against the ousted
government for the latter was not responsible for the preservation of the public
order in the occupied territory, yet article 114 of the said Revised Penal Code, was
applicable to treason committed against the national security of the legitimate
government, because the inhabitants of the occupied territory were still bound by
their allegiance to the latter during the enemy occupation;
Considering that, although the military occupant is enjoined to respect or continue
in force, unless absolutely prevented by the circumstances, those laws that enforce
public order and regulate the social and commercial life of the country, he has,
nevertheless, all the powers of de facto government and may, at his pleasure,
either change the existing laws or make new ones when the exigencies of the
military service demand such action, that is, when it is necessary for the occupier to
do so for the control of the country and the protection of his army, subject to the
restrictions or limitations imposed by the Hague Regulations, the usages established
by civilized nations, the laws of humanity and the requirements of public
conscience (Peralta vs.Director of Prisons, supra; 1940 United States Rules of Land
Warfare 76, 77); and that, consequently, all acts of the military occupant dictated
within these limitations are obligatory upon the inhabitants of the territory, who
are bound to obey them, and the laws of the legitimate government which have not
been adopted, as well and those which, though continued in force, are in conflict
with such laws and orders of the occupier, shall be considered as suspended or not
in force and binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the obligation of
fidelity and obedience of a citizen or subject to his government or sovereign does
not demand from him a positive action, but only passive attitude or forbearance
from adhering to the enemy by giving the latter aid and comfort, the occupant has
no power, as a corollary of the preceding consideration, to repeal or suspend the
operation of the law of treason, essential for the preservation of the allegiance
owed by the inhabitants to their legitimate government, or compel them to adhere
and give aid and comfort to him; because it is evident that such action is not
demanded by the exigencies of the military service or not necessary for the control
of the inhabitants and the safety and protection of his army, and because it is
tantamount to practically transfer temporarily to the occupant their allegiance to
the titular government or sovereign; and that, therefore, if an inhabitant of the
occupied territory were compelled illegally by the military occupant, through force,
threat or intimidation, to give him aid and comfort, the former may lawfully resist
and die if necessary as a hero, or submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended allegiance would
lead to disastrous consequences for small and weak nations or states, and would be
repugnant to the laws of humanity and requirements of public conscience, for it
would allow invaders to legally recruit or enlist the Quisling inhabitants of the
occupied territory to fight against their own government without the latter
incurring the risk of being prosecuted for treason, and even compel those who are
not aid them in their military operation against the resisting enemy forces in order
to completely subdue and conquer the whole nation, and thus deprive them all of
their own independence or sovereignty — such theory would sanction the action of
invaders in forcing the people of a free and sovereign country to be a party in the
nefarious task of depriving themselves of their own freedom and independence and
repressing the exercise by them of their own sovereignty; in other words, to
commit a political suicide;
(2) Considering that the crime of treason against the government of the Philippines
defined and penalized in article 114 of the Penal Code, though originally intended
2
to be a crime against said government as then organized by authority of the
sovereign people of the United States, exercised through their authorized
representative, the Congress and the President of the United States, was made,
upon the establishment of the Commonwealth Government in 1935, a crime
against the Government of the Philippines established by authority of the people of
the Philippines, in whom the sovereignty resides according to section 1, Article II, of
the Constitution of the Philippines, by virtue of the provision of section 2, Article
XVI thereof, which provides that "All laws of the Philippine Islands . . . shall remain
operative, unless inconsistent with this Constitution . . . and all references in such
laws to the Government or officials of the Philippine Islands, shall be construed, in
so far as applicable, to refer to the Government and corresponding officials under
this constitution;
Considering that the Commonwealth of the Philippines was a sovereign
government, though not absolute but subject to certain limitations imposed in the
Independence Act and incorporated as Ordinance appended to our Constitution,
was recognized not only by the Legislative Department or Congress of the United
States in approving the Independence Law above quoted and the Constitution of
the Philippines, which contains the declaration that "Sovereignty resides in the
people and all government authority emanates from them" (section 1, Article II),
but also by the Executive Department of the United States; that the late President
Roosevelt in one of his messages to Congress said, among others, "As I stated on
August 12, 1943, the United States in practice regards the Philippines as having now
the status as a government of other independent nations — in fact all the attributes
of complete and respected nationhood" (Congressional Record, Vol. 29, part 6,
page 8173); and that it is a principle upheld by the Supreme Court of the United
States in many cases, among them in the case of Jones vs. United States (137 U.S.,
202; 34 Law. ed., 691, 696) that the question of sovereignty is "a purely political
question, the determination of which by the legislative and executive departments
of any government conclusively binds the judges, as well as all other officers,
citizens and subjects of the country.
Considering that section I (1) of the Ordinance appended to the Constitution which
provides that pending the final and complete withdrawal of the sovereignty of the
United States "All citizens of the Philippines shall owe allegiance to the United
States", was one of the few limitations of the sovereignty of the Filipino people
retained by the United States, but these limitations do not away or are not
inconsistent with said sovereignty, in the same way that the people of each State of
the Union preserves its own sovereignty although limited by that of the United
States conferred upon the latter by the States; that just as to reason may be
committed against the Federal as well as against the State Government, in the same
way treason may have been committed during the Japanese occupation against the
sovereignty of the United States as well as against the sovereignty of the Philippine
Commonwealth; and that the change of our form of government from
Commonwealth to Republic does not affect the prosecution of those charged with
the crime of treason committed during the Commonwealth, because it is an offense
against the same government and the same sovereign people, for Article XVIII of
our Constitution provides that "The government established by this constitution
shall be known as the Commonwealth of the Philippines. Upon the final and
complete withdrawal of the sovereignty of the United States and the proclamation
of Philippine independence, the Commonwealth of the Philippines shall thenceforth
be known as the Republic of the Philippines";
This Court resolves, without prejudice to write later on a more extended opinion, to
deny the petitioner's petition, as it is hereby denied, for the reasons above set forth
and for others to be stated in the said opinion, without prejudice to concurring
opinion therein, if any. Messrs. Justices Paras and Hontiveros dissent in a separate
opinion. Mr. justice Perfecto concurs in a separate opinion.
Separate Opinions
PERFECTO, J., concurring:
Treason is a war crime. It is not an all-time offense. It cannot be committed in peace
time. While there is peace, there are no traitors. Treason may be incubated when
peace reigns. Treasonable acts may actually be perpetrated during peace, but there
are no traitors until war has started.
As treason is basically a war crime, it is punished by the state as a measure of self-
defense and self-preservation. The law of treason is an emergency measure. It
remains dormant until the emergency arises. But as soon as war starts, it is
relentlessly put into effect. Any lukewarm attitude in its enforcement will only be
consistent with national harakiri. All war efforts would be of no avail if they should
be allowed to be sabotaged by fifth columnists, by citizens who have sold their
country out to the enemy, or any other kind of traitors, and this would certainly be
the case if he law cannot be enforced under the theory of suspension.
Petitioner's thesis that allegiance to our government was suspended during enemy
occupation is advanced in support of the proposition that, since allegiance is
identical with obedience to law, during the enemy occupation, the laws of the
Commonwealth were suspended. Article 114 of the Revised Penal Code, the law
punishing treason, under the theory, was one of the laws obedience to which was
also suspended.
Allegiance has been defined as the obligation for fidelity and obedience which the
individual owes to his government or his sovereign in return for the protection
which he receives.
3
"Allegiance", as the return is generally used, means fealty or fidelity to the
government of which the person is either a citizen or subject. Murray vs. The
Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208.
"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or
duty of obedience of a subject to the sovereign, under whose protection he is."
United States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law. ed., 890.
Allegiance is that duty which is due from every citizen to the state, a political
duty binding on him who enjoys the protection of the Commonwealth, to
render service and fealty to the federal government. It is that duty which is
reciprocal to the right of protection, arising from the political relations between
the government and the citizen. Wallace vs. Harmstad, 44 Pa. (8 Wright), 492,
501.
By "allegiance" is meant the obligation to fidelity and obedience which the
individual owes to the government under which he lives, or to his sovereign, in
return for the protection which he receives. It may be an absolute and
permanent obligation, or it may be a qualified and temporary one. A citizen or
subject owes an absolute and permanent allegiance to his government or
sovereign, or at least until, by some open and distinct act, he renounces it and
becomes a citizen or subject of another government or sovereign, and an alien
while domiciled in a country owes it a temporary allegiance, which is
continuous during his residence. Carlisle vs.United States, 83 U.S. (16 Wall.),
147, 154; 21 Law ed., 426.
"Allegiance," as defined by Blackstone, "is the tie or ligament which binds the
subject to the King, in return for that protection which the King affords the
subject. Allegiance, both expressed and implied, is of two sorts, the one
natural, the other local, the former being perpetual, the latter temporary.
Natural allegiance is such as is due from all men born within the King's
dominions immediately upon their birth, for immediately upon their birth they
are under the King's protection. Natural allegiance is perpetual, and for this
reason, evidently founded on the nature of government. Allegiance is a debt
due from the subject upon an implied contract with the prince that so long as
the one affords protection the other will demean himself faithfully. Natural-
born subjects have a great variety of rights which they acquire by being born
within the King's liegance, which can never be forfeited but by their own
misbehaviour; but the rights of aliens are much more circumscribed, being
acquired only by residence, and lost whenever they remove. If an alien could
acquire a permanent property in lands, he must owe an allegiance equally
permanent to the King, which would probably be inconsistent with that which
he owes his natural liege lord; besides, that thereby the nation might, in time,
be subject to foreign influence and feel many other inconveniences." Indians
within the state are not aliens, but citizens owing allegiance to the government
of a state, for they receive protection from the government and are subject to
its laws. They are born in allegiance to the government of the state.
Jackson vs. Goodell, 20 Johns., 188, 911. (3 Words and Phrases, Permanent ed.,
226-227.)
Allegiance. — Fealty or fidelity to the government of which the person is either
a citizen or subject; the duty which is due from every citizen to the state; a
political duty, binding on him who enjoys the protection of the commonwealth,
to render service and fealty to the federal government; the obligation of
fidelity and obedience which the individual owes to the government or to the
sovereign under which he lives in return for the protection he receives; that
duty is reciprocal to the right of protection he receives; that duty which is
reciprocal to the right of protection, arising from the political relations between
the government and the citizen.
Classification. — Allegiance is of four kinds, namely: (1) Natural allegiance —
that which arises by nature and birth; (2) acquired allegiance — that arising
through some circumstance or act other than birth, namely, by denization or
naturalization; (3) local allegiance-- that arising from residence simply within
the country, for however short a time; and (4) legal allegiance — that arising
from oath, taken usually at the town or leet, for, by the common law, the oath
of allegiance might be tendered to every one upon attaining the age of twelve
years. (3 C.J.S., p.885.)
Allegiance. — the obligation of fidelity and obedience which the individual
owes to the government under which he lives, or to his sovereign in return for
the protection he receives. 15 R.C.L., 140. (Ballentine Law Dictionary, p. 68.).
"Allegiance," as its etymology indicates, is the name for the tie which binds the
citizen to his state — the obligation of obedience and support which he owes
to it. The state is the political person to whom this liege fealty is due. Its
substance is the aggregate of persons owing this allegiance. The machinery
through which it operates is its government. The persons who operate this
machinery constitute its magistracy. The rules of conduct which the state utters
or enforces are its law, and manifest its will. This will, viewed as legally
supreme, is its sovereignty. (W.W. Willoughby, Citizenship and Allegiance in
Constitutional and International Law, 1 American Journal of International Law,
p. 915.).
The obligations flowing from the relation of a state and its nationals are
reciprocal in character. This principle had been aptly stated by the Supreme
Court of the United States in its opinion in the case of Luria vs. United States:
4
 Citizenship is membership in a political society and implies a duty of allegiance
on the part of the member and a duty protection on the part of the society.
These are reciprocal obligations, one being a compensation for the other. (3
Hackworth, Digest of International Law, 1942 ed., p.6.)
Allegiance. — The tie which binds the citizen to the government, in return for
the protection which the government affords him. The duty which the subject
owes to the sovereign, correlative with the protection received.
It is a comparatively modern corruption of ligeance (ligeantia), which is derived
from liege (ligius), meaning absolute or unqualified. It signified originally liege
fealty, i. e., absolute and qualified fealty. 18 L. Q. Rev., 47.
xxx xxx xxx
Allegiance may be an absolute and permanent obligation, or it may be a
qualified and temporary one; the citizen or subject owes the former to his
government or sovereign, until by some act he distinctly renounces it, whilst
the alien domiciled in the country owes a temporary and local allegiance
continuing during such residence. (Carlisle vs. United States, 16 Wall. [U.S.],
154; 21 Law. ed., 426. (1 Bouvier's Law Dictionary, p. 179.).
The above quotations express ideas that do not fit exactly into the Philippine
pattern in view of the revolutionary insertion in our Constitution of the
fundamental principle that "sovereignty resides in the people and all government
authority emanates from them." (Section 1, Article II.) The authorities above
quoted, judges and juridical publicists define allegiance with the idea that
sovereignty resides somewhere else, on symbols or subjects other than the people
themselves. Although it is possible that they had already discovered that the people
and only the people are the true sovereign, their minds were not yet free from the
shackles of the tradition that the powers of sovereignty have been exercised by
princes and monarchs, by sultans and emperors, by absolute and tyrannical rules
whose ideology was best expressed in the famous words of one of the kings of
France: "L'etat c'est moi," or such other persons or group of persons posing as the
government, as an entity different and in opposition to the people themselves.
Although democracy has been known ever since old Greece, and modern
democracies in the people, nowhere is such principle more imperative than in the
pronouncement embodied in the fundamental law of our people.
To those who think that sovereignty is an attribute of government, and not of the
people, there may be some plausibility in the proposition that sovereignty was
suspended during the enemy occupation, with the consequence that allegiance
must also have been suspended, because our government stopped to function in
the country. But the idea cannot have any place under our Constitution. If
sovereignty is an essential attribute of our people, according to the basic
philosophy of Philippine democracy, it could not have been suspended during the
enemy occupation. Sovereignty is the very life of our people, and there is no such
thing as "suspended life." There is no possible middle situation between life and
death. Sovereignty is the very essence of the personality and existence of our
people. Can anyone imagine the possibility of "suspended personality" or
"suspended existence" of a people? In no time during enemy occupation have the
Filipino people ceased to be what they are.
The idea of suspended sovereignty or suspended allegiance is incompatible with our
Constitution.
There is similarity in characteristics between allegiance to the sovereign and a
wife's loyalty to her husband. Because some external and insurmountable force
precludes the husband from exercising his marital powers, functions, and duties
and the wife is thereby deprived of the benefits of his protection, may the wife
invoke the theory of suspended loyalty and may she freely share her bed with the
assailant of their home? After giving aid and comfort to the assailant and allowing
him to enjoy her charms during the former's stay in the invaded home, may the
wife allege as defense for her adultery the principle of suspended conjugal fidelity?
Petitioner's thesis on change of sovereignty at the advent of independence on July
4, 1946, is unacceptable. We have already decided in Brodett vs. De la Rosa and
Vda. de Escaler (p. 752, ante) that the Constitution of the Republic is the same as
that of the Commonwealth. The advent of independence had the effect of changing
the name of our Government and the withdrawal by the United States of her power
to exercise functions of sovereignty in the Philippines. Such facts did not change the
sovereignty of the Filipino people. That sovereignty, following our constitutional
philosophy, has existed ever since our people began to exist. It has been recognized
by the United States of America, at least since 1935, when President Roosevelt
approved our Constitution. By such act, President Roosevelt, as spokesman of the
American people, accepted and recognized the principle that sovereignty resides in
the people that is, that Philippine sovereignty resides in the Filipino people.
The same sovereignty had been internationally recognized long before the
proclamation of independence on July 4, 1946. Since the early part of the Pacific
war, President Quezon had been sitting as representative of a sovereign people in
the Allied War Council, and in June, 1945, the same Filipino people took part —
outstanding and brilliant, it may be added — in the drafting and adoption of the
charter of the United Nations, the unmistakable forerunner of the future
democratic federal constitution of the world government envisioned by all those
who adhere to the principle of unity of all mankind, the early realization of which is
5
anxiously desired by all who want to be spared the sufferings, misery and disaster
of another war.
Under our Constitution, the power to suspend laws is of legislative nature and is
lodged in Congress. Sometimes it is delegated to the Chief Executive, such as the
power granted by the Election Code to the President to suspend the election in
certain districts and areas for strong reasons, such as when there is rebellion, or a
public calamity, but it has never been exercised by tribunals. The Supreme Court
has the power to declare null and void all laws violative of the Constitution, but it
has no power, authority, or jurisdiction to suspend or declare suspended any valid
law, such as the one on treason which petitioner wants to be included among the
laws of the Commonwealth which, by his theory of suspended allegiance and
suspended sovereignty, he claims have been suspended during the Japanese
occupation.
Suppose President Quezon and his government, instead of going from Corregidor to
Australia, and later to Washington, had fled to the mountains of Luzon, and a group
of Filipino renegades should have killed them to serve the interests of the Japanese
imperial forces. By petitioner's theory, those renegades cannot be prosecuted for
treason or for rebellion or sedition, as the laws punishing them were suspended.
Such absurd result betrays the untenability of the theory.
"The defense of the State is a prime duty of Government, and in the fulfillment of
that duty all citizens may be required by law to render personal, military or civil
service." Thus, section 2 of Article II of the Constitution provides: That duty of
defense becomes more imperative in time of war and when the country is invaded
by an aggressor nation. How can it be fulfilled if the allegiance of the citizens to the
sovereign people is suspended during enemy occupation? The framers of the
Constitution surely did not entertain even for the moment the absurdity that when
the allegiance of the citizens to the sovereign people is more needed in the defense
of the survival of the state, the same should be suspended, and that upon such
suspension those who may be required to render personal, military or civil service
may claim exemption from the indispensable duty of serving their country in
distress.
Petitioner advances the theory that protection in the consideration of allegiance.
He argues that the Commonwealth Government having been incapacitated during
enemy occupation to protect the citizens, the latter were relieved of their
allegiance to said government. The proposition is untenable. Allegiance to the
sovereign is an indispensable bond for the existence of society. If that bond is
dissolved, society has to disintegrate. Whether or not the existence of the latter is
the result of the social compact mentioned by Roseau, there can be no question
that organized society would be dissolved if it is not united by the cohesive power
of the citizen's allegiance. Of course, the citizens are entitled to the protection of
their government, but whether or not that government fulfills that duty, is
immaterial to the need of maintaning the loyalty and fidelity of allegiance, in the
same way that the physical forces of attraction should be kept unhampered if the
life of an individual should continue, irrespective of the ability or inability of his
mind to choose the most effective measures of personal protection.
After declaring that all legislative, executive, and judicial processes had during and
under the Japanese regime, whether executed by the Japanese themselves or by
Filipino officers of the puppet government they had set up, are null and void, as we
have done in our opinions in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil.,
113), in Peralta vs. Director of Prison (75, Phil., 285), and in several other cases
where the same question has been mentioned, we cannot consistently accept
petitioner's theory.
If all laws or legislative acts of the enemy during the occupation were null and void,
and as we cannot imagine the existence of organized society, such as the one
constituted by the Filipino people, without laws of the Commonwealth were the
ones in effect during the occupation and the only ones that could claim obedience
from our citizens.
Petitioner would want us to accept the thesis that during the occupation we owed
allegiance to the enemy. To give way to that paradoxical and disconcerting
allegiance, it is suggested that we accept that our allegiance to our legitimate
government was suspended. Petitioner's proposition has to fall by its own weight,
because of its glaring absurdities. Allegiance, like its synonyms, loyalty and fidelity,
is based on feelings of attraction, love, sympathy, admiration, respect, veneration,
gratitude, amity, understanding, friendliness. These are the feelings or some of the
feelings that bind us to our own people, and are the natural roots of the duty of
allegiance we owe them. The enemy only provokes repelling and repulsive feelings
— hate, anger, vexation, chagrin, mortification, resentment, contempt,
spitefulness. The natural incompatibility of political, social and ethical ideologies
between our people and the Japanese, making impossible the existence of any
feeling of attraction between them, aside from the initial fact that the Japanese
invaded our country as our enemy, was aggravated by the morbid complexities of
haughtiness, braggadocio and beastly brutality of the Nippon soldiers and officers in
their dealings with even the most inoffensive of our citizens.
Giving bread to our enemy, and, after slapping one side of our face, offer him the
other to be further slapped, may appear to be divinely charitable, but to make them
a reality, it is necessary to change human nature. Political actions, legal rules and
judicial decisions deal with human relations, taking man as he is, not as he should
be. To love the enemy is not natural. As long as human pyschology remains as it is,
6
the enemy shall always be hated. Is it possible to conceive an allegiance based on
hatred?
The Japanese, having waged against us an illegal war condemned by prevailing
principles of international law, could not have established in our country any
government that can be legally recognized as de facto. They came as bandits and
ruffians, and it is inconceivable that banditry and ruffianism can claim any duty of
allegiance — even a temporary one — from a decent people.
One of the implications of petitioner's theory, as intimated somewhere, is that the
citizens, in case of invasion, are free to do anything not forbidden by the Hague
Conventions. Anybody will notice immediately that the result will be the doom of
small nations and peoples, by whetting the covetousness of strong powers prone on
imperialistic practices. In the imminence of invasion, weak-hearted soldiers of the
smaller nations will readily throw away their arms to rally behind the paladium of
the invaders.
Two of the three great departments of our Government have already rejected
petitioner's theory since September 25, 1945, the day when Commonwealth Act
No. 682 took effect. By said act, creating the People's Court to try and decide all
cases of crime against national security "committed between December 8, 1941
and September 2, 1945," (section 2), the legislative and executive departments
have jointly declared that during the period above mentioned, including the time of
Japanese occupation, all laws punishing crimes against national security, including
article 114 of the Revised Penal Code, punishing treason, had remained in full effect
and should be enforced.
That no one raised a voice in protest against the enactment of said act and that no
one, at the time the act was being considered by the Senate and the House of
Representatives, ever dared to expose the uselessness of creating a People's Court
to try crime which, as claimed by petitioner, could not have been committed as the
laws punishing them have been suspended, is a historical fact of which the Supreme
Court may take judicial notice. This fact shows universal and unanimous agreement
of our people that the laws of the Commonwealth were not suspended and that the
theory of suspended allegiance is just an afterthought provoked by a desperate
effort to help quash the pending treason cases at any cost.
Among the arguments adduced in favor of petitioner's theory is that it is based on
generally accepted principles of international law, although this argument becomes
futile by petitioner's admission that the theory is advantageous to strong powers
but harmful to small and weak nations, thus hinting that the latter cannot accept it
by heart. Suppose we accept at face value the premise that the theories, urged by
petitioner, of suspended allegiance and suspended sovereignty are based on
generally accepted principles of international law. As the latter forms part of our
laws by virtue of the provisions of section 3 of Article II of the Constitution, it seems
that there is no alternative but to accept the theory. But the theory has the effect
of suspending the laws, especially those political in nature. There is no law more
political in nature than the Constitution of the Philippines. The result is an inverted
reproduction of the Greek myth of Saturn devouring his own children. Here, under
petitioner's theory, the offspring devours its parent.
Can we conceive of an instance in which the Constitution was suspended even for a
moment?
There is conclusive evidence that the legislature, as policy-determining agency of
government, even since the Pacific war started on December 7, 1941, intimated
that it would not accept the idea that our laws should be suspended during enemy
occupation. It must be remembered that in the middle of December, 1941, when
Manila and other parts of the archipelago were under constant bombing by
Japanese aircraft and enemy forces had already set foot somewhere in the
Philippines, the Second National Assembly passed Commonwealth Act No. 671,
which came into effect on December 16, 1941. When we approved said act, we
started from the premise that all our laws shall continue in effect during the
emergency, and in said act we even went to the extent of authorizing the President
"to continue in force laws and appropriations which would lapse or otherwise
become inoperative," (section 2, [d]), and also to "promulgate such rules and
regulations as he may deem necessary to carry out the national policy," (section 2),
that "the existence of war between the United States and other countries of Europe
and Asia, which involves the Philippines, makes it necessary to invest the President
with extraordinary powers in order to meet the resulting emergency." (Section 1.)
To give emphasis to the intimation, we provided that the rules and regulations
provided "shall be in force and effect until the Congress of the Philippines shall
otherwise provide," foreseeing the possibility that Congress may not meet as
scheduled as a result of the emergency, including invasion and occupation by the
enemy. Everybody was then convinced that we did not have available the necessary
means of repelling effectivity the enemy invasion.
Maybe it is not out of place to consider that the acceptance of petitioner's theory of
suspended allegiance will cause a great injustice to those who, although innocent,
are now under indictment for treason and other crimes involving disloyalty to their
country, because their cases will be dismissed without the opportunity for them to
revindicate themselves. Having been acquitted upon a mere legal technicality which
appears to us to be wrong, history will indiscriminality classify them with the other
accused who were really traitors to their country. Our conscience revolts against
the idea of allowing the innocent ones to go down in the memory of future
generations with the infamous stigma of having betrayed their own people. They
should not be deprived of the opportunity to show through the due process of law
7
that they are free from all blame and that, if they were really patriots, they acted as
such during the critical period of test.
HILADO, J., concurring:
I concur in the result reached in the majority opinion to the effect that during the
so-called Japanese occupation of the Philippines (which was nothing more than the
occupation of Manila and certain other specific regions of the Islands which
constituted the minor area of the Archipelago) the allegiance of the citizens of this
country to their legitimate government and to the United States was not
suspended, as well as the ruling that during the same period there was no change
of sovereignty here; but my reasons are different and I proceed to set them forth:
I. SUSPENDED ALLEGIANCE.
(a) Before the horror and atrocities of World War I, which were multiplied more
than a hundred-fold in World War II, the nations had evolved certain rules and
principles which came to be known as International Law, governing their conduct
with each other and toward their respective citizens and inhabitants, in the armed
forces or civilian life, in time of peace or in time of war. During the ages which
preceded that first world conflict the civilized governments had no realization of the
potential excesses of which "men's inhumanity to man" could be capable. Up to
that time war was, at least under certain conditions, considered as sufficiently
justified, and the nations had not on that account, proscribed nor renounced it as
an instrument of national policy, or as a means of settling international disputes. It
is not for us now to dwell upon the reasons accounting for this historical fact.
Suffice it to recognize its existence in history.
But when in World War I civilized humanity saw that war could be, as it actually
was, employed for entirely different reasons and from entirely different motives,
compared to previous wars, and the instruments and methods of warfare had been
so materially changed as not only to involve the contending armed forces on well
defined battlefields or areas, on land, in the sea, and in the air, but to spread death
and destruction to the innocent civilian populations and to their properties, not
only in the countries engaged in the conflict but also in neutral ones, no less than 61
civilized nations and governments, among them Japan, had to formulate and
solemnly subscribe to the now famous Briand-Kellogg Pact in the year 1928. As said
by Justice Jackson of the United States Supreme Court, as chief counsel for the
United States in the prosecution of "Axis war criminals," in his report to President
Truman of June 7, 1945:
International law is not capable of development by legislation, for there is no
continuously sitting international legislature. Innovations and revisions in
international law are brought about by the action of governments designed to
meet a change circumstances. It grows, as did the common law, through
decisions reached from time to time in adopting settled principles to new
situations.
xxx xxx xxx
After the shock to civilization of the war of 1914-1918, however, a marked
reversion to the earlier and sounder doctrines of international law took place.
By the time the Nazis came to power it was thoroughly established that
launching an aggressive war or the institution of war by treachery was illegal
and that the defense of legitimate warfare was no longer available to those
who engaged in such an enterprise. It is high time that we act on the juridical
principle that aggressive war-making is illegal and criminal.
The re-establishment of the principle of justifiable war is traceable in many
steps. One of the most significant is the Briand-Kellogg Pact of 1928 by which
Germany, Italy, and Japan, in common with the United States and practically all
the nations of the world, renounced war as an instrument of national policy,
bound themselves to seek the settlement of disputes only by pacific means,
and condemned recourse to war for the solution of international controversies.
Unless this Pact altered the legal status of wars of aggression, it has no
meaning at all and comes close to being an act of deception. In 1932 Mr. Henry
L. Stimson, as United States Secretary of State, gave voice to the American
concept of its effect. He said, "war between nations was renounced by the
signatories of the Briand-Kellogg Treaty. This means that it has
become illegal throughout practically the entire world. It is no longer to be the
source and subject of rights. It is no longer to be the principle around which the
duties, the conduct, and the rights of nations revolve. It is an illegal thing. . . . By
that very act we have made obsolete many legal precedents and have given the
legal profession the task of re-examining many of its Codes and treaties.
This Pact constitutes only one reversal of the viewpoint that all war is legal and
has brought international law into harmony with the common sense of
mankind — that unjustifiable war is a crime.
Without attempting an exhaustive catalogue, we may mention the Geneva
Protocol of 1924 for the Pacific Settlement of International Disputes, signed by
the representatives of forty-eight governments, which declared that "a war of
aggression constitutes .. an International crime. . . .
The Eight Assembly of the League of Nations in 1927, on unanimous resolution
of the representatives of forty-eight member-nations, including Germany,
declared that a war of aggression constitutes an international crime. At the
8
 Sixth Pan-American Conference of 1928, the twenty-one American Republics
unanimously adopted a resolution stating that "war of aggression constitutes
an international crime against the human species."
xxx xxx xxx
We therefore propose to change that a war of aggression is a crime, and
that modern international law has abolished the defense that those who incite
or wage it are engaged in legitimate business. Thus may the forces of the law
be mobilized on the side of peace. ("U.S.A. — An American Review," published
by the United States Office of War Information, Vol. 2, No. 10; emphasis
supplied.).
When Justice Jackson speaks of "a marked reversion to the earlier and sounder
doctrines of international law" and "the re-establishment of the principle of
justifiable war," he has in mind no other than "the doctrine taught by Grotius, the
father of international law, that there is a distinction between the just and the
unjust war — the war of defense and the war of aggression" to which he alludes in
an earlier paragraph of the same report.
In the paragraph of said report immediately preceding the one last above
mentioned Justice Jackson says that "international law as taught in the 19th and the
early part of the 20th century generally declared that war-making was not illegal
and no crime at law." But, as he says in one of the paragraphs hereinabove quoted
from that report, the Briand-Kellogg Pact constitutes a reversal of the view-point
that all war is legal and has brought international law into harmony with the
common sense of mankind — that unjustifiable war is a crime. Then he mentions as
other reversals of the same viewpoint, the Geneva Protocol of 1924 for the Pacific
Settlement of International Disputes, declaring that a war of aggression constitutes
an international crime; the 8th assembly of the League of Nations in 1927, declaring
that a war of aggression constitutes an international crime; and the 6th Pan-
American conference of 1928, which unanimously adopted a resolution stating that
war of aggression constitutes an international crime against the human species:
which enumeration, he says, is not an attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific, first, against the
United States, and later, in rapid succession, against other allied nations, was a war
of aggression and utterly unjustifiable. More aggressive still, and more unjustifiable,
as admitted on all sides, was its attack against the Philippines and its consequent
invasion and occupation of certain areas thereof.
Some of the rules and principles of international law which have been cited for
petitioner herein in support of his theory of suspended allegiance, have been
evolved and accepted during those periods of the history of nations when all war
was considered legal, as stated by Justice Jackson, and the others have reference to
military occupation in the course of really justifiable war.
Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the
aggressive war which threw the entire Pacific area into a seething cauldron from
the last month of 1941 of the first week of September, 1945, expressly agreed to
outlaw, proscribe and renounce war as an instrument of national policy, and bound
herself to seek the settlement of her disputes with other nations only by pacific
means. Thus she expressly gave her consent to that modification of the then
existing rules and principles of international law governing the matter. With the
modification, all the signatories to the pact necessarily accepted and bound
themselves to abide by all its implications, among them the outlawing, prescription
and renunciation of military occupation of another nation's territory in the course
of a war thus outlawed, proscribed and renounced. This is only one way of saving
that the rules and principles of international law therefore existing on the subject of
military occupation were automatically abrogated and rendered ineffective in all
future cases of war coming under the ban and condemnation of the pact.
If an unjustifiable war is a crime; if a war of aggression constitutes an international
crime; if such a war is an international crime against the human species: a nation
which occupies a foreign territory in the course of such a war cannot possibly,
under any principle of natural or positive law, acquire or posses any legitimate
power or right growing out or incident to such occupation. Concretely, Japan in
criminally invading the Philippines and occupying certain portions of its territory
during the Pacific war, could not have nor exercise, in the legal sense — and only
this sense should we speak here — with respect to this country and its citizens, any
more than could a burglar breaking through a man's house pretends to have or to
exercise any legal power or right within that house with respect either to the
person of the owner or to his property. To recognize in the first instance any legal
power or right on the part of the invader, and in the second any legal power or right
on the part of the burglar, the same as in case of a military occupant in the course
of a justifiable war, would be nothing short of legalizing the crime itself. It would be
the most monstrous and unpardonable contradiction to prosecute, condemn and
hang the appropriately called war criminals of Germany, Italy, and Japan, and at the
same time recognize any lawfulness in their occupation invaded. And let it not be
forgotten that the Philippines is a member of the United Nations who have
instituted and conducted the so-called war crimes trials. Neither should we lose
sight of the further fact that this government has a representative in the
international commission currently trying the Japanese war criminals in Tokyo.
These facts leave no room for doubt that this government is in entire accord with
the other United Nations in considering the Pacific war started by Japan as a crime.
Not only this, but this country had six years before the outbreak of the Pacific war
9
already renounced war as an instrument of national policy (Constitution, Article II,
section 2), thus in consequence adopting the doctrine of the Briand-Kellogg Pact.
Consequently, it is submitted that it would be absolutely wrong and improper for
this Court to apply to the occupation by Japan of certain areas of the Philippines
during that war the rules and principles of international law which might be
applicable to a military occupation occurring in the course of a justifiable war. How
can this Court recognize any lawfulness or validity in that occupation when our own
government has sent a representative to said international commission in Tokyo
trying the Japanese "war criminals" precisely for the "crimes against humanity and
peace" committed by them during World War II of which said occupation was but
part and parcel? In such circumstances how could such occupation produce no less
an effect than the suspension of the allegiance of our people to their country and
government?
(b) But even in the hypothesis — and not more than a mere hypothesis — that
when Japan occupied the City of Manila and certain other areas of the Philippines
she was engaged in a justifiable war, still the theory of suspended allegiance would
not hold good. The continuance of the allegiance owed to a notion by its citizens is
one of those high privileges of citizenship which the law of nations denies to the
occupant the power to interfere with.
. . . His (of occupant) rights are not, however, commensurate with his power.
He is thus forbidden to take certain measures which he may be able to apply,
and that irrespective of their efficacy. The restrictions imposed upon him are in
theory designed to protect the individual in the enjoyment of some highly
important privileges. These concern his allegiance to the de jure sovereign, his
family honor and domestic relations, religious convictions, personal service,
and connection with or residence in the occupied territory.
The Hague Regulations declare that the occupant is forbidden to compel the
inhabitants to swear allegiance to the hostile power. . . . (III Hyde, International
Law, 2d revised ed., pp. 1898-1899.)
. . . Nor may he (occupant) compel them (inhabitants) to take an oath of
allegiance. Since the authority of the occupant is not sovereignty, the
inhabitants owe no temporary allegiance to him. . . . (II Oppenheim,
International Law, pp. 341-344.)
The occupant's lack of the authority to exact an oath of allegiance from the
inhabitants of the occupied territory is but a corollary of the continuance of their
allegiance to their own lawful sovereign. This allegiance does not consist merely in
obedience to the laws of the lawful sovereign, but more essentially consists in
loyalty or fealty to him. In the same volume and pages of Oppenheim's work above
cited, after the passage to the effect that the inhabitants of the occupied territory
owe no temporary allegiance to the occupant it is said that "On the other hand, he
may compel them to take an oath — sometimes called an 'oath of neutrality' — . . .
willingly to submit to his 'legitimate commands.' Since, naturally, such "legitimate
commands" include the occupant's laws, it follows that said occupant, where the
rule is applicable, has the right to compel the inhabitants to take an oath of
obedience to his laws; and since according to the same rule, he cannot exact from
the inhabitants an oath of obedience to his laws; and since, according to the same
rule, he cannot exact from the inhabitants an oath of allegiance, it follows that
obedience to his laws, which he can exact from them, does not constitute
allegiance.
(c) The theory of suspended allegiance is unpatriotic to the last degree. To say that
when the one's country is unable to afford him in its protection, he ceases to be
bound to it by the sacred ties of allegiance, is to advocate the doctrine that
precisely when his country is in such distress, and therefore most needs his loyalty,
he is absolved from the loyalty. Love of country should be something permanent
and lasting, ending only in death; loyalty should be its worth offspring. The outward
manifestation of one or the other may for a time be prevented or thwarted by the
irresistible action of the occupant; but this should not in the least extinguish nor
obliterate the invisible feelings, and promptings of the spirit. And beyond the
unavoidable consequences of the enemy's irresistible pressure, those invisible
feelings and promptings of the spirit of the people should never allow them to act,
to speak, nor even to think a whit contrary to their love and loyalty to the
Fatherland. For them, indicted, to face their country and say to it that, because
when it was overrun and vanquished by the barbarous invader and, in consequence
was disabled from affording them protection, they were released from their sacred
obligation of allegiance and loyalty, and could therefore freely adhere to its enemy,
giving him aid and comfort, incurring no criminal responsibility therefor, would only
tend to aggravate their crime.
II. CHANGE OF SOVEREIGNTY
Article II, section 1, of the Constitution provides that "Sovereignty resides in the
people and all government authority emanates from them." The Filipino people are
the self-same people before and after Philippine Independence, proclaimed on July
4, 1946. During the life of the Commonwealth sovereignty resided in them under
the Constitution; after the proclamation of independence that sovereignty
remained with them under the very same fundamental law. Article XVIII of the said
Constitution stipulates that the government established thereby shall be known as
the Commonwealth of the Philippines; and that upon the final and complete
withdrawal of the sovereignty of the United States and the proclamation of
Philippine independence, "The Commonwealth of the Philippines shall thenceforth
10
be known as the Republic of the Philippines." Under this provision the Government
of the Philippines immediately prior to independence was essentially to be the
identical government thereafter — only the name of that government was to be
changed.
Both before and after the adoption of the Philippine Constitution the people of the
Philippines were and are always the plaintiff in all criminal prosecutions, the case
being entitled: "The People of the Philippines vs. (the defendant or defendants)."
This was already true in prosecutions under the Revised Penal Code containing the
law of treason. "The Government of the Philippines" spoken of in article 114 of said
Code merely represents the people of the Philippines. Said code was continued,
along with the other laws, by Article XVI, section 2, of the Constitution which
constitutional provision further directs that "all references in such laws to the
Government or officials of the Philippine Islands shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under this
Constitution" — of course, meaning the Commonwealth of the Philippines before,
and the Republic of the Philippines after, independence (Article XVIII). Under both
governments sovereignty resided and resides in the people (Article II, section 1).
Said sovereignty was never transferred from that people — they are the same
people who preserve it to this day. There has never been any change in its respect.
If one committed treason againsts the People of the Philippines before July 4, 1946,
he continues to be criminally liable for the crime to the same people now. And if,
following the literal wording of the Revised Penal Code, as continued by the
Constitution, that accused owed allegiance upon the commission of the crime to
the "Government of the Philippines," in the textual words of the Constitution
(Article XVI, section 2, and XVIII) that was the same government which after
independence became known as the "Republic of the Philippines." The most that
can be said is that the sovereignty of the people became complete and absolute
after independence — that they became, politically, fully of age, to use a metaphor.
But if the responsibility for a crime against a minor is not extinguished by the mere
fact of his becoming of age, why should the responsibility for the crime of treason
committed against the Filipino people when they were not fully politically
independent be extinguished after they acquire this status? The offended party
continues to be the same — only his status has changed.
PARAS, J., dissenting:
During the long period of Japanese occupation, all the political laws of the
Philippines were suspended. This is full harmony with the generally accepted
principles of the international law adopted by our Constitution(Article II, section 3)
as a part of the law of the Nation. Accordingly, we have on more than one occasion
already stated that "laws of a political nature or affecting political relations, . . . are
considered as suspended or in abeyance during the military occupation" (Co Kim
Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 113, 124), and that the rule "that laws
of political nature or affecting political relations are considered suspended or in
abeyance during the military occupation, is intended for the governing of the civil
inhabitants of the occupied territory." (Ruffy vs. Chief of Staff, Philippine Army, 75,
Phil., 875, 881.)
The principle is recognized by the United States of America, which admits that the
occupant will naturally suspends all laws of a political nature and all laws which
affect the welfare and safety of his command, such action to be made known to the
inhabitants.(United States Rules of Land Welfare, 1940, Article 287.) As allegiance
to the United States is an essential element in the crime of treason under article
114 of the Revised Penal Code, and in view of its position in our political structure
prior to the independence of the Philippines, the rule as interpreted and practiced
in the United States necessarily has a binding force and effect in the Philippines, to
the exclusion of any other construction followed elsewhere, such as may be
inferred, rightly or wrongly, from the isolated cases 1 brought to our attention,
which, moreover, have entirely different factual bases.
Corresponding notice was given by the Japanese occupying army, first, in the
proclamation of its Commander in chief of January 2, 1942, to the effect that as a
"result of the Japanese Military operations, the sovereignty of the United States of
America over the Philippines has completely disappeared and the Army hereby
proclaims the Military Administration under martial law over the district occupied
by the Army;" secondly, in Order No. 3 of the said Commander in Chief of February
20, 1942, providing that "activities of the administrative organs and judicial courts
in the Philippines shall be based upon the existing statutes, orders, ordinances and
customs until further orders provided that they are not inconsistent with the
present circumstances under the Japanese Military Administration;" and, thirdly, in
the explanation to Order No. 3 reminding that "all laws and regulations of the
Philippines has been suspended since Japanese occupation," and excepting the
application of "laws and regulations which are not proper act under the present
situation of the Japanese Military Administration," especially those "provided with
some political purposes."
The suspension of the political law during enemy occupation is logical, wise and
humane. The latter phase outweighs all other aspects of the principle aimed more
or less at promoting the necessarily selfish motives and purposes of a military
occupant. It thus consoling to note that the powers instrumental in the
crystallization of the Hague Conventions of 1907 did not forget to declare that they
were "animated by the desire to serve . . . the interest of the humanity and the over
progressive needs of civilization," and that "in case not included in the Regulations
adopted by them, the inhabitants and the belligerents remain under the protection
11
and the rule of the principles of international law, as they result from the usages
established among civilized peoples, from the laws of humanity, and the dictates of
the public conscience." These saving statements come to the aid of the inhabitants
in the occupied territory in a situation wherein, even before the belligerent
occupant "takes a further step and by appropriate affirmative action undertakes to
acquire the right of sovereignty for himself, . . . the occupant is likely to regard to
himself as clothed with freedom to endeavor to impregnate the people who inhabit
the area concerned with his own political ideology, and to make that endeavor
successful by various forms of pressure exerted upon enemy officials who are
permitted to retain the exercise of normal governmental functions." (Hyde,
International Law, Vol. III, Second Revised Edition, 1945, p. 1879.)
The inhabitants of the occupied territory should necessarily be bound to the sole
authority of the invading power, whose interest and requirements are naturally in
conflict with those of the displaced government, if it is legitimate for the military
occupant to demand and enforce from the inhabitants such obedience as may be
necessary for the security of his forces, for the maintenance of law and order, and
for the proper administration of the country (United States Rules of Land Warfare,
1940, article 297), and to demand all kinds of services "of such a nature as not to
involve the population in the obligation of taking part in military operations against
their own country" (Hague Regulations, article 52);and if, as we have in effect said,
by the surrender the inhabitants pass under a temporary allegiance to the
government of the occupant and are bound by such laws, and such only, as it
chooses to recognize and impose, and the belligerent occupant `is totally
independent of the constitution and the laws of the territory, since occupation is an
aim of warfare, and the maintenance and safety of his forces, and the purpose of
war, stand in the foreground of his interest and must be promoted under all
circumstances or conditions." (Peralta vs. Director of Prisons, 75 Phil., 285, 295),
citing United States vs. Rice, 4 Wheaton, 246, and quoting Oppenheim,
International Law, Vol. II. Sixth Edition, Revised, 1944,p. 432.)
He would be a bigot who cannot or would refuse to see the cruel result if the
people in an occupied territory were required to obey two antagonistic and
opposite powers. To emphasize our point, we would adopt the argument, in a
reverse order, of Mr. Justice Hilado in Peralta vs. Director of Prisons (75 Phil., 285,
358), contained in the following passage:
To have bound those of our people who constituted the great majority who
never submitted to the Japanese oppressors, by the laws, regulations,
processes and other acts of those two puppet governments, would not only
have been utterly unjust and downright illegal, but would have placed them in
the absurd and impossible condition of being simultaneously submitted to two
mutually hostile governments, with their respective constitutional and
legislative enactments and institutions — on the one hand bound to continue
owing allegiance to the United States and the Commonwealth Government,
and, on the other, to owe allegiance, if only temporary, to Japan.
The only sensible purpose of the treason law — which is of political complexion and
taken out of the territorial law and penalized as a new offense committed against
the belligerent occupant, incident to a state of war and necessary for the control of
the occupant (Alcantara vs. Director of Prisons, 75 Phil., 494), — must be the
preservation of the nation, certainly not its destruction or extermination. And yet
the latter is unwittingly wished by those who are fond of the theory that what is
suspended is merely the exercise of sovereignty by the de jure government or the
latter's authority to impose penal sanctions or that, otherwise stated, the
suspension refers only to the military occupant. If this were to be the only effect,
the rule would be a meaningless and superfluous optical illusion, since it is obvious
that the fleeing or displaced government cannot, even if it should want, physically
assert its authority in a territory actually beyond its reach, and that the occupant,
on the other hand, will not take the absurd step of prosecuting and punishing the
inhabitants for adhering to and aiding it. If we were to believe the opponents of the
rule in question, we have to accept the absurd proposition that the guerrillas can all
be prosecuted with illegal possession of firearms. It should be borne in the mind
that "the possession by the belligerent occupant of the right to control, maintain or
modify the laws that are to obtain within the occupied area is an exclusive one. The
territorial sovereign driven therefrom, can not compete with it on an even plane.
Thus, if the latter attempt interference, its action is a mere manifestation of
belligerent effort to weaken the enemy. It has no bearing upon the legal quality of
what the occupant exacts, while it retains control. Thus, if the absent territorial
sovereign, through some quasi-legislative decree, forbids its nationals to comply
with what the occupant has ordained obedience to such command within the
occupied territory would not safeguard the individual from the prosecution by the
occupant." (Hyde, International Law, Vol. III, Second Revised Edition, 1945, p. 1886.)
As long as we have not outlawed the right of the belligerent occupant to prosecute
and punish the inhabitants for "war treason" or "war crimes," as an incident of the
state of war and necessity for the control of the occupied territory and the
protection of the army of the occupant, against which prosecution and punishment
such inhabitants cannot obviously be protected by their native sovereign, it is hard
to understand how we can justly rule that they may at the same time be prosecuted
and punished for an act penalized by the Revised Penal Code, but already taken out
of the territorial law and penalized as a new offense committed against the
belligerent occupant.
In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the Constitution
of the Commonwealth Government was suspended during the occupation of the
12
Philippines by the Japanese forces or the belligerent occupant at regular war with
the United States," and the meaning of the term "suspended" is very plainly
expressed in the following passage (page 298):
No objection can be set up to the legality of its provisions in the light of the
precepts of our Commonwealth Constitution relating to the rights of the
accused under that Constitution, because the latter was not in force during the
period of the Japanese military occupation, as we have already stated. Nor may
said Constitution be applied upon its revival at the time of the re-occupation of
the Philippines by the virtue of the priciple of postliminium, because "a
constitution should operate prospectively only, unless the words employed
show a clear intention that it should have a retrospective effect," (Cooley's
Constitutional Limitations, seventh edition, page 97, and a case quoted and
cited in the foot-note), especially as regards laws of procedure applied to cases
already terminated completely.
In much the same way, we should hold that no treason could have been committed
during the Japanese military occupation against the United States or the
Commonwealth Government, because article 114 of the Revised Penal Code was
not then in force. Nor may this penal provision be applied upon its revival at the
time of the reoccupation of the Philippines by virtue of the principle
of postliminium, because of the constitutional inhibition against any ex post
facto law and because, under article 22 of the Revised Penal Code, criminal laws
shall have a retroactive effect only in so far as they favor the accused. Why did we
refuse to enforce the Constitution, more essential to sovereignty than article 114 of
the Revised Penal Code in the aforesaid of Peralta vs. Director of Prisons if, as
alleged by the majority, the suspension was good only as to the military occupant?
The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports
our position. As analyzed and described in United States vs. Reiter (27 Fed. Cas.,
773), that case "was decided by the Supreme Court of the United States — the
court of highest human authority on that subject — and as the decision was against
the United States, and in favor of the authority of Great Britain, its enemy in the
war, and was made shortly after the occurrence of the war out of which it grew;
and while no department of this Government was inclined to magnify the rights of
Great Britain or disparage those of its own government, there can be no suspicion
of bias in the mind of the court in favor of the conclusion at which it arrived, and no
doubt that the law seemed to the court to warrant and demand such a decision.
That case grew out of the war of 1812, between the United States and Great
Britain. It appeared that in September, 1814, the British forces had taken the port
of Castine, in the State of Maine, and held it in military occupation; and that while it
was so held, foreign goods, by the laws of the United States subject to duty, had
been introduced into that port without paying duties to the United States. At the
close of the war the place by treaty restored to the United States, and after that
was done Government of the United States sought to recover from the persons so
introducing the goods there while in possession of the British, the duties to which
by the laws of the United States, they would have been liable. The claim of the
United States was that its laws were properly in force there, although the place was
at the time held by the British forces in hostility to the United States, and the laws,
therefore, could not at the time be enforced there; and that a court of the United
States (the power of that government there having since been restored) was bound
so to decide. But this illusion of the prosecuting officer there was dispelled by the
court in the most summary manner. Mr. Justice Story, that great luminary of the
American bench, being the organ of the court in delivering its opinion, said: 'The
single question is whether goods imported into Castine during its occupation by the
enemy are liable to the duties imposed by the revenue laws upon goods imported
into the United States.. We are all of opinion that the claim for duties cannot be
sustained. . . . The sovereignty of the United States over the territory was, of
course, suspended, and the laws of the United States could no longer be rightfully
enforced there, or be obligatory upon the inhabitants who remained and submitted
to the conquerors. By the surrender the inhabitants passed under a temporary
allegiance of the British Government, and were bound by such laws, and such only,
as it chose to recognize and impose. From the nature of the case no other laws
could be obligatory upon them. . . . Castine was therefore, during this period, as far
as respected our revenue laws, to be deemed a foreign port, and goods imported
into it by the inhabitants were subjects to such duties only as the British
Government chose to require. Such goods were in no correct sense imported into
the Unites States.' The court then proceeded to say, that the case is the same as if
the port of Castine had been foreign territory, ceded by treaty to the United States,
and the goods had been imported there previous to its cession. In this case they say
there would be no pretense to say that American duties could be demanded; and
upon principles of public or municipal law, the cases are not distinguishable. They
add at the conclusion of the opinion: 'The authorities cited at the bar would, if there
were any doubt, be decisive of the question. But we think it too clear to require any
aid from authority.' Does this case leave room for a doubt whether a country held
as this was in armed belligerents occupation, is to be governed by him who holds it,
and by him alone? Does it not so decide in terms as plain as can be stated? It is
asserted by the Supreme Court of the United States with entire unanimity, the great
and venerated Marshall presiding, and the erudite and accomplished Story
delivering the opinion of the court, that such is the law, and it is so adjudged in this
case. Nay, more: it is even adjudged that no other laws could be obligatory; that
such country, so held, is for the purpose of the application of the law off its former
government to be deemed foreign territory, and that goods imported there (and by
13
parity of reasoning other acts done there) are in no correct sense done within the
territory of its former sovereign, the United States."
But it is alleged by the majority that the sovereignty spoken of in the decision of the
United States vs. Rice should be construed to refer to the exercise of sovereignty,
and that, if sovereignty itself was meant, the doctrine has become obsolete after
the adoption of the Hague Regulations in 1907. In answer, we may state that
sovereignty can have any important significance only when it may be exercised;
and, to our way of thinking, it is immaterial whether the thing held in abeyance is
the sovereignty itself or its exercise, because the point cannot nullify, vary, or
otherwise vitiate the plain meaning of the doctrinal words "the laws of the United
States could no longer be rightfully enforced there, or be obligatory upon the
inhabitants who remained and submitted to the conquerors." We cannot accept the
theory of the majority, without in effect violating the rule of international law,
hereinabove adverted to, that the possession by the belligerent occupant of the
right to control, maintain or modify the laws that are to obtain within the occupied
area is an exclusive one, and that the territorial sovereign driven therefrom cannot
compete with it on an even plane. Neither may the doctrine in the United
States vs. Rice be said to have become obsolete, without repudiating the actual rule
prescribed and followed by the United States, allowing the military occupant to
suspend all laws of a political nature and even require public officials and
inhabitants to take an oath of fidelity (United States Rules of Land Warfare, 1940,
article 309). In fact, it is a recognized doctrine of American Constitutional Law that
mere conquest or military occupation of a territory of another State does not
operate to annex such territory to occupying State, but that the inhabitants of the
occupied district, no longer receiving the protection of their native State, for the
time being owe no allegiance to it, and, being under the control and protection of
the victorious power, owe to that power fealty and obedience. (Willoughby, The
Fundamental Concepts of Public Law [1931], p.364.)
The majority have resorted to distinctions, more apparent than real, if not
immaterial, in trying to argue that the law of treason was obligatory on the Filipinos
during the Japanese occupation. Thus it is insisted that a citizen or subject owes not
a qualified and temporary, but an absolute and permanent allegiance, and that
"temporary allegiance" to the military occupant may be likened to the temporary
allegiance which a foreigner owes to the government or sovereign to the territory
wherein he resides in return for the protection he receives therefrom. The
comparison is most unfortunate. Said foreigner is in the territory of a power not
hostile to or in actual war with his own government; he is in the territory of a power
which has not suspended, under the rules of international law, the laws of political
nature of his own government; and the protections received by him from that
friendly or neutral power is real, not the kind of protection which the inhabitants of
an occupied territory can expect from a belligerent army. "It is but reasonable that
States, when they concede to other States the right to exercise jurisdiction over
such of their own nationals as are within the territorial limits of such other States,
should insist that States should provide system of law and of courts, and in actual
practice, so administer them, as to furnish substantial legal justice to alien
residents. This does not mean that a State must or should extend to aliens within its
borders all the civil, or much less, all the political rights or privileges which it grants
to its own citizens; but it does mean that aliens must or should be given adequate
opportunity to have such legal rights as are granted to them by the local law
impartially and judicially determined, and, when thus determined, protected."
(Willoughby, The Fundamental Concepts of Public Law [1931], p. 360.)
When it is therefore said that a citizen of a sovereign may be prosecuted for and
convicted of treason committed in a foreign country or, in the language of article
114 of the Revised Penal Code, "elsewhere," a territory other than one under
belligerent occupation must have been contemplated. This would make sense,
because treason is a crime "the direct or indirect purpose of which is the delivery, in
whole or in part, of the country to a foreign power, or to pave the way for the
enemy to obtain dominion over the national territory" (Albert, The Revised Penal
Code, citing 3 Groizard, 14); and, very evidently, a territory already under
occupation can no longer be "delivered."
The majority likewise argue that the theory of suspended sovereignty or allegiance
will enable the military occupant to legally recruit the inhabitants to fight against
their own government, without said inhabitants being liable for treason. This
argument is not correct, because the suspension does not exempt the occupant
from complying with the Hague Regulations (article 52) that allows it to demand all
kinds of services provided that they do not involve the population "in the obligation
of taking part military operations against their own country." Neither does the
suspension prevent the inhabitants from assuming a passive attitude, much less
from dying and becoming heroes if compelled by the occupant to fight against their
own country. Any imperfection in the present state of international law should be
corrected by such world agency as the United Nations organizations.
It is of common knowledge that even with the alleged cooperation imputed to the
collaborators, an alarming number of Filipinos were killed or otherwise tortured by
the ruthless, or we may say savage, Japanese Army. Which leads to the conclusion
that if the Filipinos did not obey the Japanese commands and feign cooperation,
there would not be any Filipino nation that could have been liberated. Assuming
that the entire population could go to and live in the mountains, or otherwise fight
as guerrillas — after the formal surrender of our and the American regular fighting
forces, — they would have faced certain annihilation by the Japanese, considering
that the latter's military strength at the time and the long period during which they
14
were left military unmolested by America. In this connection, we hate to make
reference to the atomic bomb as a possible means of destruction.
If a substantial number of guerrillas were able to survive and ultimately help in the
liberation of the Philippines, it was because the feigned cooperation of their
countrymen enabled them to get food and other aid necessary in the resistance
movement. If they were able to survive, it was because they could camouflage
themselves in the midst of the civilian population in cities and towns. It is easy to
argue now that the people could have merely followed their ordinary pursuits of life
or otherwise be indifferent to the occupant. The fundamental defect of this line of
thought is that the Japanese assumed to be so stupid and dumb as not to notice any
such attitude. During belligerent occupation, "the outstanding fact to be reckoned
with is the sharp opposition between the inhabitants of the occupied areas and the
hostile military force exercising control over them. At heart they remain at war with
each other. Fear for their own safety may not serve to deter the inhabitants from
taking advantage of opportunities to interfere with the safety and success of the
occupant, and in so doing they may arouse its passions and cause to take
vengeance in cruel fashion. Again, even when it is untainted by such conduct, the
occupant as a means of attaining ultimate success in its major conflict may, under
plea of military necessity, and regardless of conventional or customary prohibitions,
proceed to utilize the inhabitants within its grip as a convenient means of military
achievement." (Hyde, International Law, Vol. III, Second Revised Edition [1945], p.
1912.) It should be stressed that the Japanese occupation was not a matter of a few
months; it extended over a little more than three years. Said occupation was a fact,
in spite of the "presence of guerrilla bands in barrios and mountains, and even in
towns of the Philippines whenever these towns were left by Japanese garrisons or
by the detachments of troops sent on patrol to those places." (Co Kim
Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.) The law of nations accepts
belligerent occupation as a fact to be reckoned with, regardless of the merits of the
occupant's cause. (Hyde, International Law, Second Revised Edition [1945], Vol. III,
p. 1879.)
Those who contend or fear that the doctrine herein adhere to will lead to an over-
production of traitors, have a wrong and low conception of the psychology and
patriotism of their countrymen. Patriots are such after their birth in the first place,
and no amount of laws or judicial decisions can make or unmake them. On the
other hand, the Filipinos are not so base as to be insensitive to the thought that the
real traitor is cursed everywhere and in all ages. Our patriots who fought and died
during the last war, and the brave guerrillas who have survived, were undoubtedly
motivated by their inborn love of country, and not by such a thing as the treason
law. The Filipino people as a whole, passively opposed the Japanese regime, not out
of fear of a treason statute but because they preferred and will prefer the
democratic and civilized way of life and American altruism to Japanese barbaric and
totalitarian designs. Of course, there are those who might at heart have been pro-
Japanese; but they met and will unavoidably meet the necessary consequences. The
regular soldiers faced the risks of warfare; the spies and informers subjected
themselves to the perils of military operations, likely received summary liquidation
or punishments from the guerrillas and the parties injured by their acts, and may be
prosecuted as war spies by the military authorities of the returning sovereign; those
who committed other common crimes, directly or through the Japanese army, may
be prosecuted under the municipal law, and under this group even the spies and
informers, Makapili or otherwise, are included, for they can be made answerable
for any act offensive to person or property; the buy-and-sell opportunists have the
war profits tax to reckon with. We cannot close our eyes to the conspicuous fact
that, in the majority of cases, those responsible for the death of, or injury to, any
Filipino or American at the hands of the Japanese, were prompted more by
personal motives than by a desire to levy war against the United States or to adhere
to the occupant. The alleged spies and informers found in the Japanese occupation
the royal road to vengeance against personal or political enemies. The recent
amnesty granted to the guerrillas for acts, otherwise criminal, committed in the
furtherance of their resistance movement has in a way legalized the penal sanctions
imposed by them upon the real traitors.
It is only from a realistic, practical and common-sense point of view, and by
remembering that the obedience and cooperation of the Filipinos were effected
while the Japanese were in complete control and occupation of the Philippines,
when their mere physical presence implied force and pressure — and not after the
American forces of liberation had restored the Philippine Government — that we
will come to realize that, apart from any rule of international law, it was necessary
to release the Filipinos temporarily from the old political tie in the sense indicated
herein. Otherwise, one is prone to dismiss the reason for such cooperation and
obedience. If there were those who did not in any wise cooperate or obey, they can
be counted by the fingers, and let their names adorn the pages of Philippine history.
Essentially, however, everybody who took advantage, to any extent and degree, of
the peace and order prevailing during the occupation, for the safety and survival of
himself and his family, gave aid and comfort to the enemy.
Our great liberator himself, General Douglas MacArthur, had considered the laws of
the Philippines ineffective during the occupation, and restored to their full vigor and
force only after the liberation. Thus, in his proclamation of October 23, 1944, he
ordained that "the laws now existing on the statute books of the Commonwealth of
the Philippines . . . are in full force and effect and legally binding upon the people in
areas of the Philippines free of enemy occupation and control," and that "all laws . .
. of any other government in the Philippines than that of the said Commonwealth
15
are null and void and without legal effect in areas of the Philippines free of enemy taken from the editorial appearing in the Life, May 28, 1945, page 34, and convey
occupation and control." Repeating what we have said in Co Kim Cham vs. Valdez ideas worthy of some reflection.
Tan Keh and Dizon (75 Phil., 113, 133), "it is to be presumed that General Douglas
If the Filipinos in fact committed any errors in feigning cooperation and obedience
MacArthur, who was acting as an agent or a representative of the Government and
during the Japanese military occupation, they were at most — borrowing the
the President of the United States, constitutional Commander-in-Chief of the
famous and significant words of President Roxas — errors of the mind and not of
United States Army, did not intend to act against the principles of the law of nations
the heart. We advisedly said "feigning" not as an admission of the fallacy of the
asserted by the Supreme Court of the United States from the early period of its
theory of suspended allegiance or sovereignty, but as an affirmation that the
existence, applied by the President of the United States, and later embodied in the
Filipinos, contrary to their outward attitude, had always remained loyal by feeling
Hague Conventions of 1907."
and conscience to their country.
The prohibition in the Hague Conventions (Article 45) against "any pressure on the
Assuming that article 114 of the Revised Penal Code was in force during the
population to take oath to the hostile power," was inserted for the moral
Japanese military occupation, the present Republic of the Philippines has no right to
protection and benefit of the inhabitants, and does not necessarily carry the
prosecute treason committed against the former sovereignty existing during the
implication that the latter continue to be bound to the political laws of the
Commonwealth Government which was none other than the sovereignty of the
displaced government. The United States, a signatory to the Hague Conventions,
United States. This court has already held that, upon a change of sovereignty, the
has made the point clear, by admitting that the military occupant can suspend all
provisions of the Penal Code having to do with such subjects as treason, rebellion
the laws of a political nature and even require public officials and the inhabitants to
and sedition are no longer in force (People vs. Perfecto, 43 Phil., 887). It is true that,
take an oath of fidelity (United States Rules of Land Warfare, 1940, article 309), and
as contended by the majority, section 1 of Article II of the Constitution of the
as already stated, it is a doctrine of American Constitutional Law that the
Philippines provides that "sovereignty resides in the people," but this did not make
inhabitants, no longer receiving the protection of their native state, for the time
the Commonwealth Government or the Filipino people sovereign, because said
being owe no allegiance to it, and, being under the control and protection of the
declaration of principle, prior to the independence of the Philippines, was
victorious power, owe to that power fealty and obedience. Indeed, what is
subervient to and controlled by the Ordinance appended to the Constitution under
prohibited is the application of force by the occupant, from which it is fair to
which, in addition to its many provisions essentially destructive of the concept of
deduce that the Conventions do not altogether outlaw voluntary submission by the
sovereignty, it is expressly made clear that the sovereignty of the United States over
population. The only strong reason for this is undoubtedly the desire of the authors
the Philippines had not then been withdrawn. The framers of the Constitution had
of the Conventions to give as much freedom and allowance to the inhabitants as
to make said declaration of principle because the document was ultimately
are necessary for their survival. This is wise and humane, because the people should
intended for the independent Philippines. Otherwise, the Preamble should not have
be in a better position to know what will save them during the military occupation
announced that one of the purposes of the Constitution is to secure to the Filipino
than any exile government.
people and their posterity the "blessings of independence." No one, we suppose,
"Before he was appointed prosecutor, Justice Jackson made a speech in which he will dare allege that the Philippines was an independent country under the
warned against the use of judicial process for non judicial ends, and attacked cynics Commonwealth Government.
who "see no reason why courts, just like other agencies, should not be policy
The Commonwealth Government might have been more autonomous than that
weapons. If we want to shoot Germans as a matter of policy, let it be done as such,
existing under the Jones Law, but its non-sovereign status nevertheless remained
said he, but don't hide the deed behind a court. If you are determined to execute a
unaltered; and what was enjoyed was the exercise of sovereignty over the
man in any case there is no occasion for a trial; the word yields no respect for
Philippines continued to be complete.
courts that are merely organized to convict." Mussoloni may have got his just
desserts, but nobody supposes he got a fair trial. . . . Let us bear that in mind as we The exercise of Sovereignty May be Delegated. — It has already been seen that
go about punishing criminals. There are enough laws on the books to convict guilty the exercise of sovereignty is conceived of as delegated by a State to the
Nazis without risking the prestige of our legal system. It is far, far better that some various organs which, collectively, constitute the Government. For practical
guilty men escape than that the idea of law be endangered. In the long run the idea political reasons which can be easily appreciated, it is desirable that the public
of law is our best defense against Nazism in all its forms." These passages were policies of a State should be formulated and executed by governmental

