REP. EDCEL
C. LAGMAN, ET. AL. vs. HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY, ET AL.,
GR No. 231658
MOTION FOR RECONSIDERATION
“x x x.
These constitutional safeguards include the grant of original,
exclusive and special jurisdiction to the Honorable Supreme Court under the
third paragraph of Section 18, Article VII of the 1987 Constitution to “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 writ”
of habeas corpus.
A petition for the
Supreme Court to review the sufficiency of the factual basis of a martial law
declaration and suspension of the writ of habeas corpus is justiciable
and must perforce be resolved on the merits by the Supreme Court since it is
outside the ambit of a political question.
A petition filed by a
citizen under Section 18 of Article VII granting jurisdiction to the Supreme
Court to review the sufficiency of the factual basis of such declaration and
suspension is sui generis or a class by itself. It does not fall under
the expanded power of judicial review of the Supreme Court under Section 1 of
Article VIII of the Constitution and the petition for certiorari under Rule 65
of the Rules of Court wherein both instances the petitioner must prove grave
abuse of discretion or arbitrariness on the part of the public respondent.
There are two
indispensable concurrent requirements to warrant the declaration of martial law
and suspension of the writ of habeas
corpus, namely, (a) actual rebellion or invasion; and (b) necessity to
safeguard public safety.
The burden of proof is on
the President or his subalterns to show sufficiency of the factual basis
because it is the Executive who has the monopoly of supposed intelligence
information which may warrant such declaration or suspension, which information
is not available to the citizen-petitioner. However, Justices Bienvenido Reyes,
Noel Tijam, Estela Perlas-Bernabe and Lucas Bersamin in their respective
concurring opinions maintain that the petitioners have the burden of proof
and/or burden of evidence.
The quantum of evidence
is “probable cause”. This is the level of evidence wherein a reasonably
discreet and prudent man makes a judgment based on a set of facts and
circumstances. Variations were made based on standards of “reasonableness” (Justice
Francis Jardeleza); “reasonableness” (Justice Jose Catral Mendoza); “adequate proof”
(Justice Estela Perlas-Bernabe) and parity between “probable cause” and
“reasonableness” (Justice Teresita Leonardo-De Castro).
After an extensive exposition that the President’s
power to declare martial law and suspend the privilege of the writ of habeas corpus is (a) not absolute; (b)
delimited by constitutional safeguards; and (c) subject to the Supreme Court’s
power of judicial review on the sufficiency of factual basis of such
declaration of suspension, the ponencia
digressed into self-defeating concessions of its lack of “competence” and
“logistical machinery” vis-à-vis the President’s arsenal of intelligence
information.
The ponencia
categorically stressed that: “The Court
has no machinery or tool equal to that of the Commander-in-Chief to ably and
properly assess the ground conditions.” (Emphasis supplied; page 68 of the ponencia). It added that, “the Executive
Department, particularly the President as Commander-in-Chief, [who] is the repository
of vital, classified, and live information necessary for and relevant in
calibrating the territorial application of martial law and the suspension of
the privilege of the writ of habeas
corpus. It, too, is a concession
that the President has the tactical and military support and thus has a more informed
understanding of what is happening on the ground.” (Emphasis supplied; page
69).
Then it was underscored
that: “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.” (Emphasis supplied; p. 75).
When the Framers of the 1987 Constitution included
among the safeguards the grant of jurisdiction to the Supreme Court to review
the sufficiency of the factual basis of the President’s declaration of martial
of law and the suspension of the privilege of the writ of habeas corpus, they were fully aware of the President’s logistical
superiority to secure and be the repository of intelligence information.
It is precisely because of this presidential
superiority, which could be prone to abuse, that the Framers accorded to the
Supreme Court the original, exclusive and additional power to determine the
adequacy of the factual anchorage of the President’s declaration or suspension,
and after finding that the factual basis is wanting, then to nullify or void
the President’s declaration of martial law and suspension of the writ. This
grant authorizes the Supreme Court to “interfere with the exercise of his
(President’s) discretion.”
Verily, citing the Honorable Court’s lack of “competence”
and “logistical machinery”, compared to the President, to access and validate
intelligence reports as bases for the President’s exercise of extreme emergency
powers, is a virtual forfeiture of the special power of judicial review granted
to it by the Constitution.
This defeatist stance erodes the Supreme Court’s
prerogative not only to sanction the President’s failure to pass the test of
factual sufficiency for his declaration or suspension, but also to protect the
citizens’ civil liberties from transgression as a result of an improvident and
unconstitutional exercise of martial law powers by an errant President.
It must be understood that the President’s so-called
logistical or tactical superiority is countervailed by the Supreme Court’s
ascendency as the final arbiter of justiciable questions.
But when the Supreme Court in its Majority Decision as
well as in some of the separate concurring opinions raised the white flag of lack
of “competence” and “logistical machinery”, then this is an ominous prelude to abdicating
its jurisdiction of judicial review.
Thus, the Supreme Court acquiesced to the President’s
allegation of facts in Proclamation No. 216 and the President’s Report to the
Congress when it upheld the declaration of martial of law and the suspension of
the privilege of the writ of habeas
corpus in Marawi City and the entire Mindanao.
After laying the predicate for its abdication, it was
then easy for the Supreme Court to proceed in finding sufficiency in the
President’s factual allegations, given the Supreme Court’s acknowledgement of
the “President’s logistical machinery” and the Supreme Court’s lack of
“competence” to assess the conditions on the ground.
