MARTIAL LAW

AND THE

COMMANDER-IN-CHIEF

POWERS OF THE PRESIDENT

 Powers as C-in-C

The President shall be Commander-in-Chief

of all armed forces of the Philippines and whenever
it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial
law. x x x. (Art. VII, Sec. 18, par 1, 1987 Constitution)
• The CinC is a civilian, not a military officer.
A civilian President holds supreme military
authority and is the ceremonial, legal and
administrative head of the armed forces.

• Civilian authority is, at all times, supreme

over the military. The Armed Forces of the
Philippines is the protector of the people
and the State. Its goal is to secure the
sovereignty of the State and the integrity of
the national territory. (Art. II, Sec. 3, 1987
Constitution)
 “Armed Forces of the Philippines”

• The term refers to the Army, Navy, Air Force, Marines.

• But NOT the Philippine National Police (PNP)

• The State shall establish and maintain one police

force, which shall be national in scope and civilian in
character, to be administered and controlled by a
national police commission. The authority of of local
executives over the police units in their jurisdiction
shall be provided by law. (Art. XVI, Sec. 6, 1987 Constitution)
 Three Powers as C-in-C
• To call out the armed forces – whenever necessary to
prevent lawless violence, invasion or rebellion.

• To suspend the privilege of the writ of habeas corpus –

in case of rebellion or invasion, whenever the public
safety requires it.

• To place the Philippines of any part thereof under

martial law - in case of rebellion or invasion, whenever
the public safety requires it.
Power to call out armed forces
Conditions:

• Whenever it becomes necessary

• To prevent or suppress

• Lawless violence
• Invasion
• Rebellion
 Scope of Power to call out
armed forces; judicial review?
• The grant of this power is very broad. The President has the
greatest leeway. The authority to decide whether the exigency
has arisen belongs exclusively to the President whose decision is
conclusive upon all other persons. (Martin v. Mott, 12 Wheat at 30; Lansang v.
Garcia, 42 SCRA 448)

• Generally NOT subject to judicial review or review by the

legislative branch. But note carefully:

• Judicial power includes the duty of the courts of justice . . . 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. (Art. VIII, Sec. 1, par. 1)
 Rebellion, defined

The Revised Penal Code defines the term thus –

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 the 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 of
partially, of any of their powers or prerogatives.
 The Writ of Habeas Corpus
The writ has been described as:

• “A high prerogative, common law writ, of ancient origin,

the great object of which is the liberation of those who may
be imprisoned or detained without sufficient cause”. (29 C.J.6-
7)

• “A writ directed to the person detaining another,

commanding him to produce the body of the prisoner at a
designated time and place, with the day and cause of his
caption and detention, to do, submit to, and receive
whatsoever the court or judge awarding the writ shall
consider in that behalf”. (Bouvier’s Law Dictionary)
 The Writ v.
The Privilege of the Writ

• The writ is the summons-and-order addressed to the

detainer to bring the detained person to court and to
justify his detention.

• The privilege of the writ is the right to have an

immediate determination of the legality of the
deprivation of physical liberty
 The writ is never suspended
The President, as Commander-in-Chief, has the power
to suspend the privilege of the writ.

But the writ itself is NEVER suspended. It always

issues as a matter of course.

When the officer making the return shows to the

court that the person is being detained for an offense
covered by the suspension, the court will inquire no further.
 The Idea of Martial Law
 It is essentially police power. Public safety is the
concern of police power. What is peculiar about
martial law is that whereas police power is normally a
function of the legislature executed by the civilian
arm, under martial law police power is exercised by the
executive with the aid of the military and in place of
“certain government agencies which for the time being
are unable to cope with existing conditions in a locality
which remains subject to the sovereignty”. (Bernas, 1987
Philippine Constitution)

 It authorizes “the military to act vigorously for the

maintenance of an orderly civil government”. (Duncan v.
Kahanamoku, 327 US 303)
 Martial Law is
an amorphous concept
Bernas:

Martial law is a flexible, amorphous concept. It

depends on a) the existence of actual invasion or rebellion,
and 2) the requirements of public safety.