16
 agencies of its own creation and which are not subject to the control of other It is therefore plain that the constituent States have no sovereignty of their own,
States. There is, however, nothing in a nature of sovereignty or of State life and that such autonomous powers as they now possess are had and exercised by
which prevents one State from entrusting the exercise of certain powers to the the express will or by the constitutional forbearance of the national sovereignty.
governmental agencies of another State. Theoretically, indeed, a sovereign The Supreme Court of the United States has held that, even when selecting
State may go to any extent in the delegation of the exercise of its power to the members for the national legislature, or electing the President, or ratifying
governmental agencies of other States, those governmental agencies thus proposed amendments to the federal constitution, the States act, ad hoc, as agents
becoming quoad hoc parts of the governmental machinery of the State whose of the National Government. (Willoughby, the Fundamental Concepts of Public Law
sovereignty is exercised. At the same time these agencies do not cease to be [1931], p.250.)
Instrumentalities for the expression of the will of the State by which they were
This is the situation at the present time. The sovereignty of the United States and
originally created.
the non-sovereign status of the individual States is no longer contested.
By this allegation the agent State is authorized to express the will of the (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 251, 252.)
delegating State, and the legal hypothesis is that this State possesses the legal
Article XVIII of the Constitution provides that "The government established by this
competence again to draw to itself the exercise, through organs of its own
Constitution shall be known as the Commonwealth of the Philippines. Upon the
creation, of the powers it has granted. Thus, States may concede to colonies
final and complete withdrawal of the sovereignty of the United States and the
almost complete autonomy of government and reserve to themselves a right of
proclamation of Philippine independence, the Commonwealth of the Philippines
control of so slight and so negative a character as to make its exercise a rare
shall thenceforth be known as the Republic of the Philippines." From this, the
and improbable occurence; yet, so long as such right of control is recognized to
deduction is made that the Government under the Republic of the Philippines and
exist, and the autonomy of the colonies is conceded to be founded upon a
under the Commonwealth is the same. We cannot agree. While the Commonwealth
grant and the continuing consent of the mother countries the sovereignty of
Government possessed administrative autonomy and exercised the sovereignty
those mother countries over them is complete and they are to be considered as
delegated by the United States and did not cease to be an instrumentality of the
possessing only administrative autonomy and not political independence.
latter (Willoughby, The Fundamental Concepts of Public Law [1931], pp. 74, 75), the
Again, as will be more fully discussed in a later chapter, in the so-called
Republic of the Philippines is an independent State not receiving its power or
Confederate or Composite State, the cooperating States may yield to the
sovereignty from the United States. Treason committed against the United States or
central Government the exercise of almost all of their powers of Government
against its instrumentality, the Commonwealth Government, which exercised, but
and yet retain their several sovereignties. Or, on the other hand, a State may,
did not possess, sovereignty (id., p. 49), is therefore not treason against the
without parting with its sovereignty of lessening its territorial application, yield
sovereign and independent Republic of the Philippines. Article XVIII was inserted in
to the governing organs of particular areas such an amplitude of powers as to
order, merely, to make the Constitution applicable to the Republic.
create of them bodies-politic endowed with almost all of the characteristics of
independent States. In all States, indeed, when of any considerable size, Reliance is also placed on section 2 of the Constitution which provides that all laws
efficiency of administration demands that certain autonomous powers of local of the Philippines Islands shall remain operative, unless inconsistent therewith, until
self-government be granted to particular districts. (Willoughby, The amended, altered, modified or repealed by the Congress of the Philippines, and on
Fundamental Concepts of Public Law [1931], pp. 74, 75.). section 3 which is to the effect that all cases pending in courts shall be heard, tried,
and determined under the laws then in force, thereby insinuating that these
The majority have drawn an analogy between the Commonwealth Government and
constitutional provisions authorize the Republic of the Philippines to enforce article
the States of the American Union which, it is alleged, preserve their own
114 of the Revised Penal Code. The error is obvious. The latter article can remain
sovereignty although limited by the United States. This is not true for it has been
operative under the present regime if it is not inconsistent with the Constitution.
authoritatively stated that the Constituent States have no sovereignty of their own,
The fact remains, however, that said penal provision is fundamentally incompatible
that such autonomous powers as they now possess are had and exercised by the
with the Constitution, in that those liable for treason thereunder should owe
express will or by the constitutional forbearance of the national sovereignty, and
allegiance to the United States or the government of the Philippines, the latter
that the sovereignty of the United States and the non-sovereign status of the
being, as we have already pointed out, a mere instrumentality of the former,
individual States is no longer contested.
whereas under the Constitution of the present Republic, the citizens of the

17
Philippines do not and are not required to owe allegiance to the United States. To G.R. No. L-322 July 28, 1947
contend that article 114 must be deemed to have been modified in the sense that
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
allegiance to the United States is deleted, and, as thus modified, should be applied
vs.
to prior acts, would be to sanction the enactment and application of an ex post
PEDRO MANAYAO, ET AL., defendants.
facto law.
PEDRO MANAYAO, appellant.
In reply to the contention of the respondent that the Supreme Court of the United
J. Antonio Araneta for appellant.
States has held in the case of Bradford vs. Chase National Bank (24 Fed. Supp., 38),
First Assistant Solicitor General Jose B. L. Reyes and Solicitor Ramon L. Avanceña for
that the Philippines had a sovereign status, though with restrictions, it is sufficient
appellee.
to state that said case must be taken in the light of a subsequent decision of the
same court in Cincinnati Soap Co. vs. United States (301 U.S., 308), rendered in HILADO, J.:
May, 1937, wherein it was affirmed that the sovereignty of the United States over
Appellant Pedro Manayao and Filomeno Flores and Raymundo Flores were charged
the Philippines had not been withdrawn, with the result that the earlier case only
with the high crime of treason with multiple murder in the People's Court. The
be interpreted to refer to the exercise of sovereignty by the Philippines as
Floreses not having been apprehended, only Manayao was tried. Convicted of the
delegated by the mother country, the United States.
offense charged against him with the aggravating circumstances of (1) the aid of
No conclusiveness may be conceded to the statement of President Roosevelt on armed men and (2) the employment or presence of a band in the commission of the
August 12, 1943, that "the United States in practice regards the Philippines as crime, he was sentenced to death, to pay a fine of P20,000, an indemnity of P2,000
having now the status as a government of other independent nations--in fact all the to the heirs of each of the persons named in the third paragraph of the decision,
attributes of complete and respected nationhood," since said statement was not and the costs. He has appealed from that decision to this Court.
meant as having accelerated the date, much less as a formal proclamation of, the
On or about the 27th of January, 1945, the guerrillas raided the Japanese in Sitio
Philippine Independence as contemplated in the Tydings-McDuffie Law, it
Pulong Tindahan, Municipality of Angat, Province of Bulacan. In reprisal, Japanese
appearing that (1) no less also than the President of the United States had to issue
soldiers and a number of Filipinos affiliated with the Makapili, among them the
the proclamation of July 4, 1946, withdrawing the sovereignty of the United States
instant appellant, conceived the diabolical idea of killing the residents of Barrio
and recognizing Philippine Independence; (2) it was General MacArthur, and not
Banaban of the same municipality (Exhibits A, C, and C-1). Pursuant to this plan, said
President Osmeña who was with him, that proclaimed on October 23, 1944, the
Japanese soldiers and their Filipino companions, armed with rifles and bayonets,
restoration of the Commonwealth Government; (3) the Philippines was not given
gathered the residents of Banaban behind the barrio chapel on January 29, 1945.
official participation in the signing of the Japanese surrender; (4) the United States
Numbering about sixty or seventy, the residents thus assembled included men,
Congress, and not the Commonwealth Government, extended the tenure of office
women and children — mostly women (Exhibits A, C, amd C-1; pp. 3-16, 29, 30, 65,
of the President and Vice-President of the Philippines.
102, t.s.n.).
The suggestion that as treason may be committed against the Federal as well as
The children were placed in a separate group from the men and women — the
against the State Government, in the same way treason may have been committed
prosecution star witnesses, Maria Paulino and Clarita Perez, were among the
against the sovereignty of the United States as well as against the sovereignty of the
children (pp. 3, 40, t.s.n. ). Presently, the Japanese and their Filipino comrades set
Philippine Commonwealth, is immaterial because, as we have already explained,
the surrounding houses on fire (pp. 14, 48, 70, 71, 103, t.s.n.), and proceeded to
treason against either is not and cannot be treason against the new and different
butcher all the persons assembled, excepting the small children, thus killing, among
sovereignty of the Republic of the Philippines.
others, those known by the following names: Patricia, Dodi, Banda, Tana, Uyang,
Mina, Marta, Sana, Eufemia, Doroteo, Andres, Perly, Tisiang, Urado, Pisan, Dorang,
Felisa, and Eulalia (pp. 8, 10, 13, 14, 31, 32, 47, 48, 61, 63, t.s.n.).
Appellant alone killed about six women, two of whom were Patricia and Dodi whom
he bayoneted to death in the presence of their daughters, Maria Paulino and Clarita
Perez, respectively (pp. 8, 10, 13, 31, 32, 35, 47, 48, t.s.n.). Patricia and Dodi