This abdication comes after the progressive
strengthening of the Supreme Court’s review jurisdiction over the President’s
exercise of martial law powers:
a)
Judicial review
is barred under the doctrine of political question (Barcelon
vs. Baker, 5 Phil. 87 [1905]);
b)
Judicial review
is available if the President’s exercise of power is tainted with arbitrariness
or grave abuse of discretion (Lansang vs. Garcia, 42 SCRA 448);
and
c)
Judicial review
is specifically authorized under the third paragraph of Section 18 of Article
VII of the 1987 Constitution for the Supreme Court to review the sufficiency of
the factual basis of such declaration or suspension.
Justice Jardeleza in his separate concurring opinion
aptly said that “[b]y textually adopting the sufficiency-of-factual-basis test,
the Constitution raised the bar that the Executive branch must hurdle in order
to sustain the proclamation of martial law or suspension of the privilege of
the writ.” The ponencia has lowered the bar.
No less than the Honorable Chief Justice Maria Lourdes
Sereno in her dissent remonstrated that: “This
opinion will demonstrate that the Court could have avoided defaulting on its
duty to fully review the action of the President. Instead, the majority
emaciated the power of judicial review by giving excessive leeway to the
President, resulting in the absurdity of martial law in places as terrorism
and rebellion-free Dinagat Islands or Camiguin. The military has said as much:
there are places in Mindanao where the Mautes will never gain a foothold. If
this is so, why declare martial law over the whole of Mindanao?”
Traditionally and almost invariably, the Supreme Court
is not a trier of facts. Nonetheless, the third paragraph of Section 18 of
Article VII exceptionally empowered the Supreme Court to try, delve, assess and
validate the facts in reviewing the sufficiency of the factual basis of the
President’s declaration of martial law and suspension of the writ.
The pertinent provision of the Constitution
unequivocally and explicitly 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.” (Emphasis supplied).
As a trier of facts in the instant proceeding, the
Supreme Court should not have limited its fact-finding inquiry to the in-camera
presentation and interpellation of the respondents National Defense Secretary
Lorenzana and AFP Chief-of-Staff Gen. Año.
The Honorable Court should have summoned motu propoio the following important
resource persons or witnesses to fully review the sufficiency of the factual
bases of the challenged declaration and suspension:
a)
The officials who
prepared for the President Proclamation No. 216 dated 23 May 2107 and the
President’s Report to the Congress dated 25 May 2017;
b)
The ranking
intelligence officers who provided the President with the information and data
contained in the Proclamation and Report;
c)
AFP Public
Affairs Office Chief Col. Edgard Arevalo who, according to Justice Caguioa,
posted on the APF website on 24 May 2017 and on the AFP Facebook page on 23 May
2017 that (1) “we don’t have ISIS in the Philippines” but “members of local
terrorist groups”; and (2) “security forces are in control of the situation” in
Mararwi (T.S.N., 14 June 2017, pp. 204 to 206). The same Col. Arevalo also: (1)
emphasized on 25 May 2017 that "[c]ategorically,
we are saying na we do not have ISIS in the Philippines". He added that the groups posing as
such "are merely courting the
acclamation of ISIS." [Annex “I” of the petitioners’ Memorandum]; (2) asserted in a briefing 20 minutes before the issuance
of Proclamation No. 216, or at 11:00 PM on 23 May 2017 that the situation in
Marawi has stabilized and security forces are in full control of the situation
[Annex “N” of the petitioners’ Memorandum]; and denied reports that the Amai
Pakpak Medical Center was taken over by the Maute terrorists. He plainly stated
that “[t]he news being circulated by
these terrorists and their sympathizers are spurious and are meant to spread lies and disinformation. It
is propaganda to attract foreign
terrorists’ support and recognition.” [Annex “F-3” of the Memorandum].
d)
Marawi Operations
Spokesperson Lt. Col. Jo-Ar Herrera who confirmed in an interview with CNN
Philippines that the military was on top of the situation one hour before the
issuance of Proclamation No. 216 or at 10:30 PM on 23 May 2017 [Mentioned in
the Oral Argument of Petitioner Lagman].
e)
National Security
Adviser Hermogenes Esperon, Jr. who categorically said that the Armed Forces of
the Philippines was in full control of the situation at 7:28 PM or four hours
before President Duterte issued Proclamation No. 216 in Moscow at 11:20 PM (Philippine
time), on 23 May 2017. [Mentioned in the Oral Argument of Petitioner Lagman].
f)
Respondent Gen.
Eduardo Año, who, while he was with the President in Moscow, told ANC Live that
the military was in full control of the situation. [Annex “M” of the
Memorandum].
g)
Deputy Chief of
Staff Lt. Gen. Salvador Mison, Jr. who admitted during the military briefing
before the House Committee of the Whole that the armed conflict in Marawi City
was “government-initiated” as
differentiated from the Zamboanga siege in September 2013. He added that in the
Zambaoga siege, “sila ang pumasok”, while in Marawi, “tayo po ang nagsimula”. [Mentioned
in the Oral Arguments of Petitioner Lagman].
h)
PNP Director
General Ronald dela Rosa who said that the Maute bandit group has not occupied
a police station in Marawi City on 24 May 2017, that “Ang headquarters ay safe,
hindi naman napasok ang Marawi City Police Station. May nasunog na bahay kubo,
hindi ang police station talaga.” [Annex “J” of the Memorandum].
i)
Marawi City Mayor
Majul Gandamra who: (1) likewise refuted the reports that the APMC was taken
over by the terrorists. In an interview with CNN Philippines, he stated that: “Yung sinabi
po na tinakeover ay walang katotohanan" [Annex “F” of the petitioners’
Memorandum]; (b) disputed that the local
police station and city jail were burned by the Maute group by saying that
“Hindi po totoo na-natake over nila ang police station at ang … city jail”. [Annex “J-1” of the petitioner’s Memorandum]; and
belied claims in the President’s Report that Maute Group and ASG attacked and
took over various government facilities in Marawi City by explicitly saying
that the “Abu Sayyaf and Maute terror groups have not taken over any government
facilities in Marawi City”. [Annex “K” of the Memorandum].