Necessity creates the conditions of martial law as well

as limits the scope of martial law. The degree and kind of
executive action needed to meet the varying kinds and
degrees of emergency cannot be the same in all conditions
and circumstances.
(Bernas, 1987 Philippine Constitution)
 Martial Law
under the 1935 Constitution
The President shall be Commander-in-Chief of all
armed forces of the Philippines and, whenever it
becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion,
insurrection, or rebellion. In case of invasion,
insurrection or rebellion, or imminent danger thereof,
when the public safety requires it, he may suspend the
privilege of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law.
Marcos’s Version of Martial Law
Invoking Martial Law powers, Marcos -

• Padlocked Congress
• Suspended the privilege of the writ of habeas corpus
• Promulgated proclamations, orders, decrees
• Created military commissions or courts martial to try
not only members of the armed forces but also
civilians for specified offenses
• Issued arrest, search and seizure orders (ASSOs)
• Detained prisoners indefinitely without charges
• Proposed amendments to the Constitution
 C-in-C Powers in 1987 Constitution
The President shall be Commander-in-Chief
of all armed forces of the Philippines and whenever
it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial
law. . .
 C-in-C Powers in 1987 Constitution - 2
. . . Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of habeas
corpus, the President shall submit a report in person or
in writing to the Congress. The Congress, voting jointly,
by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation
or suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such
proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
 C-in-C Powers in 1987 Constitution - 2

The Congress, if not in session, shall, within

twenty-four hours following such proclamation or
suspension, convene in accordance with its rules
without need of a call.

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.
 1987 Constitution CinC Powers - 3
A state of martial law does not suspend the operation
of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies
over citizens where civil courts are able to function, nor
automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply

only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any

person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.
 Restrictions under the 1987
Constitution
Martial Law does NOT –

• Suspend the operation of the Constitution

• Supplant the functioning of the civil courts or
legislative assemblies
• Authorize the conferment of military courts and
agencies over civilians where civil courts are able to
function
• Does not automatically suspend the privilege of the
writ of habeas corpus
Moreover . . .
Suspension / Declaration –

• No longer includes as ground therfor “imminent

danger [of rebellion or invasion]”
• Good for 60 days only (though Congress may extend
the period)
• Within 48 hours, President submits report to Congress
which may revoke suspension/declaration which
revocation the President cannot set aside
• Congress, if not in session, shall, within 24 hours,
convene without need of a call
More . . .

Suspension of the privilege of the writ –

• Applies only to persons judicially charged for [with]

rebellion or offenses inherent in or directly connected
with invasion

• Any person thus arrested or detained shall be judicially

charged within 3 days, otherwise he shall be released
 Judicial Review
• The Supreme Court may review the
sufficiency of the factual basis of the
suspension / declaration or extension
thereof.

• - In an appropriate proceeding
• - Filed by any citizen

• The SC must promulgate its decision

within 30 days from the filing.
 The Petitions against
Proclamation No. 216

G.R. No. 231658 –Lagman et al. v. Medialdea, et

al.

G.R. No. 231771 – Cullamat et al. v. Duterte, et al.

G.R. No. 231774 – Mohamad, et al. v. Medialdea,

et al.
 Issue 1

Do petitioners have locus standi?

Ruling: All petitioners are considered to

have filed the petitions as citizens.

N.B. What about the minority members of

Congress?
 Issue 2

What is the nature of the petitions? Are they

certiorari petitions?

Ruling: They are not certiorari under Art. VIII,

Sec. 1 or 5 of the Constitution. They are sui generis
petitions under Art. VII, Sec. 18. The distinction is
significant. For certiorari to prosper, the petitioners
must prove grave abuse of discretion amounting to lack
or excess of jurisdiction. Under Art. VII, Sec. 18, the
review is to determine “sufficiency of the factual basis”
of the declaration or suspension. This favors
petitioners.
 Issue 2 (cont’d)
Is the determination of the sufficiency of the
factual basis for the declaration / suspension a political
question?

• Montenegro v. Castaneda (1951)

• In re Habeas Corpus Petition of Lansang (1971)
• Garcia-Padilla v. Enrile (1983)
• Art. VII, Sec. 18, 1987 Constitution

Ruling: The Lansang doctrine has been

“constitutionalized”. The issue is justiciable.
 Issue 2 (cont’d)
Three modes of review under the 1987 Constitution:

• Art. VII, Sec. 18 - “The Supreme Court may review, in an appropriate

proceeding, the sufficiency of the factual basis for the
[proclamation/suspension]”

• Art. VIII, Sec.1, par. 2: “Judicial power includes the duty of the courts of
justice . . .to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government”

• Art. VIII, Sec, 5: “The Supreme Court shall have the following powers:

(1) Exercise original jurisdction over . . . petitions for certiorari . . .