18
pleaded with appellant for mercy, he being their relative, but he gave the callous
answer that no mercy would be given them because they were wives of guerrillas
(pp. 10, 42, 43, 49, t.s.n.).
Appellant would also have killed the small children including Clarita Perez and Maria
Paulino if he had been allowed to have his way. For when all but the small ones had
been butchered, he proposed to kill them too, but the Japanese soldiers interceded,
saying that the children knew nothing of the matter (pp. 15, 49, 51, 66, 67, t.s.n.).
Appellant insisted in his proposal, arguing that the children would be wives of
guerrillas later when they grew up, but the Japanese decided to spare them (p. 22,
t.s.n.).
The foregoing facts have been clearly established by the testimony of eye-witnesses
— Clarita Paulino, Maria Perez, and Policarpio Tigas — to the ruthless massacre of
Banaban. There is a complete absence of evidence tending to show motive on the
part of these witnesses for falsely testifying against appellant — such a motive is
not even insinuated by the defendant. Indeed, appellant's counsel frankly states (p.
3, brief) that he "does not dispute the findings of fact of the People's Court."
Speaking of the testimony of Clarita and Maria, both aged ten years, the People's
Court, who heard, observed and saw them testify, had the following to say:
The testimony of the last two in particular is entitled to very great weight. They
are simple barrio girls, only ten years old, whose minds have not yet been
tainted by feelings of hatred or revenge or by any desire to be spectacular or to
exaggerate. They were straight-forward and frank in their testimony and did
not show any intention to appeal to the sentiments of the court. They could
not have been mistaken as to the presence and identity of the accused for they
know him so well that they referred to him by his pet name of "Indong Pintor"
or Pedro, the painter. They could not have erred in the narration of the salient
phases of the tragic events of January 29, 1945, in Banaban, for they were
forced eye-witnesses to and were involved in the whole tragedy, the burning of
the houses and the massacre committed by the accused and his Japanese
masters took place in broad daylight and were not consummated in a fleeting
moment but during a time sufficient for even girls of tender age to retain a
trustworthy mental picture of the unusual event they could not help but
witness.
Not only this, but the testimony of Clarita Perez and Maria Paulino is so clear,
positive and convincing that it would be sufficient for conviction without any
further corroboration. Yet, there is ample corroborative proof. Thus, Tomas M.
Pablo declared that he had seen the corpses of the massacred residents of Banaban
shortly after the happening of the heinous crime (p. 136, t.s.n.). And appellant
himself admitted his participation in the massacre in two sworn statements — one
made on August 28, 1945, before Lt. Jesus Cacahit, Detachment Commander of the
Angat 23d MP Command (Exhibit A; pp. 75-77, t.s.n.) and another made on
September 5, 1945 before Feliciano F. Torres, Assistant Provincial Fiscal of Bulacan
(Exhibits C, C-1; pp. 150-159, t.s.n.).
In No. 1 of his assignment of errors, appellant's counsel contends that appellant
was a member of the Armed Forces of Japan, was subject to military law, and not
subject to the jurisdiction of the People's Court; and in No. 2 he advances the
theory that appellant had lost his Philippine citizenship and was therefore not
amenable to the Philippine law of treason. We cannot uphold either contention. We
are of the considered opinion that the Makapili, although organized to render
military aid to the Japanese Army in the Philippines during the late war, was not a
part of said army. It was an organization of Filipino traitors, pure and simple. As to
loss of Philippine citizenship by appellant, counsel's theory is absolutely untenable.
He invokes in its support paragraphs 3, 4, and 6 of section 1 of Commonwealth Act
No. 63, providing:
. . . A Filipino citizen may lose his citizenship in any of the following ways and/or
events:
xxx xxx xxx
(3) By subscribing to an oath of allegiance to support the constitution or laws of
a foreign country upon attaining twenty-one years of age or more;
(4) By accepting commission in the military, naval or air service of a foreign
country;
xxx xxx xxx
(6) By having been declared, by competent authority, a deserter of the
Philippine Army, Navy, or Air Corps in time of war, unless subsequently a
plenary pardon or amnesty has been granted.
There is no evidence that appellant has subscribed to an oath of allegiance to
support the constitution or laws of Japan. His counsel cites (Brief, 4) the fact that in
Exhibit A "he subscribed an oath before he was admitted into
the Makapili association, "the aim of which was to help Japan in its fight against the
Americans and her allies.'" And the counsel contends from this that the oath was in
fact one of allegiance to support the constitution and laws of Japan. We cannot
uphold such a far-fetched deduction. The members of the Makapili could have
sworn to help Japan in the war without necessarily swearing to support her
constitution and laws. The famed "Flying Tiger" who so bravely and resolutely aided
China in her war with Japan certainly did not need to swear to support the Chinese
constitution and laws, even if they had to help China fight Japan. During the first
19
World War the "National Volunteers" were organized in the Philippines, pledged to
go to Europe and fight on the side of the Allies, particularly of the United States. In
order to carry out that mission — although the war ended before this could be
done — they surely did not have to take an oath to support the constitution or laws
of the United States or any of its allies. We do not multiply these examples, for they
illustrate a proposition which seems self-evident.
Neither is there any showing of the acceptance by appellant of a commission "in the
military, naval, or air service" of Japan.
Much less is there a scintilla of evidence that appellant had ever been declared a
deserter in the Philippine Army, Navy or Air Corps — nor even that he was a
member of said Army, Navy, or Air Corps.
Further, appellant's contention is repugnant to the most fundamental and
elementary principles governing the duties of a citizen toward his country under our
Constitution. Article II, section 2, of said constitution ordains:
"SEC. 2. The defense of the State is a prime duty of government, and in the
fulfillment of this duty all citizens may be required by law to render personal,
military or civil service." (Emphasis supplied.).
This constitutional provision covers both time of peace and time of war, but it is
brought more immediately and peremptorily into play when the country is involved
in war. During such a period of stress, under a constitution enshrining such tenets,
the citizen cannot be considered free to cast off his loyalty and obligations toward
the Fatherland. And it cannot be supposed, without reflecting on the patriotism and
intelligence of the Legislature, that in promulgating Commonwealth Act No. 63,
under the aegis of our Constitution, it intended (but did not declare) that the duties
of the citizen solemnly proclaimed in the above-quoted constitutional precept could
be effectively cast off by him even when his country is at war, by the simple
expedient of subscribing to an oath of allegiance to support the constitution or laws
of a foreign country, and an enemy country at that, or by accepting a commission in
the military, naval or air service of such country, or by deserting from the Philippine
Army, Navy, or Air Corps.
It would shock the conscience of any enlightened citizenry to say that this appellant,
by the very fact of committing the treasonous acts charged against him, the doing
of which under the circumstances of record he does not deny, divested himself of
his Philippine citizenship and thereby placed himself beyond the arm of our treason
law. For if this were so, his very crime would be the shield that would protect him
from punishment.
But the laws do no admit that the bare commission of a crime amounts of itself
to a divestment of the character of citizen, and withdraws the criminal from
their coercion. They would never prescribe an illegal act among the legal
modes by which a citizen might disfranchise himself; nor render treason, for
instance, innocent, by giving it the force of a dissolution of the obligation of the
criminal to his country. (Moore, International Law Digest, Vol. III, p. 731.)
696. No person, even when he has renounced or incurred the loss of his
nationality, shall take up arms against his native country; he shall be held guilty
of a felony and treason, if he does not strictly observe this duty. (Fiore's
International Law Codified, translation from Fifth Italian Edition by Borchard.)
As to the third assignment of error, the Solicitor General agrees with counsel that it
is improper to separately take into account against appellant he aggravating
circumstances of (1) the aid of armed men and (2) the employment of a band in
appraising the gravity of the crime. We likewise are of the same opinion,
considering that under paragraph 6 of article 14 of the Revised Penal Code
providing that "whenever more than three armed malefactors shall have acted
together in the commission of an offense it shall be deemed to have been
committed by a band," the employment of more than three armed men is an
essential element of and inherent in a band. So that in appreciating the existence of
a band the employment of more than three armed men is automatically included,
there being only the aggravating circumstance of band to be considered.
As to appellant's fourth assignment of error, the contention is clearly unacceptable
that appellant acted in obedience to an order issued by a superior and is therefore
exempt from criminal liability, because he allegedly acted in the fulfillment of a duty
incidental to his service for Japan as a member of the Makapili. It is obvious that
paragraphs 5 and 6 of article 11 of our Revised Penal Code compliance with duties
to or orders from a foreign sovereign, any more than obedience to an illegal order.
The construction contended for by appellant could entail in its potentialities even
the destruction of this Republic.
The contention that as a member of the Makapili appellant had to obey his
Japanese masters under pain of severe penalty, and that therefore his acts should
be considered as committed under the impulse of an irresistible force or
uncontrollable fear of an equal or greater injury, is no less repulsive.
Appellant voluntarily joined the Makapili with full knowledge of its avowed purpose
of rendering military aid to Japan. He knew the consequences to be expected — if
the alleged irresistible force or uncontrollable fear subsequently arose, he brought
them about himself freely and voluntarily. But this is not all; the truth of the matter
is, as the Solicitor General well remarks, that "the appellant actually acted with
gusto during the butchery of Banaban." He was on that occasion even bent on more
cruelty than the very ruthless Japanese masters — so fate willed it — were the very
20
ones who saved the little girls, Clarita Perez and Maria Paulino, who were destined
to become the star witnesses against him on the day of reckoning.
Conformably to the recommendation of the Solicitor General, we find appellant
guilty of the crime of treason with multiple murder committed with the attendance
of one aggravating circumstance, that of "armed band," thus discarding the first
aggravating circumstance considered by the trial court. A majority of the Court
voted to affirm the judgment appealed from, imposing the death penalty,
convicting defendant and appellant to pay a fine of P20,000, an indemnity of P2,000
to the heirs of each of the victims named in the third paragraph of the lower court's
decision, and the costs. But due to the dissent of Mr. Justice Perfecto from the
imposition of the death penalty, in accordance with the applicable legal provisions
we modify the judgment appealed from as regards the punishment to be inflicted,
and sentence defendant and appellant Pedro Manayao to the penalty of reclusion
perpetua, with the accessories of article 41 of the Revised Penal Code, to pay a fine
of P20,000, an indemnity of P2,000 to the heirs of each of the victims named in the
third paragraph of the lower court's decision, and the costs. So ordered.
Moran, C.J., Feria, Pablo, Bengzon, Briones, Hontiveros, Padilla, and Tuason,
JJ., concur.
PARAS, J.:
I concur in the result because I am convinced that the appellant is guilty of multiple
murder and he even deserves the maximum penalty.
Separate Opinions
PERFECTO, J., concurring and dissenting:
The main facts in this case upon which the prosecution relies are based on the
testimonies of three witnesses, two ten-year-old girls, Clarita Perez and Maria
Paulino, and Policarpio Tigas.
From the testimony of Maria Paulino we quote:
Q. You said that you are ten years old, do you know what is the meaning of
telling a lie? — A. I do not know.
Q. Do you know the difference between falsity and truth? — A. I do not know.
xxx xxx xxx
Q. Do you know how to read? — What, Sir?
Q. How to read. — A. No, Sir.
Q. Do you know how to pray? — A. I forgot how to pray."(Pages 44 and 45,
t.s.n.)
From the testimony of Clarita Perez, we quote:
Q. Please state your name and your personal circumstances. — A. Clarita Perez,
10 years of age, and resident of the Sitio of Banaban.
Q. What town? — A. I do not know.
JUDGE NEPOMUCENO:
Q. Is Banaban a sitio in the town of Malolos, or Quiñgua, or Bigaa? — A. I do
not know, sir.
Q. You do not know? — A. I do not know, sir.
JUDGE ABAD SANTOS:
Q. What province? — A. I do not know, sir. (Page 4, t.s.n.)
Witness Policarpio Tigas, municipal policeman, testified that about sixty persons,
including his sister Eufemia, were killed in Banaban, but he was not killed "because I
was with my guerrilla outfit then." He saw the killing "because on the 29th day of
January, I came down from the mountains and went to the barrio to see my family
to take them away from the place, but upon arriving there I saw that the people
were being gathered and placed behind the chapel. After placing the people behind
the chapel I saw the massacre of the group begun. In my interest to ascertain the
fate of my sister and so that I would not be seen, I crept to a creek and stayed there
to find out what would be the end of it all. While I was thus hiding in that creek I
saw my sister killed by Pedro Manayao, the painter. After that, convinced of the
fate of my sister and knowing the one who killed her was Pedro Manayao, and
because I was afraid that if I stayed there longer I might be caught by the people
and knowing that if I would be caught I would also be killed, I left the place." (Page
102, t.s.n.) He was fifty meters away from the place of the massacre. "The dead
bodies were burned. I left to go to the mountains. I first put my mother in a safe
place, and after that I joined my companions and together we returned to the
town." Eufemia "was buried by my father" on the "second day after the killing". (P.
103, t.s.n.)
The above are the facts testified in the direct testimony of the witness. That he
should come from the mountains and arrive at the place at the very instant when
the massacre was about to be executed; that he should have remained hidden in a
creek, fifty meters away, to find out the final fate of his sister; that, instead of
remaining to witness the gory scene, he did not depart to call his co-guerrilleros
who, according to him, were well armed, in order to attack the mass killers and try
21
to save those who were gathered to be killed; that he left precisely after he saw his
sister decapitated, notwithstanding which he testified that the corpses were burned
but that the body of his sister was buried by his father the day after the killing, —
these, besides other details, are things that lead us to doubt the veracity of the
testimony of this witness, thus leaving to be considered only the testimonies of the
two girls.
Although we are inclined to believe that the appellant must have been seen by the
two girls at the place of the massacre in the company of the Japanese, we cannot
reconcile ourselves in believing all the details as narrated by them, so as to justify
the inflicting of the supreme penalty upon appellant. Although we are constrained
to believe in the substantial truthfulness of the two grills, considering their tender
age which makes them highly susceptible to suggestions, and the additional
significant fact that Maria Paulino does not know "the meaning of telling a lie" nor
"the difference between falsity and truth," and history and experience have time
and again shown that human fallibility is more pronounced in children of tender
age, we vote for the modification of the appealed decision in the sense that
appellant be sentenced to reclusion perpetua.
G.R. No. L-856 April 18, 1949
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SUSANO PEREZ (alias KID PEREZ), defendant-appellant.
Crispin Oben and Isidro Santiago for appellant.
Assistance Solicitor General Manuel P. Barcelona and Solicitor Esmeraldo Umali for
appellee.
TUASON, J.:
Susano Perez alias Kid Perez alias Kid Perez was convicted of treason by the 5th
Division of the People's Court sitting in Cebu City and sentenced to death by
electrocution.
Seven counts were alleged in the information but the prosecution offered evidence
only on counts 1, 2, 4, 5 and 6, all of which, according to the court, were
substantiated. In a unanimous decision, the trial court found as follows:
"As regards count No. 1 —
Count No. 1 alleges that the accused, together with the other Filipinos,
recruited, apprehended and commandeered numerous girls and women
against their will for the purpose of using them, as in fact they were used, to
satisfy the immoral purpose and sexual desire of Colonel Mini, and among such
unfortunate victims, were Felina Laput, Eriberta Ramo alias Miami Ramo,
Eduarda Daohog, Eutiquia Lamay, Feliciana Bonalos and Flaviana Bonalos.
It would be unnecessary to recite here the testimonies of all the victims of the
accused; it sufficient to reproduce here succinctly the testimony of Eriberta
Ramo. She testified that on June 15, 1942, the accused came to her house to
get her and told her that she was wanted in the house of her aunt, but instead,
she was brought to the house of the Puppet Governor Agapito Hontanosas;
that she escaped and returned to Baclayon her hometown; that the accused
came again and told her that Colonel Mini wanted her to be his Information
Clerk; that she did not accept the job; that a week later the accused came to
Baclayon to get her, and succeeded in taking some other girls Puppet Governor
Agapito Hontanosas; that Governor Hontanosas told her that Colonel Mini
wanted her to be his wife; that when she was brought to Colonel Mini the
latter had nothing on but a "G" string; that he, Colonel Mini threatened her
with a sword tied her to a bed and with force succeeded in having carnal
knowledge with her; that on the following night, again she was brought to
Colonel Mini and again she was raped; that finally she was able to escape and
stayed in hiding for three weeks and only came out from the hiding when
Colonel Mini left Tagbilaran.
"As regards count No. 2 —
Count No. 2 of the information substantially alleges: That accused in company
with some Japanese and Filipinos took Eriberta Ramo and her sister Cleopatra
Ramo from their home in Baclayon to attend a banquet and a dance organized
in honor of Colonel Mini by the Puppet Governor, Agapito Hontanosas in order
that said Japanese Colonel might select those first who would later be taken to
satisfy his carnal appetite and that by means of threat, force and intimidation,
the above mentioned two sister were brought to the headquarters of the
Japanese Commander at the Mission Hospital in Tagbilaran where Eriberta
Ramo was forced to lived a life of shame. All these facts alleged in count No. 2
were testified to by said witnesses Eriberta Ramo her mother Mercedes de
Ramo. It is not necessary here to recite once more their testimony in support of
the allegations in court No. 2; this Court is fully convinced that the allegation in
said count No. 2 were fully substantiated by the evidence adduced.
"As regards count No. 4 —
Count No. 4 substantially alleges that on July 16, 1942, the two girls named
Eduardo S. Daohog and Eutiquia Lamay, were taken from their homes in
Corella, Bohol, by the accused and his companion named Vicente Bullecer, and
22
 delivered to the Japanese Officer, Dr. Takibayas to satisfy his carnal appetite,
but these two, the accused Susano Perez and his companion Vicente Bullecer,
before delivering them to said Japanese Officer, satisfied first their lust; the
accused Susano Perez raping Eduarda S. Daohog and his companion, Vicente
Bullecer, the other girl Eutiquia Lamay. Eduarda S. Daohog, testifying, said: that
while on the way to Tagbilaran, the accused though force and intimidation,
raped her in an uninhabited house; that she resisted with all her force against
the desire of the accused, but of no avail; that upon arriving in Tagbilaran, she
was delivered to the Japanese Officer named Takibayas who also raped her.
Eutiquia Lamay testified that on July 16, 1942, the accused and his companion,
Bullecer, went to her house to take her and her sister; that her sister was then
out of the house; that the accused threatened her with a revolved if she
refuses to go; that she was placed in a car where Eduarda Daohog was; that
while they were in the car, the accused carried Eduarda out of the car, and
their companion Bullecer took the other witness (Eutiquia Lamay); that when
the accused and Eduarda returned to the car, the latter; Eduarda, covered her
face, crying; that later, she and Eduarda were taken to the Governor's house;
that on arriving and in the presence of the Puppet Governor Hontanosas, the
Governor exclaimed: "I did not call for these girls": but the accused replied
saying: "These girls talked bad against the Japanese , and that is why we
arrested them"; that the said Governor Hontañosas then, said: "Take them to
the Japanese "; that the accused and Bullecer brought the two girls to the
Japanese headquarters; that Eduarda was taken to one room by the Japanese
Captain called Dr. Takibayas, and she (Eutiquia Lamay) was taken to another
room by another Japanese living in that house; that she was raped by that Jap
while in the room; that she resisted all she could, but of no avail.
In the light of the testimonies of these two witnesses, Eduarda S. Daohog and
Eutiquia Lamay, all the allegations in Court No. 4 were fully proven beyond
reasonable doubt.
"As regards count No. 5 —
Count No. 5 alleges: That on or about June 4, 1942, the said accused
commandeered Feliciana Bonalos and her sister Flaviana Bonalos on the
pretext that they were to bee taken as witnesses before a Japanese Colonel in
the investigation of a case against a certain Chinese (Insik Eping), and
uponarriving at Tagbilaran, Bohol, the accused brought the aforesaid two girls
to the residence of Colonel Mini, Commander of the Japanese Armed Forces in
Bohol and by means of violence threat and intimidation, said Japanese Colonel
abused and had sexual intercourse with Flaviana Bonalos; that the accused
subsequently of Colonel Mini and through violence, threat and intimidation,
succeeded in having carnal knowledge with her against her will; that two days,
later, upon the pretext of conducting the unfortunate girls to their home, said
accused brought the other girls Feliciana Bonalos to a secluded place in
Tagbilaran, Bohol, and in the darkness, by mean of threat and violence had
carnal knowledge with her against her will.
Feliciana Bonalos testifying in this count, declared that the accused came to get
her on the pretext that she was to be used as witness in a case affecting certain
Chinaman before Colonel Mini; that she and her younger sister Flaviana were
brought in a car driven by the accused; they were brought to the house of
Colonel Mini; that sister Flaviana was conducted into a room and after
remaining in the same for about an hour, she came out with her hair and her
dress in disorder; that Flaviana told her immediately that she was raped against
her will by Colonel Mini; that she (Feliciana), after leaving the residence of said
Jap officer, was taken by Perez to an uninhabited house and there by threat
and intimidation, the accused succeeded in raping her; that when she returned
to her (the witness), Flaviana was crying; that the following day while
conducting the two girls back to their hometown, she (Feliciana) was also raped
by the accused in an uninhabited house, against her will.
Victoriana Arayan (mother of Feliciana and Flaviana Bonalos) testified as
following: That on June 15, 1942, the accused came and told her that the
Japanese needed her daughters to be witnesses; that accordingly, he
daughters, under that understanding, started for Tagbilaran; that later, she
went to Tagbilaran to look for her daughters and she found them in the office
of the Puppet Governor; that on seeing her, both daughters wept and told her
that they were turned over to the Japanese and raped them; that her daughter
Flaviana told her (the witness) that after the Japanese had raped her the
accused also raped her (Flaviana) in an uninhabited house; that the accused did
not permit her two daughter to return home on the pretext that the Puppet
Governor was then absent and in the meanwhile they stayed in the house of
the accused Perez; that when her daughter returned to her house ultimately,
they related to her (mother) what happened; that both daughters told her they
would have preferred death rather than to have gone to Tagbilaran; that
Feliciana told her (the mother) that the accused had raped her.
The information give by Feliciana to her mother is admitted in evidence as a
part of the res gestae regardless of the time that had elapsed between the
occurrence and the time of the information. In the manner these two witnesses
testified in court, there could be no doubt that they were telling the absolute
truth. It is hard to conceived that these girls would assume and admit the
ignominy they have gone through if they were not true. The Court is fully
convinced that all the allegations contained in Court No. 5 have been proven by
the testimonies of these two witnesses beyond reasonable doubt.
23
"As regards count No. 6 —
Count No. 6, alleges: That the accused, together with his Filipino companion
apprehended Natividad Barcinas, Nicanora Ralameda and Teotima Barcinas,
nurses of the provincial hospital, for not having attended a dance and reception
organized by the Puppet Governor in honor of Colonel Mini and other Japanese
high ranking officers, which was held in Tagbilaran market on June 25, 1942;
that upon being brought the Puppet Governor, they were severely
reprimanded by the latter; that on July 8, 1942, against said nurses were forced
to attend another banquet and dance in order that the Jap officers Mini and
Takibayas might make a selection which girls would suit best their fancy; that
the real purpose behind those forcible invitations was to lure them to the
residence of said Japanese Officer Mini for immoral purposes.
Natividad Barcinas, a Lieutenant of the P.A., testified at length. She declared:
That on June 29, 1942, she and companion nurses, saw the accused coming to
the hospital with a revolver and took them on a car to the office of the Puppet
Governor where they were severely reprimanded by the latter for not
attending the dance held on June and receptions was to select from among
them the best girl that would suit the fancy of Colonel Mini for immoral
purposes that she and her companions were always afraid of the accused Perez
whenever he came to said hospital; that on one occasion, one of the nurses on
perceiving the approach of the accused, ran up into her room, laid down on
bed and simulated to be sick; that said accused, not satisfied, went up into the
room of that particular nurse and pulled out the blanket which covered her and
telling her that it was only her pretext that she was sick.
The testimony of Lt. Natividad Barcinas is fully corroborated by that of Nicanora
Ralameda. Said testimony need not be reproduced here.
In a carefully written brief for the appellant these findings are not questioned, but it
is contended that the deeds committed by the accused do not constitute treason.
The Solicitor General submits the opposite view, and argues that "to maintain and
preserve the morale of the soldiers has always been, and will always be, a
fundamental concern of army authorities, for the efficiency of rests not only on its
physical attributes but also, mainly, on the morale of its soldiers" (citing the annual
report of the Chief of Staff, United State Army, for the fiscal year ending June 30,
1933).
If furnishing women for immoral purposes to the enemies was treason because
women's company kept up their morale, so fraternizing with them, entertaining
them at parties, selling them food and drinks, and kindred acts, would be treason.
For any act of hospitality without doubt produces the same general result. yet by
common agreement those and similar manifestation of sympathy and attachment
are not the kind of disloyalty that are punished as treason.
In a broad sense, the law of treason does not prescribe all kinds of social, business
and political intercourse between the belligerent occupants of the invaded country
and its inhabitants. In the nature of things, the occupation of a country by the
enemy is bound to create relations of all sorts between the invaders and the
natives. What aid and comfort constitute treason must depend upon their nature
degree and purpose. To draw a line between treasonable and untreasonable
assistance is not always easy. The scope of adherence to the enemy is
comprehensive, its requirement indeterminate as was said Cramer vs. United
States. 89 Law. ed., 1441.
As general rule, to be treasonous the extent of the aid and comfort given to the
enemies must be to render assistance to them as enemies and not merely as
individuals and in addition, be directly in furtherance of the enemies' hostile
designs. To make a simple distinction: To lend or give money to an enemy as a
friend or out of charity to the beneficiary so that he may buy personal necessities is
to assist him as individual and is not technically traitorous. On the other hand, to
lend or give him money to enable him to buy arms or ammunition to use in waging
war against the giver's country enhance his strength and by same count injures the
interest of the government of the giver. That is treason. (See United
States vs. Fricke, 259 F., 673; 63 C.J., 816, 817.)
Applying these principles to the case at bar, appellant's first assignment of error is
correct. His "commandeering" of women to satisfy the lust of Japanese officers or
men or to enliven the entertainment held in their honor was not treason even
though the women and the entertainment helped to make life more pleasant for
the enemies and boost their spirit; he was not guilty any more than the women
themselves would have been if they voluntarily and willingly had surrendered their
bodies or organized the entertainment. Sexual and social relations with the
Japanese did not directly and materially tend to improve their war efforts or to
weaken the power of the United State. The acts herein charged were not, by fair
implication, calculated to strengthen the Japanese Empire or its army or to cripple
the defense and resistance of the other side. Whatever favorable effect the
defendant's collaboration with the Japanese might have in their prosecution of the
war was trivial, imperceptible, and unintentional. Intent of disloyalty is a vital
ingredient in the crime of treason, which, in the absence of admission, may be
gathered from the nature and circumstances of each particular case.
But the accused may be punished for the rape of Eriberta Ramo, Eduarda Daohog,
Eutiquia Lamay and Flaviana Bonalos as principal by direct participation. Without
24
his cooperation in the manner above stated, these rapes could not have been
committed.
Conviction of the accused of rapes instead of treason finds express sanction in
section 2 of Commonwealth Act No. 682, which says:
Provided further, That where, in its opinion, the evidence is not sufficient to
support the offense (treason) charged, the People's Court may, nevertheless,
convict and sentence the accused for any crime included in the acts alleged in
the information and established by the evidence.
All the above mentioned rapes are alleged in the information and substantiated by
the evidence.
Counsel assails the constitutionality of this of his provision as violative of section 1,
paragraph 17, Article III of the Constitution, which guarantees to an accused the
right "to be informed of the nature and cause of the accusation against him." The
contention is not well taken. The provision in requires that the private crimes of
which an accused of treason may be convicted must be averred in the information
and sustained by evidence. In the light of this enactment, the defendant was
warned of the hazard that he might be founded guilty of rapes if he was innocent of
treason and thus afforded an opportunity to prepare and meet them. There is no
element of surprise or anomaly involved. In facts under the general law of criminal
procedure convicted for crime different from that designated in the complaint or
information is allowed and practiced, provided only that such crime "is included or
described in the body of the information, and afterwards justified by the proof
presented during the trial." (People vs. Perez, 45 Phil., 599.)
The defendant personally assaulted and abused two of the offended girls but these
assaults are not charged against him and should be ruled out. The crime of coercion
alleged and founded on count No. 6. need not be noticed in view of the severity of
the penalty for the other crimes which he must suffer.
We find the defendant guilty of four separate crimes of rape and sentence him for
each of them to an indeterminate penalty of from 10 year of prision mayor to 17
year and 4 months of reclusion temporal, with the accessories of law, to indemnify
each of the offended women in the sum of P3,000, and to pay the costs; it being
understood that the total duration of these penalties shall not exceed forty years.
Moran, C.J., Feria, Perfecto, Bengzon, Briones and Reyes, JJ., concur.
Paras, J., reserves his vote.
Montemayor, J., concurs in the result.
Separate Opinions
PABLO, M., disidente:
I disagree. In my opinion, the proven facts constitute a crime of treason.
The defendant of good reputation in Bohol to make them available to the officers of
the enemy army, has helped them in the work of destruction. In war, destruction is
used for triumph, and destruction is done in things and in people. To disable for
work or for war the inhabitants of the invaded country is to destroy them to a
greater or lesser degree and to violate or dishonor women, also to destroy them
materially and morally and it is even worse than to kill and annihilate. In the present
case, the defendant helped Colonel Mini and Dr. Takibayas in dishonoring several
senoritas, putting them in a worse situation than that of the slaves. If the
recruitment of men or women to be forced to build trenches for the invading army
constitutes a crime of treason; if seizing the citizens' rice in their homes to give it to
the hungry soldiers of the Japanese army is treason; Why should not recruiting
senoritas be used by enemies in their bestial desires, as a means of entertainment
or relief of their jobs? Flaviana and Feliciana Bonalos, illegally arrested and then
handed over to the two beast officers, in their statement, have said that they would
have preferred to die than to be raped.
The argument of the Attorney General, which deserves serious consideration, is the
following tenor:
In the United States Army, and we believe this is also true in the Imperial Japanese
Forces, a unit known as the United Services Organization (U.S.O.) functions with the
primordial aim and view to keep at peak of the morale of the soldiers. To achieve
this, varied forms of entertainment like movies, dancer, stage show and the like are
provided for at an enormous expense. In fine, the soldiers are surrounded with all
the comfort and opportunities that they ordinarily enjoy in their civilian life. The
reason for this is to their nerves and minimized as much as possible, they heavy
strain on them incident to the nature of their mission in time of war. Such
entertainment because the more imperative when it comes to soldiers who are
assigned overseas, in a foreign soil, in a no man's land, a devour of the inspiring
association of their families, girl friends and those dearest to them.
. . . Clearly, therefore, appellant provident them with what should have been the
burden of the Imperial Japanese Forces, relieving the latter of the trouble, expense,
and difficulty of sending over to these Islands Japanese women to entertain their
soldiers to bolster up their morale. In other words, the services of the Japanese
women who were replaced by ours, through the efforts of the appellant could be
diverted to other important phases of military activities either in the homeland or in
this sector. Hence, the aid and comfort to the enemy is evident.
25
If Colonel Mini and Dr. Takibayas of the Japanese army did not find another
consolation or solace to forget their worries and cruelties more than satiate their
lust, then to provide them women against their will is to help them recover lost
enthusiasms and give them new vigor to continue the war of conquest. Well known
is that the soldiers are not steel machines that can be fighting every day every day;
they need time to rest to recover lost strengths, to entertain themselves to forget
lugubrious thoughts and frank recreation to invigorate their spirit. If for Colonel
Mini and Dr. Takibayas, raping the ladies recruited by the accused was good
compensation for their military efforts, then it is worthwhile for them to expose life
in the luncha because after all they are well compensated. What greater
satisfaction for them as to freely enjoy the senoritas of the province with the help
of the accused? Poresa satisfaction, they would redouble their conquest efforts to
have other opportunities to satiate their bestial appetites. Under such morbid
inclinations, to give them entertainment, solace and recreation is to help them in
war.
It is no exaggeration to suppose that these Japanese officers have left children,
wives and mothers in their country whom they love dearly, and in their moments of
loneliness, sadness and nostalgia it is not impossible for them to remember them
and to say for themselves : "What do we get out of this war of invasion, leaving our
children, our children, our families and our abandoned homes just to satisfy the
emperor's ambitions of conquest? Every time we realize that we are nothing more
than simple instruments to sacrifice So many lives and haciendas for the
boastfulness of Japan, conscience revolts, we believe that war is wicked, unjust: we
must abandon it, we must not continue to invade territories. " If these thoughts
persisted in the minds of said officers, they would undoubtedly lose
G.R. No. L-399 January 29, 1948
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDUARDO PRIETO (alias EDDIE VALENCIA), defendant-appellant.
Alfonso E. Mendoza for appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Isidro C. Borromeo
for appellee.
TUASON, J.:
The appellant was prosecuted in the People's Court for treason on 7 counts. After
pleading not guilty he entered a plea of guilty to counts 1, 2, 3 and 7, and
maintained the original plea to counts 4, 5, and 6. The special prosecutor
introduced evidence only on count 4, stating with reference to counts 5 and 6 that
he did not have sufficient evidence to sustain them. The defendant was found guilty
on count 4 as well as counts 1, 2, 3, and 7 and was sentenced to death and to pay
the fine of P20,000.
Two witnesses gave evidence on count 4 but their statements do not coincide on
any single detail. Juanito Albano, the first witness, testified that in March, 1945, the
accused with other Filipino undercovers and Japanese soldiers caught an American
aviator and had the witness carry the American to town on a sled pulled by a
carabao; that on the way, the accused walked behind the sled and asked the
prisoner if the sled was faster than the airplane; that the American was taken to the
Kempetai headquarters, after which he did not know what happened to the flier.
Valentin Cuison, the next witness, testified that one day in March, 1945, he saw the
accused following an American and the accused were Japanese and other Filipinos.
These witnesses evidently referred to two different occasions. The last witness
stated that the American was walking as well as his captors. And there was no sled,
he said, nor did he see Juanito Albano, except at night when he and Albano had a
drink of tuba together.
This evidence does not testify the two-witness principle. The two witnesses failed to
corroborate each other not only on the whole overt act but on any part of it.
(People vs. Adriano, 44 Off. Gaz., 4300; Cramer vs. U. S., 65 S. Ct. 918.)
The lower court believes that the accused is "guilty beyond reasonable doubt of the
crime of treason complexed by murder and physical injuries," with "the aggravating
circumstances mentioned above." Apparently, the court has regarded the murders
and physical injuries charged in the information, not only as crimes distinct from
treason but also as modifying circumstances. The Solicitor General agrees with the
decision except as to technical designation of the crime. In his opinion, the offense
committed by the appellant is a "complex crime of treason with homicide."
Counts 1, 2, 3 and 7 are as follows:
26
1. On or about October 15, 1944, in the municipality of Mandaue, Province 7. In or about November 16, 1944, in Mandaue, in conspiracy with the
of Cebu, Philippines, said accused being a member of the Japanese Military enemy and other Filipinos undercovers, said accused did cause the torture
Police and acting as undercover man for the Japanese forces with the of Antonio Soco and the killing of Gil Soco for guerrilla activities.
purpose of giving and with the intent to give aid and comfort to the enemy
The execution of some of the guerrilla suspects mentioned in these counts and the
did, then and there wilfully, unlawfully, feloniously and treasonably lead,
infliction of physical injuries on others are not offenses separate from treason.
guide and accompany a patrol of Japanese soldiers and Filipino
Under the Philippine treason law and under the United States constitution defining
undercovers to the barrio of Poknaon, for the purpose of apprehending
treason, after which the former was patterned, there must concur both adherence
guerrillas and locating their hideouts; that said accused and his
to the enemy and giving him aid and comfort. One without the other does not make
companions did apprehended Abraham Puno, tie his hands behind him
treason.
and give him fist blows; thereafter said Abraham Puno was taken by the
accused and his Japanese companions to Yati, Liloan, Cebu, where he was In the nature of things, the giving of aid and comfort can only be accomplished by
severely tortured by placing red hot iron on his shoulders, legs and back some kind of action. Its very nature partakes of a deed or physical activity as
and from there he was sent back to the Japanese detention camp in opposed to a mental operation. (Cramer vs. U.S., ante.) This deed or physical
Mandaue and detained for 7 days; activity may be, and often is, in itself a criminal offense under another penal statute
or provision. Even so, when the deed is charged as an element of treason it
2. On or about October 28, 1944, in the municipality of Mandaue, Province
becomes identified with the latter crime and can not be the subject of a separate
of Cebu, Philippines, said accused acting as an informer and agent for the
punishment, or used in combination with treason to increase the penalty as article
Japanese Military Police, with the purpose of giving and with the intent to
48 of the Revised Penal Code provides. Just as one can not be punished for
give aid and comfort to the enemy, did, the, and there willfully, unlawfully,
possessing opium in a prosecution for smoking the identical drug, and a robber
feloniously and treasonably lead, guide and accompany a group of Filipino
cannot be held guilty of coercion or trespass to a dwelling in a prosecution for
undercovers for the purpose of apprehending guerrillas and guerrilla
robbery, because possession of opium and force and trespass are inherent in
suspects; that the herein accused and his companions did in fact
smoking and in robbery respectively, so may not a defendant be made liable for
apprehend Guillermo Ponce and Macario Ponce from their house; that said
murder as a separate crime or in conjunction with another offense where, as in this
accused and his companions did tie the hands of said Guillermo Ponce and
case, it is averred as a constitutive ingredient of treason. This rule would not, of
Macario Ponce behind their backs, giving them first blows on the face and
course, preclude the punishment of murder or physical injuries as such if the
in other parts of the body and thereafter detained them at the Kempei Tai
government should elect to prosecute the culprit specifically for those crimes
Headquarters; that Guillermo Ponce was released the following day while
instead on relying on them as an element of treason. it is where murder or physical
his brother was detained and thereafter nothing more was heard of him
injuries are charged as overt acts of treason that they can not be regarded
nor his whereabouts known;
separately under their general denomination.
3. Sometime during the month of November, 1944, in the Municipality of
However, the brutality with which the killing or physical injuries were carried out
Mandaue, Province of Cebu, Philippines, for the purpose of giving and with
may be taken as an aggravating circumstance. Thus, the use of torture and other
the intent to give aid and comfort to the enemy and her military forces,
atrocities on the victims instead of the usual and less painful method of execution
said accused acting as an enemy undercover did, then and there wilfully,
will be taken into account to increase the penalty under the provision of article 14,
unlawfully, feloniously, and treasonably lead, guide and accompany a
paragraph 21, of the Revised Penal Code, since they, as in this case, augmented the
patrol of some 6 Filipinos and 2 Japanese soldiers to barrio Pakna-an,
sufferings of the offended parties unnecessarily to the attainment of the criminal
municipality of Mandaue for the purpose of apprehending guerrillas and
objective.
guerrilla suspects, and said patrol did in fact apprehend as guerrilla
suspects Damian Alilin and Santiago Alilin who were forthwith tied with a This aggravating circumstance is compensated by the mitigating circumstance of
rope, tortured and detained for 6 days; that on the 7th day said Damian plea of guilty. it is true that the accused pleaded not guilty to counts 4, 5 and 6 but
Alilin and Santiago Alilin were taken about 1/2 kilometer from their home count 4 has not be substantiated while counts 5 and 6 were abandoned.
and the accused did bayonet them to death;
In this first assignment of error, counsel seeks reversal of the judgment because of
the trial court's failure to appoint "another attorney de oficio for the accused in