j)
Dr. Amer Saber,
the Chief of the Amai Pakpak Medical Center (APMC), who categorically denied
that the medical facility was overrun by members of the Maute Group. [Mentioned
in the Petition and Oral Argument].
k)
Marawi City
Schools Divisions Assistant Superintendent Ana Alonto who denied that the
Marawi Central Elementary Pilot School was burned by the terrorists. [Mentioned
in the Petition and Oral Argument].
l)
The responsible officials of the Landbank of the Philippines, Marawi
Branch who can testify on the statement that its Marawi City branch was not
ransacked. [Mentioned in the Petition and
Oral Argument].
m)
Atty. Aminoden Macalandap, President of the IBP-Lanao
del Sur Chapter, who reported and wrote to the President that human rights and
civil liberties were being violated on an unprecedented scale by military and
police elements as an aftermath of the declaration of martial law. [Mentioned
in the Oral Argument].
Verily, the Honorable Supreme Court has not fully
utilized its fact-finding jurisdiction to fully review and assess the
President’s allegations of facts in Proclamation No. 216 and the President’s
Report to the Congress.
Solicitor General Calida did not file any formal
Manifestation on the necessity for holding an executive or closed-door session.
Considering that herein petitioner Lagman was privy to
the briefings made by the military/defense establishment both before the
Committee of the Whole in executive session of the House of Representatives and
the aforesaid closed-door session of this Honorable Court, he shares the
position taken by Associate Justice Jardeleza that there was nothing
confidential in said briefings which were principally about past terrorist
activities, which in the assessment of petitioner Lagman were acts of lawless
violence and did not constitute rebellion.
Justice Jardeleza in his separate concurring opinion
underscored the following points and observations:
“ … Still, in my view, the Government’s
presentation of its evidence, should in the first instance, be conducted publicly
and in open court.
x x x x
x x x x x
“ … Both presentations
referred largely to past events that cannot possibly affect ongoing military
operations. There was no identification of confidential sources; on the
contrary, most of the information presented were in the public domain and/or
already cited in Proclamation No. 216 and the President’s Report. The Court,
however, decided to leave it to the government to determine which materials or
information, not yet in the public domain, it would chose to release to the
public.”
“My point is this: public
interest would have been better served had the Court dispensed with the in
camera proceedings in the first instance.
“First, this is respectful of
the public’s right to information on matters of pubic concern x x x
[c]ertainly, information on the facts supporting the declaration of martial law
or the lifting of the privilege of the writ of habeas corpus lie at the apex of any hierarchy of what can be
considered as ‘matters of public concern’.
“Second, it would ensure
accountability by forcing the government to make more diligent efforts to
identify with specificity the particular pieces of evidence over which it would
claim a privilege against public disclosure.
“Third, the conduct of
proceedings in public would ultimately lend credibility to this Court’s
decision relative to the President’s actions:
‘The right of access to the
judicial process has been defined as important for ensuring accountability and
instilling confidence in the administration of justice. In Union Oil Co. of Cal. V. Leavell, the Seventh Circuit Court of
Appeals in the United States recognized a heightened burden to justify judicial
secrecy, in order to protect the credibility of the decision before the public.
“Any step that withdraws an element of
the judicial process from public view makes the ensuing decision look more like
fiat, which requires a compelling justification.” (Emphasis supplied).’
x x x x
x x x x x
“Otherwise stated, the government should not
be allowed carte blanche invocation of privilege to justify an in camera
proceeding. This would avoid normalizing what should likely be the exception in
the conduct of proceedings such as this. As Justice Steward, in New York Times Co. vs. United States,
teaches us:
‘For when
everything is classified, then nothing is classified, and the system becomes
one to be disregarded by the cynical or the careless, and to be manipulated by
those intent on self-protection or self-promotion. x x x [s]ecrecy can best be
preserved only when credibility is truly maintained.’”
What a party conceals is presumed to be against his
interest.
Judicial secrecy must be avoided and the right of the
public to know must be given primacy.
Further depreciating the Supreme Court’s power of
judicial review in the instant proceeding, the ponencia declared that:
a)
The Court does not need to satisfy itself that the
President’s decision is correct, rather only needs to determine whether the
President’s decision had sufficient factual bases.” (Emphasis supplied; page 48
of the ponencia).
b)
“Corollary, as
the President is expected to decide quickly on whether there is a need to
proclaim martial law even only on the basis of intelligence reports, it is irrelevant, for purposes of this
Court’s review, if subsequent events prove that the situation had not
accurately been reported to him.” (Emphasis supplied; page 50).
c)
“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.” (Emphasis supplied; page 54).
The foregoing pronouncements are erroneous for the
following reasons:
a)
If the Honorable
Court will not determine the correctness of the President’s factual
allegations, how can incorrect data or information satisfy the test of factual
sufficiency?
b)
It is completely
unreasonable for the ponencia to say
that subsequent events which prove the inaccuracy or falsity of the reports
given to the President is irrelevant to the Honorable Court’s determination of
factual sufficiency. Given its fact-finding jurisdiction in the instant
proceeding, the Supreme Court has the opportunity to validate the accuracy or
falsity of the President’s factual averments even as the President at the first
instance has his logistical machinery to separate the genuine from the spurious
reports. Verily, a false or inaccurate report cannot validate the sufficiency
of the President’s factual allegations.
c)
How can the
Supreme Court fully determine factual sufficiency if the veracity or accuracy
of the President’s factual allegations is not assessed?