(2) Review, revise, reverse, modify or affirm on appeal or certiorari, as

the law or the Rules of Court may provide, final juegments and
orders of lower courts in . . . All cases in which the constitutionality
of . . . a proclamation . . . is in question
 Issue 3

Is the SC’s power to review the sufficiency of the

factual basis for the declaration / suspension
independent of Congressional review?

• SC considers only the information available to the

President; it does not undertake an independent
investigation beyond the pleadings. Congress can
probe deeper, check the accuracy of the facts, consider
supervening events.

• Court’s power is passive; must be invoked by any

citizen; Congress’s is automatic.
 Issue 4

Does the power of the SC to review extend to the

calibration of the President’s decision of which of his
powers he will avail of?

• Suspension / declaration involves curtailment or

suppression of civil rights; call out does not. Hence,
more stringent standards on suspension/declaration.

• Art. VII, Sec. 18 does not control the President’s choice

of power to avail.
 Issue 5

Is Proclamation 216 invalid for being “vague”?

• Void-for-vagueness doctrine inapplicable.

• Proclamation 216 cannot be attacked for vagueness:

“other rebel groups” not vague (cf. Proc. 55)

• Guidelines/operational parameters mere tools of

implementation. Review is only of “sufficiency of
factual basis”
 Issue 6

Will nullifying Proc. 216 have the effect

of recalling Proc. 55, the act of calling out the
armed forces?

Ruling: The powers are distinct and may be

exercised by the President independently
one from the other.
 Issue 7
What is the scope of the Court’s Power of Review?

• The Court does not need to satisfy itself that the

President’s decision is correct only whether it has sufficient
factual basis.

• The Court should look into the totality of the factual basis
not piecemeal. “Falsus in uno, falsus in omnibus” does not
apply.

• Time is of the essence. Events subsequent to declaration /

suspension irrelevant.
 Issue 8

What are the parameters for determining the

sufficiency of the factual basis?

• These two must concur: 1. ACTUAL invasion or

rebellion, and 2. public safety requires the exercise of
the power.

• Rebellion will follow the definition in Art. 134 of the

Revised Penal Code.

• Standard of evidence: Probable cause.

 Issue 8 (cont’d)
• Absolute certainty?
• Moral certainty or proof beyond reasonable doubt?
• Clear and convincing evidence?
• Preponderance of evidence?
• Substantial evidence?
• Probable cause or “a set of facts and circumstances as
would lead a reasonably discreet and prudent man to
believe that the offense charged has been committed
by the person sought to be arrested”. Or: “more likely
than not a crime has been committed by the accused”.
It is the most reasonable, practical, expedient, and
common-sensical standard.
 Issue 9

Is there sufficient factual basis for declaration / suspension?

The answer in the majority opinion is YES.

The Court noted that the petitioners conceded there is a “public

uprising” in Marawi but insist on the absence of the element of political
purpose. Note the elements of rebellion:

* There is an uprising and taking arms against the Government

* The purpose is either to remove from the allegiance to the said

Government or its laws the territory of the Philippines or any part
thereof, or any body of land, naval and other armed forces, or to deprive
the Chief Executive or Congress, wholly or partially, of any of their
powers or prerogatives.
 Issue 10
Declaration / suspension for entire Mindanao or for Marawi
only?

Eleven voted for all of Mindanao; three for Marawi/Lanao

del Sur, Maguindanao, Sulu only.

The majority opinion argued thus:

• Art. VII, Sec. 18 grants the CinC discretion to determine the

territorial coverage of the declaration/suspension. The language
is explicit on this.

• There are sufficient safeguards against abuse.

• The CinC may be swamped by excessive restriction.

 Issue 10 (cont’d)
• The nature of the rebellion and the public safety will define
the extent of the declaration / suspension.

• It is illogical to limit the suspension / declaration to a

specific territory.

• Rebellion includes/absorbs many other crimes and offense

not merely armed uprising or taking up arms.