27
spite of the manifestation of the attorney de oficio (who defended the accused at
the trial) that he would like to be relieved for obvious reasons."
The appellate tribunal will indulge reasonable presumptions in favor of the legality
and regularity of all the proceedings of the trial court, including the presumption
that the accused was not denied the right to have counsel. (U.S. vs. Labial, 27 Phil.,
82.) It is presumed that the procedure prescribed by law has been observed unless
it is made to appear expressly to the contrary. (U.S. vs. Escalante, 36 Phil., 743.) The
fact that the attorney appointed by the trial court to aid the defendant in his
defense expressed reluctance to accept the designation because, as the present
counsel assumes, he did not sympathize with the defendant's cause, is not
sufficient to overcome this presumption. The statement of the counsel in the court
below did no necessarily imply that he did not perform his duty to protect the
interest of the accused. As a matter of fact, the present counsel "sincerely believes
that the said Attorney Carin did his best, although it was not the best of a willing
worker." We do not discern in the record any indication that the former counsel did
not conduct the defense to the best of his ability. if Attorney Carin did his best as a
sworn member of the bar, as the present attorney admits, that was enough; his
sentiments did not cut any influence in the result of the case and did not imperil the
rights of the appellant.
In conclusion, we find the defendant not guilty of count 4 and guilty of treason as
charged in counts 1,2,3 and 7. There being an aggravating circumstance, the penalty
to be imposed is reclusion perpetua. The judgment of the lower court will be
modified in this respect accordingly. In all other particulars, the same will be
affirmed. it is so ordered, with costs of this instance against the appellant.
G.R. No. L-477 June 30, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
APOLINARIO ADRIANO, defendant-appellant.
Remedios P. Nufable for appellant.
Assistant Solicitor General Kapunan, Jr., and Solicitor Lacson for appellee.
TUASON, J.:
This is an appeal from a judgment of conviction for treason by the People's Court
sentencing the accused to life imprisonment, P10,000 fine, and the costs.
The information charged:
That between January and April, 1945 or thereabout, during the occupation of
the Philippines by the Japanese Imperial Forces, in the Province of Nueva Ecija
and in the mountains in the Island of Luzon, Philippines, and within the
jurisdiction of this Court, the above-named accused, Apolinario Adriano, who is
not a foreigner, but a Filipino citizen owing allegiance to the United States and
the Commonwealth of the Philippines, in violation of said allegiance, did then
and there willfully, criminally and treasonably adhere to the Military Forces of
Japan in the Philippines, against which the Philippines and the United States
were then at war, giving the said enemy aid and comfort in the manner as
follows:
That as a member of the Makapili, a military organization established and
designed to assist and aid militarily the Japanese Imperial forces in the
Philippines in the said enemy's war efforts and operations against the United
States and the Philippines, the herein accused bore arm and joined and assisted
the Japanese Military Forces and the Makapili Army in armed conflicts and
engagements against the United States armed forces and the Guerrillas of the
Philippine Commonwealth in the Municipalities of San Leonardo and Gapan,
Province of Nueva Ecija, and in the mountains of Luzon, Philippines, sometime
between January and April, 1945. Contrary to Law.
The prosecution did not introduce any evidence to substantiate any of the facts
alleged except that of defendant's having joined the Makapili organization. What
the People's Court found is that the accused participated with Japanese soldiers in
certain raids and in confiscation of personal property. The court below, however,
said these acts had not been established by the testimony of two witnesses, and so
regarded them merely as evidence of adherence to the enemy. But the court did
find established under the two-witness rule, so we infer, "that the accused and
other Makapilis had their headquarters in the enemy garrison at Gapan, Nueva
Ecija; that the accused was in Makapili military uniform; that he was armed with
rifle; and that he drilled with other Makapilis under a Japanese instructor; . . . that
28
during the same period, the accused in Makapili military uniform and with a rifle,
performed duties as sentry at the Japanese garrison and Makapili headquarters in
Gapan, Nueva Ecija;" "that upon the liberation of Gapan, Nueva Ecija, by the
American forces, the accused and other Makapilis retreated to the mountains with
the enemy;" and that "the accused, rifle in hand, later surrendered to the
Americans."
Even the findings of the court recited above in quotations are not borne out by the
proof of two witnesses. No two of the prosecution witnesses testified to a single
one of the various acts of treason imputed by them to the appellant. Those who
gave evidence that the accused took part in raids and seizure of personal property,
and performed sentry duties and military drills, referred to acts allegedly
committed on different dates without any two witnesses coinciding in any one
specified deed. There is only one item on which the witnesses agree: it is that the
defendant was a Makapili and was seen by them in Makapili uniform carrying arms.
Yet, again, on this point it cannot be said that one witness is corroborated by
another if corroboration means that two witnesses have seen the accused doing at
least one particular thing, it a routine military chore, or just walking or eating.
We take it that the mere fact of having joined a Makapili organization is evidence of
both adherence to the enemy and giving him aid and comfort. Unless forced upon
one against his will, membership in the Makapili organization imports treasonable
intent, considering the purposes for which the organization was created, which,
according to the evidence, were "to accomplish the fulfillment of the obligations
assumed by the Philippines in the Pact of Alliance with the Empire of Japan;" "to
shed blood and sacrifice the lives of our people in order to eradicate Anglo-Saxon
influence in East Asia;" "to collaborate unreservedly and unstintedly with the
Imperial Japanese Army and Navy in the Philippines;" and "to fight the common
enemies." Adherence, unlike overt acts, need not be proved by the oaths of two
witnesses. Criminal intent and knowledge may be gather from the testimony of one
witness, or from the nature of the act itself, or from the circumstances surrounding
the act. (Cramer vs. U.S., 65 Sup. Ct., 918.)
At the same time, being a Makapili is in itself constitutive of an overt act. It is not
necessary, except for the purpose of increasing the punishment, that the defendant
actually went to battle or committed nefarious acts against his country or
countrymen. The crime of treason was committed if he placed himself at the
enemy's call to fight side by side with him when the opportune time came even
though an opportunity never presented itself. Such membership by its very nature
gave the enemy aid and comfort. The enemy derived psychological comfort in the
knowledge that he had on his side nationals of the country with which his was at
war. It furnished the enemy aid in that his cause was advanced, his forces
augmented, and his courage was enhanced by the knowledge that he could count
on men such as the accused and his kind who were ready to strike at their own
people. The principal effect of it was no difference from that of enlisting in the
invader's army.
But membership as a Makapili, as an overt act, must be established by the
deposition of two witnesses. Does the evidence in the present case meet this
statutory test? Is two-witness requirement fulfilled by the testimony of one witness
who saw the appellant in Makapili uniform bearing a gun one day, another witness
another day, and so forth?
The Philippine law on treason is of Anglo-American origin and so we have to look
for guidance from American sources on its meaning and scope. Judicial
interpretation has been placed on the two-witness principle by American courts,
and authoritative text writers have commented on it. We cull from American
materials the following excerpts which appear to carry the stamp of authority.
Wharton's Criminal Evidence, Vol. 3, section 1396, p. 2282, says:
In England the original Statute of Edward, although requiring both witnesses to
be to the same overt act, was held to mean that there might be one witness to
an overt act and another witness to another overt act of the same species of
treason; and, in one case it has been intimated that the same construction
might apply in this country. But, as Mr. Wigmore so succinctly observes: "The
opportunity of detecting the falsity of the testimony, by sequestering the two
witnesses and exposing their variance in details, is wholly destroyed by
permitting them to speak to different acts." The rule as adopted in this country
by all the constitutional provisions, both state and Federal, properly requires
that two witnesses shall testify to the same overt act. This also is now the rule
in England.
More to the point is this statement from VII Wigmore on Evidence, 3d ed., section
2038, p. 271:
Each of the witnesses must testify to the whole of the overt act; or, if it is
separable, there must be two witnesses to each part of the overt act.
Learned Hand, J., in United States vs. Robinson (D.C.S.D., N.Y., 259 Fed., 685),
expressed the same idea: "It is necessary to produce two direct witnesses to
the whole overt act. It may be possible to piece bits together of the overt act; but, if
so, each bit must have the support of two oaths; . . .." (Copied as footnote in
Wigmore on Evidence,ante.) And in the recent case of Cramer vs. United States (65
Sup. Ct., 918), decide during the recent World War, the Federal Supreme Court lays
down this doctrine: "The very minimum function that an overt act must perform in
a treason prosecution is that it shows sufficient action by the accused, in its setting,
to sustain a finding that the accused actually gave aid and comfort to the
enemy. Every act, movement, deed, and word of the defendant charged to
constitute treason must be supported by the testimony of two witnesses."
29
In the light of these decisions and opinions we have to set aside the judgment of
the trial court. To the possible objection that the reasoning by which we have
reached this conclusion savors of sophism, we have only to say that the authors of
the constitutional provision of which our treason law is a copy purposely made
conviction for treason difficult, the rule "severely restrictive." This provision is so
exacting and so uncompromising in regard to the amount of evidence that where
two or more witnesses give oaths to an overt act and only one of them is believed
by the court or jury, the defendant, it has been said and held, is entitled to
discharge, regardless of any moral conviction of the culprit's guilt as gauged and
tested by the ordinary and natural methods, with which we are familiar, of finding
the truth. Natural inferences, however strong or conclusive, flowing from other
testimony of a most trustworthy witness or from other sources are unavailing as a
substitute for the needed corroboration in the form of direct testimony of another
eyewitness to the same overt act.
The United States Supreme Court saw the obstacles placed in the path of the
prosecution by a literal interpretation of the rule of two witnesses but said that the
founders of the American government fully realized the difficulties and went ahead
not merely in spite but because of the objections. (Cramer vs. United States, ante.)
More, the rule, it is said, attracted the members of the Constitutional Convention
"as one of the few doctrines of Evidence entitled to be guaranteed against
legislative change." (Wigmore on Evidence, ante, section 2039, p. 272, citing
Madison's Journal of the Federal Convention, Scott's ed., II, 564, 566.) Mr. Justice
Jackson, who delivered the majority opinion in the celebrated Cramer case, said: "It
is not difficult to find grounds upon which to quarrel with this Constitutional
provision. Perhaps the farmers placed rather more reliance on direct testimony
than modern researchers in psychology warrant. Or it may be considered that such
a quantitative measure of proof, such a mechanical calibration of evidence is a
crude device at best or that its protection of innocence is too fortuitous to warrant
so unselective an obstacle to conviction. Certainly the treason rule, whether wisely
or not, is severely restrictive." It must be remembered, however, that the
Constitutional Convention was warned by James Wilson that "'Treason may
sometimes be practiced in such a manner, as to render proof extremely difficult —
as in a traitorous correspondence with an enemy.' The provision was adopted not
merely in spite of the difficulties it put in the way of prosecution but because of
them. And it was not by whim or by accident, but because one of the most
venerated of that venerated group considered that "prosecutions for treason were
generally virulent.'"
Such is the clear meaning of the two-witness provision of the American
Constitution. By extension, the lawmakers who introduced that provision into the
Philippine statute books must be understood to have intended that the law should
operate with the same inflexibility and rigidity as the American forefathers meant.
The judgment is reversed and the appellant acquitted with costs charged de oficio.
Moran, C.J., Feria, Pablo, Perfecto, Bengzon, Briones, Hontiveros, and Padilla,
JJ., concur.
Paras, J., concurs in the result.
Separate Opinions
HILADO, J., dissenting:
Being unable to bring myself agree with the majority upon the application of the
two-witness rule herein, I am constrained to dissent.
As I see it, being a member of the Makapili during the Japanese occupation of those
areas of the Philippines referred to in the information, was one single, continuous,
and indivisible overt act of the present accused whereby he gave aid and comfort to
the Japanese invaders. That membership was one and the same from the moment
he entered the organization till he was captured. The fact that he was seen on a
certain day by one of the state witnesses being a member of the Makapili, and was
seen by another state witness but on a different day being a member of the same
organization, does not mean that his membership on the first day was different or
independent from his membership on the other day — it was the selfsame
membership all the way through. A contrary construction would entail the
consequence that the instant defendant, if we are to believe the allegations and
proofs of the prosecution, became or was a member of the Makapili as many
times as there were days from the first to the last.
T.E. Holland defined "acts" in jurisprudence as follows:
Jurisprudence is concerned only with outward acts. An "act" may therefore be
defined . . . as "a determination of will, producing an effect in the sensible
world". The effect may be negative, in which case the act is properly described
as a "forbearance". The essential elements of such an act are there, viz., an
exercise of the will, an accompanying state of consciousness, a manifestation of
the will. (Webster's New International Dictionary, 2d ed., unabridged, p. 25.)
There can, therefore, be no question that being a member of the Makapili was an
overt act of the accused. And the fact that no two witnesses saw him being such a
member on any single day or on the selfsame occasion does not, in my humble
opinion, work against the singleness of the act, nor does the fact that no two
witnesses have testified to that same overt act being done on the same day or
occasion argue against holding the two-witness rule having been complied with.
My view is that, the act being single, continuous and indivisible, at least two
witnesses have testified thereto notwithstanding the fact that one saw it on one
day and the other on another day.
30
 G.R. No. 17958 February 27, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain
Avery and Captain Kidd and Bartholomew Roberts gripped the imagination, when
grostesque brutes like Blackbeard flourished, seem far away in the pages of history
and romance. Nevertheless, the record before us tells a tale of twentieth century
piracy in the south seas, but stripped of all touches of chivalry or of generosity, so
as to present a horrible case of rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta,
another Dutch possession. In one of the boats was one individual, a Dutch subject,
and in the other boat eleven men, women, and children, likewise subjects of
Holland. After a number of days of navigation, at about 7 o'clock in the evening, the
second boat arrived between the Islands of Buang and Bukid in the Dutch East
Indies. There the boat was surrounded by six vintas manned by twenty-four Moros
all armed. The Moros first asked for food, but once on the Dutch boat, too for
themselves all of the cargo, attacked some of the men, and brutally violated two of
the women by methods too horrible to the described. All of the persons on the
Dutch boat, with the exception of the two young women, were again placed on it
and holes were made in it, the idea that it would submerge, although as a matter of
fact, these people, after eleven days of hardship and privation, were succored
violating them, the Moros finally arrived at Maruro, a Dutch possession. Two of the
Moro marauder were Lol-lo, who also raped one of the women, and Saraw. At
Maruro the two women were able to escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu,
Philippine Islands. There they were arrested and were charged in the Court of First
Instance of Sulu with the crime of piracy. A demurrer was interposed by counsel de
officio for the Moros, based on the grounds that the offense charged was not within
the jurisdiction of the Court of First Instance, nor of any court of the Philippine
Islands, and that the facts did not constitute a public offense, under the laws in
force in the Philippine Islands. After the demurrer was overruled by the trial judge,
trial was had, and a judgment was rendered finding the two defendants guilty and
sentencing each of them to life imprisonment (cadena perpetua), to return together
with Kinawalang and Maulanis, defendants in another case, to the offended parties,
the thirty-nine sacks of copras which had been robbed, or to indemnify them in the
amount of 924 rupees, and to pay a one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by the attorney de
officio. By a process of elimination, however, certain questions can be quickly
disposed of.
The proven facts are not disputed. All of the elements of the crime of piracy are
present. Piracy is robbery or forcible depredation on the high seas, without lawful
authority and done animo furandi, and in the spirit and intention of universal
hostility.
It cannot be contended with any degree of force as was done in the lover court and
as is again done in this court, that the Court of First Instance was without
jurisdiction of the case. Pirates are in law hostes humani generis. Piracy is a crime
not against any particular state but against all mankind. It may be punished in the
competent tribunal of any country where the offender may be found or into which
he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial
limits. As it is against all so may it be punished by all. Nor does it matter that the
crime was committed within the jurisdictional 3-mile limit of a foreign state, "for
those limits, though neutral to war, are not neutral to crimes." (U.S. vs. Furlong
[1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision for
the first time is whether or not the provisions of the Penal Code dealing with the
crime of piracy are still in force. Article 153 to 156 of the Penal Code reads as
follows:
ART. 153. The crime of piracy committed against Spaniards, or the subjects of
another nation not at war with Spain, shall be punished with a penalty ranging
from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at
war with Spain, it shall be punished with the penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first paragraph of
the next preceding article shall suffer the penalty of cadena perpetua or death,
and those who commit the crimes referred to in the second paragraph of the
same article, from cadena temporal to cadena perpetua:
1. Whenever they have seized some vessel by boarding or firing upon the
same.
2. Whenever the crime is accompanied by murder, homicide, or by any of
the physical injuries specified in articles four hundred and fourteen and
31
 four hundred and fifteen and in paragraphs one and two of article four
hundred and sixteen.
3. Whenever it is accompanied by any of the offenses against chastity
specified in Chapter II, Title IX, of this book.
4. Whenever the pirates have abandoned any persons without means of
saving themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all others of this
code, when Spain is mentioned it shall be understood as including any part of
the national territory.
ART. 156. For the purpose of applying the provisions of this code, every person,
who, according to the Constitution of the Monarchy, has the status of a
Spaniard shall be considered as such.
The general rules of public law recognized and acted on by the United States
relating to the effect of a transfer of territory from another State to the United
States are well-known. The political law of the former sovereignty is necessarily
changed. The municipal law in so far as it is consistent with the Constitution, the
laws of the United States, or the characteristics and institutions of the government,
remains in force. As a corollary to the main rules, laws subsisting at the time of
transfer, designed to secure good order and peace in the community, which are
strictly of a municipal character, continue until by direct action of the new
government they are altered or repealed. (Chicago, Rock Islands, etc., R. Co. vs.
McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to the Philippines
by the Instructions of President McKinley of May 19, 1898, to General Wesley
Meritt, the Commanding General of the Army of Occupation in the Philippines,
when he said:
Though the powers of the military occupant are absolute and supreme, and
immediately operate upon the political condition of the inhabitants, the
municipal laws of the conquered territory, such as affect private rights of
person and property, and provide for the punishment of crime, are considered
as continuing in force, so far as they are compatible with the new order of
things, until they are suspended or superseded by the occupying belligerent;
and practice they are not usually abrogated, but are allowed to remain in force,
and to be administered by the ordinary tribunals, substantially as they were
before the occupations. This enlightened practice is so far as possible, to be
adhered to on the present occasion. (Official Gazette, Preliminary Number, Jan.
1, 1903, p. 1. See also General Merritt Proclamation of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with
piracy were meant to include the Philippine Islands. Article 156 of the Penal Code in
relation to article 1 of the Constitution of the Spanish Monarchy, would also make
the provisions of the Code applicable not only to Spaniards but to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing as
piracy by the civil law, and he has never been disputed. The specific provisions of
the Penal Code are similar in tenor to statutory provisions elsewhere and to the
concepts of the public law. This must necessarily be so, considering that the Penal
Code finds its inspiration in this respect in the Novelas, the Partidas, and
the Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall have the
power to define and punish piracies and felonies committed on the high seas, and
offenses against the law of nations. (U.S. Const. Art. I, sec. 8, cl. 10.) The Congress,
in putting on the statute books the necessary ancillary legislation, provided that
whoever, on the high seas, commits the crime of piracy as defined by the law of
nations, and is afterwards brought into or found in the United States, shall be
imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev.
Stat., sec. 5368.) The framers of the Constitution and the members of Congress
were content to let a definition of piracy rest on its universal conception under the
law of nations.
It is evident that the provisions of the Penal Code now in force in the Philippines
relating to piracy are not inconsistent with the corresponding provisions in force in
the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A
logical construction of articles of the Penal Code, like the articles dealing with the
crime of piracy, would be that wherever "Spain" is mentioned, it should be
substituted by the words "United States" and wherever "Spaniards" are mentioned,
the word should be substituted by the expression "citizens of the United States and
citizens of the Philippine Islands." somewhat similar reasoning led this court in the
case of United States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority"
as found in the Penal Code a limited meaning, which would no longer comprehend
all religious, military, and civil officers, but only public officers in the Government of
the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code would read
as follows:
32
 The crime of piracy committed against citizens of the United States and citizens
of the Philippine Islands, or the subjects of another nation not at war with the
United States, shall be punished with a penalty ranging from cadena temporal
to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at
war with the United States, it shall be punished with the penalty of presidio
mayor.
We hold those provisions of the Penal code dealing with the crime of piracy,
notably articles 153 and 154, to be still in force in the Philippines.
The crime falls under the first paragraph of article 153 of the Penal Code in relation
to article 154. There are present at least two of the circumstances named in the last
cited article as authorizing either cadena perpetua or death. The crime of piracy was
accompanied by (1) an offense against chastity and (2) the abandonment of persons
without apparent means of saving themselves. It is, therefore, only necessary for us
to determine as to whether the penalty of cadena perpetua or death should be
imposed. In this connection, the trial court, finding present the one aggravating
circumstance of nocturnity, and compensating the same by the one mitigating
circumstance of lack of instruction provided by article 11, as amended, of the Penal
Code, sentenced the accused to life imprisonment. At least three aggravating
circumstances, that the wrong done in the commission of the crime was
deliberately augmented by causing other wrongs not necessary for its commission,
that advantage was taken of superior strength, and that means were employed
which added ignominy to the natural effects of the act, must also be taken into
consideration in fixing the penalty. Considering, therefore, the number and
importance of the qualifying and aggravating circumstances here present, which
cannot be offset by the sole mitigating circumstance of lack of instruction, and the
horrible nature of the crime committed, it becomes our duty to impose capital
punishment.
The vote upon the sentence is unanimous with regard to the propriety of the
imposition of the death penalty upon the defendant and appellant Lo-lo (the
accused who raped on of the women), but is not unanimous with regard to the
court, Mr. Justice Romualdez, registers his nonconformity. In accordance with
provisions of Act No. 2726, it results, therefore, that the judgment of the trial court
as to the defendant and appellant Saraw is affirmed, and is reversed as to the
defendant and appellant Lol-lo, who is found guilty of the crime of piracy and is
sentenced therefor to be hung until dead, at such time and place as shall be fixed
by the judge of first instance of the Twenty-sixth Judicial District. The two
appellants together with Kinawalang and Maulanis, defendants in another case,
shall indemnify jointly and severally the offended parties in the equivalent of 924
rupees, and shall pay a one-half part of the costs of both instances. So ordered.
G.R. No. L-60100 March 20, 1985
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME RODRIGUEZ alias JIMMY alias WILFRED DE LARA y MEDRANO and RICO
LOPEZ, accused-appellants.
G.R. No. L-60768 March 20, 1985
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DARIO DE REYES alias DARIO DECE RAYMUNDO y ELAUSA, accused- appellant.
G.R. No. L-61069 March 20, l985
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PETER PONCE y BULAYBULAY alias PETER POWE, accused-appellant.
PER CURIAM:
Appellants Jaime Rodriguez alias Jimmy alias Wilfred de Lara y Medrano, Rico
Lopez, Davao Reyes alias Dario Dece Raymundo y Elausa and Peter Ponce y
Bulaybulay alias Peter Power were charged of the crime of piracy in an information
filed before the then Court of First Instance of Sulu and Tawi-Tawi, which reads:
That on or about 3:15 in the morning of August 31, 1981, at the vicinity of
Muligin Island and within the territorial waters of the Municipality of Cagayan
de Tawi-Tawi, Province of Tawi-Tawi, and within the jurisdiction of this
honorable Court, the above-named accused Wilfred de Lara y Medrano, alias
Jaime Rodriguez (Jimmy) Dario Dece Raymundo y Elausa; Rico Lopez y
Fernandez and Peter Ponce y Bulaybulay alias Peter Power being crew
members of the M/V Noria 767, a barter trade vessel of Philippine registry,
conspiring and confederating together and mutually helping one another and
armed with bladed weapons and high caliber firearms, to wit: three (3)
daggers, two (2) M-14, one (1) garand and one (1) Browning Automatic Rifle,
with intent of gain and by means of violence and intimidation upon persons,
did then and there willfully and unlawfuflly, and feloniously take, steal and
carry away against the consent of the owners thereof, the equipments and
other persona) properties belonging to the crew members and passengers of
the said M/V Noria 767, consisting of cash money amounting to Three Million
Five Hundred Seventeen Thousand Three Hundred Pesos (P3,517,300.00),
personal belongings of passengers and crew amounting to One Hundred Thirty
Thousand Pesos (P130,000.00), the vessel's compass, navigational charts and
instruments amounting to Forty Thousand Pesos (P40,000.00) to the damage
33
 and prejudice of the aforementioned owners in the total amount of THREE
MILLION SIX HUNDRED EIGHTY SEVEN THOUSAND THREE HUNDRED PESOS
(P3,687,300.00) Philippine Currency; that by reason of and on the occasion of
the said piracy and for the purpose of enabling the abovenamed accused to
take, steal and carry away the properties abovementioned, the herein accused
in pursuance to their conspiracy, did then and there willfully, unlawfully and
feloniously with intent to kill and with evident premeditation, treacherously
attack, assault, stab, shot and, taking advantage of superior strength, use
personal violence upon the persons of Abdusador Sumihag, Vicente America,
Perhan Tan, Marcos Que, Ismael Turabin, Mabar Abdurahman, Wadi Aduk
Rasdi Alfad, Kasmir Tan, Peter Paul Chiong, Juaini Husini Ismael Ombra,
Sabturani Ulag, Mutalib Sarahadil, Bajubar Adam, Quillermo Wee, Reuben
Segovia Ho, Michael Lao, Yusop Abubakar, Hahji Hussin Kulavan, Amjad
Quezon, Rebuan Majid Edgar Tan, Abdurasul Alialam Federico Canizares, Omar
Tahil Gilbert Que, Arajul Salialam, Masihul Bandahala, Asola Mohammaddin,
Batoto Sulpicio, Sakirani Bassal, Ibrahim Jamil, Saupi Malang and Gulam
Sahiddan, thereby inflicting upon them multiple gunshot wounds which caused
their instantaneous death and likewise causing physical injuries upon the
persons of Inggal Issao Abduhasan Indasan Hadji Yusop H. Alfad and Hadji
Mahalail Alfad, thus performing all acts of execution which could have
produced the death of said persons, but nevertheless did not produce it by
reason or cause independent of the will of said accused, that is, by the timely
and able medical assistance rendered to said victims which prevented death.
CONTRARY TO LAW, with the aggravating circumstances of treachery, evident
premeditation, night time and the use of superior strength. (pp. 97-98, Rollo of
L-61069)
Upon arraignment on February 25, 1982, Jaime Rodriguez and Rico Lopez, assisted
by their counsel, pleaded guilty to the charge, were convicted on March 5, 1982 and
sentenced each "to suffer the extreme penalty of death."
Dario Dece Raymundo, upon arraignment, interposed a plea of not guilty. However,
he withdrew his plea and substituted it with that of guilty. On March 10, 1982 he
was convicted of the crime charged and sentenced "to suffer the extreme penalty
of death."
Peter Ponce y Bulaybulay entered the plea of not guilty.
After trial, he was found guilty and was also sentenced "to suffer the extreme
penalty of death."
No pronouncement was made with respect to the civil liabilities of the four
defendants because "there was a separate civil action for breach of contract and
damages filed with the same trial court in Civil Case No. N-85 against the several
defendants, including the four accused aforementioned." (p. 26, L-61069)
The case of the four convicted defendants is now before Us on automatic review.
Evidence shows that on August 29, 1981, at about 7:30 in the evening, the vessel
M/V Noria 767, owned and registered in the name of Hadji Noria Indasan left Jolo
wharf for Cagayan de Tawi-Tawi. It arrived at the port of Cagayan de Tawi-Tawi the
following day, August 30, 1981, at around 2:00 in the afternoon. In the evening of
the same date, the vessel left for Labuan. On board the vessel were several traders
and crew members. Two or three hours after its departure, while sailing about 25
miles from Cagayan de Tawi-Tawi, a commotion occurred in one of the cabins of the
vessel.
Three witnesses testified on what they saw and heard.
Mr. Clyde Que, a passenger, heard noises inside a cabin and, after awhile, he heard
shots being fired. He rushed to the motor launch to hide and on his way through
the engine room, he saw appellant Peter Ponce. Then appellants Jaime Rodriguez,
Dario Dece and Rico Lopez, all armed with rifles, started firing towards Que's
companions after which they brought Que to the pilot's house to handle the
steering wheel. He was substituted by Usman, another passenger, while Que and
the other crew members were ordered to throw overboard sacks of copra and the
dead bodies of Peter Chiong, Michael Lao, Casmin Tan and Vicente America. At the
time, appellant Peter Ponce, armed with a M-14 rifle, stood guard.
Hadji Mahalail Alfad, another passenger, heard commotions from the motor launch,
followed by gunfire. He hid by laying down among the sacks of copra. He saw
appellants Peter Ponce, Jaime Rodriguez, Rico Lopez and Dario Dece coming down
the stairs as they were firing shots until Fred Canizares and Guilbert Que were hit,
their bodies falling upon him. When he tried to move, he realized that he was also
hit on the right side of his stomach. Thereafter, he pretended to be dead till
daytime.
Emil Macasaet, Jr., the skipper of the vessel heard the commotion from one of the
cabins. He ordered his men to open the door but it could not be opened. After
awhile, the door opened and he saw a gun pointed at them. Whereupon, he hid
behind the bags of copra until appellant Jaime Rodriguez came and fired at him.
Luckily, he was not hit. He and some of his men crawled and they took cover in the
bodega of copra. While in hiding there were gunfires coming from Dario Dece and
Peter Ponce. About four (4) hours later, his Chief Mate Usman persuaded him to
come out otherwise something worse would happen. He saw Jaime Rodriguez who
ordered him to direct his men to throw the copras as well as the dead bodies
overboard.
About ten o'clock in the morning of the same day, the vessel reached an island
where the four appellants were able to secure pumpboats. Macasaet was ordered
to load in one of the pumpboats nine (9) attache cases which were full of money.
Rico Lopez and Jaime Rodriguez boarded one pumpboat, while Peter Ponce and
34
Dario Dece boarded another, bringing with them: dressed chicken, softdrinks,
durian, boxes of ammunitions, gallons of water and some meat, as well as rifles.
Municipal Health Officer Leopoldo Lao went aboard the vessel M/V Noria when it
arrived at Cagayan de Tawi-Tawi on September 2, 1981 and saw at the wharf ten
dead bodies, all victims of the sea-jacking, namely: Gulam Sahiddan, Arajul Naran
Salialam, Mallang Saupi, Guilbert Que, Frederico Canizares, Masihul Bandahala,
Ribowan Majid Edgar Tan, Omar Sabdani Tahir and Abdurasul Salialam.
In their brief, appellants Jaime Rodriguez, Rico Lopez and Dario Dece claim that the
trial court erred (1) in imposing the death penalty to the accused-appellants Jaime
Rodriguez alias Wilfred de Lara, Rico Lopez y Fernandez and Davao de Reyes, alias
Dario Dece Raymundo y Elausa despite their plea of guilty; (2) in giving weight to
the alleged sworn statements of Peter Ponce y Bulaybulay, Identified as Exhibits "C"
to "C-10" and Exhibits "I to I-5", as evidence against Peter Ponce y Bulaybulay; (3) in
holding that accused-appellant Peter Ponce y Bulaybulay is guilty of the crime of
piracy; (4) in holding that the defense of Peter Ponce y Bulaybulay was merely a
denial; and, (5) in holding that Peter Ponce y Bulaybulay entrusted the P1,700.00
which was his personal money to Atty. Efren Capulong of the National Bureau of
Investigation.
There is no merit in this appeal of the three named defendants, namely: Jaime
Rodriguez and Rico Lopez in G.R. No. L-60100, and Dario Dece in G.R. No. L-60768.
Anent the first assigned error, suffice it to say that Presidential Decree No. 532,
otherwise known as the Anti-Piracy Law, amending Article 134 of the Revised Penal
Code and which took effect on August 8, 1974, provides:
SEC. 3. Penalties.—Any person who commits piracy or highway
robbery/brigandage as herein defined, shall, upon conviction by competent
court be punished by:
a) Piracy.—The penalty of reclusion temporal in its medium and maximum
periods shall be imposed. If physical injuries or other crimes are committed as a
result or on the occasion thereof, the penalty of reclusion perpetua shall be
imposed. If rape, murder or no homocide is committed as a result or on the
occasion of piracy, or when the offenders abandoned the victims without
means of saving themselves, or when the seizure is accomplished by firing
upon or boarding a vessel, the mandatory penalty of death shall be imposed.
(Emphasis supplied)
Clearly, the penalty imposable upon persons found guilty of the crime of piracy
where rape, murder or homicide is committed is mandatory death penalty. Thus,
the lower court committed no error in not considering the plea of the three (3)
defendants as a mitigating circumstance. Article 63 of the Revised Penal Code states
that:
b) ART. 63. Rules for the application of indivisible penalties.—In all cases in
which the law prescribes a single indivisible penalty, it shag be applied by the
courts regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed.
With respect to the other assigned errors, We also find them to be devoid of merit.
Appellants Peter Ponce gave a statement (Exhibits "C" to "C-11") to the Malaysian
authorities and another statement (Exhibits "I" to "I-15") before the National
Bureau of Investigation of Manila. When said statement (Exhibits "C" to "C-11") was
offered in evidence by the prosecution, the same was not objected to by the
defense, aside from the fact that Peter Ponce, on cross examination, admitted the
truthfulness of said declarations, thus:
Q And the investigation was reduced into writing is that correct?
A Yes. sir.
Q And you were investigated by the police authority of Kudat and Kota
Kinabalo, is that right?
A Yes, sir. Only in Kudat.
Q And that statement you gave to the authority at Kudat, you have signed that
statement, is that correct?
A Yes, sir.
Q And what you stated is all the truth before the authority in Kudat?
A Yes, sir. (pp. 33-34, tsn, May 28, 1982)
Relative to the appeal of appellant Peter Ponce (G.R. No. L-61069), which We
likewise declare to be without merit, evidence shows that his participation in the
commission of the offense was positively testified to by the master of the vessel,
Emil Macasaet, Jr., and a passenger, Hadji Mahalail Alfad. Another witness,
passenger Clyde Que also pointed to have seen him (Peter Ponce) armed with an
M-14 rifle.
Considering the testimonies of Clyde Que and Emil Macasaet, Jr. who actually saw
appellant Peter Ponce firing his weapon indiscriminately at the passengers and crew
members in wanton disregard of human lives and the fact that after the looting and
killing, appellant Peter Ponce, still armed, joined Dario Dece in one pumpboat, there
can be no question that he was in conspiracy with the three other defendants. After
his arrest, Ponce gave a statement to the authorities stating therein his
participation as well as those of his companions (Exhibits "I" to "I-1").
The four (4) appellants were arrested and detained by the Malaysian authorities.
On January 8, 1982, the National Bureau of Investigation authorities fetched and
brought them to Manila where they executed their respective statements after Rico
Lopez and Peter Ponce delivered to the NBI, P3,700.00 and P1,700.00, respectively,
aside from the P527,595.00 and one Rolex watch which the Malaysian authorities
also turned over to the Acting In-Charge of the NBI in Jolo.
35
The statement of Ponce (Exhibit " I ") contains the questions and answers pertinent
to Section 20 of the 1973 Constitution, to wit:
l. QUESTION: Mr. Peter Ponce, we are informing you that you are under
investigation here in connection with the robbery committed on the M/V
Noria last August 31, 1981, where you are an Assistant Engineer. You have a
right to remain silent and to refuse to answer any of our questions here. You
have the right to be represented by counsel of your choice in this
investigation. Should you decide to be represented by a lawyer but cannot
afford one we will provide a lawyer for you free. Should you decide to give a
sworn statement, the same shall be voluntary and free from force or
intimidation or promise of reward or leniency and anything that you saw here
maybe used for or against you in any court in the Philippines. Now do you
understand an these rights of yours?
ANSWER: Yes, sir.
2. Q: Do you need the services of a lawyer?
A: No, sir.
3. Q: Are you willing to affix your signature hereinbelow to signify that you so
understand all your rights as above stated and that you do not need the
services of a lawyer?
A: Yes, sir. (p. 11 6, Rollo)
Thus, it is clear that Peter Ponce was fully advised of his constitutional right to
remain silent and his right to counsel.
Considering the written statements of all the appellants, (Exhibits "E", "F", "G", "H",
"J" and "K"), interlocking as they are with each other as each admits his
participation and those of the other co-accused, there is no room for doubt that
conspiracy existed among them. The conduct of appellant
Peter Ponce before, during and after the commission of the crime is a circumstance
showing the presence of conspiracy in the commission of the crime. As a
consequence, every one is responsible for the crime committed.
WHEREFORE, the decision appealed from is hereby AFFIRMED.
SO ORDERED.
Makasiar, Aquino, Concepcion, Jr., Abad Santos, Melencio- Herrera, Plana, Escolin
Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay JJ., concur.
Fernando, C.J., took no part,
Separate Opinions
TEEHANKEE, J., concurring:
I concur with the judgment of conviction, there being sufficient direct evidence and
positive Identification by eyewitnesses.
I take exception, however, to the statement therein that accused Peter Ponce "was
fully advised of his constitutional right to remain silent and his right to counsel." The
monosyllabic answers of "Yes" and "No" have been stricken down by the Court as
utterly unacceptable as a voluntary and intelligent waiver of the constitutional right
to silence and to counsel in People vs. Caguioa (95 SCRA 2). in line with my separate
concurring and dissenting opinion in the recent case of People vs. Itlanas (G.R. No.
60118, prom. February 28, 1985). As therein stated, I subscribe to the Court's
requirement in Morales, Jr. vs. Ponce Enrile (121 SCRA 538) that "the right to
counsel may be waived but the waiver shall not be valid unless made with the
assistance of counsel" in order to assure that it is knowingly, voluntarily and
intelligently given.
G.R. No. L-57292 February 18, 1986
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JULAIDE SIYOH, OMAR-KAYAM KIRAM, NAMLI INDANAN and ANDAW
JAMAHALI, accused-appellants.
ABAD SANTOS, J.:
This is an automatic review of the decision of the defunct Court of First Instance of
Basilan, Judge Jainal D. Rasul as ponente, imposing the death penalty.
In Criminal Case No. 318 of the aforesaid court, JULAIDE SIYOH, OMARKAYAM
KIRAM, NAMLI INDANAN and ANDAW JAMAHALI were accused of qualified piracy
with triple murder and frustrated murder said to have been committed according to
the information as follows:
That on or about the 14th day of July, 1979, and within the jurisdiction of this
Honorable Court, viz., at Mataja Is., Municipality of Lantawan, Province of
Basilan, Philippines, the above named accused, being strangers and without
lawful authority, armed with firearms and taking advantage of their superior
strength, conspiring and confederating together, aiding and assisting one with
the other, with intent to gain and by the use of violence or intimidation against
persons and force upon things, did then and there willfully, unlawfully and
feloniously, fire their guns into the air and stop the pumpboat wherein Rodolfo
de Castro, Danilo Hiolen, Anastacio de Guzman and Antonio de Guzman were
riding, traveling at that time from the island of Baluk-Baluk towards Pilas,
boarded the said pumpboat and take, steal and carry away all their cash
money, wrist watches, stereo sets, merchandise and other personal belongings
amounting to the total amount of P 18,342.00, Philippine Currency; that the
said accused, on the occasion of the crime herein above-described, taking
36
 advantage that the said victims were at their mercy, did then and there
willfully, unlawfully and feloniously, with intent to kill, ordered them to jump
into the water, whereupon, the said accused, fired their guns at them which
caused the death of Rodolfo de Castro, Danilo Hiolen, Anastacio de Guzman
and wounding one Antonio de Guzman; thus the accused have performed all
the acts of execution which would have produced the crime of Qualified Piracy
with Quadruple Murder, but which, nevertheless, did not produce it by reasons
of causes in dependent of their will, that is, said Antonio de Guzman was able
to swim to the shore and hid himself, and due to the timely medical assistance
rendered to said victim, Antonio de Guzman which prevented his death.
(Expediente, pp. 1-2.)
An order of arrest was issued against all of the accused but only Julaide Siyoh and
Omar-kayam Kiram were apprehended. (Id, p. 8.)
After trial, the court a quo rendered a decision with the following dispositive
portion.
WHEREFORE, in view of the fore going considerations, this Court finds the
accused Omar-kayam Kiram and Julaide Siyoh guilty beyond reasonable doubt
of the crime of Qualified Piracy with Triple Murder and Frustrated Murder as
defined and penalized under the provision of Presidential Decree No. 532, and
hereby sentences each one of them to suffer the supreme penalty of DEATH.
However, considering the provision of Section 106 of the Code of Mindanao
and Sulu, the illiteracy or ignorance or extreme poverty of the accused who are
members of the cultural minorities, under a regime of so called compassionate
society, a commutation to life imprisonment is recommended. (Id, p. 130.)
In their appeal, Siyoh and Kiram make only one assignment of error:
THE LOWER COURT ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-
APPELLANTS OMAR-KAYAM KIRAM AND JULAIDE SIYOH HAS BEEN PROVED
BEYOND REASONABLE DOUBT. (Brief, p. 8.)
The People's version of the facts is as follows:
Alberto Aurea was a businessman engaged in selling dry goods at the Larmitan
Public Market, in the province of Basilan (pp. 2-3, tsn). On July 7, 1979 and on
July 10, 1979, Antonio de Guzman, Danilo Hiolen, Rodolfo de Castro and
Anastacio de Guzman received goods from his store consisting of mosquito
nets, blankets, wrist watch sets and stereophono with total value of P15,000
more or less (pp. 4-6, tsn). The goods were received under an agreement that
they would be sold by the above-named persons and thereafter they would pay
the value of said goods to Aurea and keep part of the profits for themselves.
However these people neither paid the value of the goods to Aurea nor
returned the goods to him (pp. 6-7, tsn). On July 15, 1979, Aurea was informed
by Antonio de Guzman that his group was held up near Baluk- Baluk Island and
that his companions were hacked (p. 8, tsn). On July 16, 1979, the bodies of
Rodolfo de Castro, Danilo Hiolen and Anastacio de Guzman were brought by
the PC seaborne patrol to Isabela, Basilan (pp. 17-18, 29, tsn). Only Antonio de
Guzman survived the incident that caused the death of his companions.
It appears that on July 10, 1979, Antonio de Guzman together with his friends
who were also travelling merchants like him, were on their way to Pilas Island,
Province of Basilan, to sell the goods they received from Alberto Aurea. The
goods they brought with them had a total value of P18,000.00 (pp- 36-37, tsn).
They left for Pilas Island at 2:00 p.m. of July 10, 1979 on a pumpboat. They took
their dinner and slept that night in the house of Omar-kayam Kiram at Pilas
Island (pp. 37-38, tsn).
The following day, July 11, 1979, de Guzman's group, together with Kiram and
Julaide Siyoh, started selling their goods, They were able to sell goods worth P
3,500.00. On July 12, 1979, the group, again accompanied by Kiram and Siyoh,
went to sell their goods at another place, Sangbay, where they sold goods
worth P 12,000.00 (pp. 40-42, tsn). They returned to Pilas Island at 5:00 o'clock
in the afternoon and again slept at Kiram's house. However that night Kiram
did not sleep in his house, and upon inquiry the following day when Antonio de
Guzman saw him, Kiram told the former that he slept at the house of Siyoh.
On that day, July 13, 1979, the group of Antonio de Guzman went to Baluk-
Baluk, a place suggested by Kiram. They were able to sell goods worth
P3,000.00 (pp. 43-46, tsn). They returned to Pilas Island for the night but Kiram
did not sleep with them (p. 47, tsn).
The following day, July 14, 1979, the group again went to Baluk-Baluk
accompanied by Kiram and Siyoh (pp. 48, 50 t.s.n), They used the pumpboat of
Kiram. Kiram and Siyoh were at that time armed with 'barongs'. They arrived at
Baluk-Baluk at about 10:00 o'clock in the morning and upon arrival at the place
Kiram and Siyoh going ahead of the group went to a house about 15 meters
away from the place where the group was selling its goods (pp. 50-53, tsn).
Kiram and Siyoh were seen by the group talking with two persons whose faces
the group saw but could not recognize (pp. 53-54, tsn). After selling their
goods, the members of the group, together with Kiram and Siyoh, prepared to
return to Pilas Island. They rode on a pumpboat where Siyoh positioned himself
at the front while Kiram operated the engine. On the way to Pilas Island,
Antonio de Guzman saw another pumpboat painted red and green about 200
meters away from their pumpboat (pp. 55, tsn). Shortly after" Kiram turned off
the engine of their pumpboat. Thereafter two shots were fired from the other
37
 pumpboat as it moved towards them (pp. 57-58, tsn). There were two persons
on the other pumpboat who were armed with armantes. De Guzman
recognized them to be the same persons he saw Kiram conversing with in a
house at Baluk-Baluk Island. When the boat came close to them, Kiram threw a
rope to the other pumpboat which towed de Guzman's pumpboat towards
Mataja Island. On the way to Mataja Island, Antonio de Guzman and his
companions were divested of their money and their goods by Kiram (pp. 59-61,
tsn). Thereafter Kiram and his companions ordered the group of de Guzman to
undress. Taking fancy on the pants of Antonio de Guzman, Kiram put it on.
With everybody undressed, Kiram said 'It was good to kill all of you'. After that
remark, Siyoh hacked Danilo Hiolen while Kiram hacked Rodolfo de Castro.
Antonio de Guzman jumped into the water. As he was swimming away from
the pumpboat, the two companions of Kiram fired at him, injuring his back (pp.
62-65, tsn). But he was able to reach a mangrove where he stayed till nightfall.
When he left the mangrove, he saw the dead bodies of Anastacio de Guzman,
Danilo Hiolen and Rodolfo de Castro. He was picked up by a fishing boat and
brought to the Philippine Army station at Maluso where he received first aid
treatment. Later he was brought to the J.S. Alano Memorial Hospital at Isabela,
Basilan province (pp. 66-68, tsn).
On July 15, 1979, while waiting for the dead bodies of his companions at the
wharf, de Guzman saw Siyoh and Kiram. He pointed them out to the PC and the
two were arrested before they could run. When arrested, Kiram was wearing
the pants he took from de Guzman and de Guzman had to ask Pat. Bayabas at
the Provincial Jail to get back his pants from Kiram (pp. 69-72, tsn).
Antonio de Guzman was physically examined at the J.S. Alano Memorial
Hospital at Isabela, Basilan and findings showed: 'gunshot wound, scapular
area, bilateral, tangenital' (Exh. C, prosecution). (pp. 134-136, tsn). Dr. Jaime M.
Junio, Provincial Health Officer of Basilan, examined the dead bodies of Rodolfo
de Castro and Danilo Hiolen and issued the corresponding death certificates
(Exhs. D and E, prosecution). (pp. 137-138; 140-141, tsn). (Brief, pp. 5-11.)
As can be seen from the lone assignment of error, the issue is the credibility of
witnesses. Who should be believed Antonio de Guzman who was the lone
prosecution eye-witness or Siyoh and Kiram the accused-appellants who claims that
they were also the victims of the crime? The trial court which had the opportunity
of observing the demeanor of the witnesses and how they testified assigned
credibility to the former and an examination of the record does not reveal any fact
or circumstance of weight and influence which was overlooked or the significance
of which was misinterpreted as would justify a reversal of the trial court's
determination. Additionally, the following claims of the appellants are not
convincing:
1. That if they were the culprits they could have easily robbed their victims at the
Kiram house or on any of the occasions when they were travelling together. Suffice
it to say that robbing the victims at Kiram's house would make Kiram and his family
immediately suspect and robbing the victims before they had sold all their goods
would be premature. However, robbing and killing the victims while at sea and after
they had sold all their goods was both timely and provided safety from prying eyes.
2. That the accused immediately reported the incident to the PC. The record does
not support this assertion. For as the prosecution stated: "It is of important
consequence to mention that the witness presented by the defense are all from
Pilas Island and friends of the accused. They claimed to be members of retrieving
team for the dead bodies but no PC soldiers were ever presented to attest this fact.
The defense may counter why the prosecution also failed to present the Maluso
Police Daily Event book? This matter has been brought by Antonio not to the
attention of the PC or Police but to an army detachment. The Army is known to
have no docket book, so why take the pain in locating the army soldiers with whom
the report was made? (Memorandum, p. 7.) And Judge Rasul also makes this
observation: "..., this Court is puzzled, assuming the version of the defense to be
true, why the lone survivor Antonio de Guzman as having been allegedly helped by
the accused testified against them. Indeed, no evidence was presented and nothing
can be inferred from the evidence of the defense so far presented showing reason
why the lone survivor should pervert the truth or fabricate or manufacture such
heinous crime as qualified piracy with triple murders and frustrated murder? The
point which makes us doubt the version of the defense is the role taken by the PC
to whom the report was allegedly made by the accused immediately after the
commission of the offense. Instead of helping the accused, the PC law enforcement
agency in Isabela, perhaps not crediting the report of the accused or believing in the
version of the report made by the lone survivor Antonio de Guzman, acted
consistently with the latter's report and placed the accused under detention for
investigation." (Expediente, pp. 127-128.)
3. That the affidavits of Dolores de Guzman, wife of the deceased Anastacio de
Guzman, and Primitiva de Castro, wife of the deceased Rodolfo de Castro, state that
Antonio de Guzman informed them shortly after the incident that their husbands
were killed by the companions of Siyoh and Kiram. The thrust of the appellants'
claim, therefore, is that Namli Indanan and Andaw Jamahali were the killers and not
the former. But this claim is baseless in the face of the proven conspiracy among
the accused for as Judge Rasul has stated:
It is believed that conspiracy as alleged in the information is sufficiently proved
in this case. In fact the following facts appear to have been established to show
clearly conspiracy: A) On July 14, 1979, while peddling, the survivor-witness
Tony de Guzman noticed that near the window of a dilapidated house, both
38
 accused were talking to two (2) armed strange-looking men at Baluk-Baluk
Island; B) When the pumpboat was chased and overtaken, the survivor-witness
Tony de Guzman recognized their captors to be the same two (2) armed
strangers to whom the two accused talked in Baluk- Baluk Island near the
dilapidated house; C) The two accused, without order from the two armed
strangers transferred the unsold goods to the captors' banca; D) That Tony de
Guzman and companion peddlers were divested of their jewelries and cash and
undressed while the two accused remained unharmed or not molested. These
concerted actions on their part prove conspiracy and make them equally liable
for the same crime (People vs. Pedro, 16 SCRA 57; People vs. lndic 10 SCRA
130). The convergence of the will of the conspirators in the scheming and
execution of the crime amply justifies the imputation of all of them the act of
any of them (People vs. Peralta, 25 SCRA, 759). (Id., pp. 128-129.)
4. That there is no evidence Anastacio de Guzman was killed together with Rodolfo
de Castro and Danilo Hiolen because his remains were never recovered. There is no
reason to suppose that Anastacio de Guzman is still alive or that he died in a
manner different from his companions. The incident took place on July 14, 1979
and when the trial court decided the case on June 8, 1981 Anastacio de Guzman
was still missing. But the number of persons killed on the occasion of piracy is not
material. P.D. No. 532 considers qualified piracy, i.e. rape, murder or homicide is
committed as a result or on the occasion of piracy, as a special complex crime
punishable by death regardless of the number of victims.
5. That the death certificates are vague as to the nature of the injuries sustained by
the victims; were they hacked wounds or gunshot wounds? The cause of death
stated for Rodolfo de Castro and Danilo Hiolen is: "Hemorrhage due to hacked
wounds, possible gunshot wounds." (Exhs. D and E.) The cause is consistent with
the testimony of Antonio de Guzman that the victims were hacked; that the
appellants were armed with "barongs" while Indanan and Jamahali were armed
with armalites.
WHEREFORE, finding the decision under review to be in accord with both the facts
and the law, it is affirmed with the following modifications: (a) for lack of necessary
votes the penalty imposed shall be reclusion perpetua; and (b) each of the
appellants shall pay in solidum to the heirs of each of the deceased indemnity in the
amount of P30,000.00. No special pronouncement as to costs.
SO ORDERED.
Concepcion, Melencio-Herrera, Plana, Escolin Gutierrez, Jr., Dela Fuente, Alampay
and Patajo, JJ., concur.
Aquino, C.J., took no part.
Teehankee, J., for affirmance of death sentence.
Separate Opinions
CUEVAS, J., dissenting:
considering the gravamen of the offense charged the manner by which it was
committed, I vote to affirm the death penalty imposed by the trial court.
G.R. No. 111709 August 30, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE,
CHEONG SAN HIONG, and JOHN DOES, accused-appellants.
MELO, J.:
This is one of the older cases which unfortunately has remained in docket of the
Court for sometime. It was reassigned, together with other similar cases, to
undersigned ponente in pursuance of A.M. No. 00-9-03-SC dated February 27, 2001.
In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel owned by the
PNOC Shipping and Transport Corporation, loaded with 2,000 barrels of kerosene,
2,600 barrels of regular gasoline, and 40,000 barrels of diesel oil, with a total value
of P40,426,793,87, was sailing off the coast of Mindoro near Silonay Island.
The vessel, manned by 21 crew members, including Captain Edilberto Libo-on,
Second Mate Christian Torralba, and Operator Isaias Ervas, was suddenly boarded,
with the use of an aluminum ladder, by seven fully armed pirates led by Emilio
Changco, older brother of accused-appellant Cecilio Changco. The pirates, including
accused-appellants Tulin, Loyola, and Infante, Jr. were armed with M-16 rifles, .45
and .38 caliber handguns, and bolos. They detained the crew and took complete
control of the vessel. Thereafter, accused-appellant Loyola ordered three crew
members to paint over, using black paint, the name "M/T Tabangao" on the front
and rear portions of the vessel, as well as the PNOC logo on the chimney of the
vessel. The vessel was then painted with the name "Galilee," with registry at San
Lorenzo, Honduras. The crew was forced to sail to Singapore, all the while sending
misleading radio messages to PNOC that the ship was undergoing repairs.
PNOC, after losing radio contact with the vessel, reported the disappearance of the
vessel to the Philippine Coast Guard and secured the assistance of the Philippine Air
Force and the Philippine Navy. However, search and rescue operations yielded
negative results. On March 9, 1991, the ship arrived in the vicinity of Singapore and
cruised around the area presumably to await another vessel which, however, failed
39
to arrive. The pirates were thus forced to return to the Philippines on March 14,
1991, arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea.
On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to
18 nautical miles from Singapore's shoreline where another vessel called "Navi
Pride" anchored beside it. Emilio Changco ordered the crew of "M/T Tabangao" to
transfer the vessel's cargo to the hold of "Navi Pride". Accused-appellant Cheong
San Hiong supervised the crew of "Navi Pride" in receiving the cargo. The transfer,
after an interruption, with both vessels leaving the area, was completed on March
30, 1991.
On March 30, 1991, "M/T Tabangao" returned to the same area and completed the
transfer of cargo to "Navi Pride."
On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel
remained at sea. On April 10, 1991, the members of the crew were released in
three batches with the stern warning not to report the incident to government
authorities for a period of two days or until April 12, 1991, otherwise they would be
killed. The first batch was fetched from the shoreline by a newly painted passenger
jeep driven by accused-appellant Cecilio Changco, brother of Emilio Changco, who
brought them to Imus, Cavite and gave P20,000.00 to Captain Libo-on for fare of
the crew in proceeding to their respective homes. The second batch was fetched by
accused-appellant Changco at midnight of April 10, 1991 and were brought to
different places in Metro Manila.
On April 12, 1991, the Chief Engineer, accompanied by the members of the crew,
called the PNOC Shipping and Transport Corporation office to report the incident.
The crew members were brought to the Coast Guard Office for investigation. The
incident was also reported to the National Bureau of Investigation where the
officers and members of the crew executed sworn statements regarding the
incident.
A series of arrests was thereafter effected as follows:
a. On May 19, 1991, the NBI received verified information that the pirates were
present at U.K. Beach, Balibago, Calatagan, Batangas. After three days of
surveillance, accused-appellant Tulin was arrested and brought to the NBI
headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo
Hi-way by NBI agents as the latter were pursuing the mastermind, who managed to
evade arrest.
c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the
lobby of Alpha Hotel in Batangas City.
On October 24, 1991, an Information charging qualified piracy or violation of
Presidential Decree No. 532 (Piracy in Philippine Waters) was filed against accused-
appellants, as follows:
The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I.
LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, and CHEONG SAN HIONG,
and nine (9) other JOHN DOES of qualified piracy (Violation of P.D. No. 532),
committed as follows:
That on or about and during the period from March 2 to April 10, 1991, both
dates inclusive, and for sometime prior and subsequent thereto, and within the
jurisdiction of this Honorable Court, the said accused, then manning a motor
launch and armed with high powered guns, conspiring and confederating
together and mutually helping one another, did then and there, wilfully,
unlawfully and feloniously fire upon, board and seize while in the Philippine
waters M/T PNOC TABANGCO loaded with petroleum products, together with
the complement and crew members, employing violence against or
intimidation of persons or force upon things, then direct the vessel to proceed
to Singapore where the cargoes were unloaded and thereafter returned to the
Philippines on April 10, 1991, in violation of the aforesaid law.
This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional
Trial Court of the National Capital Judicial Region stationed in Manila. Upon
arraignment, accused-appellants pleaded not guilty to the charge. Trial thereupon
ensued.
Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some
inconsistencies in their testimony as to where they were on March 1, 1991,
maintained the defense of denial, and disputed the charge, as well as the transfer
of any cargo from "M/T Tabangao" to the "Navi Pride." All of them claimed having
their own respective sources of livelihood. Their story is to the effect that on March
2, 1991, while they were conversing by the beach, a red speedboat with Captain
Edilberto Liboon and Second Mate Christian Torralba on board, approached the
seashore. Captain Liboon inquired from the three if they wanted to work in a vessel.
They were told that the work was light and that each worker was to be paid
P3,000.00 a month with additional compensation if they worked beyond that
period. They agreed even though they had no sea-going experience. On board, they
cooked, cleaned the vessel, prepared coffee, and ran errands for the officers. They
denied having gone to Singapore, claiming that the vessel only went to Batangas.
Upon arrival thereat in the morning of March 21, 1991, they were paid P1,000.00
each as salary for nineteen days of work, and were told that the balance would be
remitted to their addresses. There was neither receipt nor contracts of employment
signed by the parties.
40
Accused-appellant Changco categorically denied the charge, averring that he was at
home sleeping on April 10, 1991. He testified that he is the younger brother of
Emilio Changco, Jr.
Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence
that he studied in Sydney, Australia, obtaining the "Certificate" as Chief Officer, and
later completed the course as a "Master" of a vessel, working as such for two years
on board a vessel. He was employed at Navi Marine Services, Pte., Ltd. as Port
Captain. The company was engaged in the business of trading petroleum, including
shipoil, bunker lube oil, and petroleum to domestic and international markets. It
owned four vessels, one of which was "Navi Pride."
On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco
and his cohorts, Hiong's name was listed in the company's letter to the Mercantile
Section of the Maritime Department of the Singapore government as the radio
telephone operator on board the vessel "Ching Ma."
The company was then dealing for the first time with Paul Gan, a Singaporean
broker, who offered to sell to the former bunker oil for the amount of 300,000.00
Singapore dollars. After the company paid over one-half of the aforesaid amount to
Paul Gan, the latter, together with Joseph Ng, Operations Superintendent of the
firm, proceeded to the high seas on board "Navi Pride" but failed to locate the
contact vessel.
The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong,
upon his return on board the vessel "Ching Ma," was assigned to supervise a ship-
to-ship transfer of diesel oil off the port of Singapore, the contact vessel to be
designated by Paul Gan. Hiong was ordered to ascertain the quantity and quality of
the oil and was given the amount of 300,000.00 Singapore Dollars for the purchase.
Hiong, together with Paul Gan, and the surveyor William Yao, on board "Navi Pride"
sailed toward a vessel called "M/T Galilee". Hiong was told that "M/T Galilee"
would be making the transfer. Although no inspection of "Navi Pride" was made by
the port authorities before departure, Navi Marine Services, Pte., Ltd. was able to
procure a port clearance upon submission of General Declaration and crew list.
Hiong, Paul Gan, and the brokers were not in the crew list submitted and did not
pass through the immigration. The General Declaration falsely reflected that the
vessel carried 11,900 tons.
On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers
then told the Captain of the vessel to ship-side with "M/T Galilee" and then transfer
of the oil transpired. Hiong and the surveyor William Yao met the Captain of "M/T
Galilee," called "Captain Bobby" (who later turned out to be Emilio Changco). Hiong
claimed that he did not ask for the full name of Changco nor did he ask for the
latter's personal card.
Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi
Pride" and took samples of the cargo. The surveyor prepared the survey report
which "Captain Bobby" signed under the name "Roberto Castillo." Hiong then
handed the payment to Paul Gan and William Yao. Upon arrival at Singapore in the
morning of March 29, 1991, Hiong reported the quantity and quality of the cargo to
the company.
Thereafter, Hiong was again asked to supervise another transfer of oil purchased by
the firm " from "M/T Galilee" to "Navi Pride." The same procedure as in the first
transfer was observed. This time, Hiong was told that that there were food and
drinks, including beer, purchased by the company for the crew of "M/T Galilee. The
transfer took ten hours and was completed on March 30, 1991. Paul Gan was paid
in full for the transfer.
On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels
and wanted to offer its cargo to cargo operators. Hiong was asked to act as a broker
or ship agent for the sale of the cargo in Singapore. Hiong went to the Philippines to
discuss the matter with Emilio Changco, who laid out the details of the new
transfer, this time with "M/T Polaris" as contact vessel. Hiong was told that the
vessel was scheduled to arrive at the port of Batangas that weekend. After being
billeted at Alpha Hotel in Batangas City, where Hiong checked in under the name
"SONNY CSH." A person by the name of "KEVIN OCAMPO," who later turned out to
be Emilio Changco himself, also checked in at Alpha Hotel. From accused-appellant
Cecilio Changco, Hiong found out that the vessel was not arriving. Hiong was
thereafter arrested by NBI agents.
After trial, a 95-page decision was rendered convicting accused-appellants of the
crime charged. The dispositive portion of said decision reads:
WHEREFORE, in the light of the foregoing considerations, judgment is hereby
rendered by this Court finding the accused Roger Tulin, Virgilio Loyola, Andres
Infante, Jr. and Cecilio Changco guilty beyond reasonable doubt, as principals,
of the crime of piracy in Philippine Waters defined in Section 2(d) of
Presidential Decree No. 532 and the accused Cheong San Hiong, as accomplice,
to said crime. Under Section 3(a) of the said law, the penalty for the principals
of said crime is mandatory death. However, considering that, under the 1987
Constitution, the Court cannot impose the death penalty, the accused Roger
Tulin, Virgilio Loyola, Andres Infante, Jr., and Cecilio Changco are hereby each
meted the penalty of RECLUSION PERPETUA, with all the accessory penalties of
the law. The accused Cheong San Hiong is hereby meted the penalty of
RECLUSION PERPETUA, pursuant to Article 52 of the Revised Penal Code in
relation to Section 5 of PD 532. The accused Roger Tulin, Virgilio Loyola, Andres
Infante, Jr. and Cecilio Changco are hereby ordered to return to the PNOC
Shipping and Transport Corporation the "M/T Tabangao" or if the accused can
no longer return the same, the said accused are hereby ordered to remit,
41
 jointly and severally, to said corporation the value thereof in the amount of
P11,240,000.00, Philippine Currency, with interests thereon, at the rate of 6%
per annum from March 2, 1991 until the said amount is paid in full. All the
accused including Cheong San Hiong are hereby ordered to return to the Caltex
Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused can no
longer return the said cargo to said corporation, all the accused are hereby
condemned to pay, jointly and severally, to the Caltex Refinery, Inc., the value
of said cargo in the amount of P40,426,793.87, Philippine Currency plus
interests until said amount is paid in full. After the accused Cheong San Hiong
has served his sentence, he shall be deported to Singapore.
All the accused shall be credited for the full period of their detention at the
National Bureau of Investigation and the City Jail of Manila during the
pendency of this case provided that they agreed in writing to abide by and
comply strictly with the rules and regulations of the City Jail of Manila and the
National Bureau of Investigation. With costs against all the accused.
SO ORDERED.
The matter was then elevated to this Court. The arguments of accused-appellants
may be summarized as follows:
Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O. Changco
Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the
trial court erred in allowing them to adopt the proceedings taken during the time
they were being represented by Mr. Tomas Posadas, a non-lawyer, thereby
depriving them of their constitutional right to procedural due process.
In this regard, said accused-appellants narrate that Mr. Posadas entered his
appearance as counsel for all of them. However, in the course of the proceedings,
or on February 11, 1992, the trial court discovered that Mr. Posadas was not a
member of the Philippine Bar. This was after Mr. Posadas had presented and
examined seven witnesses for the accused.
Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly
contend that during the custodial investigation, they were subjected to physical
violence; were forced to sign statements without being given the opportunity to
read the contents of the same; were denied assistance of counsel, and were not
informed of their rights, in violation of their constitutional rights.
Said accused-appellants also argue that the trial court erred in finding that the
prosecution proved beyond reasonable doubt that they committed the crime of
qualified piracy. They allege that the pirates were outnumbered by the crew who
totaled 22 and who were not guarded at all times. The crew, so these accused-
appellants conclude, could have overpowered the alleged pirates.
Cheong San Hiong
In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the
crime committed by him; (2) the trial court erred in declaring that the burden is
lodged on him to prove by clear and convincing evidence that he had no knowledge
that Emilio Changco and his cohorts attacked and seized the "M/T Tabangao"
and/or that the cargo of the vessel was stolen or the subject of theft or robbery or
piracy; (3) the trial court erred in finding him guilty as an accomplice to the crime of
qualified piracy under Section 4 of Presidential Decree No. 532 (Anti-Piracy and
Anti-Robbery Law of 1974); (4) the trial court erred in convicting and punishing him
as an accomplice when the acts allegedly committed by him were done or executed
outside of Philippine waters and territory, stripping the Philippine courts of
jurisdiction to hold him for trial, to convict, and sentence; (5) the trial court erred in
making factual conclusions without evidence on record to prove the same and
which in fact are contrary to the evidence adduced during trial; (6) the trial court
erred in convicting him as an accomplice under Section 4 of Presidential Decree No.
532 when he was charged as a principal by direct participation under said decree,
thus violating his constitutional right to be informed of the nature and cause of the
accusation against him.
Cheong also posits that the evidence against the other accused-appellants do not
prove any participation on his part in the commission of the crime of qualified
piracy. He further argues that he had not in any way participated in the seajacking
of "M/T Tabangao" and in committing the crime of qualified piracy, and that he was
not aware that the vessel and its cargo were pirated.
As legal basis for his appeal, he explains that he was charged under the information
with qualified piracy as principal under Section 2 of Presidential Decree No. 532
which refers to Philippine waters. In the case at bar, he argues that he was
convicted for acts done outside Philippine waters or territory. For the State to have
criminal jurisdiction, the act must have been committed within its territory.
We affirm the conviction of all the accused-appellants.
The issues of the instant case may be summarized as follows: (1) what are the legal
effects and implications of the fact that a non-lawyer represented accused-
appellants during the trial?; (2) what are the legal effects and implications of the
absence of counsel during the custodial investigation?; (3) did the trial court err in
finding that the prosecution was able to prove beyond reasonable doubt that
accused-appellants committed the crime of qualified piracy?; (4) did Republic Act
No. 7659 obliterate the crime committed by accused-appellant Cheong?; and (5)
can accused-appellant Cheong be convicted as accomplice when he was not
charged as such and when the acts allegedly committed by him were done or
executed outside Philippine waters and territory?
On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was
executed by accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February
11, 1991, stating that they were adopting the evidence adduced when they were
42
represented by a non-lawyer. Such waiver of the right to sufficient representation
during the trial as covered by the due process clause shall only be valid if made with
the full assistance of a bona fide lawyer. During the trial, accused-appellants, as
represented by Atty. Abdul Basar, made a categorical manifestation that said
accused-appellants were apprised of the nature and legal consequences of the
subject manifestation, and that they voluntarily and intelligently executed the
same. They also affirmed the truthfulness of its contents when asked in open court
(tsn, February 11, 1992, pp. 7-59).
It is true that an accused person shall be entitled to be present and to defend
himself in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of judgment (Section 1, Rule 115, Revised Rules of
Criminal Procedure). This is hinged on the fact that a layman is not versed on the
technicalities of trial. However, it is also provided by law that "[r]ights may be
waived, unless the waiver is contrary to law, public order, public policy, morals, or
good customs or prejudicial to a third person with right recognized by law." (Article
6, Civil Code of the Philippines). Thus, the same section of Rule 115 adds that
"[u]pon motion, the accused may be allowed to defend himself in person when it
sufficiently appears to the court that he can properly protect his rights without the
assistance of counsel." By analogy, but without prejudice to the sanctions imposed
by law for the illegal practice of law, it is amply shown that the rights of accused-
appellants were sufficiently and properly protected by the appearance of Mr.
Tomas Posadas. An examination of the record will show that he knew the technical
rules of procedure. Hence, we rule that there was a valid waiver of the right to
sufficient representation during the trial, considering that it was unequivocally,
knowingly, and intelligently made and with the full assistance of a bona fidelawyer,
Atty. Abdul Basar. Accordingly, denial of due process cannot be successfully invoked
where a valid waiver of rights has been made (People vs. Serzo, 274 SCRA 553
[1997]; Sayson vs. People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel during custodial
investigation may not be waived except in writing and in the presence of counsel.
Section 12, Article III of the Constitution reads:
SECTION 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this
section as well as compensation to and rehabilitation of victims of torture or
similar practices, and their families.
Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which gave
birth to the so-called Miranda doctrine which is to the effect that prior to any
questioning during custodial investigation, the person must be warned that he has a
right to remain silent, that any statement he gives may be used as evidence against
him, and that he has the right to the presence of an attorney, either retained or
appointed. The defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly, and intelligently. The Constitution even adds
the more stringent requirement that the waiver must be in writing and made in the
presence of counsel.
Saliently, the absence of counsel during the execution of the so-called confessions
of the accused-appellants make them invalid. In fact, the very basic reading of the
Miranda rights was not even shown in the case at bar. Paragraph [3] of the
aforestated Section 12 sets forth the so-called "fruit from the poisonous tree
doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case
of Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the
primary source (the "tree") is shown to have been unlawfully obtained, any
secondary or derivative evidence (the "fruit") derived from it is also inadmissible.
The rule is based on the principle that evidence illegally obtained by the State
should not be used to gain other evidence because the originally illegally obtained
evidence taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA
293 [1995]). Thus, in this case, the uncounselled extrajudicial confessions of
accused-appellants, without a valid waiver of the right to counsel, are inadmissible
and whatever information is derived therefrom shall be regarded as likewise
inadmissible in evidence against them.
However, regardless of the inadmissibility of the subject confessions, there is
sufficient evidence to convict accused-appellants with moral certainty. We agree
with the sound deduction of the trial court that indeed, Emilio Changco (Exhibits
"U" and "UU") and accused-appellants Tulin, Loyola, and Infante, Jr. did conspire
and confederate to commit the crime charged. In the words of then trial judge, now
Justice Romeo J. Callejo of the Court of Appeals —
. . . The Prosecution presented to the Court an array of witnesses, officers and
members of the crew of the "M/T Tabangao" no less, who identified and
pointed to the said Accused as among those who attacked and seized, the "M/T
Tabangao" on March 2, 1991, at about 6:30 o'clock in the afternoon, off Lubang
Island, Mindoro, with its cargo, and brought the said vessel, with its cargo, and
the officers and crew of the vessel, in the vicinity of Horsebough Lighthouse,
43
 about sixty-six nautical miles off the shoreline of Singapore and sold its cargo to
the Accused Cheong San Hiong upon which the cargo was discharged from the
"M/T Tabangao" to the "Navi Pride" for the price of about $500,000.00
(American Dollars) on March 29, and 30, 1991. . .
xxx xxx xxx
The Master, the officers and members of the crew of the "M/T Tabangao" were
on board the vessel with the Accused and their cohorts from March 2, 1991 up
to April 10, 1991 or for more than one (1) month. There can be no scintilla of
doubt in the mind of the Court that the officers and crew of the vessel could
and did see and identify the seajackers and their leader. In fact, immediately
after the Accused were taken into custody by the operatives of the National
Bureau of Investigation, Benjamin Suyo, Norberto Senosa, Christian Torralba
and Isaias Wervas executed their "Joint Affidavit" (Exhibit "B") and pointed to
and identified the said Accused as some of the pirates.
xxx xxx xxx
Indeed, when they testified before this Court on their defense, the three (3)
Accused admitted to the Court that they, in fact, boarded the said vessel in the
evening of March 2, 1991 and remained on board when the vessel sailed to its
destination, which turned out to be off the port of Singapore.
We also agree with the trial court's finding that accused-appellants' defense of
denial is not supported by any hard evidence but their bare testimony. Greater
weight is given to the categorical identification of the accused by the prosecution
witnesses than to the accused's plain denial of participation in the commission of
the crime (People v. Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants
Tulin, Loyola, and Infante, Jr. narrated a patently desperate tale that they were
hired by three complete strangers (allegedly Captain Edilberto Liboon, Second Mate
Christian Torralba, and their companion) while said accused-appellants were
conversing with one another along the seashore at Aplaya, Balibago, Calatagan,
Batangas, to work on board the "M/T Tabangao" which was then anchored off-
shore. And readily, said accused-appellants agreed to work as cooks and handymen
for an indefinite period of time without even saying goodbye to their families,
without even knowing their destination or the details of their voyage, without the
personal effects needed for a long voyage at sea. Such evidence is incredible and
clearly not in accord with human experience. As pointed out by the trial court, it is
incredible that Captain Liboon, Second Mate Torralba, and their companion "had to
leave the vessel at 9:30 o'clock in the evening and venture in a completely
unfamiliar place merely to recruit five (5) cooks or handymen (p. 113, Rollo)."
Anent accused-appellant Changco's defense of denial with the alibi that on May 14
and 17, he was at his place of work and that on April 10, 1991, he was in his house
in Bacoor, Cavite, sleeping, suffice it to state that alibi is fundamentally and
inherently a weak defense, much more so when uncorroborated by other witnesses
(People v. Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate and
concoct, and difficult to disprove. Accused-appellant must adduce clear and
convincing evidence that, at about midnight on April 10, 1991, it was physically
impossible for him to have been in Calatagan, Batangas. Changco not only failed to
do this, he was likewise unable to prove that he was in his place of work on the
dates aforestated.
It is doctrinal that the trial court's evaluation of the credibility of a testimony is
accorded the highest respect, for trial courts have an untrammeled opportunity to
observe directly the demeanor of witnesses and, thus, to determine whether a
certain witness is telling the truth (People v. Obello, 284 SCRA 79 [1998]).
We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when
two or more persons come to an agreement concerning the commission of a felony
and decide to commit it (Article 8, Revised Penal Code). To be a conspirator, one
need not participate in every detail of execution; he need not even take part in
every act or need not even know the exact part to be performed by the others in
the execution of the conspiracy. As noted by the trial court, there are times when
conspirators are assigned separate and different tasks which may appear unrelated
to one another, but in fact, constitute a whole and collective effort to achieve a
common criminal design.
We affirm the trial court's finding that Emilio Changco, accused-appellants Tulin,
Loyola, and Infante, Jr. and others, were the ones assigned to attack and seize the
"M/T Tabangao" off Lubang, Mindoro, while accused-appellant Cecilio Changco was
to fetch the master and the members of the crew from the shoreline of Calatagan,
Batangas after the transfer, and bring them to Imus, Cavite, and to provide the crew
and the officers of the vessel with money for their fare and food provisions on their
way home. These acts had to be well-coordinated. Accused-appellant Cecilio
Changco need not be present at the time of the attack and seizure of "M/T
Tabangao" since he performed his task in view of an objective common to all other
accused-appellants.
Of notable importance is the connection of accused-appellants to one another.
Accused-appellant Cecilio Changco is the younger brother of Emilio Changco (aka
Captain Bobby/Captain Roberto Castillo/Kevin Ocampo), owner of Phil-Asia
Shipping Lines. Cecilio worked for his brother in said corporation. Their residences
are approximately six or seven kilometers away from each other. Their families are
close. Accused-appellant Tulin, on the other hand, has known Cecilio since their
parents were neighbors in Aplaya, Balibago, Calatagan, Batangas. Accused-
appellant Loyola's wife is a relative of the Changco brothers by affinity. Besides,
Loyola and Emilio Changco had both been accused in a seajacking case regarding
"M/T Isla Luzon" and its cargo of steel coils and plates off Cebu and Bohol in 1989.
44
Emilio Changco (aka Kevin Ocampo) was convicted of the crime while Loyola at that
time remained at large.
As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted
of piracy in Philippine waters as defined and penalized in Sections 2[d] and 3[a],
respectively of Presidential Decree No. 532 because Republic Act No. 7659
(effective January 1, 1994), which amended Article 122 of the Revised Penal Code,
has impliedly superseded Presidential Decree No. 532. He reasons out that
Presidential Decree No. 532 has been rendered "superfluous or duplicitous"
because both Article 122 of the Revised Penal Code, as amended, and Presidential
Decree No. 532 punish piracy committed in Philippine waters. He maintains that in
order to reconcile the two laws, the word "any person" mentioned in Section 1 [d]
of Presidential Decree No. 532 must be omitted such that Presidential Decree No.
532 shall only apply to offenders who are members of the complement or to
passengers of the vessel, whereas Republic Act No. 7659 shall apply to offenders
who are neither members of the complement or passengers of the vessel, hence,
excluding him from the coverage of the law.
Article 122 of the Revised Penal Code, used to provide:
ARTICLE 122. Piracy in general and mutiny on the high seas. — The penalty of
reclusion temporal shall be inflicted upon any person who, on the high seas,
shall attack or seize a vessel or, not being a member of its complement nor a
passenger, shall seize the whole or part of the cargo of said vessel, its
equipment, or personal belongings of its complement or passengers. (Italics
supplied.)
Article 122, as amended by Republic Act No. 7659 (January 1, 1994), reads:
ARTICLE 122. Piracy in general and mutiny on the high seas or in Philippine
waters. — The penalty of reclusion perpetua shall be inflicted upon any person
who, on the high seas, or in Philippine waters, shall attack or seize a vessel
or, not being a member of its complement nor a passenger, shall seize the
whole or part of the cargo of said vessel, its equipment, or personal belongings
of its complement or passengers. (Italics ours)
On the other hand, Section 2 of Presidential Decree No. 532 provides:
SECTION 2. Definition of Terms. — The following shall mean and be understood,
as follows:
d. Piracy. — Any attack upon or seizure of any vessel or the taking away of the
whole or part thereof or its cargo, equipment, or the personal belongings of its
complement or passengers, irrespective of the value thereof, by means of
violence against or intimidation of persons or force upon things, committed
by any person, including a passenger or member of the complement of said
vessel in Philippine waters, shall be considered as piracy. The offenders shall be
considered as pirates and punished as hereinafter provided (Italics supplied).
To summarize, Article 122 of the Revised Penal Code, before its amendment,
provided that piracy must be committed on the high seas by any person not a
member of its complement nor a passenger thereof. Upon its amendment by
Republic Act No. 7659, the coverage of the pertinent provision was widened to
include offenses committed "in Philippine waters." On the other hand, under
Presidential Decree No. 532 (issued in 1974), the coverage of the law on piracy
embraces any person including "a passenger or member of the complement of said
vessel in Philippine waters." Hence, passenger or not, a member of the complement
or not, any person is covered by the law.
Republic Act No. 7659 neither superseded nor amended the provisions on piracy
under Presidential Decree No. 532. There is no contradiction between the two laws.
There is likewise no ambiguity and hence, there is no need to construe or interpret
the law. All the presidential decree did was to widen the coverage of the law, in
keeping with the intent to protect the citizenry as well as neighboring states from
crimes against the law of nations. As expressed in one of the "whereas" clauses of
Presidential Decree No. 532, piracy is "among the highest forms of lawlessness
condemned by the penal statutes of all countries." For this reason, piracy under the
Article 122, as amended, and piracy under Presidential Decree No. 532 exist
harmoniously as separate laws.
As regards the contention that the trial court did not acquire jurisdiction over the
person of accused-appellant Hiong since the crime was committed outside
Philippine waters, suffice it to state that unquestionably, the attack on and seizure
of "M/T Tabangao" (renamed "M/T Galilee" by the pirates) and its cargo were
committed in Philippine waters, although the captive vessel was later brought by
the pirates to Singapore where its cargo was off-loaded, transferred, and sold. And
such transfer was done under accused-appellant Hiong's direct supervision.
Although Presidential Decree No. 532 requires that the attack and seizure of the
vessel and its cargo be committed in Philippine waters, the disposition by the
pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the
same need not be committed in Philippine waters.
Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As
such, it is an exception to the rule on territoriality in criminal law. The same
principle applies even if Hiong, in the instant case, were charged, not with a
violation of qualified piracy under the penal code but under a special law,
Presidential Decree No. 532 which penalizes piracy in Philippine waters. Verily,
Presidential Decree No. 532 should be applied with more force here since its
purpose is precisely to discourage and prevent piracy in Philippine waters (People v.
Catantan, 278 SCRA 761 [1997]). It is likewise, well-settled that regardless of the
45
law penalizing the same, piracy is a reprehensible crime against the whole world
(People v. Lol-lo, 43 Phil. 19 [1922]).
However, does this constitute a violation of accused-appellant's constitutional right
to be informed of the nature and cause of the accusation against him on the ground
that he was convicted as an accomplice under Section 4 of Presidential Decree No.
532 even though he was charged as a principal by direct participation under Section
2 of said law?
The trial court found that there was insufficiency of evidence showing:
(a) that accused-appellant Hiong directly participated in the attack and seizure of
"M/T Tabangao" and its cargo; (b) that he induced Emilio Changco and his group in
the attack and seizure of "M/T Tabangao" and its cargo; (c) and that his act was
indispensable in the attack on and seizure of "M/T Tabangao" and its cargo.
Nevertheless, the trial court found that accused-appellant Hiong's participation was
indisputably one which aided or abetted Emilio Changco and his band of pirates in
the disposition of the stolen cargo under Section 4 of Presidential Decree No. 532
which provides:
SECTION 4. Aiding pirates or highway robbers/brigands or abetting piracy or
highway robbery brigandage. — Any person who knowingly and in any manner
aids or protects pirates or highway robbers/brigands, such as giving them
information about the movement of police or other peace officers of the
government, or acquires or receives property taken by such pirates or brigands
or in any manner derives any benefit therefrom; or any person who directly or
indirectly abets the commission of piracy or highway robbery or brigandage,
shall be considered as an accomplice of the principal officers and be punished
in accordance with Rules prescribed by the Revised Penal Code.
It shall be presumed that any person who does any of the acts provided in this
Section has performed them knowingly, unless the contrary is proven.
The ruling of the trial court is within well-settled jurisprudence that if there is lack
of complete evidence of conspiracy, the liability is that of an accomplice and not as
principal (People v. Tolentino, 40 SCRA 514 [1971]). Any doubt as to the
participation of an individual in the commission of the crime is always resolved in
favor of lesser responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs.
Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]).
Emphasis must also be placed on the last paragraph of Section 4 of Presidential
Decree No. 532 which presumes that any person who does any of the acts provided
in said section has performed them knowingly, unless the contrary is proven. In the
case at bar, accused-appellant Hiong had failed to overcome the legal presumption
that he knowingly abetted or aided in the commission of piracy, received property
taken by such pirates and derived benefit therefrom.
The record discloses that accused-appellant Hiong aided the pirates in disposing of
the stolen cargo by personally directing its transfer from "M/T Galilee" to "M/T Navi
Pride". He profited therefrom by buying the hijacked cargo for Navi Marine
Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He even tested the quality and
verified the quantity of the petroleum products, connived with Navi Marine
Services personnel in falsifying the General Declarations and Crew List to ensure
that the illegal transfer went through, undetected by Singapore Port Authorities,
and supplied, the pirates with food, beer, and other provisions for their
maintenance while in port (tsn, June 3, 1992, pp. 133-134).
We believe that the falsification of the General Declaration (Arrival and Departure)
and Crew List was accomplished and utilized by accused-appellant Hiong and Navi
Marine Services personnel in the execution of their scheme to avert detection by
Singapore Port Authorities. Hence, had accused-appellant Hiong not falsified said
entries, the Singapore Port Authorities could have easily discovered the illegal
activities that took place and this would have resulted in his arrest and prosecution
in Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to
"Navi Pride" could not have been effected.
We completely uphold the factual findings of the trial court showing in detail
accused-appellant Hiong's role in the disposition of the pirated goods summarized
as follows: that on March 27, 1991, Hiong with Captain Biddy Santos boarded the
"Navi Pride," one of the vessels of the Navi Marine, to rendezvous with the "M/T
Galilee"; that the firm submitted the crew list of the vessel (Exhibit "8-CSH", Record)
to the port authorities, excluding the name of Hiong; that the "General Declaration"
(for departure) of the "Navi Pride" for its voyage off port of Singapore (Exhibits
"HH" and "8-A CSH", Record) falsely stated that the vessel was scheduled to depart
at 2200 (10 o'clock in the evening), that there were no passengers on board, and
the purpose of the voyage was for "cargo operation" and that the vessel was to
unload and transfer 1,900 tons of cargo; that after the transfer of the fuel from
"M/T Galilee" with Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at
the helm, the surveyor prepared the "Quantity Certificate" (Exhibit "11-C CSH,
Record) stating that the cargo transferred to the "Navi Pride" was 2,406 gross cubic
meters; that although Hiong was not the Master of the vessel, he affixed his
signature on the "Certificate" above the word "Master" (Exhibit "11-C-2 CSH",
Record); that he then paid P150,000.00 but did not require any receipt for the
amount; that Emilio Changco also did not issue one; and that in the requisite
"General Declaration" upon its arrival at Singapore on March 29, 1991, at 7 o'clock
in the evening, (Exhibits "JJ" and "13-A CSH", Record), it was made to falsely appear
that the "Navi Pride" unloaded 1,700 tons of cargo on the high seas during said
voyage when in fact it acquired from the "M/T Galilee" 2,000 metric tons of diesel
oil. The second transfer transpired with the same irregularities as discussed above.
It was likewise supervised by accused-appellant Cheong from his end while Emilio
Changco supervised the transfer from his end.
46
Accused-appellant Hiong maintains that he was merely following the orders of his
superiors and that he has no knowledge of the illegality of the source of the cargo.
First and foremost, accused-appellant Hiong cannot deny knowledge of the source
and nature of the cargo since he himself received the same from "M/T Tabangao".
Second, considering that he is a highly educated mariner, he should have avoided
any participation in the cargo transfer given the very suspicious circumstances
under which it was acquired. He failed to show a single piece of deed or bill of sale
or even a purchase order or any contract of sale for the purchase by the firm; he
never bothered to ask for and scrutinize the papers and documentation relative to
the "M/T Galilee"; he did not even verify the identity of Captain Robert Castillo
whom he met for the first time nor did he check the source of the cargo; he knew
that the transfer took place 66 nautical miles off Singapore in the dead of the night
which a marine vessel of his firm did not ordinarily do; it was also the first time Navi
Marine transacted with Paul Gan involving a large sum of money without any
receipt issued therefor; he was not even aware if Paul Gan was a Singaporean
national and thus safe to deal with. It should also be noted that the value of the
cargo was P40,426,793.87 or roughly more than US$1,000,000.00 (computed at
P30.00 to $1, the exchange rate at that time). Manifestly, the cargo was sold for less
than one-half of its value. Accused-appellant Hiong should have been aware of this
irregularity. Nobody in his right mind would go to far away Singapore, spend much
time and money for transportation — only to sell at the aforestated price if it were
legitimate sale involved. This, in addition to the act of falsifying records, clearly
shows that accused-appellant Hiong was well aware that the cargo that his firm was
acquiring was purloined.
Lastly, it cannot be correctly said that accused-appellant was "merely following the
orders of his superiors." An individual is justified in performing an act in obedience
to an order issued by a superior if such order, is for some lawful purpose and that
the means used by the subordinate to carry out said order is lawful (Reyes, Revised
Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's superior
Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of
international law. Such violation was committed on board a Philippine-operated
vessel. Moreover, the means used by Hiong in carrying out said order was equally
unlawful. He misled port and immigration authorities, falsified records, using a
mere clerk, Frankie Loh, to consummate said acts. During the trial, Hiong presented
himself, and the trial court was convinced, that he was an intelligent and articulate
Port Captain. These circumstances show that he must have realized the nature and
the implications of the order of Chua Kim Leng Timothy. Thereafter, he could have
refused to follow orders to conclude the deal and to effect the transfer of the cargo
to the "Navi Pride." He did not do so, for which reason, he must now suffer the
consequences of his actions.
WHEREFORE, finding the conviction of accused-appellants justified by the evidence
on record, the Court hereby AFFIRMS the judgment of the trial court in toto.
SO ORDERED.
G.R. No. 178552 October 5, 2010
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN)
for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY
OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178554
KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V.
Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN
RIGHTS, represented by its Executive Director Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity
as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice,
HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN.
HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR
CALDERON, in his capacity as PNP Chief of Staff, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178581
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS,
INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS
(KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN
NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO
STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA
(PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR
DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO
CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA
LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-
ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO
CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY
RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its
intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178890
47
 KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr.
Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline
Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also
on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA
(SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT
FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF
CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF
THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER
ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON,
THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES
ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS
FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER
SENATORS SERGIO OSMEÑA III and WIGBERTO E. TAÑADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL
(ATC), Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179461
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG
MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN
NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN
MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT
LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA
MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS RURAL
POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA, TEODORO REYES,
FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY
P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY
RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its
intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic Act
No. 9372 (RA 9372), "An Act to Secure the State and Protect our People from
Terrorism," otherwise known as the Human Security Act of 2007, 1signed into law on
March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern
Hemisphere Engagement Network, Inc., a non-government organization, and Atty.
Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for
certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even
date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-
Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights
(CTUHR), represented by their respective officers3 who are also bringing the action
in their capacity as citizens, filed a petition for certiorari and prohibition docketed
as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan
(BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality,
Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP),
Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for
Unity, Recognition and Advancement of Government Employees (COURAGE),
Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW),
League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang
Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante,
Health Alliance for Democracy (HEAD), and Agham, represented by their respective
officers,4 and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr.
Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB,
Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos
Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos,
Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for
certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya,
Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa
Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and
Promotion of Church People’s Response (PCPR), which were represented by their
respective officers5who are also bringing action on their own behalf, filed a petition
for certiorari and prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the
Defense of Liberty (CODAL),6Senator Ma. Ana Consuelo A.S. Madrigal, Sergio
Osmeña III, and Wigberto E. Tañada filed a petition for certiorari and prohibition
docketed as G.R. No. 179157.
48
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional
chapters and organizations mostly based in the Southern Tagalog Region, 7 and
individuals8 followed suit by filing on September 19, 2007 a petition for certiorari
and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in
the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism
Council9 composed of, at the time of the filing of the petitions, Executive Secretary
Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson,
and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and
National Security Adviser Norberto Gonzales, Interior and Local Government
Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All
the petitions, except that of the IBP, also impleaded Armed Forces of the
Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National
Police (PNP) Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria
Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the
National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau
of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money
Laundering Center, Philippine Center on Transnational Crime, and the PNP
intelligence and investigative elements.
The petitions fail.
Petitioners’ resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise
judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or
officer exercising judicial or quasi-judicial functionshas acted without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require. (Emphasis and
underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity
how respondents acted without or in excess of their respective jurisdictions, or with
grave abuse of discretion amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting
requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the lis mota of
the case.10
In the present case, the dismal absence of the first two requisites, which are the
most essential, renders the discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.11
Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule
on locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged. The gist of the question on
standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct and
personal interest. It must show not only that the law or any governmental act is
invalid, but also that it sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely that it suffers thereby in
some indefinite way. It must show that it has been or is about to be denied some
right or privilege to which it is lawfully entitled or that it is about to be subjected to
some burdens or penalties by reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional question, it must show
that (1) it has personally suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government, (2) the injury is fairly traceable to the
challenged action, and (3) the injury is likely to be redressed by a favorable action.
(emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected
"communist fronts" by the government, especially the military; whereas individual
petitioners invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance dispenses with
the requirement that petitioner has experienced or is in actual danger of suffering
direct and personal injury, cases involving the constitutionality of penal legislation
belong to an altogether different genus of constitutional litigation. Compelling State
49
and societal interests in the proscription of harmful conduct, as will later be
elucidated, necessitate a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No.
178890, allege that they have been subjected to "close security surveillance by
state security forces," their members followed by "suspicious persons" and
"vehicles with dark windshields," and their offices monitored by "men with military
build." They likewise claim that they have been branded as "enemies of the
[S]tate."14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG)
correctly points out that petitioners have yet to show any connection between the
purported "surveillance" and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan,
PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R.
No. 178581, would like the Court to take judicial notice of respondents’ alleged
action of tagging them as militant organizations fronting for the Communist Party of
the Philippines (CPP) and its armed wing, the National People’s Army (NPA). The
tagging, according to petitioners, is tantamount to the effects of proscription
without following the procedure under the law. 15 The petition of BAYAN-ST, et al. in
G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the
matter must be one of common and general knowledge; (2) it must be well and
authoritatively settled and not doubtful or uncertain; and (3) it must be known to
be within the limits of the jurisdiction of the court. The principal guide in
determining what facts may be assumed to be judicially known is that of notoriety.
Hence, it can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety. Moreover, a judicially noticed fact must be
one not subject to a reasonable dispute in that it is either: (1) generally known
within the territorial jurisdiction of the trial court; or (2) capable of accurate and
ready determination by resorting to sources whose accuracy cannot reasonably be
questionable.
Things of "common knowledge," of which courts take judicial matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or
they may be matters which are generally accepted by mankind as true and are
capable of ready and unquestioned demonstration. Thus, facts which are
universally known, and which may be found in encyclopedias, dictionaries or other
publications, are judicially noticed, provided, they are of such universal notoriety
and so generally understood that they may be regarded as forming part of the
common knowledge of every person. As the common knowledge of man ranges far
and wide, a wide variety of particular facts have been judicially noticed as being
matters of common knowledge. But a court cannot take judicial notice of any fact
which, in part, is dependent on the existence or non-existence of a fact of which the
court has no constructive knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial notice.
Petitioners’ apprehension is insufficient to substantiate their plea. That no specific
charge or proscription under RA 9372 has been filed against them, three years after
its effectivity, belies any claim of imminence of their perceived threat emanating
from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who
merely harp as well on their supposed "link" to the CPP and NPA. They fail to
particularize how the implementation of specific provisions of RA 9372 would result
in direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the
United States of America17 (US) and the European Union18 (EU) have both classified
the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court
takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice
Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU
classification of the CPP and NPA as terrorist organizations.19 Such statement
notwithstanding, there is yet to be filed before the courts an application to declare
the CPP and NPA organizations as domestic terrorist or outlawed organizations
under RA 9372. Again, RA 9372 has been in effect for three years now. From July
2007 up to the present, petitioner-organizations have conducted their activities
fully and freely without any threat of, much less an actual, prosecution or
proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list
Representatives Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and
Luzviminda Ilagan,20 urged the government to resume peace negotiations with the
NDF by removing the impediments thereto, one of which is the adoption of
designation of the CPP and NPA by the US and EU as foreign terrorist organizations.
Considering the policy statement of the Aquino Administration 21 of resuming peace
talks with the NDF, the government is not imminently disposed to ask for the
judicial proscription of the CPP-NPA consortium and its allied organizations.
More important, there are other parties not before the Court with direct and
specific interests in the questions being raised.22 Of recent development is the filing
of the first case for proscription under Section 1723 of RA 9372 by the Department
of Justice before the Basilan Regional Trial Court against the Abu Sayyaf
Group.24 Petitioner-organizations do not in the least allege any link to the Abu
Sayyaf Group.
50
Some petitioners attempt, in vain though, to show the imminence of a prosecution
under RA 9372 by alluding to past rebellion charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in
2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of
Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino
Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita
Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front
organizations for the Communist movement were petitioner-organizations KMU,
BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26
The dismissed rebellion charges, however, do not save the day for petitioners. For
one, those charges were filed in 2006, prior to the enactment of RA 9372, and
dismissed by this Court. For another, rebellion is defined and punished under the
Revised Penal Code. Prosecution for rebellion is not made more imminent by the
enactment of RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to
prospective charges under RA 9372. It cannot be overemphasized that three years
after the enactment of RA 9372, none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on
their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA
9372 directing it to render assistance to those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however,
suffice to clothe the IBP or any of its members with standing. 27 The IBP failed to
sufficiently demonstrate how its mandate under the assailed statute revolts against
its constitutional rights and duties. Moreover, both the IBP and CODAL have not
pointed to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of
"political surveillance," also lacks locus standi. Prescinding from the veracity, let
alone legal basis, of the claim of "political surveillance," the Court finds that she has
not shown even the slightest threat of being charged under RA 9372. Similarly
lacking in locus standi are former Senator Wigberto Tañada and Senator Sergio
Osmeña III, who cite their being respectively a human rights advocate and an
oppositor to the passage of RA 9372. Outside these gratuitous statements, no
concrete injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr.
in G.R. No. 178552 also conveniently state that the issues they raise are of
transcendental importance, "which must be settled early" and are of "far-reaching
implications," without mention of any specific provision of RA 9372 under which
they have been charged, or may be charged. Mere invocation of human rights
advocacy has nowhere been held sufficient to clothe litigants with locus standi.
Petitioners must show an actual, or immediate danger of sustaining, direct injury as
a result of the law’s enforcement. To rule otherwise would be to corrupt the settled
doctrine of locus standi, as every worthy cause is an interest shared by the general
public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and
citizens. A taxpayer suit is proper only when there is an exercise of the spending or
taxing power of Congress,28 whereas citizen standing must rest on direct and
personal interest in the proceeding.29
RA 9372 is a penal statute and does not even provide for any appropriation from
Congress for its implementation, while none of the individual petitioner-citizens has
alleged any direct and personal interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of
a public right, do not establish locus standi. Evidence of a direct and personal
interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual case or
controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and 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 the
Government.30(emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,31 the Court ruled that the power of
judicial review is limited to actual cases or controversies to be exercised after full
opportunity of argument by the parties. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.32
Information Technology Foundation of the Philippines v. COMELEC 33 cannot be
more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be justiciable—
definite and concrete, touching on the legal relations of parties having adverse legal
51
interests. In other words, the pleadings must show an active antagonistic assertion Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that
of a legal right, on the one hand, and a denial thereof on the other hand; that is, it the challenged provisions of RA 9372 forbid constitutionally protected conduct or
must concern a real and not merely a theoretical question or issue. There ought to activity that they seek to do. No demonstrable threat has been established, much
be an actual and substantial controversy admitting of specific relief through a less a real and existing one.
decree conclusive in nature, as distinguished from an opinion advising what the law
Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being
would be upon a hypothetical state of facts. (Emphasis and underscoring supplied)
tagged as "communist fronts" in no way approximate a credible threat of
Thus, a petition to declare unconstitutional a law converting the Municipality of prosecution. From these allegations, the Court is being lured to render an advisory
Makati into a Highly Urbanized City was held to be premature as it was tacked on opinion, which is not its function.43
uncertain, contingent events.34 Similarly, a petition that fails to allege that an
Without any justiciable controversy, the petitions have become pleas for
application for a license to operate a radio or television station has been denied or
declaratory relief, over which the Court has no original jurisdiction. Then again,
granted by the authorities does not present a justiciable controversy, and merely
declaratory actions characterized by "double contingency," where both the activity
wheedles the Court to rule on a hypothetical problem.35
the petitioners intend to undertake and the anticipated reaction to it of a public
The Court dismissed the petition in Philippine Press Institute v. Commission on official are merely theorized, lie beyond judicial review for lack of ripeness.44
Elections36 for failure to cite any specific affirmative action of the Commission on
The possibility of abuse in the implementation of RA 9372 does not avail to take the
Elections to implement the assailed resolution. It refused, in Abbas v. Commission
present petitions out of the realm of the surreal and merely imagined. Such
on Elections,37 to rule on the religious freedom claim of the therein petitioners
possibility is not peculiar to RA 9372 since the exercise of any power granted by law
based merely on a perceived potential conflict between the provisions of the
may be abused.45 Allegations of abuse must be anchored on real events before
Muslim Code and those of the national law, there being no actual controversy
courts may step in to settle actual controversies involving rights which are legally
between real litigants.
demandable and enforceable.
The list of cases denying claims resting on purely hypothetical or anticipatory
A facial invalidation of a statute is allowed only in free speech cases, wherein
grounds goes on ad infinitum.
certain rules of constitutional litigation are rightly excepted
The Court is not unaware that a reasonable certainty of the occurrence of a
Petitioners assail for being intrinsically vague and impermissibly broad the
perceived threat to any constitutional interest suffices to provide a basis for
definition of the crime of terrorism46under RA 9372 in that terms like "widespread
mounting a constitutional challenge. This, however, is qualified by the requirement
and extraordinary fear and panic among the populace" and "coerce the government
that there must be sufficient facts to enable the Court to intelligently adjudicate the
to give in to an unlawful demand" are nebulous, leaving law enforcement agencies
issues.38
with no standard to measure the prohibited acts.
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
Respondents, through the OSG, counter that the doctrines of void-for-vagueness
Project,39 allowed the pre-enforcement review of a criminal statute, challenged on
and overbreadth find no application in the present case since these doctrines apply
vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and
only to free speech cases; and that RA 9372 regulates conduct, not speech.
"should not be required to await and undergo a criminal prosecution as the sole
means of seeking relief."40 The plaintiffs therein filed an action before a federal For a jurisprudentially guided understanding of these doctrines, it is imperative to
court to assail the constitutionality of the material support statute, 18 U.S.C. outline the schools of thought on whether the void-for-vagueness and overbreadth
§2339B (a) (1),41 proscribing the provision of material support to organizations doctrines are equally applicable grounds to assail a penal statute.
declared by the Secretary of State as foreign terrorist organizations. They claimed
Respondents interpret recent jurisprudence as slanting toward the idea of limiting
that they intended to provide support for the humanitarian and political activities of
the application of the two doctrines to free speech cases. They particularly
two such organizations.
cite Romualdez v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48
Prevailing American jurisprudence allows an adjudication on the merits when an
The Court clarifies.
anticipatory petition clearly shows that the challenged prohibition forbids the
conduct or activity that a petitioner seeks to do, as there would then be a justiciable At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in
controversy.42 Section 549 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and