With all due respect to the Honorable Supreme Court,
the ponencia sought the path of least
resistance to uphold the President’s declaration of martial law and suspension
of the writ of habeas corpus in
Marawi and the whole of Mindanao by unduly delimiting its judicial review power
under Section 18 of Article VII.
Again, the foregoing pronouncements denigrate the
jurisdiction of the Honorable Court in reviewing and determining the
sufficiency of the factual basis of the President’s exercise of martial law
powers for the following reasons:
a)
Instead of having
a critical approach to the exercise of its power of judicial review, the
Supreme Court has adopted an unduly deferential posture vis-à-vis the
President.
b) Affording
the President “much leeway and flexibility” in the declaration of martial law
or suspension of the privilege of the writ of habeas corpus, defeats the
very purpose and essence of the Court’s jurisdiction to review the sufficiency
of factual basis of such declaration or suspension
c) Excessive deference to the President defeats and
emaciates the Supreme Court’s exercise of judicial review.
The ordinary presumptions of regularity and good faith
have no applicability in the Supreme Court’s exercise of judicial review to
determine the sufficiency of the factual basis of the President’s declaration
of martial law and the suspension of the writ of habeas corpus. The duty of the Honorable Court to fully review
factual sufficiency should not be deterred by any presumption of regularity or
good faith. Such duty must not bow to any presumption of regularity and good
faith.
Judicial review under Section 18 of Article VII is not
encumbered by presumption of good faith or regularity on one hand and
arbitrariness or grave abuse on the other.
The Honorable Court must fully exercise its determination
of sufficiency of factual basis unfettered by presumptions of good faith and
regularity on the part of the President and his subalterns who have the burden
of proving the sufficiency of their factual allegations in the proclamation of
a state of martial law and suspension of the writ of habeas corpus.
Moreover, the petitioner-citizens are not obliged to
controvert said presumptions of regularity and good faith because such
presumptions do not obtain in the instant proceeding.
In his concurring opinion, Justice Jardeleza maintains
that: “[b]y setting the
sufficiency-of-factual-basis standard, the Constitution foreclosed good
faith belief as an absolute justification for the declaration of martial
law or suspension of the privilege of the writ. Under Article VII, Section 18, the Court is vested with the power to
revoke the proclamation, not because of grave abuse of discretion but because
of insufficiency of factual basis.” (Emphasis supplied; pages 10-11).
In his dissenting opinion, Justice Alfredo Caguioa
stressed: “I submit that presumption of regularity or constitutionality cannot
be relied upon, neither by the Executive nor the Court, to declare there is
sufficient factual basis for the declaration of martial law or the suspension
of the writ. The presumption disposes of
the need to present evidence – which is totally opposed to the fact-checking
exercise of Section 18; to be sure, reliance on the presumption on the face of
an express constitutional requirement amounts to a failure by the Executive to
show sufficient factual basis, and judicially rubberstamping on the part of the
Court. (Emphasis supplied; page 8 of Justice Caguioa’s dissent).
The Supreme Court has failed to fully and extensively
review and assess the absence of factual sufficiency of the existence of actual
rebellion in Marawi City and the rest of Mindanao because it abdicated
beforehand its power of judicial review by:
a)
Claiming its lack
of competence to ably determine the facts on the ground;
b)
Admitting a
supposed “institutional incapacity” to vet relevant facts;
c)
Unduly deferring
to the President’s logistical superiority to gather and evaluate intelligence
information;
d)
Granting
excessive leeway to the President’s exercise of emergency powers; and
e)
Conceding the
applicability of presumptions of regularity and good faith in favor of the
President, thereby emaciating the Supreme Court’s power of judicial review
under Section 18 of Article VII.
14.
In view of the
foregoing defeatist predispositions, the conclusion on the constitutionality of
Proclamation No. 216 by the Honorable Supreme Court is flawed and tainted as an
unwarranted concession to the incumbent President.
The
Constitution refers to rebellion under
Article 134
of the Revised Penal Code
15.
When the
Constitution provides the existence of actual rebellion as a ground for the
imposition of martial law or suspension of the writ of habeas corpus, what is contemplated is the crime of rebellion under
Article 134 of the Revised Penal Code.
16.
When the 1987
Constitution was being drafted and when it was ratified by the Filipino people,
the only crime of rebellion known to them is the one defined by Article 134
which provides:
"Article
134. Rebellion or insurrection – How committed. – 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."
Accordingly, the elements of
rebellion are: (a) rising and taking arms against the Government; and (b) for
the purpose of [i] removing from the allegiance to the Government or its laws,
the territory of the Philippines or any part thereof, of any body of land, naval or other armed
forces, or [ii] depriving the Chief Executive or the Legislature, wholly or
partially, of any of their powers or prerogatives.
While the first element of
“rising and taking arms against the Government” may be present in Marawi City,
there is absolutely no credible and sufficient factual basis for the second
element of culpable political purpose: removing Marawi City or any part of
Mindanao from allegiance to the government or depriving the Chief Executive or
the Legislature of any of their powers or prerogatives.
The facts
alleged in Proclamation No. 216
do not
constitute rebellion
The following are the “facts”
alleged in Proclamation No. 216 and the “conclusions” derived therefrom:
a)
The Maute
terrorist group attacked a “military outpost in Butig, Lanao del Sur in
February 2016, killing and wounding several soldiers.”
b)
The Maute
terrorist group caused a “mass jailbreak in Marawi City in August 2016, freeing
their arrested comrades and other detainees.”
c)
The Maute
terrorist group on 23 May 2017 “has taken over a hospital in Marawi City, Lanao
del Sur.”
d)
The Maute
terrorist group “established several checkpoints within the City.”
e)
The Maute
terrorist group “burned down certain government and private facilities.”
f)
The Maute
terrorist group “inflicted casualties on the part of government forces.”
g)
The Maute
terrorist group “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.”
h)
“These recent acts
show the capacity of the Maute Group and other rebel groups to sow terror and
cause deaths and damage to property not only in Lanao del Sur but also in other
parts of Mindanao.”
