SALAYA, MARK GREGORY T.

JD IV

Justice Leonen’s Dissenting Opinion

The court decided on the following issues:

First, whether or not the petitions are appropriate proceedings covered by Article VII Sec.
18, par. 3.
Justice Leonen agreed with the Court’s ruling on this issue. In addition, he also argued that
the while petitioners may avail of the remedies under Art. VII Sec. 18 of the constitution, citizens
may also avail of Art. VIII Sec. 1. These two remedies are not exclusive of each other nor do they
subsume each other. Leonen emphasized that by the very history and express provision of the 1987
constitution, the Supreme Court is duty to bound to exercise it power of review upon the
occurrence of the most minimum of conditions – that is the filing on an action by any citizen
questioning the factual basis of martial law. Leonen disagreed on the other hand on what proper
proceeding means. Leonen agreed with the position that the proper proceeding is not limited to
certiorari but is to refer to any complaint, petition or any matter to be referred to the court for
resolution.
Second, the court ruled whether or not the President, in declaring Martial law is required to
be:
a. To be factually correct or only not to be arbitrary in his appreciation of facts.
b. Required to obtain favorable recommendation from the Secretary of Defense.
c. Is required only to take into consideration factual events at the time of the declaration
even if subsequent events prove otherwise.
Leonen ruled on the contrary. He emphasized that under the present constitution, the
president is required to clear as to what variant of martial law is imposed and is encompassed by
Proclamation No. 216; otherwise it will be too vague that it will violate the fundamental right of due
process as well as evading review under Art. VII Sec. 18 of the constitution.
He emphasized that although the President is the Commander in Chief of the Armed Forces,
he is in fact a civilian commander in chief (Saguisag vs Ochoa Jr. and Gudani vs Senga); and that the
exercise of military powers under martial law is not an inherent power but an exception to the
ordinary rule of law. Hence, the exercise of the calling out power, suspension of the writ of habeas
corpus and the declaration of martial law must be exercised and availed of in a graduated sequence.
Third, whether or not the Court’s power of review is independent of the actual actions taken
by the House and Senate.
This issue was not tackled in Leonen’s dissenting opinion. Therefore it suffices to say that he
is agreement with the majority’s ruling on this issue.
Fourth, whether or not there were sufficient factual basis for the proclamation of martial law
or the suspension of the privilege of the writ of habeas corpus; ·
a. What are the parameters for review?
b. Who has the burden of proof?
c. What is the threshold of evidence?
Leonen’s dissenting opinion dealt mainly with this issue. Leonen argued that martial law,
being an extraordinary measure, must be subject to greater scrutiny and limits. A review of the
history of martial law and its application in our jurisdiction has shown that in instance where martial
law was resorted to, the declaration itself provided for the scope and the limits of the martial law
powers to be employed. Hence, there must be specificity in the declaration of martial law otherwise
it would be subject to the void for vagueness doctrine.
 SALAYA, MARK GREGORY T.

JD IV

Furthermore, while the majority subscribed to the idea that the void for vagueness doctrine
applied only to freedom of speech cases, Leonen in his dissenting opinion proved otherwise by
review of existing jurisprudence. Jurisprudence provides example of application of the void for
vagueness doctrine in cases other than those involving freedom of speech. A distinction between
overbreadth and void for vagueness was also made, and while the Proclamation No. 216 cannot be
facially challenged under the overbreadth doctrine, it may be challenged on ground of void for
vagueness as the President failed to provide for the specific powers, crimes and actions to be
covered under Proclamation No. 216.
The dissenting opinion also argued that the burden of proof is not that of probable cause but
one which employs judicial standards which are either substantial, preponderance or proof beyond
reasonable doubt.
Leonen argues that what the constitution requires is for the Court to evaluate the factual
sufficiency of the basis for the declaration of martial law which may be evaluated first, by
determining the credibility of the facts as alleged and used by the president and, second, whether
under the facts, public safety requires the use of specific powers under the rubric of martial law.
Petitioners should also be allowed to utilize news reports as it is the most efficient method of
gathering information in light of their limited access to the apparatus of the state.
Fifth, whether the exercise of the power of judicial review by this Court involves the
calibration of graduated powers granted the President ~~ Commander-in-Chief, namely calling out
powers, suspension of the privilege of the writ of habeas corpus, and declaration of martial law;
Leonen disagreed with the view of the majority. It was argued that the history of the 1987
constitution and the intent of the framers of the constitution was to require the President to
exercise emergency powers in a graduated sequence. The nature of the calling out power, the
suspension of the writ of habeas corpus and the declaration of the state of martial law are designed
to deal with and respond to different kinds of emergencies. The constitution itself provided for
situation where these different powers should be applied.
On the sixth, seventh, and eight issues as identified in the ponencia, Leonen also disagreed.
Leonen argued that that the declaration of martial law be viewed through the nature of the
resistance. The resistance was not primarily designed to seize territory but rather to prevent the
arrest of the leaders of these groups. Leonen pointed out that there was no organized leadership
nor was there any sort of political organization to the group. It the political nature of the acts
committed which transform terrorism into rebellion. Terrorism itself is general while rebellion is a
subset of terrorism which occurs when violent means are employed for a political purpose.
Terrorism is the use of violent for means which may or may not be political in nature. What the facts
point out is that these so called rebel group are guided not by political ideology but by religious
extremism, or at least coordination for purposes of kidnap for ransom and other crimes.
Ninth, whether or not nullifying Proclamation No. 216 of 23 May 2017 will:
a. have the effect of recalling Proclamation No. 55 s. 2016; 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.
The Court including Justice Leonen also ruled in the negative on this issue, noting that the
power of martial law and the calling out power are different from each other in nature, scope and
application; hence, Proclamation No. 216 did not nullify Proclamation No. 55. Moreover, the Court
ruled that the nullification of Proclamation No. 216 would not affect the acts done by the President
prior to the nullification based on the Operative Fact Doctrine.