• President’s duty to maintain peace and order cannot be

limited to where actual armed uprising occurred but
extends to other areas where hostilities are in danger of
spilling over. Marawi may be merely a staging point.
 The Scorecard
The following joined the majority:

Del Castillo (ponente), Velasco, De Castro, Peralta,

Bersamin, Mendoza, Reyes (Bienvenido), Perlas-
Bernabe, Jardeleza, Martires, and Tijam. Other than the
ponente, all other Justices concurring wrote separate
opinions.

Dissenting: Sereno, Carpio, Caguioa, Leonen.

 The Dissenters
The common thread in the dissents of Chief
Justice Sereno and Associate Justices Carpio, and
Caguioa is that there was sufficient factual basis for
the declaration of martial law but only for Marawi
City (Carpio) and Lanao del Sur, Maguindanao and
Sulu (Sereno and Caguioa), and not for the rest of
Mindanao.

Leonen opined that there was insufficient

factual basis for declaraing martial law, period.
 The Sereno-Carpio-Caguioa Dissents

The 3 Justices’ point of departure from the

majority opinion is that even as there was indeed
sufficient factual basis for the declaration of martial law
in Marawi, etc., this did not give the President plenary
discretion to extend the coverage beyond the theatre of
actual rebellion.

The Court had authority to inquire into the

proportionality of powers sought by the President
(Sereno). The burden of proof lay with the Government
which failed to justify the declaration beyond Marawi
(Carpio, Caguioa)
 Some Consequences of Martial Law

Justices Sereno and Carpio enumerated

some of the consequences of the declaration of
martial law:

• The President is not automatically vested with

plenary legislative powers. Ordinary power to
legislate continues to belong to national and
local legislative bodies. The administrator of
martial law can issue orders but only strictly
within the theatre of war.
 Consequences . . .

• Civil courts remain open and fully functioning; the Rules of

Court continue to be applicable. If the courts are not
functioning in the theatre of war, venue can be transferred
accordingly.

• Warrantless arrests – allowed under the doctrine of

rebellion as a “continuing offense”.

• Warrantless searches and seizures allowed under: searches

incidental to a lawful arrest; seizure of evidence in “plain
view”; search of moving vehicle; consented searches;
customs search; “stop and frisk”; “exigent and emergency
circumstances”
 Consequences . . .
• Period of detention – In case of valid warrantless arrests, the
period within which to deliver arrested person to judicial
authorities is a maximum of 36 hours. For offenses covered by a
declaration / suspension under the 1935/1973 Constitution, the
period was indefinite; under the 1987 Constitution, the period is
72 hours.

• Treatment during detention – the prohibition under the 1987

Constitution against torture, force, physically and psycho-
logically degrading punishment, the right to information, to
counsel, to remain silent, to be visited by immediate members of
families – these are all available.

• * Emergency power to take over privately owner public utilities or

businesses – only upon act of Congress.
•
 Leonen’s Dissent

• The group committing atrocities in Marawi were

terrorists, not rebels, who were trying to evade
capture or arrest. Their acts were designed to slow
down the advance of government forces, not to
control seats of governance. There were not
enough armed men or resources to do so.

• No rebellion merely terrorism, hence, there are

sufficient legal tools to deal with it such as the
Human Security Act.
 Leonen (cont’d)

• By resorting to declaration/suspension, terrorists have

been given “political status”. Their acts of barbarism
elevated to an armed cobflict protected by Humani-
tarian International Law. The declaration/suspension
has added little or no legal advantage to the govern-
ment but is fraught with dangers.

• The declaration is unconstitutional for being vague:

• The President has not provided the parameters for martial

law – the power that he intends to wield.
• Declaration akin to: “Congress passing a law stating that it
 Leonen (cont’d)

• Burden of the evidence is on the government who failed to

discharge it.

• “Probable cause” not proper; sufficiency implies credible

proof sufficient to establish necessity of specific power
sought.
• Many allegations have no sources
• Many inconsistent statements
• Evidence show armed groups were incapable of launching a
rebellion; that even before the hostilities in Marawi,
government was already downgrading their capabilities.
• Information was presented out of context (“fake news”).
 Leonen (cont’d)

• Evidence failed to show the links between a

number of groups (ASG, Maute, Maugid, BIFF)
which have splintered into many sub-factions.
Some indeed want to join ISIS but not all.

• Government ignored the cultural context: there is

no single homogenous monolithic Islam. There are
many fundamental differences in beliefs and
practices between and among Muslims
THANK YOU