The foregoing allegations of
facts and conclusions of fact and law do not establish a sufficient factual
basis for the imposition of martial law and suspension of the writ of habeas corpus based on the ground of actual
rebellion due to the following overriding reasons:
a)
The attack on a
military outpost in Butig, Lanao del Sur in February 2016 was an act of
terrorism not amounting to rebellion. In fact, it happened on 20 February 2016,
one year and three months before the issuance of Proclamation No. 216. It had
been quelled and the outpost and other areas had been recovered by the military
after 10 days of military operations. Definitely, this terrorist attack could
not be used as a factual basis of Proclamation No. 216 as it is far too
distant.
b)
The mass
jailbreak in Marawi City in August 2016 is also a terrorist act, which similarly
does not constitute rebellion. Admittedly, this happened nine months before
Proclamation No. 216. It could not be used as basis for the declaration of
martial law and the suspension of the writ.
c)
The hospital in
Marawi which was reportedly taken over by the Maute terrorist group on 23 May
2017 has been identified as the Amai Pakpak Medical Center in the President’s
Report to the Congress. This turned out to be false and inaccurate because:
· Dr. Amer Saber, Chief of Hospital of the Amai Pakpak
Medical Center (APMC) belied reports that the APMC was taken over by Maute
terrorists. Although he confirmed that the terrorists brought in a wounded
comrade for medical treatment, he stressed that they were “very courteous” and
the hospital personnel did not feel harassed by the Maute fighters.
· In a statement, Health Secretary Paulyn Ubial also
denied that the APMC was overrun by Maute terrorists and 21 health personnel
were taken hostage. She underscored in her statement that there was “no such
event” (hostage-taking) and “the APMC continues to be fully functional”.
· Philippine National Police (PNP) Spokesman Senior
Superintendent Dionardo Carlos in a press briefing on 24 May 2017 echoed the
pronouncements of Dr. Saber and Secretary Ubial. He was quoted to have said:
“Yun pong pagpunta ng grupo (Maute group) sa ospital, they did not control the
entire hospital. They were there to seek medical assistance dahil may tama yung
kanilang kasama”.
· Even as early as 23 May 2017 or the day Proclamation
No. 216 was issued, Col. Edgard Arevalo, AFP Public Affairs Office Chief,
already denied reports that the APMC was taken over by the Maute terrorists. He
plainly stated that “The news being
circulated by these terrorists and their sympathizers are spurious and are
meant to spread lies and disinformation. It is propaganda to attract foreign
terrorists’ support and recognition.”
· The Mayor of Marawi City himself, Mayor Majul
Gandamra, likewise refuted the reports that the APMC was taken over by the
terrorists. In an interview with CNN Philippines, he stated that: “Yung sinabi
po na tinakeover ay walang katotohanan".
d)
The establishment
of several checkpoints within Marawi City by the Maute terrorist group is not
an unusual practice and is not indicative of rebellion.
e)
The government
and private facilities allegedly burned down have not been identified. Marawi
City Mayor Gandamra himself told ABS-CBN news channel that the “Abu Sayyaf and
Maute terror groups have not taken over any government facilities in Marawi
City”. Granting that this burning is true, it is the result of acts of
terrorism, not rebellion.
f)
The casualties on
the part of government forces do not evince rebellion, as they were the
consequence of the armed resistance by the Maute Group and their relatives and
sympathizers as an act of pintakasi
to shield Hapilon and the Maute brothers from arrest and capture by the
military. This is similar to the Mamasapano massacre where the forces of the
Moro Islamic Liberation Front (MILF) and the breakaway Bangsamoro Islamic Freedom
Fighters (BIFF) temporality set aside their animosities to jointly engage the
police Special Action Force (SAF) in a fierce gun battle.
g)
The mere fact that the Maute Group flew the ISIS or
Daesh flag is not indicative of removing Marawi City from its allegiance to the
Republic of the Philippines or depriving the President of his powers and
prerogatives. At most, it was cheap propaganda, which the Maute terrorists have
been employing even in past violent incidents to attract the attention of ISIS
and place Maute in the global stage.
The presentation by the Solicitor General of the captured ISIS flag at the
start of his Oral Argument was mere dramatics.
Moreover, the President is not deprived of any of his
powers and prerogatives to maintain public order and safety in Mindanao because
the channels of civilian and military command are open and working. The Armed
Forces of the Philippines, the Philippine National Police and all the Local
Government Units (LGUs) in the whole of Mindanao are operational.
Two days
after the issuance of Proclamation No. 216, Col. Edgard Arevalo, AFP
spokesperson, emphasized that "Categorically,
we are saying na we do not have ISIS in the Philippines". He added
that the groups posing as such "are
merely courting the acclamation of ISIS."
h)
The alleged
capacity of the Maute Group and other unidentified rebel groups “to sow terror
and cause deaths and damage to property” refers to their capability to launch
acts of terrorism. It cannot be used to conclude capacity to commit actual rebellion,
which bare conclusion should not be extrapolated to the entire Mindanao region.
This alleged capacity is similar to an “imminent danger” of rebellion which is
not anymore a ground for imposing martial law or suspending the writ.
The facts
averred in the President’s Report to Congress do not constitute sufficient
factual basis for the declaration of martial law and suspension of the writ of habeas corpus.
Like the factual allegations in Proclamation No. 216,
the facts averred in the President’s Report to the Congress, either taken
singly or collectively, do not establish sufficiency of factual basis for the
declaration of martial law and suspension of the writ of habeas corpus for failure to show that there is actual rebellion in
Marawi City and elsewhere in Mindanao.