52
impermissibly broad. The Court stated that "the overbreadth and the vagueness
doctrines have special application only to free-speech cases," and are "not
appropriate for testing the validity of penal statutes."50 It added that, at any rate,
the challenged provision, under which the therein petitioner was charged, is not
vague.51
While in the subsequent case of Romualdez v. Commission on Elections,52 the Court
stated that a facial invalidation of criminal statutes is not appropriate, it
nonetheless proceeded to conduct a vagueness analysis, and concluded that the
therein subject election offense53 under the Voter’s Registration Act of 1996, with
which the therein petitioners were charged, is couched in precise language.54
The two Romualdez cases rely heavily on the Separate Opinion 55 of Justice Vicente
V. Mendoza in the Estradacase, where the Court found the Anti-Plunder Law
(Republic Act No. 7080) clear and free from ambiguity respecting the definition of
the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a "facial" invalidation as opposed to an "as-applied" challenge. He
basically postulated that allegations that a penal statute is vague and overbroad do
not justify a facial review of its validity. The pertinent portion of the Concurring
Opinion of Justice Mendoza, which was quoted at length in the main Estrada
decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible "chilling effect" upon protected speech. The theory
is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting laws
against socially harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances
exists under which the Act would be valid." As for the vagueness doctrine, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they
are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will
not be heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its application might
be unconstitutional." As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant." Consequently, there is no
basis for petitioner's claim that this Court review the Anti-Plunder Law on its face
and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely
on the ground that they might be applied to parties not before the Court whose
activities are constitutionally protected. It constitutes a departure from the case
and controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts. But, as the U.S.
Supreme Court pointed out in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-
by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last resort,"
53
and is generally disfavored. In determining the constitutionality of a statute,
therefore, its provisions which are alleged to have been violated in a case must be
examined in the light of the conduct with which the defendant is
charged.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth
and vagueness doctrines as grounds for a facial or as-applied challenge against a
penal statute (under a claim of violation of due process of law) or a speech
regulation (under a claim of abridgement of the freedom of speech and cognate
rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not
operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning
and differ as to its application. It is repugnant to the Constitution in two respects:
(1) it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.57 The overbreadth doctrine, meanwhile, decrees that a
governmental purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms. 58
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes
that individuals will understand what a statute prohibits and will accordingly refrain
from that behavior, even though some of it is protected.59
A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers only extant facts
affecting real litigants, a facialinvalidation is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis of its actual operation to the
parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or
activities.60
Justice Mendoza accurately phrased the subtitle 61 in his concurring opinion that the
vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount a facial challenge
against a criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to
avert the "chilling effect" on protected speech, the exercise of which should not at
all times be abridged.62 As reflected earlier, this rationale is inapplicable to plain
penal statutes that generally bear an "in terrorem effect" in deterring socially
harmful conduct. In fact, the legislature may even forbid and penalize acts formerly
considered innocent and lawful, so long as it refrains from diminishing or dissuading
the exercise of constitutionally protected rights.63
The Court reiterated that there are "critical limitations by which a criminal statute
may be challenged" and "underscored that an ‘on-its-face’ invalidation of penal
statutes x x x may not be allowed."64
[T]he rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case
may ordinary penal statutes be subjected to a facial challenge. The rationale is
obvious. If a facial challenge to a penal statute is permitted, the prosecution of
crimes may be hampered. No prosecution would be possible. A strong criticism
against employing a facial challenge in the case of penal statutes, if the same is
allowed, would effectively go against the grain of the doctrinal requirement of an
existing and concrete controversy before judicial power may be appropriately
exercised. A facial challenge against a penal statute is, at best, amorphous and
speculative. It would, essentially, force the court to consider third parties who are
not before it. As I have said in my opposition to the allowance of a facial challenge
to attack penal statutes, such a test will impair the State’s ability to deal with crime.
If warranted, there would be nothing that can hinder an accused from defeating the
State’s power to prosecute on a mere showing that, as applied to third parties, the
penal statute is vague or overbroad, notwithstanding that the law is clear as applied
to him.65 (Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given rationale of a facial
challenge, applicable only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost
always under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to facts as
applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the unconstitutional aspects of the law
by invalidating its improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth analysis, those rules give way;
challenges are permitted to raise the rights of third parties; and the court
invalidates the entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court construes
54
it more narrowly. The factor that motivates courts to depart from the normal
adjudicatory rules is the concern with the "chilling;" deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The Court
assumes that an overbroad law’s "very existence may cause others not before the
court to refrain from constitutionally protected speech or expression." An
overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.66 (Emphasis in the original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least
two cases,67 observed that the US Supreme Court has not recognized an
overbreadth doctrine outside the limited context of the First Amendment, 68and that
claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it
was held that rarely, if ever, will an overbreadth challenge succeed against a law or
regulation that is not specifically addressed to speech or speech-related conduct.
Attacks on overly broad statutes are justified by the "transcendent value to all
society of constitutionally protected expression."71
Since a penal statute may only be assailed for being vague as applied to
petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372
is legally impermissible absent an actual or imminent chargeagainst them
While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the therein
petitioner, finding, however, that there was no basis to review the law "on its face
and in its entirety."72 It stressed that "statutes found vague as a matter of due
process typically are invalidated only 'as applied' to a particular defendant."73
American jurisprudence74 instructs that "vagueness challenges that do not involve
the First Amendment must be examined in light of the specific facts of the case at
hand and not with regard to the statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated defendants’ claims
that criminal statutes are unconstitutionally vague, developing a doctrine hailed as
"among the most important guarantees of liberty under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process
clause has been utilized in examining the constitutionality of criminal statutes. In at
least three cases,76 the Court brought the doctrine into play in analyzing an
ordinance penalizing the non-payment of municipal tax on fishponds, the crime of
illegal recruitment punishable under Article 132(b) of the Labor Code, and the
vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the
petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed
penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial
analysis of its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA
9372, the following elements may be culled: (1) the offender commits an act
punishable under any of the cited provisions of the Revised Penal Code, or under
any of the enumerated special penal laws; (2) the commission of the predicate
crime sows and creates a condition of widespread and extraordinary fear and panic
among the populace; and (3) the offender is actuated by the desire to coerce the
government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of "unlawful demand" in the definition of
terrorism77 must necessarily be transmitted through some form of expression
protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize is conduct, not
speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a
predicate crime actually committed to trigger the operation of the key qualifying
phrases in the other elements of the crime, including the coercion of the
government to accede to an "unlawful demand." Given the presence of the first
element, any attempt at singling out or highlighting the communicative component
of the prohibition cannot recategorize the unprotected conduct into a protected
speech.
Petitioners’ notion on the transmission of message is entirely inaccurate, as it
unduly focuses on just one particle of an element of the crime. Almost every
commission of a crime entails some mincing of words on the part of the offender
like in declaring to launch overt criminal acts against a victim, in haggling on the
amount of ransom or conditions, or in negotiating a deceitful transaction. An
analogy in one U.S. case78 illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to take down a
sign reading "White Applicants Only" hardly means that the law should be analyzed
as one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially harmful conduct nor
the essence of the whole act as conduct and not speech. This holds true a fortiori in
the present case where the expression figures only as an inevitable incident of
making the element of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in most
instances brought about through speaking or writing. But it has never been deemed
an abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was, in part, initiated, evidenced, or carried out by
55
means of language, either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of trade
as well as many other agreements and conspiracies deemed injurious to
society.79 (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct, because they
merely evidence a prohibited conduct.80 Since speech is not involved here, the
Court cannot heed the call for a facial analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of
the therein subject penal statute as applied to the therein petitioners inasmuch as
they were actually charged with the pertinent crimes challenged on vagueness
grounds. The Court in said cases, however, found no basis to review the assailed
penal statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since the therein
plaintiffs faced a "credible threat of prosecution" and "should not be required to
await and undergo a criminal prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a
credible threat of prosecution under RA 9372. Even a limited vagueness analysis of
the assailed definition of "terrorism" is thus legally impermissible. The Court
reminds litigants that judicial power neither contemplates speculative counseling
on a statute’s future effect on hypothetical scenarios nor allows the courts to be
used as an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
G.R. No. 231658
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 DEF'ENSE AND MARTIAL LAW ADMINISTRATOR; AND GEN. EDUARDO
ANO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND MARTIAL LAW IMPLEMENTOR,
Respondents
x-----------------------x
G.R. No. 231771
EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LIN CUNA, ATELIANA U. HIJOS, ROLAND A. COBRADO, CARL
ANTHONY D. OLALO, ROY JIM BALANGIDG, RENATO REYES, JR., CRISTIN A E. PALABAY, AMARYLLIS H.
ENRIQUEZ, ACT TEACHERS' REPRESENTATIVE ANTONIO L. TINIO, GABRIELA WOMEN'S PARTY
REPRESENTATIVE i\RLENED.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.
PRESIDENT RODRIGO DUTERTE, EXECUTIVE SECRETARY SALVADOR MEDIALDEA, DEFENSE SECRETARY
DELFIN LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF LT. GENERAL EDUARDO
ANO, PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL RONALD DELA ROSA, Respondents
x-----------------------x
G.R. No. 231774
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-INCHARGE) CATALINO S. CUY, ARMED FORCES OF THE PHILIPPINES (AFP) CHEF
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.
DECISION
DEL CASTILLO, J.:
Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo
Roa Duterte issued Proclamation No. 216 declaring a state of martial law and
suspending the privilege of the writ of habeas corpus in the whole of Mindanao.
The full text of Proclamation No. 216 reads as follows:
WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September
2016 declaring a state of national emergency on account of lawless violence in
Mindanao;
WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case
of invasion or rebellion, when the public safety requires it, he (the President)
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';
WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968,
provides that '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';
WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the
series of violent acts committed by the Maute terrorist group such as the
attack on the military outpost in Butig, Lanao del Sur in February 2016, killing
and wounding several soldiers, and the mass jailbreak in Marawi City in August
2016, freeing their arrested comrades and other detainees;
WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over
a hospital in Marawi City, Lanao del Sur, established several checkpoints within
56
 the City, burned down certain government and private facilities and inflicted
casualties on the part of Government forces, and 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; and
WHEREAS, 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.
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the
Philippines, by virtue of the powers vested in me by the Constitution and by
law, do hereby proclaim as follows:
SECTION 1. There is hereby declared a state of martial law in the Mindanao
group of islands for a period not exceeding sixty days, effective as of the date
hereof.
SECTION 2. The privilege of the writ of habeas corpus shall likewise be
suspended in the aforesaid area for the duration of the state of martial law.
DONE in the Russian Federation, this 23rd day of May in the year of our Lord,
Two Thousand and Seventeen.
Within the timeline set by Section 18, Article VII of the Constitution, the President
submitted to Congress on May 25, 2017, a written Report on the factual basis of
Proclamation No. 216.
The Report pointed out that for decades, Mindanao has been plagued with
rebellion and lawless violence which only escalated and worsened with the passing
of time.
Mindanao has been the hotbed of violent extremism and a brewing rebellion
for decades. In more recent years, we have witnessed the perpetration of
numerous acts of violence challenging the authority of the duly constituted
authorities, i.e., the Zamboanga siege, the Davao bombing, the Mamasapano
carnage, and the bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan,
among others. Two armed groups have figured prominently in all these,
namely, the Abu Sayaff Group (ASG) and the ISIS-backed Maute Group.1
The President went on to explain that on May 23, 2017, a government operation to
capture the high-ranking officers of the Abu Sayyaf Group (ASG) and the Maute
Group was conducted. These groups, which have been unleashing havoc in
Mindanao, however, confronted the government operation by intensifying their
efforts at sowing violence aimed not only against the government authorities and
its facilities but likewise against civilians and their properties. As narrated in the
President's Report:
On 23 May 2017, a government operation to capture Isnilon Hapilon, a 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. Through these groups' armed siege
and acts of violence directed towards civilians and government authorities,
institutions and establishments, they were able to take control of major social,
economic, and political foundations of Marawi City which led to its paralysis.
This sudden taking of control was intended to lay the groundwork for the
eventual establishment of a DAESH wilayat or province in Mindanao.
Based on verified intelligence reports, the Maute Group, as of the end of 2016,
consisted of around two hundred sixty-three (263) members, fully armed and
prepared to wage combat in furtherance of its aims. The group chiefly operates
in the province of Lanao del Sur, but has extensive networks and linkages with
foreign and local armed groups such as the Jemaah Islamiyah, Mujahidin
Indonesia Timur and the ASG. It adheres to the ideals being espoused by the
DAESH, as evidenced by, among others, its publication of a video footage
declaring its allegiance to the DAESH. Reports abound that foreign-based
terrorist groups, the ISIS (Islamic State of Iraq and Syria) in particular, as well as
illegal drug money, provide financial and logistical support to the Maute Group.
The events commencing on 23 May 2017 put on public display the groups' clear
intention to establish an Islamic State and their capability to deprive the duly
constituted authorities - the President, foremost - of their powers and
prerogatives.2
In particular, the President chronicled in his Report the events which took place on
May 23, 2017 in Marawi City which impelled him to declare a state of martial law
and suspend the privilege of writ of habeas corpus, to wit:
• At 1400H members of the Maute Group and ASG, along with their
sympathizers, commenced their attack on various facilities - government and
privately owned - in the City of Marawi.
• At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being
manage by the Bureau of Jail Management and Penology (BJMP).
• The Maute Group forcibly entered the jail facilities, destroyed its main gate,
and assaulted on-duty personnel. BJMP personnel were disarmed, tied, and/or
locked inside the cells.
• The group took cellphones, personnel-issued firearms, and vehicles (i.e., two
[2] prisoner vans and private vehicles).
• By 1630H, the supply of power into Marawi City had been interrupted, and
sporadic gunfights were heard and felt everywhere. By evening, the power
57
outage had spread citywide. (As of 24 May 2017, Marawi City's electric supply Maranaos from leaving their homes and forcing young male Muslims to join
was still cut off, plunging the city into total black-out.) their groups.
• From 1800H to 1900H, the same members of the Maute Group ambushed • Based on various verified intelligence reports from the AFP and the PNP,
and burned the Marawi Police Station. A patrol car of the Police Station was there exists a strategic mass action of lawless armed groups in Marawi City,
also taken. seizing public and private facilities, perpetrating killings of government
• A member of the Provincial Drug Enforcement Unit was killed during the personnel, and committing armed uprising against and open defiance of the
takeover of the Marawi City Jail. The Maute Group facilitated the escape of at government.3
least sixty-eight (68) inmates of the City Jail.
The unfolding of these events, as well as the classified reports he received, led the
• The BJMP directed its personnel at the Marawi City Jail and other affected
President to conclude that -
areas to evacuate.
• By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, These activities constitute not simply a display of force, but a clear attempt to
namely, Lilod, Bangulo, and Sauiaran, fell under the control of these groups. establish the groups' seat of power in Marawi City for their planned
They threatened to bomb the bridges to pre-empt military reinforcement. establishment of a DAESH wilayat or province covering the entire Mindanao.
• As of 2222H, persons connected with the Maute Group had occupied several
The cutting of vital lines for transportation and power; the recruitment of
areas in Marawi City, including Naga Street, Bangolo Street, Mapandi, and
young Muslims to further expand their ranks and strengthen their force; the
Camp Keithly, as well as the following barangays: Basak Malutlot, Mapandi,
armed consolidation of their members throughout Marawi City; the decimation
Saduc, Lilod Maday, Bangon, Saber, Bubong, Marantao, Caloocan, Banggolo,
of a segment of the city population who resist; and the brazen display of DAESH
Barionaga, and Abubakar.
flags constitute a clear, pronounced, and unmistakable intent to remove
• These lawless armed groups had likewise set up road blockades and
Marawi City, and eventually the rest of Mindanao, from its allegiance to the
checkpoints at the Iligan City-Marawi City junction.
Government.
• Later in the evening, the Maute Group burned Dansalan College Foundation,
Cathedral of Maria Auxiliadora, the nun's quarters in the church, and the Shia There exists no doubt that lawless armed groups are attempting to deprive the
Masjid Moncado Colony. Hostages were taken from the church. President of his power, authority, and prerogatives within Marawi City as a
• About five (5) faculty members of Dansalan College Foundation had been precedent to spreading their control over the entire Mindanao, in an attempt
reportedly killed by the lawless groups. to undermine his control over executive departments, bureaus, and offices in
• Other educational institutions were also burned, namely, Senator Ninoy said area; defeat his mandate to ensure that all laws are faithfully executed;
Aquino College Foundation and the Marawi Central Elementary Pilot School. and remove his supervisory powers over local govemments.4
• The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH
According to the Report, the lawless activities of the ASG, Maute Group, and other
flag there, among other several locations. As of 0600H of 24May 2017,
criminals, brought about undue constraints and difficulties to the military and
members of the Maute Group were seen guarding the entry gates of Amai
government personnel, particularly in the performance of their duties and
Pakpak Hospital. They held hostage the employees of the Hospital and took
functions, and untold hardships to the civilians, viz.:
over the PhilHealth office located thereat.
• The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Law enforcement and other government agencies now face pronounced
Hospital, which they later set ablaze. difficulty sending their reports to the Chief Executive due to the city-wide
• Lawless armed groups likewise ransacked the Landbank of the Philippines and power outages. Personnel from the BJMP have been prevented from
commandeered one of its armored vehicles. performing their functions. Through the attack and occupation of several
• Latest information indicates that about seventy-five percent (75%) of Marawi hospitals, medical services in Marawi City have been adversely affected. The
City has been infiltrated by lawless armed groups composed of members of the bridge and road blockades set up by the groups effectively deprive the
Maute Group and the ASG. As of the time of this Report, eleven (11) members government of its ability to deliver basic services to its citizens. Troop
of the Armed Forces and the Philippine National Police have been killed in reinforcements have been hampered, preventing the government from
action, while thirty-five (35) others have been seriously wounded. restoring peace and order in the area. Movement by both civilians and
• There are reports that these lawless armed groups are searching for Christian government personnel to and from the city is likewise hindered.
communities in Marawi City to execute Christians. They are also preventing