The following are some of the notable but deficient
facts alleged in the President’s Report:
a)
At 1400H (2:00PM
on 23 May 2017) the Maute Group and ASG’s commenced “attack on various
facilities – government and privately owned – in the City of Marawi”.
b)
The terrorists
“assaulted Marawi City Jail being managed by the Bureau of Jail Management and
Penology (BJMP)” and the Maute Group “forcibly entered the jail facilities,
destroyed its main gate and assaulted on-duty personnel” who were “disarmed,
tied and/or locked inside the cells.” The Maute Group also “facilitated the
escape of at least sixty eight (68) inmates of the City Jail.”
c)
The “supply of
power into Marawi City had been interrupted” and by evening “the power outage
had spread citywide.”
d)
Members of the
Maute Group “ambushed and burned the Marawi Police Station” and “a patrol car
of the Police Station was also taken.” (Subsequently denied).
e)
By evening of 23
May 2017, “at least three (3) bridges in Lanao del Sur, namely, Lilod, Bangulo
and Saularan, fell under the control of these groups. They threatened to bomb
the bridges to preempt military reinforcement.”
f)
Later, “persons
connected with the Maute Group had occupied several areas in Marawi City,
including Naga St., Banggolo St., Mapandi, and Camp Kiethly, as well as the
following barangays Basak, Malutlot, Mapandi, Saduc, Lilod, Maday, Bangon,
Saber, Bubong, Marantao, Caloocan, Banggolo, Barionaga, and Abubakar.” (Only 13.54%
of the 96 barangays in Marawi City were reportedly occupied).
g)
The “lawless
armed groups had likewise set up road blockages and checkpoints at the Iligan
City-Marawi City junction.”
h)
The “Maute Group
burned Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nun’s
quarters in the Church and the Shia Masjid Moncado Colony. Hostages were taken
from the Church.”
i)
“About five (5)
faculty members of Dansalan College Foundation had been reportedly killed by
the lawless groups.”
j)
“Other
educational institutions were also burned namely, Senator Ninoy Aquino College
Foundation and the Marawi Central Elementary Pilot School.” (Subsequently
denied).
k)
“The Maute Group
also attacked Amai Pakpak Hospital and hoisted the Daesh flag there, among
other several locations. As of 0600H of 24 May 2017, members of the Maute Group
were seen guarding the entry gates of the Amai Pakpak Hospital. They held
hostage the employees of the hospital and took over the PhilHealth Office
located thereat.” (Subsequently denied).
l)
“The Groups
likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital,
which they later set ablaze.”
m)
“Lawless armed
groups likewise ransacked the Landbank of the Philippines and commandeered one
of its armored vehicles.” (Subsequently denied).
n)
“There are
reports that these lawless armed groups are searching for Christian communities
in Marawi City to execute Christians. They are also preventing Maranaos from
leaving their homes and forcing young male Muslims to join their groups.” (Only
0.4% of the population in Marawi City is Christian; 99.6% is Muslim).
o)
“Based on various
verified intelligence reports from the AFP and the PNP, there exists a
strategic mass action of lawless armed groups in Marawi City, seizing public
and private facilities, perpetrating killings of government personnel and
committing armed uprising and open defiance of the government.
The foregoing facts failed to provide sufficient
factual anchorage for Proclamation No. 216 for the following overriding
reasons:
a)
The facts cited
above in letters (a), (b), (c), (e), (f), (g), (h), (i), (l), (n) and (o)
narrate acts of terrorism which do not constitute actual rebellion in the
absence of a credible showing that the culpable purpose of the said acts of
terrorism is to remove Marawi City and other parts of Mindanao from allegiance
to the Republic of the Philippines or deprive the President of his powers and
prerogatives.
b)
The conclusion of
fact and law in the President’s Report that actual rebellion exists and the
purpose is to establish an ISIS wilayah
in Marawi City is utterly conjectural and unfortunately mirrors terrorist
propaganda.
c)
The display of
ISIS or Daesh flags do not show that the Maute and Hapilon’s faction of the Abu
Sayaf are removing Marawi from allegiance to the Philippines. This flag raising
propaganda has been repeatedly done before by terrorist groups to project
themselves as ISIS-supported. The government must not succumb to this cheap
propaganda.
Projected
establishment of a
wilayah is another terrorist propaganda
d)
The design that
the Maute and Abu Sayyaf Groups are establishing an ISIS wilayah in Marawi City is another propaganda to attract the
attention and support of ISIS. It is ironic that ISIS has not responded to this
but the government has considered it a factual verity, thus making the government
a purveyor of terrorist propaganda.
e)
ISIS presence in
Mindanao and support of terrorist groups in Mindanao lack concrete validation.
The Maute and Abu Sayyaf groups are not affiliated with ISIS because ISIS has
not bestowed on them recognition. The ISIS has declared 10 countries as part of
its “caliphate” and these “ISIS provinces” are Kenya, Somalia, Nigeria, Egypt,
Morocco, Jordan, Saudi Arabia, Yemen, Afghanistan and Pakistan. The Philippines
is not included.
False and
inaccurate facts
What is important to underscore is that many of the
facts recited in the President’s Report turned out to be false, non-existent
and inaccurate, like the following:
a)
The allegation in
the President’s Report that the Amai Pakpak Medical Center was attacked by the
Maute Group who held hostage the employees of the hospital was strongly denied
as false, as discussed above, by (i) Dr. Amer Saber, the Chief of the Hospital;
(ii) Health Secretary Paulyn Ubial; (iii) PNP Spokesperson Senior Supt.