58
 The taking up of arms by lawless armed groups in the area, with support being
provided by foreign-based terrorists and illegal drug money, and their blatant
acts of defiance which embolden other armed groups in Mindanao, have
resulted in the deterioration of public order and safety in Marawi City; they
have likewise compromised the security of the entire Island of Mindanao. 5
The Report highlighted the strategic location of Marawi City and the crucial and
significant role it plays in Mindanao, and the Philippines as a whole. In addition, the
Report pointed out the possible tragic repercussions once Marawi City falls under
the control of the lawless groups.
The groups' occupation of Marawi City fulfills a strategic objective because of
its terrain and the easy access it provides to other parts of Mindanao. Lawless
armed groups have historically used provinces adjoining Marawi City as escape
routes, supply lines, and backdoor passages.
Considering the network and alliance-building activities among terrorist groups,
local criminals, and lawless armed men, the siege of Marawi City is a vital cog in
attaining their long-standing goal: absolute control over the entirety of
Mindanao. These circumstances demand swift and decisive action to ensure
the safety and security of the Filipino people and preserve our national
integrity.6
The President ended his Report in this wise:
While the government is presently conducting legitimate operations to address
the on-going rebellion, if not the seeds of invasion, public safety necessitates
the continued implementation of martial law and the suspension of the
privilege of the writ of habeas corpus in the whole of Mindanao until such time
that the rebellion is completely quelled.7
In addition to the Report, representatives from the Executive Department, the
military and police authorities conducted briefings with the Senate and the House
of Representatives relative to the declaration of martial law.
After the submission of the Report and the briefings, the Senate issued P.S.
Resolution No. 3888 expressing full support to the martial law proclamation and
finding Proclamation No. 216 "to be satisfactory, constitutional and in accordance
with the law". In the same Resolution, the Senate declared that it found "no
compelling reason to revoke the same". The Senate thus resolved as follows:
NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the
sense of the Senate, that the Senate finds the issuance of Proclamation No. 216
to be satisfactory, constitutional and in accordance with the law. The Senate
hereby supports fully Proclamation No. 216 and finds no compelling reason to
revoke the sarne.9
The Senate's counterpart in the lower house shared the same sentiments. The
House of Representatives likewise issued House Resolution No. 105010 "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 A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE
OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO"'.
The Petitions
A) G.R. No. 231658 (Lagman Petition)
On June 5, 2017, Representatives Edcel C. Lagman, Tomasito s. Villarin, Gary C.
Alejano, Emmanuel A. Billones, and Teddy Brawner Baguilat, Jr. filed
a Petition11 Under the Third Paragraph of Section 18 of Article VII of the 1987
Constitution.
First, the Lagman Petition claims that the declaration of martial law has no
sufficient factual basis because there is no rebellion or invasion in Marawi City or in
any part of Mindanao. It argues that acts of terrorism in Mindanao do not
constitute rebellion12 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.13 It labels the flying of ISIS flag by the Maute Group in Marawi City and
other outlying areas as mere propaganda114 and not an open attempt to remove
such areas from the allegiance to the Philippine Government and deprive the Chief
Executive of the assertion and exercise of his powers and prerogatives therein. It
contends that the Maute Group is a mere private army, citing as basis the alleged
interview of Vera Files with Joseph Franco wherein the latter allegedly mentioned
that the Maute Group is more of a "clan's private militia latching into the IS brand
theatrically to inflate perceived capability".15 The Lagman Petition insists that during
the briefing, representatives of the military and defense authorities did not
categorically admit nor deny the presence of an ISIS threat in the country but that
they merely gave an evasive answer16 that "there is ISIS in the Philippines".17 The
Lagman Petition also avers that Lt. Gen. Salvador Mison, Jr. himself admitted that
the current armed conflict in Marawi City was precipitated or initiated by the
government in its bid to capture Hapilon.18Based on said statement, it concludes
that the objective of the Maute Group's armed resistance was merely to shield
Hapilon and the Maute brothers from the government forces, and not to lay siege
on Marawi City and remove its allegiance to the Philippine Republic. 19 It then posits
that if at all, there is only a threat of rebellion in Marawi City which is akin to
"imminent danger" of rebellion, which is no longer a valid ground for the
declaration of martial law.20
Second, the Lagman Petition claims that the declaration of martial law has no
sufficient factual basis because the President's Report containef "false, inaccurate,
contrived and hyperbolic accounts".21
59
It labels as false the claim in the President's Report that the Maute Group attacked
Amai Pakpak Medical Center. Citing online reports on the interview of Dr. Amer
Saber (Dr. Saber), the hospital's Chief, the Lagman Petition insists that the Maute
Group merely brought an injured member to the hospital for treatment but did not
overrun the hospital or harass the hospital personnel. 22 The Lagman Petition also
refutes the claim in the President's Report that a branch of the Landbank of the
Philippines was ransacked and its armored vehicle commandeered. It alleges that
the bank employees themselves clarified that the bank was not ransacked while the
armored vehicle was owned by a third party and was empty at the time it was
commandeered.23 It also labels as false the report on the burning of the Senator
Ninoy Aquino College Foundation and the Marawi Central Elementary Pilot School.
It avers that the Senator Ninoy Aquino College Foundation is intact as of May 24,
2017 and that according to Asst. Superintendent Ana Alonto, the Marawi Central
Elementary Pilot School was not burned by the terrorists. 24 Lastly, it points out as
false the report on the beheading of the police chief of Malabang, Lanao del Sur,
and the occupation of the Marawi City Hall and part of the Mindanao State
University.25
Third, the Lagman Petition claims that the declaration of martial law has no
sufficient factual basis since the President's Report mistakenly included the attack
on the military outpost in Butig, Lanao del Sur in February 2016, the mass jail break
in Marawi City in August 2016, the Zamboanga siege, the Davao market bombing,
the Mamasapano carnage and other bombing incidents in Cotabato, Sultan Kudarat,
and Basilan, as additional factual bases for the proclamation of martial law. It
contends that these events either took place long before the conflict in Marawi City
began, had long been resolved, or with the culprits having already been arrested. 26
Fourth, the Lagman Petition claims that the declaration of martial law has no
sufficient factual basis considering that the President acted alone and did not
consult the military establishment or any ranking official 27 before making the
proclamation.
Finally, the Lagman Petition claims that the President's proclamation of martial law
lacks sufficient factual basis owing to the fact that during the presentation before
the Committee of the Whole of the House of Representatives, it was shown that the
military was even successful in pre-empting the ASG and the Maute Group's plan to
take over Marawi City and other parts of Mindanao; there was absence of any
hostile plan by the Moro Islamic Liberation Front; and the number of foreign
fighters allied with ISIS was "undetermined"28 which indicates that there are only a
meager number of foreign fighters who can lend support to the Maute Group.29
Based on the foregoing argumentation, the Lagman Petition asks the Court to:
(1)"exercise its specific and special jurisdiction to review the sufficiency of the
factual basis of Proclamation No. 216"; and (2) render "a Decision voiding and
nullifying Proclamation No. 216" for lack of sufficient factual basis. 30
In a Resolution31 dated June 6, 2017, the Court required respondents to comment
on the Lagman Petition and set the case for oral argument on June 13, 14, and 15,
2017.
On June 9, 2017, two other similar petitions docketed as G.R. Nos. 231771 and
231774 were filed and eventually consolidated with G.R. No. 231658. 32
B) G.R. No. 231771 (Cullamat Petition)
The Cullamat Petition, "anchored on Section 18, Article VII"33 of the Constitution,
likewise seeks the nullification of Proclamation No. 216 for being unconstitutional
because it lacks sufficient factual basis that there is rebellion in Mindanao and that
public safety warrants its declaration. 34
In particular, it avers that the supposed rebellion described in Proclamation No. 216
relates to events happening in Marawi City only an not in the entire region of
Mindanao. It concludes that Proclamation No 216 "failed to show any factual basis
for the imposition of martial law in the entire Mindanao,"35 "failed to allege any act
of rebellion outside Marawi City, much less x x x allege that public safety requires
the imposition o martial law in the whole of Mindanao".36
The Cullamat Petition claims that the alleged "capability of the Maute Group and
other rebel groups to sow terror and cause death and damage to property" 37 does
not rise to the level of rebellion sufficient to declare martial law in the whole of
Mindanao.38 It also posits that there is no lawless violence in other parts of
Mindanao similar to that in Marawi City.39
Moreover, the Cullamat Petition assails the inclusion of the phrase "other rebel
groups" in the last Whereas Clause of Proclamation No. 216 for being vague as it
failed to identify these rebel groups and specify the acts of rebellion that they were
supposedly waging.40
In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and
falsities in the Report of the President to Congress, particularly the attack at the
Amai Pakpak Hospital, the ambush and burning of the Marawi Police Station, the
killing of five teachers of Dansalan College Foundation, and the attacks on various
government facilities.41
In fine, the Cullamat Petition prays for the Court to declare Proclamation No. 216 as
unconstitutional or in the alternative, should the Court find justification for the
declaration of martial law and suspension of the privilege of the writ of habeas
corpus in Marawi City, to declare the same as unconstitutional insofar as its
inclusion of the other parts of Mindanao.42
C) G.R. No. 231774 (Mohamad Petition)
The Mohamad Petition, denominated as a "Petition for Review of the Sufficiency of
[the] Factual Basis of [the] Declaration of Martial Law and [the] Suspension of the
60
Privilege of the Writ of Habeas Corpus,"43 labels itself as "a special proceeding"44 or corpus in Mindanao"57 and declare as unconstitutional Proclamation No. 216 for
an "appropriate proceeding filed by any citizen"45 authorized under Section 18, lack of sufficient factual basis.
Article VII of the Constitution.
The Consolidated Comment
The Mohamad Petition posits that martial law is a measure of last resort 46 and
The respondents' Consolidated Comment 58 was filed on June 12, 2017, as required
should be invoked by the President only after exhaustion of less severe
by the Court. Noting that the same coincided with the celebration of the 119th
remedies.47 It contends that the extraordinary powers of the President should be
anniversary of the independence of this Republic, the Office of the Solicitor General
dispensed sequentially, i.e., first, the power to call out the armed forces; second,
(OSG) felt that "defending the constitutionality of Proclamation No. 216" should
the power to suspend the privilege of the writ of habeas corpus; and finally, the
serve as "a rallying call for every Filipino to unite behind one true flag and defend it
power to declare martial law.48 It maintains that the President has no discretion to
against all threats from within and outside our shores". 59
choose which extraordinary power to use; moreover, his choice must be dictated
only by, and commensurate to, the exigencies of the situation.49 The OSG acknowledges that Section 18, Article VII of the Constitution vests the
Court with the authority or power to review the sufficiency of the factual basis of
According to the Mohamad Petition, the factual situation in Marawi is not so grave
the declaration of martial law.60 The OSG, however, posits that although Section 18,
as to require the imposition of martial law.50 It asserts that the Marawi incidents
Article VII lays the basis for the exercise of such authority or power, the same
"do not equate to the existence of a public necessity brought about by an actual
constitutional provision failed to specify the vehicle, mode or remedy through
rebellion, which would compel the imposition of martial law or the suspension of
which the "appropriate proceeding" mentioned therein may be resorted to. The
the privilege of the writ of habeas corpus".51 It proposes that "[m]artial law can only
OSG suggests that the "appropriate proceeding" referred to in Section 18, Article VII
be justified if the rebellion or invasion has reached such gravity that [its] imposition
may be availed of using the vehicle, mode or remedy of a certiorari petition, either
x x x is compelled by the needs of public safety"52 which, it believes, is not yet
under Section 1 or 5, of Article VIII.61Corollarily, the OSG maintains that the review
present in Mindanao.
power is not mandatory, but discretionary only, on the part of the Court. 62 The
Moreover, it alleges that the statements contained in the President's Report to the Court has the discretion not to give due course to the petition. 63
Congress, to wit: that the Maute Group intended to establish an Islamic State; that
Prescinding from the foregoing, the OSG contends that the sufficiency of the factual
they have the capability to deprive the duly constituted authorities of their powers
basis of Proclamation No. 216 should be reviewed by the Court "under the lens of
and prerogatives; and that the Marawi armed hostilities is merely a prelude to a
grave abuse of discretion"64 and not the yardstick of correctness of the
grander plan of taking over the whole of Mindanao, are conclusions bereft of
facts.65 Arbitrariness, not correctness, should be the standard in reviewing the
substantiation.53
sufficiency of factual basis.
The Mohamad Petition posits that immediately after the declaration of martial law,
The OSG maintains that the burden lies not with the respondents but with the
and without waiting for a congressional action, a suit may already be brought
petitioners to prove that Proclamation No. 216 is bereft of factual basis.1âwphi1 It
before the Court to assail the sufficiency of the factual basis of Proclamation No.
thus takes issue with petitioners' attempt to shift the burden of proof when they
216.
asked the Court "to compel [the] respondents to present proof on the factual
Finally, in invoking this Court's power to review the sufficiency ofthe factual basis basis"66 of Proclamation No. 216. For the OSG, "he who alleges must prove"67 and
for the declaration of martial law and the suspension of the privilege of the writ that governmental actions are presumed to be valid and constitutional. 68
of habeas corpus, the Mohamad Petition insists that the Court may "look into the
Likewise, the OSG posits that the sufficiency of the factual basis must be assessed
wisdom of the [President's] actions, [and] not just the presence of
from the trajectory or point of view of the President and base on the facts available
arbitrariness".54 Further, it asserts that since it is making a negative assertion, then
to him at the time the decision was made.69 It argues that the sufficiency of the
the burden to prove the sufficiency of the factual basis is shifted to and lies on the
factual basis should be examined not based on the facts discovered after the
respondents.55 It thus asks the Court "to compel the [r]espondents to divulge
President had made his decision to declare martial law because to do so would
relevant information"56in order for it to review the sufficiency of the factual basis.
subject the exercise of the President's discretion to an impossible standard. 70 It
In closing, the Mohamad Petition prays for the Court to exercise its power to reiterates that the President's decision should be guided only by the information
review, "compel respondents to present proof on the factual basis [of] the and data available to him at the time he made the determination. 71 The OSG thus
declaration of martial law and the suspension of the privilege of the writ of habeas asserts that facts that were established after the declaration of martial law

61
should not be considered in the review of the sufficiency of the factual basis of the b. is required to obtain the favorable recommendation thereon of the Secretary
proclamation of martial law. The OSG suggests that the assessment of after- of National Defense;
proclamation facts lies with the President and Congress for the purpose of
c. is required to take into account only the situation at the time of the
determining the propriety of revoking or extending the martial law. The OSG fears
proclamation, even if subsequent events prove the situation to have not been
that if the Court considers after-proclamation-facts in its review of the sufficiency of
accurately reported;
the factual basis for the proclamation, it would in effect usurp the powers of the
Congress to determine whether martial law should be revoked or extended. 72 3. Whether or not the power of this Court to review the sufficiency of the factual
basis [of] the proclamation of martial law or the suspension of the privilege of the
It is also the assertion of the OSG that the President could validly rely on
writ of habeas corpus is independent of the actual actions that have been taken by
intelligence reports coming from the Armed Forces of the Philippines; 73 and that he
Congress jointly or separately;
could not be expected to personally determine the veracity of thecontents of the
reports.74 Also, since the power to impose martial law is vested solely on the 4. Whether or not there were sufficient factual [basis] for the proclamation of
President as Commander-in-Chief, the lack of recommendation from the Defense martial law or the suspension of the privilege of the writ of habeas corpus;
Secretary, or any official for that matter, will not nullify the said declaration, or
a. What are the parameters for review?
affect its validity, or compromise the sufficiency of the factual basis.
b. Who has the burden of proof?
Moreover, the OSG opines that the petitioners miserably failed to validly refute the
facts cited by the President in Proclamation No. 216 and in his Report to the c. What is the threshold of evidence?
Congress by merely citing news reports that supposedly contradict the facts
5. Whether the exercise of the power of judicial review by this Court involves the
asserted therein or by criticizing in piecemeal the happenings in Marawi. For the
calibration of graduated powers granted the President as Commander-in-Chief,
OSG, the said news articles are "hearsay evidence, twice removed," 75 and thus
namely calling out powers, suspension of the privilege of the writ of habeas
inadmissible and without probative value, and could not overcome the "legal
corpus, and declaration of martial law;
presumption bestowed on governmental acts".76
6. Whether or not Proclamation No. 216 of 23 May 2017 may be considered, vague
Finally, the OSG points out that it has no duty or burden to prove that Proclamation
and thus null and void:
No. 216 has sufficient factual basis. It maintains that the burden rests with the
petitioners. However, the OSG still endeavors to lay out the factual basis relied a. with its inclusion of "other rebel groups;" or
upon by the President "if only to remove any doubt as to the constitutionality of
b. since it has no guidelines specifying its actual operational parameters within
Proclamation No. 216".77
the entire Mindanao region;
The facts laid out by the OSG in its Consolidated Comment will be discussed in
7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and in
detail in the Court's Ruling.
the Report of the President to Congress are sufficient [bases]:
ISSUES
a. for the existence of actual rebellion; or
The issues as contained in the revised Advisory78 are as follows:
b. for a declaration of martial law or the suspension of the privilege of the writ
1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771, and 231774 of habeas corpus in the entire Mindanao 1 region;
are the "appropriate proceeding" covered by Paragraph 3, Section 18, Article VII of
8. Whether or not terrorism or acts attributable to terrorism are equivalent to
the Constitution sufficient to invoke the mode of review required of this Court
actual rebellion and the requirements of public safety sufficient to declare martial
when a declaration of martial law or the suspension of the privilege of the writ
law or suspend the privilege of the writ of habeas corpus; and
of habeas corpus is promulgated;
9. Whether or not nullifying Proclamation No. 216 of 23 May 2017 will:
2. Whether or not the President in declaring martial law and suspending the
privilege of the writ of habeas corpus: a. have the effect of recalling Proclamation No. 55 s. 2016; or
a. is required to be factually correct or only not arbitrary in his appreciation of b. also nullify the acts of the President in calling out the armed forces to quell
facts; lawless violence in Marawi and other parts of the Mindanao region.