Dionardo Carlos; (iv) AFP Public Affairs Office Chief Col. Edgard Arevalo; and
(v) Marawi City Mayor Majul Gandamra.
b)
The statement in
the President’s Report that the “Maute Group ambushed and burned the Marawi
Police Station” was denied by no less than PNP Director General Ronald dela
Rosa who said that the Marawi bandit group has not occupied a police station in
Marawi City. He said in an interview on DZMM on Wednesday night, 24 May 2017,
that “Ang headquarters ay safe, hindi naman napasok ang Marawi City Police
Station. May nasunog na bahay kubo, hindi ang police station talaga.” Marawi
City Mayor Majul Gandamra also disputed that the local police station and city
jail were burned by the Maute group. Speaking to CNN Philippines anchor Pinky
Webb on The Source, Gandamra said:
“Hindi po totoo na-natake over nila ang police station at ang … city jail”.
c)
The President’s Report also highlighted that “Lawless armed groups
likewise ransacked the Landbank of the Philippines and commandeered one of its
armored vehicles.” The bank clarified that its Marawi City branch was not
ransacked. The bank also confirmed that the seized armored vehicle is not owned
by the bank but by a third party provider and was empty at that time.
d)
The President’s
Report also stated that the Marawi Central Elementary Pilot School was also
burned. This was denied by Marawi City Schools Division Assistance
Superintendent Ana Alonto who that the Marawi Central Elementary Pilot School
was not burned by the terrorists. Likewise, Department of Education Assistant
Secretary Tonisito Umali said they have not received any report of damage
caused by fire of said school.
e)
While the
President’s Report stated that the Maute Group and ASG attacked (and took over)
various government facilities in Marawi City, Mayor Gandamra told ABS-CBN news
channel that the “Abu Sayyaf and Maute terror groups have not taken over any
government facilities in Marawi City”.
f)
Moreover,
granting that the terrorists have occupied 13 barangays in Marawi City, this is
only 13.54% of the 96 barangays in Marawi City. It must be stressed that the
Marawi City Hall and the Lanao del Sur Provincial Capitol in Marawi City have
not been attacked and seized by the terrorists. In other words, the seats of
government in Marawi City and Lanao del Sur have not been occupied and
controlled by the terror groups. CNN Philippines said that, “Gandamra has
since disputed that the City Hall has been taken over, since he is currently in
the venue along with his relatives and staff.”
The foregoing contention is erroneous because: (a) the
petitioners are not obliged to controvert the facts alleged by the President or
his subalterns who have the burden of proof; (b) the petitioners are not
supposed to have personal knowledge of the facts alleged by the President in
his Proclamation and Report; and (c) the “other facts”, as previously
discussed, do not constitute sufficient basis for the declaration of martial
law and suspension of the writ.
Unwarranted
and baseless conclusions of fact and law have no legal pedigree or evidentiary
value
The assertion that the Maute Group and the Abu Sayyaf
Group (Hapilon faction) laid siege to Marawi City is a conclusion of fact that
is belied by admissions from the military establishment that it was the
military, not the terrorists, who initiated the armed confrontation, and the
armed resistance of the Maute Group was not to seize Marawi City but to shield
and protect Hapilon and the Maute brothers from capture by the military.
Armed conflict in Marawi initiated by
government forces
On the fact that the current armed conflict in Marawi
City was precipitated and initiated by government forces, the following are
clear admissions of government civilian and military authorities:
a)
Presidential
Spokesman Ernesto Abella said in Moscow on 23 May 2017 that fighting has erupted in Marawi City when
the state security forces attempted “to serve a warrant of arrest on Isnilon
Hapilon” in Barangay Basak, Marawi City.
b)
Defense Secretary
Delfin Lorenzana likewise stated in Moscow in the same press briefing that
government forces were surprised that Hapilon’s armed followers resisted the serving of the warrant on
Hapilon stating that “x x x medyo nabigla lang sila doon because they were
expecting to arrest Mr. Isnilon (Hapilon). They didn’t know that he was backed
up by more or less 100 armed fighters x x x.”
c)
The President’s Report
also stated that “On 23 May 2017, a government operation to capture Isnilon
Hapilon, senior leader of the ASG and Maute Group operational leaders Abdullah
and Omarkhayam Maute, was confronted with armed
resistance which escalated into open hostility against the government.
d)
When asked during
the military briefing before the House Committee of the Whole on the variance
between the Zamboanga siege and current Marawi “siege”, Deputy Chief of Staff
Lt. Gen. Salvador Mison, Jr. said that in the “Zamboanga siege sila po ang pumasok. Sa Marawi, tayo po ang nagsimula.”
He added that the armed conflict in Marawi City was “government-initiated” as differentiated from the Zamboanga siege.
e)
The aforesaid
statements of Lt. General Mison are confirmatory of a previous admission in the
same briefing by the military establishment that what triggered the ongoing armed
confrontation in Marawi City was the military operation to neutralize or
capture Isnilon Hapilon, a high-profile terrorist commander which was resisted
by the Maute Group. Consequently, the armed resistance is not intended to seize
Marawi City and remove its allegiance to the Republic.
Verily, it is baseless for the President to conclude
that Marawi City is under “siege” amounting to rebellion because the armed
resistance of the Maute and Abu Sayyaf groups was not to capture Marawi City
but to divert the attention of the military offensive and shield Hapilon and
the Maute brothers from capture.
Under these circumstances, staging a rebellion was not
in the agenda of the terrorists who were engaged in pintakasi to help embattled comrades from a superior government
military force.
The element of culpable political
purpose
of rebellion is absent
Summary
of the grounds why there is no sufficient factual basis for Proclamation No.