62
After the oral argument, the parties submitted their respective memoranda and
supplemental memoranda.
OUR RULING
I. Locus standi of petitioners.
One of the requisites for judicial review is locus standi, i.e., "the constitutional
question is brought before [the Court] by a party having the requisite 'standing' to
challenge it."79 As a general rule, the challenger must have "a personal and
substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement."80 Over the years, there has been a trend
towards relaxation of the rule on legal standing, a prime example of which is found
in Section 18 of Article VII which provides that any citizen may file the appropriate
proceeding to assail the sufficiency of the factual basis of the declaration of martial
law or the suspension of the privilege of the writ of habeas corpus. "[T]he only
requisite for standing to challenge the validity of the suspension is that the
challenger be a citizen. He need not even be a taxpayer."81
Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens
of the Republic;"82 similarly, petitioners in the Mohamad Petition all claim to be
"Filipino citizens, all women, all of legal [age], and residents of Marawi City". 83 In
the Lagman Petition, however, petitioners therein did not categorically mention
that they are suing's citizens but merely referred to themselves as duly elected
Representatives.84 That they are suing in their official capacities as Members of
Congress couLd have elicited a vigorous discussion considering the issuance by the
House of Representatives of House Resolution No. 1050 expressing full support to
President Duterte and finding no reason to revoke Proclamation No. 216. By such
resolution, the House of Representatives is declaring that it finds no reason to
review the sufficiency of the factual basis of the martial law declaration, which is in
direct contrast to the views and arguments being espoused by the petitioners in the
Lagman Petition. Considering, however, the trend towards relaxation of the rules
on legal standing, as well as the transcendental issues involved in the present
Petitions, the Court will exercise judicial self-restraint85 and will not venture into
this matter. After all, "the Court is not entirely without discretion to accept a suit
which does not satisfy the requirements of a [bona fide] case or of standing.
Considerations paramount to [the requirement of legal standing] could compel
assumption of jurisdiction."86 In any case, the Court can take judicial cognizance of
the fact that petitioners in the Lagman Petition are all citizens of the Philippines
since Philippine citizenship is a requirement for them to be elected as
representatives. We will therefore consider them as suing in their own behalf as
citizens of this country. Besides, respondents did not question petitioners' legal
standing.
II. Whether or not the petitions are the "appropriate proceeding" covered by
paragraph 3, Section 18, Article VII of the Constitution sufficient to invoke the mode
of review required by the Court.
All three petitions beseech the cognizance of this Court based on the third
paragraph of Section 18, Article VII (Executive Department) of the 1987 Constitution
which provides:
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.
During the oral argument, the petitioners theorized that the jurisdiction of this
Court under the third paragraph of Section 18, Article VII is sui generis.87 It is a
special and specific jurisdiction of the Supreme Court different from those
enumerated in Sections 1 and 5 of Article VIII. 88
The Court agrees.
a) Jurisdiction must be specifically conferred by the Constitution or by law.
It is settled that jurisdiction over the subject matter is conferred only by the
Constitution or by the law.89 Unless jurisdiction has been specifically conferred by
the Constitution or by some legislative act, no body or tribunal has the power to act
or pass upon a matter brought before it for resolution. It is likewise settled that in
the absence of a clear legislative intent, jurisdiction cannot be implied from the
language of the Constitution or a statute.90 It must appear clearly from the law or it
will not be held to exist.91
A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically
grants authority to the Court to determine the sufficiency of the factual basis of the
proclamation of martial law or suspension of the privilege of the writ of habeas
corpus.
b) "In an appropriate proceeding" does not refer to a petition for certiorari filed
under Section 1 or 5 of Article VIII
It could not have been the intention of the framers of the Constitution that the
phrase "in an appropriate proceeding" would refer to a Petition
for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The standard of
review in a petition for certiorari is whether the respondent has committed any
grave abuse of discretion amounting to lack or excess of jurisdiction in the
performance of his or her functions. Thus, it is not the proper tool to review the
sufficiency of the factual basis of the proclamationor suspension. It must be
emphasized that under Section 18, Article VII, the Court is tasked to review the
sufficiency of the factual basis of the President's exercise of emergency powers. Put
differently, if this Court applies the standard of review used in a petition
63
for certiorari, the same would emasculate its constitutional task under Section 18,
Article VII.
c) Purpose/significance of Section 18, Article VII is to constitutionalize the pre-
Marcos martial law ruling in In the Matter of the Petition for Habeas Corpus of
Lansang.
The third paragraph of Section 18, Article VII was inserted by the framers of the
1987 Constitution to constitutionalize the pre-Marcos martial law ruling of this
Court in In the Matter of the Petition for Habeas Corpus of Lansang, 92 to wit: that
the factual basis of the declaration of martial law or the suspension of the privilege
of the writ of habeas corpus is not a political question but precisely within the ambit
of judicial review.
"In determining the meaning, intent, and purpose of a law or constitutional
provision, the history of the times out of which it grew and to which it may be
rationally supposed to bear some direct relationship, the evils intended to be
remedied, and the good to be accomplished are proper subjects of inquiry." 93 Fr.
Joaquin G. Bernas, S.J. (Fr. Bernas), a member of the Constitutional Commission
that drafted the 1987 Constitution, explained:
The Commander-in-Chief provisions of the 1935 Constitution had enabled
President Ferdinand Marcos to impose authoritarian rule on the Philippines
from 1972 to 1986. Supreme Court decisions during that period upholding the
actions taken by Mr. Marcos made authoritarian rule part of Philippine
constitutional jurisprudence. The members of the Constitutional Commission,
very much aware of these facts, went about reformulating the Commander-in-
Chief powers with a view to dismantling what had been constructed during the
authoritarian years. The new formula included revised grounds for the
activation of emergency powers, the manner of activating them, the scope of
the powers, and review of presidential action.94 (Emphasis supplied)
To recall, the Court held in the 1951 case of Montenegro v. Castaneda95 that the
authority to decide whether there is a state of rebellion requiring the suspension of
the privilege of the writ of habeas corpus is lodged with the President and his
decision thereon is final and conclusive upon the courts. This ruling was reversed in
the 1971 case of Lansang where it was held that the factual basis of the declaration
of martial law and the suspension of the privilege of the writ of habeas corpus is not
a political question and is within the ambit of judicial review.96 However, in 1983, or
after the declaration of martial law by former President Ferdinand E. Marcos, the
Court, in Garcia-Padilla v. Enrile,97 abandoned the ruling in Lansang and reverted
to Montenegro. According to the Supreme Court, the constitutional power of the
President to suspend the privilege of the writ of habeas corpus is not subject to
judicial inquiry.98
Thus, by inserting Section 18 in Article VII which allows judicial review of the
declaration of martial law and suspension of the privilege of the writ of habeas
corpus, the framers of the 1987 Constitution in effect constitutionalized and
reverted to the Lansang doctrine.
d) Purpose of Section 18, Article VII is to provide additional safeguard against
possible abuse by the President on the exercise of the extraordinary powers.
Section 18, Article VII is meant to provide additional safeguard against possible
abuse by the President in the exercise of his power to declare martial law or
suspend the privilege of the writ of habeas corpus. Reeling from the aftermath of
the Marcos martial law, the framers of the Constitution deemed it wise to insert the
now third paragraph of Section 18 of Article VII.99 This is clear from the records of
the Constitutional Commission when its members were deliberating on whether the
President could proclaim martial law even without the concurrence of Congress.
Thus:
MR. SUAREZ. Thank you, Madam President.
The Commissioner is proposing a very substantial amendment because this
means that he is vesting exclusively unto the President the right to determine
the factors which may lead to the declaration of martial law and the suspension
of the writ of habeas corpus. I suppose he has strong and compelling reasons in
seeking to delete this particular, phrase. May we be informed of his good and
substantial reasons?
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in
previous interpellations regarding this phrase, even during the discussions on
the Bill of Rights, as I understand it, the interpretation is a situation of actual
invasion or rebellion. In these situations, the President has to act quickly.
Secondly, 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. Thirdly, the right of the
judiciary to inquire into the sufficiency of the factual basis of the proclamation
always exists, even during those first 60 days.
MR. SUAREZ. Given our traumatic experience during the past administration, if
we give exclusive right to the President to determine these factors, especially
the existence of an invasion or rebellion and the second factor of determining
whether the public safety requires it or not, may I call the attention of the
Gentleman to what happened to us during the past administration.
Proclamation No. 1081 was issued by Ferdinand E. Marcos in his capacity as
President of the Philippines by virtue of the powers vested upon him
purportedly under Article VII, Section 10 (2) of the Constitution, wherein he
made this predicate under the "Whereas" provision:
Whereas, the rebellion and armed action undertaken by these lawless
elements of the Communists and other armed aggrupations organized to
64
 overthrow the Republic of the Philippines by armed violence and force
have assumed the magnitude of an actual state of war against our people
and the Republic of the Philippines.
And may I also call the attention of the Gentleman to General Order No. 3, also
promulgated by Ferdinand E. Marcos, in his capacity as Commander-in-Chief of
all the Armed Forces of the Philippines and pursuant to Proclamation No. 1081
dated September 21, 1972 wherein he said, among other things:
Whereas, martial law having been declared because of wanton destruction
of lives and properties, widespread lawlessness and anarchy and chaos and
disorder now prevailing throughout the country, which condition has been
brought about by groups of men who are actively engaged in a criminal
conspiracy to seize political and state power in the Philippines in order to
take over the government by force and violence, the extent of which has
now assumed the proportion of an actual war against our people and the
legitimate government ...
And he gave all reasons in order to suspend the privilege of the writ of habeas
corpus and declare martial law in our country without justifiable reason. Would
the Gentleman still insist on the deletion of the phrase 'and, with the
concurrence of at least a majority of all the members of the Congress'?
MR. MONSOD. Yes, Madam President, in the case of Mr.Marcos, he is
undoubtedly an aberration in our history and national consciousness. But given
the possibility that there would be another Marcos, our Constitution now has
sufficient safeguards. As I said, it is not really true, as the Gentleman has
mentioned, that there is an exclusive right to determine the factual basis
because the paragraph beginning on line 9 precisely tells us that 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 on the same within 30 days from its filing.
I believe that there are enough safeguards. The Constitution is supposed to
balance the interests of the country. And here we are trying to balance the
public interest in case of invasion or rebellion as against the rights of citizens.
And I am saying that there are enough safeguards, unlike in 1972 when Mr.
Marcos was able to do all those things mentioned. 100
To give more teeth to this additional safeguard, the framers of the 1987
Constitution not only placed the President's proclamation of martial law or
suspension of the privilege of the writ of habeas corpus within the ambit of judicial
review, it also relaxed the rule on standing by allowing any citizen to question
before this Court the sufficiency of the factual basis of such proclamation or
suspension. Moreover, the third paragraph of Section 18, Article VII veritably
conferred upon any citizen a demandable right to challenge the sufficiency of the
factual basis of said proclamation or suspension. It further designated this Court as
the reviewing tribunal to examine, in an appropriate proceeding, the sufficiency of
the factual basis and to render its decision thereon within a limited period of 30
days from date of filing.
e) Purpose of Section 18, Article VII is to curtail the extent of the powers of the
President.
The most important objective, however, of Section 18, Article VII is the curtailment
of the extent of the powers of the Commander-in-Chief. This is the primary reason
why the provision was not placed in Article VIII or the Judicial Department but
remained under Article VII or the Executive Department.
During the closing session of the Constitutional Commission's deliberations,
President Cecilia Muñoz Palma expressed her sentiments on the 1987 Constitution.
She said:
The executive power is vested in the President of the Philippines elected by the
people for a six-year term with no reelection for the duration of his/her life.
While traditional powers inherent in the office of the President are granted,
nonetheless for the first time, there are specific provisions which curtail the
extent of such powers. Most significant is the power of the Chief Executive to
suspend the privilege of the writ of habeas corpus or proclaim martial law.
The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos
caused the imposition of martial law for more than eight years and the
suspension of the privilege of the writ even after the lifting of martial law in
1981. The new Constitution now provides that those powers can be exercised
only in two cases, invasion or rebellion when public safety demands it, only for
a period not exceeding 60 days, and reserving to Congress the power to revoke
such suspension or proclamation of martial law which congressional action may
not be revoked by the President. More importantly, the action of the President
is made subject to judicial review, thereby again discarding jurisprudence which
render[s] the executive action a political question and beyond the jurisdiction
of the courts to adjudicate.
For the first time, there is a provision that the state of martial law does not
suspend the operation of the Constitution nor abolish civil courts or legislative
assemblies, or vest jurisdiction to military tribunals over civilians, or suspend
the privilege of the writ. Please forgive me if, at this point, I state that this
constitutional provision vindicates the dissenting opinions I have written during
my tenure in the Supreme Court in the martial law cases. 101
f) To interpret "appropriate proceeding" as filed under Section 1 of Article VIII would
be contrary to the intent of the Constitution.
65
To conclude that the "appropriate proceeding" refers to a Petition
for Certiorari filed under the expanded jurisdiction of this Court would, therefore,
contradict the clear intention of the framers of the Constitution to
place additional safeguards against possible martial law abuse for, invariably, the
third paragraph of Section 18, Article VII would be subsumed under Section 1 of
Article VIII. In other words, the framers of the Constitution added the safeguard
under the third paragraph of Section 18, Article VII on top of the expanded
jurisdiction of this Court.
g) Jurisdiction of the Court is not restricted to those enumerated in Sections I and 5
of Article VIII
The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and
5 of Article VIII. For instance, its jurisdiction to be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President can be found in the last paragraph of Section 4, Article VII. 102 The power
of the Court to review on certiorari the decision, order, or ruling of the Commission
on Elections and Commission on Audit can be found in Section 7, Article IX(A). 103
h) Unique features of the third paragraph of Section 18, Article VII make it sui
generis.
The unique features of the third paragraph of Section 18, Article VII clearly indicate
that it should be treated as sui generis separate and different from those
enumerated in Article VIII. Under the third paragraph of Section 18, Article VII, a
petition filed pursuant therewith will follow a different rule on standing as any
citizen may file it. Said provision of the Constitution also limits the issue to the
sufficiency of the factual basis of the exercise by the Chief Executive of his
emergency powers. The usual period for filing pleadings in Petition for Certiorari is
likewise not applicable under the third paragraph of Section 18, Article VII
considering the limited period within which this Court has to promulgate its
decision.
A proceeding "[i]n its general acceptation, [is] the form in which actions are to be
brought and defended, the manner of intervening in suits, of conducting them, the
mode of deciding them, of opposing judgments, and of executing." 104In fine, the
phrase "in an appropriate proceeding" appearing on the third paragraph of Section
18, Article VII refers to any action initiated by a citizen for the purpose of
questioning the sufficiency of the factual basis of the exercise of the Chief
Executive's emergency powers, as in these cases. It could be denominated as a
complaint, a petition, or a matter to be resolved by the Court.
III. The power of the Court to review the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus under Section 18, Article VII of the 1987 Constitution is independent of the
actions taken by Congress.
During the oral argument,105 the OSG urged the Court to give! deference to the
actions of the two co-equal branches of the Government: on' the part of the
President as Commander-in-Chief, in resorting to his extraordinary powers to
declare martial law and suspend the privilege of the writ of habeas corpus; and on
the part of Congress, in giving its imprimatur to Proclamation No. 216 and not
revoking the same.
The framers of the 1987 Constitution reformulated the scope of the extraordinary
powers of the President as Commander-in-Chief and the review of the said
presidential action. In particular, the President's extraordinary powers of
suspending the privilege of the writ of habeas corpus and imposing martial law are
subject to the veto powers of the Court and Congress.
a) The judicial power to review versus the congressional power to revoke.
The Court may strike down the presidential proclamation in an appropriate
proceeding filed by any citizen on the ground of lack of sufficient factual basis. On
the other hand, Congress may revoke the proclamation or suspension, which
revocation shall not be set aside by the President.
In reviewing the sufficiency of the factual basis of the proclamation or suspension,
the Court considers only the information and data available to the President prior
to or at the time of the declaration; it is not allowed td "undertake an independent
investigation beyond the pleadings."106 On the other hand, Congress may take into
consideration not only data available prior to, but likewise events supervening the
declaration. Unlike the Court I which does not look into the absolute correctness of
the factual basis as will be discussed below, Congress could probe deeper and
further; it can delve into the accuracy of the facts presented before it.
In addition, the Court's review power is passive; it is only initiated by the filing of a
petition "in an appropriate proceeding" by a citizen. On the other hand, Congress'
review mechanism is automatic in the sense that it may be activated by Congress
itself at any time after the proclamation or suspension was made.
Thus, the power to review by the Court and the power to revoke by Congress are
not only totally different but likewise independent from each other although
concededly, they have the same trajectory, which is, the nullification of the
presidential proclamation. Needless to say, the power of the Court to review can be
exercised independently from the power of revocation of Congress.
b) The framers of the 1987 Constitution intended the judicial power to review to be
exercised independently from the congressional power to revoke.
If only to show that the intent of the framers of the 1987 Constitution was to vest
the Court and Congress with veto powers independently from each other, we quote
the following exchange:
66
 MS. QUESADA. Yesterday, the understanding of many was that there would be
safeguards that Congress will be able to revoke such proclamation.
MR. RAMA. Yes.
MS. QUESADA. But now, if they cannot meet because they have been arrested
or that the Congress has been padlocked, then who is going to declare that
such a proclamation was not warranted?
xxxx
MR. REGALADO. May I also inform Commissioner Quesada that the judiciary is
not exactly just standing by. A petition for a writ of habeas corpus, if the
Members are detained, can immediately be applied for, and the Supreme Court
shall also review the factual basis. x x x107
c) Re-examination of the Court's pronouncement in Fortun v. President Macapagal-
Arroyo
Considering the above discussion, the Court finds it imperative to re-examine,
reconsider, and set aside its pronouncement in Fortun v. President Macapagal-
Arroyo108 to the effect that:
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 question in the hands
of Congress before it becomes a justiciable one in the hands of the Court. 109
xxxx
If the Congress procrastinates or altogether fails to fulfill its duty respecting the
proclamation or suspension within the short time expected of it, then the Court
can step in, hear the petitions challenging the President's action, and ascertain
if it has a factual basis. x x x110
By the above pronouncement, the Court willingly but unwittingly clipped its own
power and surrendered the same to Congress as well as: abdicated from its
bounden duty to review. Worse, the Court considered' itself just on stand-by,
waiting and willing to act as a substitute in case Congress "defaults." It is an
aberration, a stray declaration, which must be rectified and set aside in this
proceeding.111
We, therefore, hold that the Court can simultaneously exercise its power of review
with, and independently from, the power to revoke by Congress. Corollary, any
perceived inaction or default on the part of Congress does not deprive or deny the
Court of its power to review.
IV. The judicial power to review the sufficiency of factual basis of the declaration of
martial law or the suspension of the privilege of the writ of habeas corpus does not
extend to the calibration of the President's decision of which among his graduated
powers he will avail of in a given situation.
The President as the Commander-in-Chief wields the extraordinary powers of: a)
calling out the armed forces; b) suspending the privilege of the writ of habeas
corpus; and c) declaring martial law.112 These powers may be resorted to only under
specified conditions.
The framers of the 1987 Constitution reformulated the powers of the Commander-
in-Chief by revising the "grounds for the activation of emergency powers, the
manner of activating them, the scope of the powers, and review of presidential
action."113
a) Extraordinary powers of the President distinguished.
Among the three extraordinary powers, the calling out power is the most benign
and involves ordinary police action.114 The President may resort to this
extraordinary power whenever it becomes necessary to prevent or suppress lawless
violence, invasion, or rebellion. "[T]he power to call is fully discretionary to the
President;"115 the only limitations being that he acts within permissible
constitutional boundaries or in a manner not constituting grave abuse of
discretion.116 In fact, "the actual use to which the President puts the armed forces is
x x x not subject to judicial review."117
The extraordinary powers of suspending the privilege of the writ of habeas
corpus and/or declaring martial law may be exercised only when there is actual
invasion or rebellion, and public safety requires it. The 1987 Constitution imposed
the following limits in the exercise of these powers: "(1) a time limit of sixty days;
(2) review and possible revocation by Congress; [and] (3) review and possible
nullification by the Supreme Court."118
The framers of the 1987 Constitution eliminated insurrection, and the phrase
"imminent danger thereof' as grounds for the suspension of the privilege of the writ
of habeas corpus or declaration of martial law.119 They perceived the phrase
"imminent danger" to be "fraught with possibilities of abuse;" 120 besides, the calling
out power of the President "is sufficient for handling imminent danger."121
The powers to declare martial law and to suspend the privilege of the writ
of habeas corpus involve curtailment and suppression of civil rights and individual
freedom. Thus, the declaration of martial law serves as a warning to citizens that
the Executive Department has called upon the military to assist in the maintenance
of law and order, and while the emergency remains, the citizens must, under pain
67
of arrest and punishment, not act in a manner that will render it more difficult to
restore order and enforce the law.122 As such, their exercise requires more stringent
safeguards by the Congress, and review by the Court. 123
b) What really happens during martial law?
During the oral argument, the following questions cropped up: What really happens
during the imposition of martial law? What powers could the President exercise
during martial law that he could not exercise if there is no martial law?
Interestingly, these questions were also discussed by the framers of the 1987
Constitution, viz.:
FR. BERNAS. That same question was asked during the meetings of the
Committee: What precisely does martial law add to the power of the President
to call on the armed forces? The first and second lines in this provision state:
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies...
The provision is put there, precisely, to reverse the doctrine of the Supreme
Court. I think it is the case of Aquino v. COMELEC where the Supreme Court
said that in times of martial law, the President automatically has legislative
power. So these two clauses denied that. A state of martial law does not
suspend the operation of the Constitution; therefore, it does not suspend the
principle of separation of powers.
The question now is: During martial law, can the President issue decrees? The
answer we gave to that question in the Committee was: During martial law, the
President may have the powers of a commanding general in a theatre of war. In
actual war when there is fighting in an area, the President as the commanding
general has the authority to issue orders which have the effect of law but
strictly in a theater of war, not in the situation we had during the period of
martial law. In other words, there is an effort here to return to the traditional
concept of martial law as it was developed especially in American
jurisprudence, where martial law has reference to the theater of war.124
xxxx
FR. BERNAS. This phrase was precisely put here because we have clarified the
meaning of martial law; meaning, limiting it to martial law as it has existed in
the jurisprudence in international law, that it is a law for the theater of war. In
a theater of war, civil courts are unable to function. If in the actual theater of
war civil courts, in fact, are unable to function, then the military commander is
authorized to give jurisdiction even over civilians to military courts precisely
because the civil courts are closed in that area. But in the general area where
the civil courts are open then in no case can the military courts be given
jurisdiction over civilians. This is in reference to a theater of war where the civil
courts, in fact, are unable to function.
MR. FOZ. It is a state of things brought about by the realities of the situation in
that specified critical area.
FR. BERNAS. That is correct.
MR. FOZ. And it is not something that is brought about by a declaration of the
Commander-in-Chief.
FR. BERNAS. It is not brought about by a declaration of the Commander-in-
Chief. The understanding here is that the phrase 'nor authorize the conferment
of jurisdiction on military courts and agencies over civilians' has reference to
the practice under the Marcos regime where military courts were given
jurisdiction over civilians. We say here that we will never allow that except in
areas where civil courts are, in fact, unable to function and it becomes
necessary for some kind of court to function.125
A state of martial law is peculiar because the President, at such a time, exercises
police power, which is normally a function of the Legislature. In particular, the
President exercises police power, with the military’s assistance, to ensure public
safety and in place of government agencies which for the time being are unable to
cope with the condition in a locality, which remains under the control of the
State.126
In David v. President Macapagal-Arroyo,127 the Court, quoting Justice Vicente V.
Mendoza's (Justice Mendoza) Statement before the Senate Committee on Justice on
March 13, 2006, stated that under a valid declaration of martial law, the President
as Commander-in-Chief may order the "(a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) [takeover] of news media and agencies
and press censorship; and (d) issuance of Presidential Decrees x x x".128
Worthy to note, however, that the above-cited acts that the President may perform
do not give him unbridled discretion to infringe on the rights of civilians during
martial law. This is because martial law does not suspend the operation of the
Constitution, neither does it supplant the operation of civil courts or legislative
assemblies. Moreover, the guarantees under the Bill of Rights remain in place
during its pendency. And in such instance where the privilege of the writ of habeas
corpus is also suspended, such suspension applies only to those judicially charged
with rebellion or offenses connected with invasion.129
Clearly, from the foregoing, while martial law poses the most severe threat to civil
liberties,130 the Constitution has safeguards against the President's prerogative to
declare a state of martial law.
68
c) "Graduation" of powers refers to hierarchy based on scope and effect; it does not
refer to a sequence, order, or arrangement by which the Commander-in-Chief must
adhere to.
Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a
'sequence' of 'graduated power[s]'. From the most to the least benign, these are:
the calling out power, the power to suspend the privilege of the writ of habeas
corpus, and the power to declare martial law."131 It must be stressed, however, that
the graduation refers only to hierarchy based on scope and effect. It does not in any
manner refer to a sequence, arrangement, or order which the Commander-in-Chief
must follow. This so-called "graduation of powers" does not dictate or restrict the
manner by which the President decides which power to choose.
These extraordinary powers are conferred by the Constitution with the President as
Commander-in-Chief; it therefore necessarily follows that the power and
prerogative to determine whether the situation warrants a mere exercise of the
calling out power; or whether the situation demands suspension of the privilege of
the writ of habeas corpus; or whether it calls for the declaration of martial law, also
lies, at least initially, with the President. The power to choose, initially, which
among these extraordinary powers to wield in a given set of conditions is a
judgment call on the part of the President. As Commander-in-Chief, his powers are
broad enough to include his prerogative to address exigencies or threats that
endanger the government, and the very integrity of the State.132
It is thus beyond doubt that the power of judicial review does not extend to
calibrating the President's decision pertaining to which extraordinary power to avail
given a set of facts or conditions. To do so would be tantamount to an incursion
into the exclusive domain of the Executive and an infringement on the prerogative
that solely, at least initially, lies with the President.
d) The framers of the 1987 Constitution intended the Congress not to interfere a
priori in the decision-making process of the President.
The elimination by the framers of the 1987 Constitution of the requirement of prior
concurrence of the Congress in the initial imposition of martial law or suspension of
the privilege of the writ of habeas corpus further supports the conclusion that
judicial review does not include the calibration of the President's decision of which
of his graduated powers will be availed of in a given situation. Voting 28 to 12, the
framers of the 1987 Constitution removed the requirement of congressional
concurrence in the first imposition of martial law and suspension of the privilege. 133
MR. PADILLA.x x x
We all agree with the suspension of the writ or the proclamation of martial law
should not require beforehand the concurrence of the majority of the
Members of the Congress. However, as provided by the Committee, the
Congress may revoke, amend, or shorten or even increase the period of such
suspension.134
xxxx
MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis
that in the first imposition of martial law there is no need for concurrence of
the Members of Congress because the provision says 'in case of actual invasion
or rebellion.' If there is actual invasion and rebellion, as Commissioner Crispino
de Castro said, there is a need for immediate response because there is an
attack. Second, the fact of securing a concurrence may be impractical because
the roads might be blocked or barricaded. x x x So the requirement of an initial
concurrence of the majority of all Members of the Congress in case of an
invasion or rebellion might be impractical as I can see it.
Second, Section 15 states that the Congress may revoke the declaration or lift
the suspension.
And third, the matter of declaring martial law is already a justiciable question
and no longer a political one in that it is subject to judicial review at any point
in time. So on that basis, I agree that there is no need for concurrence as a
prerequisite to declare martial law or to suspend the privilege of the writ
of habeas corpus. x x x135
xxxx
MR. SUAREZ. Thank you.
The Commissioner is suggesting that in connection with Section 15, we delete
the phrase 'and, with the concurrence of at least a majority of all the Members
of the Congress...'
MR. PADILLA. That is correct especially for the initial suspension of the privilege
of the writ of habeas corpus or also the declaration of martial law.
MR. SUAREZ. So in both instances, the Commissioner is suggesting that this
would be an exclusive prerogative of the President?
MR. PADILLA. At least initially, for a period of 60 days. But even that period of
60 days may be shortened by the Congress or the Senate because the next
sentence says that the Congress or the Senate may even revoke the
proclamation.136
xxxx
MR. SUAREZ. x x x
The Commissioner is proposing a very substantial amendment because this
means that he is vesting exclusively unto the President the right to determine
the factors which may lead to the declaration of martial law and the suspension
69
of the writ of habeas corpus. I suppose he has strong and compelling reasons in
seeking to delete this particular phrase. May we be informed of his good and
substantial reasons?
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in
previous interpellations regarding this phrase, even during the discussions on
the Bill of Rights, as I understand it, the interpretation is a situation of actual
invasion or rebellion. In these situations, the President has to act quickly.
Secondly, 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. Thirdly, the right of the
judiciary to inquire into the sufficiency of the factual basis of the proclamation
always exists, even during those first 60 days.
xxxx
MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is
undoubtedly an aberration in our history and national consciousness. But given
the possibility that there would be another Marcos, our Constitution now has
sufficient safeguards. As I said, it is not really true, as the Gentleman
mentioned, that there is an exclusive right to determine the factual basis
because the paragraph being on line 9 precisely tells us that 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
on the same within 30 days from its filing.
I believe that there are enough safeguards. The Constitution is supposed to
balance the interests of the country. And here we are trying to balance the
public interest in case of invasion or rebellion as against the rights of citizens. x
xx
MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos
had done?
MR. MONSOD. There is nothing absolute in this world, and there may be
another Marcos. What we are looking for are safeguards that arereasonable
and, I believe, adequate at this point. On the other hand, in case of invasion or
rebellion, even during the first 60 days when the intention here is to protect
the country in that situation, it would be unreasonable to ask that there should
be a concurrence on the part of the Congress, which situation is automatically
terminated at the end of such 60 days.
xxxx
MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide
for a legislative check on this awesome power of the Chief Executive acting as
Commander-in-Chief?
MR. MONSOD. I would be less comfortable if we have a presidency that cannot
act under those conditions.
MR. SUAREZ. But he can act with the concurrence of the proper or appropriate
authority?
MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the
concurrence of Congress would be available; and, secondly, the President will
be able to act quickly in order to deal with the circumstances.
MR. SUAREZ. So, we would be subordinating actual circumstances to
expediency?
MR. MONSOD. I do not believe it is expediency when one is trying to protect
the country in the event of an invasion or a rebellion. 137
The foregoing exchange clearly manifests the intent of the Constitution not to allow
Congress to interfere a priori in the President's choice of extraordinary powers.
e) The Court must similarly and necessarily refrain from calibrating the President's
decision of which among his extraordinary powers to avail given a certain situation
or condition.
It cannot be overemphasized that time is paramount in situations necessitating the
proclamation of martial law or suspension of the privilege of the writ of habeas
corpus. It was precisely this time element that prompted the Constitutional
Commission to eliminate the requirement of 1 concurrence of the Congress in the
initial imposition by the President of martial law or suspension of the privilege of
the writ of habeas corpus.
Considering that the proclamation of martial law or suspension of the privilege of
the writ of habeas corpus is now anchored on actual invasion or rebellion and when
public safety requires it, and is no longer under threat or in imminent danger
thereof, there is a necessity and urgency for the President to act quickly to protect
the country.138The Court, as Congress does, must thus accord the President the
same leeway by not wading into the realm that is reserved exclusively by the
Constitution to the Executive Department.
j) The recommendation of the Defense Secretary is not a condition for the
declaration of martial law or suspension of the privilege of the writ of habeas
corpus.
Even the recommendation of, or consultation with, the Secretary of National
Defense, or other high-ranking military officials, is not a condition for the President
to declare martial law. A plain reading of Section 18, Article VII of the Constitution
shows that the President's power to declare martial law is not subject to any
condition except for the requirements of actual invasion or rebellion and that public
safety requires it. Besides, it would be contrary to common sense if the decision of
70
the President is made dependent on the recommendation of his mere alter ego.
Rightly so, it is only on the President and no other that the exercise of the powers of
the Commander-in-Chief under Section 18, Article VII of the Constitution is
bestowed.
g) In any event, the President initially employed the most benign action - the calling
out power - before he declared martial law and suspended the privilege of the writ
of habeas corpus.
At this juncture, it must be stressed that prior to Proclamation No. 216 or the
declaration of martial law on May 23, 201 7, the President had already issued
Proclamation No. 55 on September 4, 2016, declaring a state of national emergency
on account of lawless violence in Mindanao. This, in fact, is extant in the first
Whereas Clause of Proclamation No. 216. Based on the foregoing presidential
actions, it can be gleaned that although there is no obligation or requirement on his
part to use his extraordinary powers on a graduated or sequential basis, still the
President made the conscious anddeliberate effort to first employ the most benign
from among his extraordinary powers. As the initial and preliminary step towards
suppressing and preventing the armed hostilities in Mindanao, the President
decided to use his calling out power first. Unfortunately, the situation did not
improve; on the contrary, it only worsened. Thus, exercising his sole and exclusive
prerogative, the President decided to impose martial law and suspend the privilege
of the writ of habeas corpus on the belief that the armed hostilities in Mindanao
already amount to actual rebellion and public safety requires it.
V. Whether or not Proclamation No. 216 may be considered vague and thus void
because of (a) its inclusion of "other rebel groups"; and (b) the absence of any
guideline specifying its actual operational parameters within the entire
Mindanao region.
Proclamation No. 216 is being facially challenged on the ground of "vagueness" by
the insertion of the phrase "other rebel groups" 139 in its Whereas Clause and for
lack of available guidelines specifying its actual operational parameters within the
entire Mindanao region, making the proclamation susceptible to broad
interpretation, misinterpretation, or confusion.
This argument lacks legal basis.
a) Void-for-vagueness doctrine.
The void-for-vagueness doctrine holds that a law is facially invalid if "men of
common intelligence must necessarily guess at its meaning and differ as to its
application."140 "[A] statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must necessarily guess
at its meaning and differ in its application. [In such instance, the statute] is
repugnant to the Constitution in two respects: (1) it violates due process for failure
to accord persons, especially the parties targeted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle."141
b) Vagueness doctrine applies only in free speech cases.
The vagueness doctrine is an analytical tool developed for testing "on their faces"
statutes in free speech cases or, as they are called in American law, First
Amendment cases.142 A facial challenge is allowed to be made to a vague statute
and also to one which is overbroad because of possible "'chilling effect' on
protected speech that comes from statutes violating free speech. A person who
does not know whether his speech constitutes a crime under an overbroad or vague
law may simply restrain himself from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him into silence."143
It is best to stress that the vagueness doctrine has a special application only to free-
speech cases. They are not appropriate for testing the validity of penal
statutes.144 Justice Mendoza explained the reason as follows:
A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible 'chilling effect' upon protected speech. The
theory is that ' [w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the statutes
in a single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack demonstrate
that his own conduct could not be regulated by a statute drawn with narrow
specificity.' The possible harm to society in permitting some unprotected
speech to go unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal law,
the law cannot take chances as in the area of free speech.
xxxx
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing 'on their faces' statutes in free speech
cases or, as they are called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that'one to whom application of
a statute is constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or other
situations in which its application might be unconstitutional.' As has been
71
 pointed out, 'vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation, while statutes
found vague as a matter of due process typically are invalidated [only] 'as
applied' to a particular defendant.' x x x145
Invalidation of statutes "on its face" should be used sparingly because it results in
striking down statutes entirely on the ground that they might beapplied to parties
not before the Court whose activities are constitutionally protected. 146 "Such
invalidation would constitute a departure from the usual requirement of 'actual
case and controversy' and permit decisions to be made in a sterile abstract context
having no factual concreteness."147
c) Proclamation No. 216cannot be facially challenged using the vagueness doctrine.
Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is
unwarranted. Proclamation No. 216 does not regulate speech, religious freedom,
and other fundamental rights that may be facially challenged. 148 What it seeks to
penalize is conduct, not speech.
As held by the Court in David v. President Macapagal-Arroyo,149 the facial review of
Proclamation No. 1017, issued by then President Gloria Macapagal-Arroyo declaring
a state of national emergency, on ground o vagueness is uncalled for since a plain
reading of Proclamation No. 10171 shows that it is not primarily directed at speech
or even speech-related1 conduct. It is actually a call upon the Armed Forces of the
Philippines (AFP) to prevent or suppress all forms of lawless violence. Like
Proclamation No. 1017, Proclamation No. 216 pertains to a spectrum of conduct,
not free speech, which is manifestly subject to state regulation.
d) Inclusion of "other rebel groups " does not make Proclamation No.216 vague.
The contention that the phrase "other rebel groups" leaves Proclamation No. 216
open to broad interpretation, misinterpretation, and confusion, cannot be
sustained.
In People v. Nazario,150 the Court enunciated that:
As a rule, a statute or act may be said to be vague when it lacks
comprehensible standards that men 'of common intelligence must necessarily
guess at its meaning and differ as to its application.' It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targetted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.
But the act must be utterly vague on its face, that is to say, it cannot be
clarified by either a saving clause or by construction. Thus, in Coates v. City of
Cincinnati, the U.S. Supreme Court struck down an ordinance that had made it
illegal for 'three or more persons to assemble on any sidewalk and there
conduct themselves in a manner annoying to persons passing by.' Clearly, the
ordinance imposed no standard at all 'because one may never know in advance
what annoys some people but does not annoy others.'
Coates highlights what has been referred to as a 'perfectly vague' act whose
obscurity is evident on its face. It is to be distinguished, however, from
legislation couched in imprecise language - but which nonetheless specifies a
standard though defectively phrased - in which case, it may be 'saved' by
proper construction.151
The term "other rebel groups" in Proclamation No. 216 is not at all vague when
viewed in the context of the words that accompany it. Verily, the text of
Proclamation No. 216 refers to "other rebel groups" found in Proclamation No. 55,
which it cited by way of reference in its Whereas clauses.
e) Lack of guidelines/operational parameters does not make Proclamation No. 216
vague.
Neither could Proclamation No. 216 be described as vague, and thus void, on the
ground that it has no guidelines specifying its actual operational parameters within
the entire Mindanao region. Besides, operational guidelines will serve only as mere
tools for the implementation of the proclamation. In Part III, we declared that
judicial review covers only the sufficiency of information or data available to or
known to the President prior to, or at the time of, the declaration or suspension.
And, as will be discussed exhaustively in Part VII, the review will be confined to the
proclamation itself and the Report submitted to Congress.
Clearly, therefore, there is no need for the Court to determine the constitutionality
of the implementing and/or operational guidelines, general orders, arrest orders
and other orders issued after the proclamation for being irrelevant to its review.
Thus, any act committed under the said orders in violation of the Constitution and
the laws, such as criminal acts or human rights violations, should be resolved in a
separate proceeding. Finally, there is a risk that if the Court wades into these areas,
it would be deemed as trespassing into the sphere that is reserved exclusively for
Congress in the exercise of its power to revoke.
VI. Whether or not nullifying Proclamation No. 216 will (a) have the effect of
recalling Proclamation No. 55; or (b) also nullify the acts of the President in calling
out the armed forces to quell lawless violence in Marawi and other parts of the
Mindanao region.
a) The calling out power is in a different category from the power to declare martial
law and the power to suspend the privilege of the writ of habeas corpus;
nullification of Proclamation No. 216 will not affect Proclamation No. 55.
The Court's ruling in these cases will not, in any way, affect the President's
declaration of a state of national emergency on account of lawless violence in
72
Mindanao through Proclamation No. 55 dated September 4, 2016, where he called But, even assuming arguendo that the Court finds no sufficient basis for the
upon the Armed Forces and the Philippine National 1 Police (PNP) to undertake declaration of martial law in this case, such ruling could not affect the President's
such measures to suppress any and all forms of lawless violence in the Mindanao exercise of his calling out power through Proclamation No. 55.
region, and to prevent such lawless violence from spreading and escalating
b) The operative fact doctrine.
elsewhere in the Philippines.
Neither would the nullification of Proclamation No. 216 result in the nullification of
In Kulayan v. Tan,152 the Court ruled that the President's calling out power is in
the acts of the President done pursuant thereto. Under the "operative fact
a different category from the power to suspend the privilege of the writ of habeas
doctrine," the unconstitutional statute is recognized as an "operative fact" before it
corpus and the power to declare martial law:
is declared unconstitutional.158
x x x Congress may revoke such proclamation or suspension and the Court may
Where the assailed legislative or executive act is found by the judiciary to be
review the sufficiency of the factual basis thereof. However, there is no such
contrary to the Constitution, it is null and void. As the new Civil Code puts it:
equivalent provision dealing with the revocation or review of the President's
'When the courts declare a law to be inconsistent with the Constitution, the
action to call out the armed forces. The distinction places the calling out power
former shall be void and the latter shall govern. Administrative or executive
in a different category from the power to declare martial law and the power to
acts, orders and regulations shall be valid only when they are not contrary to
suspend the privilege of the writ of habeas corpus, otherwise, the framers of
the laws or the Constitution.' The above provision of the Civil Code reflects the
the Constitution would have simply lumped together the three powers and
orthodox view that an unconstitutional act, whether legislative or executive, is
provided for their revocation and review without any qualification. 153
not a law, confers no rights, imposes no duties, and affords no protection. This
In other words, the President may exercise the power to call out the Armed Forces doctrine admits of qualifications, however. As the American Supreme Court
independently of the power to suspend the privilege of the writ of habeas stated: 'The actual existence of a statute prior to such a determination [of
corpus and to declare martial law, although, of course, it may also be a prelude to a constitutionality], is an operative fact and may have consequences which
possible future exercise of the latter powers, as in this case. cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to the invalidity may have to be considered in various
Even so, the Court's review of the President's declaration of martial law and his
aspects, - with respect to particular regulations, individual and corporate, and
calling out the Armed Forces necessarily entails separate proceedings instituted for
particular conduct, private and official.
that particular purpose.
The orthodox view finds support in the well-settled doctrine that the
As explained in Integrated Bar of the Philippines v. Zamora, 154 the President's
Constitution is supreme and provides the measure for the validity of legislative
exercise of his power to call out the armed forces to prevent or suppress lawless
or executive acts. Clearly then, neither the legislative nor the executive branch,
violence, invasion or rebellion may only be examined by the Court as to whether
and for that matter much less, this Court, has power under the Constitution to
such power was exercised within permissible constitutional limits or in a manner
act contrary to its terms. Any attempted exercise of power in violation of its
constituting grave abuse of discretion.155
provisions is to that extent unwarranted and null.
In Zamora, the Court categorically ruled that the Integrated Bar of the ' Philippines
The growing awareness of the role of the judiciary as the governmental organ
had failed to sufficiently comply with the requisites of locus standi, as it was not
which has the final say on whether or not a legislative or executive measure is
able to show any specific injury which it had suffered or could suffer by virtue of
valid leads to a more appreciative attitude of theemerging concept that a
President Joseph Estrada's order deploying the Philippine Marines to join the PNP in
declaration of nullity may have legal consequences which the more orthodox
visibility patrols around the metropolis.156
view would deny. That for a period of time such a statute, treaty, executive
This locus standi requirement, however, need not be complied with in so far as the order, or ordinance was in 'actual existence' appears to be indisputable. What
Court's jurisdiction to review the sufficiency of the factual basis of the President's is more appropriate and logical then than to consider it as 'an operative fact?'
declaration of martial law or suspension of the privilege ofthe writ of habeas (Emphasis supplied)159
corpus is concerned. In fact, by constitutional design, such review may be instituted
However, it must also be stressed that this "operative fact doctrine" is not a fool-
by any citizen before the Court,157 without the need to prove that he or she stands
proof shield that would repulse any challenge to acts performed during the
to sustain a direct and personal injury as a consequence of the questioned
effectivity of martial law or suspension of the privilege of the writ of habeas
Presidential act/s.

73
corpus, purportedly in furtherance of quelling rebellion or invasion, and promotion
of public safety, when evidence shows otherwise.
VII. The Scope of the Power to Review.
a) The scope of the power of review under the 1987 Constitutionrefers only to the
determination of the sufficiency of the factual basis of the declaration of martial law
and suspension of the privilege of habeas corpus.
To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus of
Lansang,160 which was decided under the 1935 Constitution,161 held that it can
inquire into, within proper bounds, whether there has been adherence to or
compliance with the constitutionally-imposed limitations on the Presidential power
to suspend the privilege of the writ of habeas corpus.162 "Lansang limited the
review function of the Court to a very prudentially narrow test of
arbitrariness."163 Fr. Bernas described the "proper bounds" in Lansang as follows:
What, however, are these 'proper bounds' on the power of the courts? The
Court first gave the general answer that its power was 'merely to check - not to
supplant - the Executive, or to ascertain merely whether he has gone
beyond the constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act. More specifically, the
Court said that its power was not 'even comparable with its power over civil or
criminal cases elevated thereto by appeal...in which cases the appellate court
has all the powers of the courtof origin,' nor to its power of quasi-judicial
administrative decisions where the Court is limited to asking whether 'there is
some evidentiary basis' for the administrative finding. Instead, the Court
accepted the Solicitor General's suggestion that it 'go no further than to satisfy
[itself] not that the President's decision is correct and that public safety was
endangered by the rebellion and justified the suspension of the writ, but that in
suspending the writ, the President did not act arbitrarily.'164
Lansang, however, was decided under the 1935 Constitution. The 1987
Constitution, by providing only for judicial review based on the determination of
the sufficiency of the factual bases, has in fact done away with the test of
arbitrariness as provided in Lansang.
b) The "sufficiency of factual basis test".
Similarly, under the doctrine of contemporaneous construction, the framers of the
1987 Constitution are presumed to know the prevailing jurisprudence at the time
they were drafting the Constitution. Thus, 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 under Section 18, Article VII of the
Constitution. The Court does not need to satisfy itself that the President's decision
is correct, rather it only needs to determine whether the President's decision had
sufficient factual bases.
We conclude, therefore, that Section 18, Article VII limits the scope of judicial
review by the introduction of the "sufficiency of the factual basis" test.
As Commander-in-Chief, the President has the sole discretion to declare martial law
and/or to suspend the privilege of the writ of habeas corpus, subject to the
revocation of Congress and the review of this Court. Since the exercise of these
powers is a judgment call of the President, the determination of this Court as to
whether there is sufficient factual basis for the exercise of such, must be based only
on facts or information known by or available to the President at the time he made
the declaration or suspension, which facts or information are found in the
proclamation as well as the written Report submitted by him to Congress. These
may be based on the situation existing at the time the declaration was made or past
events. As to how far the past events should be from the present depends on the
President.
Past events may be considered as justifications for the declaration and/or
suspension as long as these are connected or related to the current situation
existing at the time of the declaration.
As to what facts must be stated in the proclamation and the written Report is up to
the President.165 As Commander-in-Chief, he has sole discretion to determine what
to include and what not to include in the proclamation and the written Report
taking into account the urgency of the situation as well as national security. He
cannot be forced to divulge intelligence reports and confidential information that
may prejudice the operations and the safety of the military.
Similarly, events that happened after the issuance of the proclamation, which are
included in the written report, cannot be considered in determining the sufficiency
of the factual basis of the declaration of martial law and/or the suspension of the
privilege of the writ of habeas corpus since these happened after the President had
already issued the proclamation. If at all, they may be used only as tools, guides or
reference in the Court's determination of the sufficiency of factual basis, but not as
part or component of the portfolio of the factual basis itself.
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
74
submitted to him within a period that only the circumstances obtaining would be and the written Report that support the conclusion that there is an actual invasion
able to dictate. Such a scenario, of course, would not only place the President in or rebellion and that public safety requires the declaration and/or suspension.
peril but would also defeat the very purpose of the grant of emergency powers
In sum, the Court's power to review is limited to the determination of whether the
upon him, that is, to borrow the words of Justice Antonio T. Carpio in Fortun, to
President in declaring martial law and suspending the privilege of the writ of habeas
"immediately put an end to the root cause of the emergency". 166 Possibly, by the
corpus had sufficient factual basis. Thus, our review would be limited to an
time the President is satisfied with the correctness of the facts in his possession, it
examination on whether the President acted within the bounds set by the
would be too late in the day as the invasion or rebellion could have already
Constitution, i.e., whether the facts in his possession prior to and at the time of the
escalated to a level that is hard, if not impossible, to curtail.
declaration or suspension are sufficient for him to declare martial law or suspend
Besides, the framers of the 1987 Constitution considered intelligence reports of the privilege of the writ of habeas corpus.
military officers as credible evidence that the President ca appraise and to which he
VIII. The parameters for determining the sufficiency of the/actual basis/or the
can anchor his judgment,167 as appears to be the case here.
declaration of martial law and/or the suspension of the privilege of the writ of
At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of habeas corpus.
Justice Presbitero J. Velasco Jr. in Fortun:
a) Actual invasion or rebellion, and public safety requirement.
President Arroyo cannot be blamed for relying upon the information given to
Section 18, Article VII itself sets the parameters for determining the sufficiency of
her by the Armed Forces of the Philippines and the Philippine National Police,
the factual basis for the declaration of martial law and/or the suspension of the
considering that the matter of the supposed armed uprising was within their
privilege of the writ of habeas corpus, "namely (1) actual invasion or rebellion, and
realm of competence, and that a state of emergency has also been declared in
(2) public safety requires the exercise of such power."170 Without the concurrence
Central Mindanao to prevent lawless violence similar to the 'Maguindanao
of the two conditions, the President's declaration of martial law and/or suspension
massacre,' which may be an indication that there is a threat to the public safety
of the privilege of the writ of habeas corpus must be struck down.
warranting a declaration of martial law or suspension of the writ.
As a general rule, a word used in a statute which has a technical or legal meaning, is
Certainly, the President cannot be expected to risk being too late before
construed to have the same technical or legal meaning.171 Since the Constitution did
declaring martial law or suspending the writ of habeas corpus. The
not define the term "rebellion," it must be understood to have the same meaning
Constitution, as couched, does not require precision in establishing the fact of
as the crime of "rebellion" in the Revised Penal Code (RPC). 172
rebellion. The President is called to act as public safety requires. 168
During the July 29, 1986 deliberation of the Constitutional Commission of 1986,
Corollary, as the President is expected to decide quickly on whether there is a need
then Commissioner Florenz D. Regalado alluded to actual rebellion as one defined
to proclaim martial law even only on the basis of intelligence reports, it is irrelevant,
under Article 134 of the RPC:
for purposes of the Court's review, if subsequent events prove that the situation
had not been accurately reported to him. MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion
and no longer imminent rebellion. Does the Committee mean that there should
After all, the Court's review is confined to the sufficiency, not accuracy, of the
be actual shooting or actual attack on the legislature or Malacañang, for
information at hand during the declaration or suspension; subsequent events do
example? Let us take for example a contemporary event - this Manila Hotel
not have any bearing insofar as the Court's review is concerned. In any event,
incident, everybody knows what happened. Would the Committee consider
safeguards under Section 18, Article VII of the Constitution are in place to cover
that an actual act of rebellion?
such a situation, e.g., the martial law period is good only for 60 days; Congress may
choose to revoke it even immediately after the proclamation is made; and, this MR. REGALADO. If we consider the definition of rebellion under Articles 134
Court may investigate the factual background of the declaration. 169 and 135 of the Revised Penal Code, that presupposes an actual assemblage of
men in an armed public uprising for the purposes mentioned in Article 134 and
Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case.
by the means employed under Article 135. x x x173
Falsities of and/or inaccuracies in some of the facts stated in the proclamation and
the written report are not enough reasons for the Court to invalidate the Thus, rebellion as mentioned in the Constitution could only refer to rebellion as
declaration and/or suspension as long as there are other facts in the proclamation defined under Article 134 of the RPC. To give it a different definition would not only

75
create confusion but would also give the President wide latitude of discretion,
which may be abused - a situation that the Constitution see k s to prevent. 174
Article 134 of the RPC states:
Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or
insurrection is committed by rising publicly and taking arms against the
Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Philippine Islands or any part
thereof, of any body of land, naval or other armed forces, depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives.
Thus, for rebellion to exist, the following elements must be present, to wit: "(l)
there is a (a) public uprising and (b) taking arms against the Government; and (2)
the purpose of the uprising or movement 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."175
b) Probable cause is the allowable standard of proof for the President.
In determining the existence of rebellion, 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.176 To require him to satisfy a higher
standard of proof would restrict the exercise of his emergency powers. Along this
line, Justice Carpio, in his Dissent in Fortun v. President Macapagal-
Arroyo, concluded that the President needs only to satisfy probable cause as the
standard of proof in determining the existence of either invasion or rebellion for
purposes of declaring martial law, and that probable cause is the most reasonable,
most practical and most expedient standard by which the President can fully
ascertain the existence or non-existence of rebellion necessary for a declaration of
martial law or suspension of the writ. This is because unlike other standards of
proof, which, in order to be met, would require much from the President and
therefore unduly restrain his exercise of emergency powers, the requirement of
probable cause is much simpler. It merely necessitates an "average man [to weigh]
the facts and circumstances without resorting to the calibration of the rules of
evidence of which he has no technical knowledge. He [merely] relies on common
sense [and] x x x needs only to rest on evidence showing that, more likely than not,
a crime has been committed x x x by the accused."177
To summarize, the parameters for determining the sufficiency of factual basis are as
follows: l) 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.
Having laid down the parameters for review, the Court shall nowproceed to the
core of the controversy - whether Proclamation No. 216,Declaring a State of Martial
Law and Suspending the Privilege of the Writ of Habeas Corpus in the whole of
Mindanao, lacks sufficient factual basis.
IX. There is sufficient factual basis for the declaration of martial law and the
suspension of the writ of habeas corpus.
At this juncture, it bears to emphasize that the purpose of judicial review is not the
determination of accuracy or veracity of the facts upon which the President
anchored his declaration of martial law or suspension of the privilege of the writ
of habeas corpus; rather, only the sufficiency of the factual basis as to convince the
President that there is probable cause that rebellion exists. It must also be
reiterated that martial law is a matter ofurgency and much leeway and flexibility
should be accorded the President. As such, he 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.
We restate the elements of rebellion for reference:
1. That there be (a) public uprising, and (b) taking up arms against the
Government; and
2. That the purpose of the uprising or movement is either: (a) to remove from
the allegiance to said Government or its laws the territory of the Philippines or
any part thereof, or 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 or prerogatives.178
Petitioners concede that there is an armed public uprising in Marawi
City.179 However, they insist that the armed hostilities do not constitute rebellion in
the absence of the element of culpable political purpose, i.e., the removal from the
allegiance to the Philippine 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.
The contention lacks merit.
a) Facts, events and information upon which the President anchored his decision to
declare martial law and suspend the privilege of the writ of habeas corpus.
Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at
10:00 PM,180 the Court will consider only those facts and/or events which were
known to or have transpired on or before that time, consistent with the scope of
judicial review. Thus, the following facts and/or events were deemed to have been
considered by the President in issuing Proclamation No. 216, as plucked from and
extant in Proclamation No. 216 itself:
76
1. Proclamation No. 55 issued on September 4, 2016, declaring a state of
national emergency on account of lawless violence in Mindanao;181
2. Series of violent acts182 committed by the Maute terrorist group including:
a) Attack on the military outpost in Butig, Lanao del Sur m February 2016,
killing and wounding several soldiers;
b) Mass jailbreak in Marawi City in August 2016 of the arrested comrades
of the Maute Group and other detainees;
3. On May 23, 2017:183
a) Takeover of a hospital in Marawi;
b) Establishment of several checkpoints within Marawi;
c) Burning of certain government and private facilities;
d) Mounting casualties on the part of the government;
e) Hoisting the flag of ISIS in several areas; and
f) 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; and the Report184 submitted to Congress:
1. Zamboanga siege;185
2. Davao bombing;186
3. Mamasapano carnage;187
4. Cotabato bombings;188
5. Sultan Kudarat bombings;189
6. Sulu bombings;190
7. Basilan bombings;191
8. Attempt to capture Hapilon was confronted with armed resistance
by combined forces of ASG and the Maute Group;192
9. Escalation of armed hostility against the government troops;193
10. Acts of violence directed not only against government authorities
and establishments but civilians as well;194
11. Takeover of major social, economic and political foundations
which paralyzed Marawi City;195
12. The object of the armed hostilities was to lay the groundwork for
the establishment of a DAESH/ISIS wilayat or province;196
13. Maute Group has 263 active members, armed and combat-
ready;197
14. Extensive networks or linkages of the Maute Group with foreign
and local armed groups;198
15. Adherence of the Maute Group to the ideals espoused by ISIS;199
16. Publication of a video showing Maute Group's declaration of
allegiance to ISIS;200
17. Foreign-based terrorist groups provide financial and logistical
support to the Maute Group;201
b) The President's Conclusion
18. Events on May 23, 2017 in Marawi City, particularly:
a) at 2:00 PM, members and sympathizers of the Maute Group
and ASG attacked various government and privately-owned
facilities;202
b) at 4:00 PM, around fifty (50) armed criminals forcibly entered
the Marawi City Jail; facilitated the escape of inmates; killed a
member of PDEA; assaulted and disarmed on-duty personnel
and/or locked them inside the cells; confiscated cellphones,
personnel-issued firearms, and vehicles;203
c) by 4:30 PM, intem1ption of power supply; sporadic gunfights;
city-wide power outage by evening;204
d) from 6:00 PM to 7:00 PM, Maute Group ambushed and burned
the Marawi Police Station; commandeered a police car;205
e) BJMP personnel evacuated the Marawi City Jail and other
affected areas;206
f) control over three bridges in Lanao del Sur, namely, Lilod,
Bangulo, and Sauiaran, was taken by the rebels; 207
g) road blockades and checkpoints set up by lawless armed groups
at the Iligan-Marawi junction;208
h) burning of Dansalan College Foundation, Cathedral of Maria
Auxiliadora, the nuns' quarters in the church, and the Shia Masjid
Moncado Colony;209
i) taking of hostages from the church;210
j) killing of five faculty members of Dansalan College
foundation;211
k) burning of Senator Ninoy Aquino College Foundation and
Marawi Central Elementary Pilot School;212
l) overrunning of Amai Pakpak Hospital;213
m) hoisting the ISIS flag in several areas;214
n) attacking and burning of the Filipino-Libyan Friendship
Hospital;215
o) ransacking of a branch of Landbank of the Philippines and
commandeering an armored vehicle;216
p) reports regarding Maute Group's plan to execute Christians;217
q) preventing Maranaos from leaving their homes;218
r) forcing young Muslims to join their group;219 and
s) intelligence reports regarding the existence of strategic mass
action of lawless armed groups in Marawi City, seizing public and
private facilities, perpetrating killings of government personnel1 ,
and committing armed uprising against and open defiance of the
Government.220
77
After the assessment by the President of the aforementioned facts, he arrived at
the following conclusions, as mentioned in Proclamation No. 216 and the Report:
1) The Maute Group is "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."221
2) "[L]awless 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." 222
3) The May 23, 2017 events "put on public display the groups' clear intention to
establish an Islamic State and their capability to deprive the duly constituted
authorities - the President, foremost - of their powers and prerogatives. "223
4) "These activities constitute not simply a display of force, but a clear attempt
to establish the groups' seat of power in Marawi City for their planned
establishment of a DAESH wilayat or province covering the entire
Mindanao."224
5) "The cutting of vital lines for transportation and power; the recruitment of
young Muslims to further expand their ranks and strengthen their force; the
armed consolidation of their members throughout Marawi City; the decimation
of a segment of the city population who resist; and the brazen display of DAESH
flags constitute a clear, pronounced, and unmistakable intent to remove
Marawi City, and eventually the rest of Mindanao, from its allegiance to the
Government."225
6) "There exists no doubt that lawless armed groups are attempting to deprive
the President of his power, authority, and prerogatives within Marawi City as a
precedent to spreading their control over the entire Mindanao, in an attempt
to undermine his control over executive departments, bureaus, and offices in
said area; defeat his mandate to ensure that all laws are faithfully executed;
and remove his supervisory powers over local governments."226
7) "Law enforcement and other government agencies now face pronounced
difficulty sending their reports to the Chief Executive due to the city-wide
power outages. Personnel from the BJMP have been prevented from
performing their functions. Through the attack and occupation of several
hospitals, medical services in Marawi City have been adversely affected. The
bridge and road blockades set up by the groups effectively deprive the
government of its ability to deliver basic services to its citizens. Troop
reinforcements have been hampered, preventing the government from
restoring peace and order in the area. Movement by both civilians and
government personnel to and from the city is likewise hindered."227
8) "The taking up of arms by lawless armed groups in the area, with support
being provided by foreign-based terrorists and illegal drug money, and their
blatant acts of defiance which embolden other armed groups in Mindanao,
have resulted in the deterioration of public order and safety in Marawi City;
they have likewise compromised the security of the entire Island of
Mindanao."228
9) "Considering the network and alliance-building activities among terrorist
groups, local criminals, and lawless armed men, the siege f Marawi City is a
vital cog in attaining their long-standing goal: absolute control over the entirety
of Mindanao. These circumstances demand swift and decisive action to ensure
the safety and security of the Filipino people and preserve our national
integrity."229
Thus, the President deduced from the facts available to him that there was an
armed public uprising, the culpable purpose of which was to remove from the
allegiance to the Philippine Government a portion of its territory and to deprive the
Chief Executive of any of his powers and prerogatives, leading the President to
believe that there was probable cause that the crime of rebellion was and is being
committed and that public safety requires the imposition of martial law and
suspension of the privilege of the writ of habeas corpus.
A review of the aforesaid facts similarly leads the Court to conclude that the
President, in issuing Proclamation No. 216, had sufficient factual bases tending to
show that actual rebellion exists. The President's conclusion, that there was an
armed public uprising, the culpable purpose of which was the removal from the
allegiance of the Philippine Government a portion of its territory and the
deprivation of the President from performing his powers and prerogatives, was
reached after a tactical consideration of the facts. In fine, the President
satisfactorily discharged his burden of proof.
After all, what the President needs to satisfy is only the standard of probable cause
for a valid declaration of martial law and suspension of the privilege of the writ
of habeas corpus. As Justice Carpio decreed in his Dissent in Fortun:
x x x [T]he Constitution does not compel the President to produce such amount
of proof as to unduly burden and effectively incapacitate her from exercising
such powers.
Definitely, the President need not gather proof beyond reasonable doubt,
which is the standard of proof required for convicting an accused charged with
a criminal offense.x x x
78
xxxx Probable cause, basically premised on common sense, is the most reasonable,
most practical, and most expedient standard by which the President can fully
Proof beyond reasonable doubt is the highest quantum of evidence, and to
ascertain the existence or non-existence of rebellion, necessary for a
require the President to establish the existence of rebellion or invasion with
declaration of martial law x x x230
such amount of proof before declaring martial law or suspending the writ
amounts to an excessive restriction on 'the President's power to act as to c) Inaccuracies, simulations, falsities, and hyperboles.
practically tie her hands and disable her from effectively protecting the nation
The allegation in the Lagman Petition that the facts stated in Proclamation No. 216
against threats to public safety.'
and the Report are false, inaccurate, simulated, and/or hyperbolic, does not
Neither clear and convincing evidence, which is employed in either criminal or persuade. As mentioned, the Court is not concerned about absolute correctness,
civil cases, is indispensable for a lawful declaration of martial law or suspension accuracy, or precision of the facts because to do so would unduly tie the hands of
of the writ. This amount of proof likewise unduly restrains the President in the President in responding to an urgent situation.
exercising her emergency powers, as it requires proof greater than
Specifically, it alleges that the following facts are not true as shown by its counter-
preponderance of evidence although not beyond reasonable doubt.
evidence.231
Not even preponderance of evidence, which is the degree of proof necessary in
civil cases, is demanded for a lawful declaration of martial law. FACTUAL STATEMENTS COUNTER-EVIDENCE
xxxx (1) that the Maute group attacked Amai Statements made by:
Weighing the superiority of the evidence on hand, from at least two opposing Pakpak Hospital and hoisted the DAESH (a) Dr. Amer Saber, Chief of the Hospital
flag there, among several locations. As of (b) Health Secretary Paulyn Ubial;
sides, before she can act and impose martial law or suspend the writ
unreasonably curtails the President's emergency powers. 0600H of 24 May 2017, members of the (c) PNP Spokesperson Senior Supt.
Maute Group were seen guarding the Dionardo Carlos;
Similarly, substantial evidence constitutes an unnecessary restriction on the entry gates of the Amai Pakpak Hospital (d) AFP Public Affairs Office Chief Co.
President's use of her emergency powers. Substantial evidence is the amount and that they held hostage the Edgard Arevalo; and
of proof required in administrative or quasi-judicial cases, or that amount of employees of the Hospital and took over (e) Marawi City Mayor Majul Gandamra
relevant evidence which a reasonable mind might accept as adequate to justify the PhilHealth office located thereat denying that the hospital was attacked
a conclusion. (Proclamation No. 216 and Report); by the Maute Group citing online news
I am of the view that probable cause of the existence of either invasion or articles of Philstar, Sunstar, Inquirer,
rebellion suffices and satisfies the standard of proof for a valid declaration of and Bombo Radyo.232
martial law and suspension of the writ. 2. that the Maute Group ambushed and Statements made by PNP Director
Probable cause is the same amount of proof required for the filing of a criminal burned the Marawi Police Station General Ronald dela Rosa and Marawi
information by the prosecutor and for the issuance of an arrest warrant by a (Proclamation No. 216 and the Report); City Mayor Majul Gandamra in the
judge. Probable cause has been defined as a 'set of facts and circumstances as online news reports of ABS-CBN News
would lead a reasonably discreet and prudent man to believe that the offense and CNN Philippines233denying that the
charged in the Information or any offense included therein has been Maute group occupied the Marawi
committed by the person sought to be arrested.' Police Station.

In determining probable cause, the average man weighs the facts and 3. that lawless armed groups likewise Statement made by the bank officials in
circumstances without resorting to the calibrations of the rules of evidence of ransacked the Landbank of the the on-line news article of
which he has no technical knowledge. He relies on common sense. A finding of Philippines and commandeered one of its Philstar234 that the Marawi City branch
probable cause needs only to rest on evidence showing that, more likely than armored vehicles (Report); was not ransacked but sustained
not, a crime has been committed and that it was committed by the accused. damages from the attacks.
Probable cause demands more than suspicion; it requires less than evidence
that would justify conviction. 4. that the Marawi Central Elementary Statements in the on-line news article

79
Pilot School was burned (Proclamation of Philstar235 made by the Marawi City
No. 216 and the Report); Schools Division Assistant
Superintendent Ana Alonto denying
that the school was burned and
Department of Education Assistant
Secretary Tonisito Umali stating that
they have not received any report of
damage.
5. that the Maute Group attacked various Statement in the on-line news article of
government facilities (Proclamation No. Inquirer236 made by Marawi City Mayor
216 and the Report). Majul Gandamra stating that the ASG
and the Maute Terror Groups have not
taken over any government facility in
Marawi City.
However, the so-called 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. As the Court has
consistently ruled, news articles are hearsay evidence, twice removed, and are thus
without any probative value, unless offered for a purpose other than proving the
truth of the matter asserted.237 This pronouncement applies with equal force to the
Cullamat Petition which likewise submitted online news articles238 as basis for their
claim of insufficiency of factual basis.
Again, it bears to reiterate that the maxim falsus in uno, falsus in omnibus finds no
application in these cases. As long as there are other facts in the proclamation and
the written Report indubitably showing the presence of an actual invasion or
rebellion and that public safety requires the declaration and/or suspension, the
finding of sufficiency of factual basis, stands.
d) Ruling in Bedol v. Commission on Elections not Applicable.
Petitioners, however, insist that in Bedol v. Commission on Elections,239 news
reports may be admitted on grounds of relevance, trustworthiness, and necessity.
Petitioners' reliance on this case is misplaced. The Court in Bedol made it clear that
the doctrine of independent relevant statement, which is an ·exception to the
hearsay rule, applies in cases "where only the fact that such statements were made
is relevant, and the truth or falsity thereof is immaterial." 240 Here, the question is
not whether such statements were made by Saber, et. al., but rather whether what
they said are true. Thus, contrary to the view of petitioners, the exception
in Bedol finds no application here.
e) There are other independent facts which support the finding that, more likely
than not, rebellion exists and that public safety requires it.
Moreover, the alleged false and/or inaccurate statements are just pieces and
parcels of the Report; along with these alleged false data is an arsenal of other
independent facts showing that more likely than not, actua1 rebellion exists, and
public safety requires the declaration of martial law or suspension of the privilege
of the writ of habeas corpus. To be precise, the alleged false and/or inaccurate
statements are only five out of the severa1 statements bulleted in the President's
Report. Notably, in the interpellation by Justice Francis H. Jardeleza during the
second day of the oral argument, petitioner Lagman admitted that he was not
aware or that he had no personal knowledge of the other incidents cited. 241 As it
thus stands, there is no question or challenge with respect to the reliability of the
other incidents, which by themselves are ample to preclude the conclusion that the
President's report is unreliable and that Proclamation No. 216 was without
sufficient factual basis.
Verily, there is no credence to petitioners' claim that the bases for the President's
imposition of martial law and suspension of the writ of habeas corpus were mostly
inaccurate, simulated, false and/or hyperbolic.
X. Public safety requires the declaration of martial law and the suspension of the
privilege of the writ of habeas corpus in the whole of Mindanao.
Invasion or rebellion alone may justify resort to the calling out power but definitely
not the declaration of martial law or suspension of the privilege of the writ
of habeas corpus. For a declaration of martial law or suspension of the privilege of
the writ of habeas corpus to be valid, there must be a concurrence of actual
rebellion or invasion and the public safety requirement. In his Report, the President
noted that the acts of violence perpetrated by the ASG and the Maute Group were
directed not only against government forces or establishments but likewise against
civilians and their properties.242 In addition and in relation to the armed hostilities,
bomb threats were issued;243 road blockades and checkpoints were set
up;244 schools and churches were burned; 245 civilian hostages were taken and
killed;246 non-Muslims or Christians were targeted;247 young male Muslims were
forced to join their group;248 medical services and delivery of basic services were
hampered;249 reinforcements of government troops and civilian movement were
hindered;250 and the security of the entire Mindanao Island was compromised.251
These particular scenarios convinced the President that the atrocities had already
escalated to a level that risked public safety and thus impelled him to declare
martial law and suspend the privilege of the writ of habeas corpus. In the last
paragraph of his Report, the President declared:
While the government is presently conducting legitimate operations to address
the on-going rebellion, if not the seeds of invasion, public safety necessitates
the continued implementation of martial law and the suspension of the
privilege of the writ of habeas corpus in the whole of Mindanao until such time
that the rebellion is completely quelled.252
80
Based on the foregoing, we hold that the parameters for the declaration of martial
law and suspension of the privilege of the writ f habeas corpus have been properly
and fully complied with. Proclamation No. 216 has sufficient factual basis there
being probable cause to believe that rebellion exists and that public safety requires
the martial law declaration and the suspension of the privilege of the writ of habeas
corpus.
XI. Whole of Mindanao
a) The overriding and paramount concern of martial law is the protection of the
security of the nation and the good and safety of the public.
Considering the nation's and its people's traumatic experience martial law under
the Marcos regime, one would expect the framers of the 1987 Constitution to stop
at nothing from not resuscitating the law. Yet it would appear that the
constitutional writers entertained no doubt about the necessity and practicality of
such specie of extraordinary power and thus, once again, bestowed on the
Commander-in-Chief the power to declare martial law albeit in its diluted form.
Indeed, martial law and the suspension of the privilege of the writ of habeas
corpus are necessary for the protection of the security of the nation; suspension of
the privilege of the writ of habeas corpus is "precautionary , and although it might
[curtail] certain rights of individuals, [it] is for the purpose of defending and
protecting the security of the state or the entire country and our sovereign
people".253 Commissioner Ople referred to the suspension of the privilege of the
writ of habeas corpus as a "form of immobilization" or "as a means of immobilizing
potential internal enemies" "especially in areas like Mindanao."254
Aside from protecting the security of the country, martial law also guarantees and
promotes public safety. It is worthy of mention that rebellion alone does not justify
the declaration of martial law or suspension of the privilege of the writ of habeas
corpus; the public safety requirement must likewise be present.
b) As Commander-in-Chief, the President receives vital, relevant, classified, and live
information which equip and assist him in making decisions.
In Parts IX and X, the Court laid down the arsenal of facts and events that formed
the basis for Proclamation No. 216. For the President, the totality of facts and
events, more likely than not, shows that actual rebellion exists and that public
safety requires the declaration of martial law and suspension of the privilege of the
writ of habeas corpus. Otherwise stated, the President believes that there is
probable cause that actual rebellion exists and public safety warrants the issuance
of Proclamation No. 216. In turn, the Court notes that the President, in arriving at
such a conclusion, relied on the facts and events included in the Report, which we
find sufficient.
To be sure, the facts mentioned in the Proclamation and the Report are far from
being exhaustive or all-encompassing. At this juncture, it may not be amiss to state
that as Commander-in-Chief, the President has possession of documents and
information classified as "confidential", the contents of which cannot be included in
the Proclamation or Report for reasons of national security. These documents may
contain information detailing the position of government troops and rebels, stock
of firearms or ammunitions, ground commands and operations, names of suspects
and sympathizers, etc. , In fact, during the closed door session held by the Court,
some information came to light, although not mentioned in the Proclamation or
Report. But then again, the discretion whether to include the same in the
Proclamation or Report is the judgment call of the President. In fact, petitioners
concede to this. During the oral argument, petitioner Lagman admitted that "the
assertion of facts [in the Proclamation and Report] is the call of the President."255
It is beyond cavil that the President can rely on intelligence reports and classified
documents. "It is for the President as [C]ommander-in[C]hief of the Armed Forces
to appraise these [classified evidence or documents/]reports and be satisfied that
the public safety demands the suspension of the writ." 256 Significantly, respect to
these so-called classified documents is accorded even "when [the] authors of or
witnesses to these documents may not be revealed." 257
In fine, not only does the President have a wide array of information before him, he
also has the right, prerogative, and the means to access vital, relevant, and
confidential data, concomitant with his position as Commander-in-Chief of the
Armed Forces.
c) The Court has no machinery or tool equal to that of the Commander-in-Chief to
ably and properly assess the ground conditions.
In contrast, the Court does not have the same resources available to the President.
However, this should not be considered as a constitutiona1 lapse. On the contrary,
this is in line with the function of the Court, particularly in this instance, to
determine the sufficiency of factual basis of Proclamation No. 216. As thoroughly
discussed in Part VIII, the determination by the Court of the sufficiency of factual
basis must be limited only to the facts and information mentioned in the Report
and Proclamation. In fact, the Court, in David v. President Macapagal-
Arroyo,258 cautioned not to "undertake an independent investigation beyond the
pleadings." In this regard, "the Court will have to rely on the fact-finding capabilities
of the [E]xecutive [D]epartment;"259 in turn, the Executive Department will have to
open its findings to the Court,260 which it did during the closed door session last
June 15, 2017.
d) The 1987 Constitution grants to the President, as Commander-in-Chief, the
discretion to determine the territorial coverage or application of martial law or
suspension of the privilege of the writ of habeas corpus.
81
Section 18, Article VII of the Constitution states that "[i]n case of invasion or from a new perspective by elaborating on the sufficiency of the proposed
rebellion, when the public safety requires it, [the President] may x x x suspend the safeguards:
privilege of writ of habeas corpus or place the Philippines or any part thereof
MR. MONSOD. x x x
under martial law." Clearly, the Constitution grants to the President the discretion
to determine the territorial coverage of martial law and the suspension of the Second, we have been given a spectre of non sequitur, that the mere
privilege of the writ of habeas corpus. He may put the entire Philippines or only a declaration of martial law for a fixed period not exceeding 60 days, which is
part thereof under martial law. subject to judicial review, is going to result in numerous violations of human
rights, the predominance of the military forever and in untold sufferings.
This is both an acknowledgement and a recognition that it is the Executive
Madam President, we are talking about invasion and rebellion. We may not
Department, particularly the President as Commander-in-Chief, who is the
have any freedom to speak of after 60 days, if we put as a precondition the
repository of vital, classified, and live information necessary for and relevant in
concurrence of Congress. That might prevent the President from acting at that
calibrating the territorial application of martial law and the suspension of the
time in order to meet the problem. So I would like to suggest that, perhaps, we
privilege of the writ of habeas corpus. It, too, is a concession that the President has
should look at this in its proper perspective. We are only looking at a very
the tactical and military support, and thus has a more informed understanding of
specific case. We are only looking at a case of the first 60 days at its maximum.
what is happening on the ground. Thus, the Constitution imposed a limitation on
And we are looking at actual invasion and rebellion, and there are other
the period of application, which is 60 days, unless sooner nullified, revoked or
safeguards in those cases.262
extended, but not on the territorial scope or area of coverage; it merely stated "the
Philippines or any part thereof," depending on the assessment of the President. Even Bishop Bacani was convinced that the 1987 Constitution has enough
safeguards against presidential abuses and commission of human rights violations.
e) The Constitution has provided sufficient safeguards against possible abuses of
In voting yes for the elimination of the requirement of prior concurrence of
Commander-in-Chief's powers; further curtailment of Presidential powers should not
Congress, Bishop Bacani stated, viz.:
only be discouraged but also avoided.
BISHOP BACANI. Yes, just two sentences. The reason I vote II yes is that despite
Considering the country's history, it is understandable that the resurgence of
my concern for human rights, I believe that a good President can also safeguard
martial law would engender apprehensions among the citizenry. Even the Court as
human rights and human lives as well. And I do not want to unduly emasculate
an institution cannot project a stance of nonchalance. However, the importance of
the powers of the President. Xxx263
martial law in the context of our society should outweigh one's prejudices and
apprehensions against it. The significance of martial law should not be undermined Commissioner Delos Reyes shared the same sentiment, to wit:
by unjustified fears and past experience. After all, martial law is critical and crucial
MR. DE LOS REYES. May I explain my vote, Madam President.
to the promotion of public safety, the preservation of the nation's sovereignty and
ultimately, the survival of our country. It is vital for the protection of the country x x x The power of the President to impose martial law is doubtless of a very
not only against internal enemies but also against those enemies lurking from high and delicate nature. A free people are naturally jealous of the exercise of
beyond our shores. As such, martial law should not be cast aside, or its scope and military power, and the power to impose martial law is certainly felt to be one
potency limited and diluted, based on bias and unsubstantiated assumptions. of no ordinary magnitude. But as presented by the Committee, there are many
safeguards: 1) it is limited to 60 days; 2) Congress can revoke it; 3) the Supreme
Conscious of these fears and apprehensions, the Constitution placed several
Court can still review as to the sufficiency of factual basis; and 4) it does not
safeguards which effectively watered down the power to declare martial law. The
suspend the operation of the Constitution. To repeat what I have quoted when
1987 Constitution "[clipped] the powers of [the] Commander-in-Chief because of
I interpellated Commissioner Monsod, it is said that the power to impose
[the] experience with the previous regime."261 Not only were the grounds limited to
martial law is dangerous to liberty and may be abused. All powers may be
actual invasion or rebellion, but its duration was likewise fixed at 60 days, unless
abused if placed in unworthy hands. But it would be difficult, we think, to point
sooner revoked, nullified, or extended; at the same time, it is subject to the veto
out any other hands in which this power will be more safe and at the same
powers of the Court and Congress.
time equally effectual. When citizens of the State are in arms against each
Commissioner Monsod, who, incidentally, is a counsel for the Mohamad Petition, other and the constituted authorities are unable to execute the laws, the action
even exhorted his colleagues in the Constitutional Convention to look at martial law of the President must be prompt or it is of little value. x x x 264 (Emphasis
supplied)

82
At this juncture, it bears to stress that it was the collective sentiment of the framers
of the 1987 Constitution that sufficient safeguards against possible misuse and
abuse by the Commander-in-Chief of his extraordinary powers are already in place
and that no further emasculation of the presidential powers is called for in the guise
of additional safeguards. The Constitution recognizes that any further curtailment,
encumbrance, or emasculation of the presidential powers would not generate any
good among the three co-equal branches, and to the country and its citizens as a
whole. Thus:
MR. OPLE. The reason for my concern, Madam President, is that when we put
all of these encumbrances on the President and Commander-in-Chief during an
actual invasion or rebellion, given an intractable Congress that may be
dominated by opposition parties, we may be actually impelling the President to
use the sword of Alexander to cut the Gordian knot by just declaring a
revolutionary government that sets him free to deal with the invasion or the
insurrection. x x x265 (Emphasis supplied)
f) Rebellion and public safety; nature, scope, and range.
It has been said that the "gravamen of the crime of rebellion is an armed public
uprising against the government;"266 and that by nature, "rebellion is x x x a crime
of masses or multitudes, involving crowd action, that cannot be confined a
priori, within predetermined bounds."267 We understand this to mean that the
precise extent or range of the rebellion could not be measured by exact metes and
bounds.
To illustrate: A contingent armed with high-powered firearms publicly assembled in
Padre Faura, Ermita, Manila where the Court's compound is situated. They
overpowered the guards, entered the Court's premises, and hoisted the ISIS flag.
Their motive was political, i.e., they want to remove from 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.
Based on the foregoing illustration, and vis-a-vis the nature of the crime of
rebellion, could we validly say that the rebellion is confined only within the Court's
compound? Definitely not. The possibility that there are other rebels positioned in
the nearby buildings or compound of the Philippine General Hospital (PGH) or the
Manila Science High Schoo1 (MSHS) could not be discounted. There is no way of
knowing that all participants in the rebellion went and stayed inside the Court's
compound.
Neither could it be validly argued that the armed contingent positioned in PGH or
MSHS is not engaged in rebellion because there is no publicity in their acts as, in
fact, they were merely lurking inside the compound of PGH and MSHS. However, it
must be pointed out that for the crime of rebellion to be consummated, it
is not required that all armed participants should congregate in one place, in this
case, the Court's compound, and publicly rise in arms against the government for
the attainment of their culpable purpose. It suffices that a portion of the contingent
gathered and formed a mass or a crowd and engaged in an armed public uprising
against the government. Similarly, it cannot be validly concluded that the grounds
on which the armed public uprising actually to6k place should be the measure of
the extent, scope or range, of the actual I rebellion. This is logical since the other
rebels positioned in PGH, MSHS, I or elsewhere, whose participation did not involve
the publicity aspect of rebellion, may also be considered as engaging in the crime of
rebellion.
Proceeding from the same illustration, suppose we say that the President, after
finding probable cause that there exists actual rebellion and that public safety
requires it, declares martial law and suspends the writ of habeas corpus in the
whole of Metro Manila, could we then say that the territorial coverage of the
proclamation is too expansive?
To answer this question, we revert back to the premise that the discretion to
determine the territorial scope of martial law lies with the President. The
Constitution grants him the prerogative whether to put the entire Philippines
or any part thereof under martial law. There is no constitutional edict that martial
law should be confined only in the particular place where the armed public uprising
actually transpired. This is not only practical but also logical. Martial law is an urgent
measure since at stake is the nation's territorial sovereignty and survival. As such,
the President has to respond quickly. After the rebellion in the Court's compound,
he need not wait for another rebellion to be mounted in Quezon City before he
could impose martial law thereat. If that is the case, then the President would have
to wait until every remote corner in the country is infested with rebels before he
could declare martial law in the entire Philippines. For sure, this is not the scenario
envisioned by the Constitution.
Going back to the illustration above, although the President is not required to
impose martial law only within the Court's compound because it is where the
armed public uprising actually transpired, he may do so if he sees fit. At the same
time, however, he is not precluded from expanding the coverage of martial law
beyond the Court's compound. After all, rebellion is not confined within
predetermined bounds.
Public safety, which is another component element for the declaration of martial
law, "involves the prevention of and protection from events that could endanger
the safety of the general public from significant danger, injury/harm, or damage,
such as crimes or disasters."268 Public safety is an abstract term; it does not take any
physical form. Plainly, its range, extent or scope could not be physically measured
by metes and bounds.
Perhaps another reason why the territorial scope of martial law should not
necessarily be limited to the particular vicinity where the armed public uprising
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actually transpired, is because of the unique characteristic of rebellion as a crime.
"The crime of rebellion consists of many acts. It is a vast movement of men and a
complex net of intrigues and plots. Acts committed in furtherance of rebellion[,]
though crimes in themselves[,] are deemed absorbed in one single crime of
rebellion."269 Rebellion absorbs "other acts committed in its pursuance".270 Direct
assault,271murder,272 homicide,273 arson,274 robbery,275 and kidnapping,276 just to
name a few, are absorbed in the crime of rebellion if committed in furtherance of
rebellion; "[i]t cannot be made a basis of a separate charge." 277Jurisprudence also
teaches that not only common crimes may be absorbed in rebellion but also
"offenses under special laws [such as Presidential Decree No. 1829]278 which are
perpetrated in furtherance of the political offense". 279 "All crimes, whether
punishable under a special law or general law, which are me e components or
ingredients, or committed in furtherance thereof, become absorbed in the crime of
rebellion and cannot be isolated and charged as separate crimes in themselves. 280
Thus, by the theory of absorption, the crime of murder committed in Makati City, if
committed in furtherance of the crime of rebellion being hypothetically staged in
Padre Faura, Ermita, Manila, is stripped of its common complexion and is absorbed
in the crime of rebellion. This all the more makes it difficult to confine the
application of martial law only to the place where the armed public uprising is
actually taking place. In the illustration above, Padre Faura could only be the nerve
center of the rebellion but at the same time rebellion is also happening in Makati
City.
In fine, it is difficult, if not impossible, to fix the territorial scope of martial law
in direct proportion to the "range" of actual rebellion and public safety simply
because rebellion and public safety have no fixed physical dimensions. Their
transitory and abstract nature defies precise measurements; hence, the
determination of the territorial scope of martial law could only be drawn from
arbitrary, not fixed, variables. The Constitution must have considered these
limitations when it granted the President wide leeway and flexibility in determining
the territorial scope of martial law.
Moreover, the President's duty to maintain peace and public safety is not limited
only to the place where there is actual rebellion; it extends to other areas where
the present hostilities are in danger of spilling over. It is not intended merely to
prevent the escape of lawless elements from Marawi City, but also to avoid enemy
reinforcements and to cut their supply lines coming from different parts of
Mindanao. Thus, limiting the proclamation and/or suspension to the place where
there is actual rebellion would not only defeat the purpose of declaring martial law,
it will make the exercise thereof ineffective and useless.
g) The Court must stay withinthe confines of its power.
The Court can only act within the confines of its power.1âwphi1 For the Court to
overreach is to infringe upon another's territory. Clearly, the power to determine
the scope of territorial application belongs to the President. "The Court cannot
indulge in judicial legislation without violating the principle of separation of powers,
and, hence, undermining the foundation of our republican system."281
To reiterate, the Court is not equipped with the competence and logistical
machinery to determine the strategical value of other places in the military's efforts
to quell the rebellion and restore peace. It would be engaging in an act of
adventurism if it dares to embark on a mission of deciphering the territorial metes
and bounds of martial law. To be blunt about it, hours after the proclamation of
martial law none of the members of this Court could have divined that more than
ten thousand souls would be forced to evacuate to Iligan and Cagayan de Oro and
that the military would have to secure those places also; none of us could have
predicted that Cayamora Maute would be arrested in Davao City or that his wife
Ominta Romato Maute would be apprehended in Masiu, Lanao del Sur; and, none
of us had an inkling that the Bangsamoro Islamic Freedom Fighters (BIFF) would
launch an attack in Cotabato City. The Court has no military background and
technical expertise to predict that. In the same manner, the Court lacks the
technical capability to determine which part of Mindanao would best serve as
forward operating base of the military in their present endeavor in Mindanao. Until
now the Court is in a quandary and can only speculate whether the 60-day lifespan
of Proclamation No. 216 could outlive the present hostilities in Mindanao. It is on
this score that the Court should give the President sufficient leeway to address the
peace and order problem in Mindanao.
Thus, considering the current situation, it will not serve any purpose if the President
is goaded into using "the sword of Alexander to cut the Gordian knot" 282 by
attempting to impose another encumbrance; after all "the declaration of martial
law or the suspension of the privilege of the writ of habeas corpus is essentially an
executive act."283
Some sectors, impelled perhaps by feelings of patriotism, may wish to subdue, rein
in, or give the President a nudge, so to speak, as some sort of reminder of the
nation's experience under the Marcos-styled martial law. However, it is not fair to
judge President Duterte based on the ills some of us may have experienced during
the Marcos-martial law era. At this point, the Court quotes the insightful discourse
of Commissioner Ople:
MR. OPLE. x x x
xxxx
Madam President, there is a tendency to equate patriotism with rendering the
executive branch of the government impotent, as though by reducing
drastically the powers of the executive, we are rendering a service to human
welfare. I think it is also important to understand that the extraordinary
measures contemplated in the Article on the Executive pertain to a practical
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 state of war existing in this country when national security will become a a. On January 13, 2017, an improvised explosive device (IED) exploded in
common bond of patriotism of all Filipinos, especially if it is an actual invasion Barangay Campo Uno, Lamita City, Basilan. A civilian was killed while another
or an actual rebellion, and the President may have to be given a minimum was wounded.290
flexibility to cope with such unprecedented threats to the survival of a nation. I
b. On January 19, 2017, the ASG kidnapped three Indonesians near Bakungan
think the Commission has done so but at the same time has not, in any
Island, Taganak, Tawi-Tawi.291
manner, shunned the task of putting these powers under a whole system of
checks and balances, including the possible revocation at any time of a c. On January 29, 2017, the ASG detonated an IED in Barangay Danapah,
proclamation of martial law by the Congress, and in any case a definite Albarka, Basilan resulting in the death of two children and the wounding of
determination of these extraordinary powers, subject only to another three others.292
extension to be determined by Congress in the event that it is necessary to do
d. From March to May 2017, there were eleven (11) separate instances of IED
so because the emergency persists.
explosions by the BIFF in Mindanao. These resulted in the death and wounding
So, I think this Article on the Executive for which I voted is completely of several personalities.293
responsible; it is attuned to the freedom and the rights of the citizenry. It does
e. On February 26, 2017, the ASG beheaded its kidnap victim, Juergen Kantner
not render the presidency impotent and, at the same time, it allows for a
in Sulu.294
vigorous representation of the people through their Congress when an
emergency measure is in force and effect.284 f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in firefights
between rebels and government troops.295
h) Several local armed groups have formed linkages aimed at committing rebellion
and acts in furtherance thereof in the whole of Mindanao. g. On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel
Besconde.296
With a predominantly Muslim population, Marawi City is "the only Islamic City of
the South."285 On April 15, 1980, it was conferred the official title of "Islamic City of h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji and beheaded him
Marawi."286 The city's first name, "Dansalan," "was derived from the word 'dansal', three days later.297
meaning a destination point or rendezvous. Literally, it also means arrival or
There were also intelligence reports from the military about offensives committed
coming."287 Marawi lies in the heart of Mindanao. In fact, the Kilometer Zero
by the ASG and other local rebel groups. All these suggest that the rebellion in
marker in Mindanao is found in Marawi City thereby making Marawi City the point
Marawi has already spilled over to other parts of Mindanao.
of reference of all roads in Mindanao.
Moreover, considering the widespread atrocities in Mindanao and the linkages
Thus, there is reasonable basis to believe that Marawi is only the staging point of
established among rebel groups, the armed uprising that was initially staged in
the rebellion, both for symbolic and strategic reasons. Marawi may not be the
Marawi cannot be justified as confined only to Marawi. The Court therefore will not
target but the whole of Mindanao. As mentioned in the Report, "[l]awless armed
simply disregard the events that happened during the Davao City bombing, the
groups have historically used provinces adjoining Marawi City as escape routes,
Mamasapano massacre, the Zamboanga City siege, and the countless bombings in
supply lines, and backdoor passages;"288 there is also the plan to establish
Cotabato, Sultan Kudarat, Sulu, and Basilan, among others.298 The Court cannot
a wilayat in Mindanao by staging the siege of Marawi. The report that prior to May
simply take the battle of Marawi in isolation. As a crime without predetermined
23, 2017, Abdullah Maute had already dispatched some of his men to various places
bounds, the President has reasonable basis to believe that the declaration of
in Mindanao, such as Marawi, Iligan, and Cagayan de Oro for bombing operations,
martial law, as well as the suspension of the privilege of the writ of habeas corpus in
carnapping, and the murder of military and police personnel, 289 must also be
the whole of Mindanao, is most necessary, effective, and called for by the
considered. Indeed, there is some semblance of truth to the contention that
circumstances.
Marawi is only the start, and Mindanao the end.
i) Terrorism neither negates nor absorbs rebellion.
Other events also show that the atrocities were not concentrated in Marawi City.
Consider these: It is also of judicial notice that the insurgency in Mindanao has been ongoing for
decades. While some groups have sought legal and peaceful means, others have
resorted to violent extremism and terrorism. Rebellion may be subsumed under the
crime of terrorism, which has a broader scope covering a wide range of predicate

85
crimes. In fact, rebellion is only one of the various means by which terrorism can be espouse, advocate or champion, let us not forget that at this point in time we, the
committed.299 However, while the scope of terrorism may be comprehensive, its Filipino people, are confronted with a crisis of such magnitude and proportion that
purpose is distinct and well-defined. The objective of a "'terrorist" is to sow and we all need to summon the spirit of unity and act as one undivided nation, if we are
create a condition of widespread fear among the populace in order to coerce the to overcome and prevail in the struggle at hand.
government to give in to an unlawful demand. This condition of widespread fear is
Let us face up to the fact that the siege in Marawi City has entered the second
traditionally achieved through bombing, kidnapping, mass killing, and beheading,
month and only God or Allah knows when it would end. Let us take notice of the
among others. In contrast, the purpose of rebellion, as previously discussed, is
fact that the casualties of the war are mounting. To date, 418 have died. Out of that
political, i.e., (a) to remove from the allegiance to the Philippine Government or its
were 303 Maute rebels as against 71 government troops and 44 civilians.
laws: (i) the territory of the Philippines or any part thereof; (ii) any body of land,
naval, or armed forces; or (b) to deprive the Chief Executive or Congress, wholly or Can we not sheathe our swords and pause for a while to bury our dead, including
partially, of any of their powers and prerogatives. our differences and prejudices?
In determining what crime was committed, we have to look into the main objective WHEREFORE, the Court FINDS sufficient factual bases for the issuance of
of the malefactors. If it is political, such as for the purpose of severing the allegiance Proclamation No. 216 and DECLARES it as CONSTITUTIONAL. Accordingly, the
of Mindanao to the Philippine Government to establish a wilayat therein, the crime consolidated Petitions are hereby DISMISSED.
is rebellion. If, on the other hand, the primary objective is to sow and create a
SO ORDERED.
condition of widespread and extraordinary fear and panic among the populace in
order to coerce the government to give in to an unlawful demand, the crime is
terrorism. Here, we have already explained and ruled that the President did not err
in believing that what is going on in Marawi City is one contemplated under the
crime of rebellion.
In any case, even assuming that the insurgency in Marawi City can also be
characterized as terrorism, the same will not in any manner affect Proclamation No.
216. Section 2 of Republic Act (RA) No. 9372, otherwise known as the Human
Security Act of 2007 expressly provides that "[n]othing in this Act shall be
interpreted as a curtailment, restriction or diminution of constitutionally recognized
powers of the executive branch of the government." Thus, as long as the President
complies with all the requirements of Section 18, Article VII, the existence of
terrorism cannot prevent him from exercising his extraordinary power of
proclaiming martial ' law or suspending the privilege of the writ of habeas
corpus. After all, the extraordinary powers of the President are bestowed on him by
the Constitution. No act of Congress can, therefore, curtail or diminish such powers.
Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that
rebellion and terrorism are mutuallty exclusive of each other or that they cannot
co-exist together. RA 9372 does not expressly or impliedly repeal Art. 134 of the
RPC. And while rebellion is one of the predicate crimes of terrorism, one cannot
absorb the other as they have different elements.300
Verily, the Court upholds the validity of the declaration of martial law and
suspension of the privilege of the writ of habeas corpus in the entire Mindanao
region.
At the end of the day, however ardently and passionately we may believe in the
validity or correctness of the varied and contentious causes or principles that we

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