216
The following are the grounds showing that the
assailed declaration of martial law and suspension of the privilege of the writ
of habeas corpus under Proclamation
No. 216 are bereft of sufficient factual basis:
a)
There is no
actual rebellion in Marawi City and elsewhere in Mindanao.
b)
The element of
culpable political purpose is absent.
c)
The projected
establishment of an ISIS wilayah in
Marawi City or Mindanao is basically conjectural and unsubstantiated without
any confirmation from ISIS even as it is a self-serving propaganda by terrorist
groups to attract the attention of ISIS.
d)
The ongoing armed
conflict in Marawi City was initiated by government forces and was precipitated
by the military operation to neutralize and capture Isnilon Hapilon, the leader
of an Abu Sayyaf faction.
e)
The Maute and Abu
Sayyaf groups resisted the aforesaid military operation to shield and protect
Hapilon and the Maute brothers from capture.
f)
The armed
resistance of the terrorist groups was a pintakasi
to help embattled comrades, not to seize Marawi City whose City Hall (like
the Provincial Capitol) was not even attacked or overrun.
g)
Shortly before
and contemporaneous with the issuance of Proclamation No. 216, responsible
Philippine civilian and military officials in the country and those with the
President in Moscow assured that the situation in Marawi City was under control
and the military was on top of the situation.
h)
Mere conclusions
of fact and law regarding the factual basis for Proclamation No. 216 have no
legal pedigree.
i)
The reported
capacity of the terrorist groups to perpetuate acts of terrorism, even
rebellion, is akin to “imminent danger” which is no longer a constitutional
ground for the declaration of martial law or the suspension of the writ of habeas corpus.
j)
There is no
showing that securing public safety was paramount and necessary.
k)
The present
tragic and appalling situation in Marawi City is the aftermath of the
declaration of martial law and the suspension of the writ of habeas corpus, which was not the
prevailing factual situation on the ground on 23 May 2017 when Proclamation No.
216 was issued.
l)
The turmoil in
Marawi City cannot be extrapolated to the entire Mindanao region for the
latter’s inclusion in the coverage of Proclamation No. 216.
The appalling escalation of deaths of soldiers and
terrorists, including innocent civilians; massive destruction of both public
and private properties; and the wide-spread displacement of residents, many of
whom have died in cramped and unsanitary makeshift evacuation centers, are the
horrific aftermath of the
declaration of martial law.
These were not the prevailing conditions at the time
Proclamation No. 216 was issued on 23 May 2017.
Consequently, this tragic subsequent events cannot be
considered as basis of the declaration of martial law and the suspension of the
writ of habeas corpus consistent with
the ponencia’s ruling that only the
facts alleged in the Proclamation and Report are to be assessed in determining
sufficiency of factual basis.
This tragic and horrific aftermath could have been
avoided had martial law not been declared. The improvident and unconstitutional
imposition gave the military and police forces the go-signal to inordinately
intensify their air strikes and land operations which resulted to the
devastation of Marawi City.
The administration’s policy of “destroy and
rehabilitate” is grossly errant because massive destruction should be avoided
so that any rehabilitation would require less funding and easier to implement.
Those who call for the retaking or liberation of
Marawi from the terrorist groups are so myopic that they do not see that Marawi
was never under siege.
In the first place, it is admitted that it was the
military that initiated the armed conflict by attempting to arrest Hapilon and
the Maute brothers, which was resisted by the Maute and Abu Sayyaf groups.
Neither Marawi City Hall nor the Provincial Capitol of
Lanao del Sur was occupied or captured by the terrorist groups.
17.
Civilian
authorities both in Marawi City and in Lanao del Sur continue to operate.
Verily, since Marawi City and Lanao del Sur were never
effectively captured by the terrorists, then there is nothing to retake or
liberate.
It is hyperbolic to assert that the sovereignty and
territorial integrity of the Republic were imperiled by the lawless violence
and armed conflict in Marawi City.
The military’s superior might was at all times
ascendant over the terrorist forces.
The oft-repeated reference that Mindanao is the
“hotbed of rebellion” is now more a matter of expression than a dangerous
verity.
The application of the principle that rebellion is a
“continuing offense” is limited to effecting the lawful arrest of a suspected
rebel wherever he is found, even outside of the place where he committed
rebellion.
The import of this principle does not include a
“creeping rebellion” which may be considered to spread to other places without
the commission of the acts of rebellion in such “other places” other than
presence of a rebel or rebels coming from elsewhere.
In other words, “continuing rebellion” means that the
culpability or complicity of a suspected rebel attaches to his person wherever
he goes.
But it does not sustain the proposition that the rebel
automatically carries with him the acts of rebellion he has committed
elsewhere, unless he repeats the inculpatory acts in the new place where he is
located or found.
Hence, the alleged acts of “rebellion” committed in
Marawi City, granting arguendo that
they did happen, is not extendable to other parts of Mindanao where no actual
rebellion is happening, although the culpability for rebellion continues to
follow the Maute “rebel” even when he goes outside Marawi City.
In People vs. Lovedioro (G.R. No.
112235, November 29, 1995), a self-confessed NPA was held guilty of murder, not
of the political crime of rebellion, because his killing of a police officer
was not in furtherance of the NPA’s rebellion.
What is relevant to note in Lovedioro is the Supreme
Court’s statement that rebellion is “essentially a crime of masses or
multitudes involving crowd action, which cannot be confined a priori within predetermined bounds.”
Consequently, rebellion is not a sporadic or isolated
puny armed public uprising. The mere presence of a rebel or rebels in another
location coming from another place does not constitute rebellion.
Verily, the ponencia
and the separate concurring opinions of some of the Justices misapplied the
“doctrine of rebellion as a continuing offense” by extrapolating the alleged
rebellion in Marawi City to the entire Mindanao region even when the elements
of actual rebellion are absent elsewhere.
Aside from an actual rebellion, it is also
indispensable that securing public safety is paramount
Except for self-serving conclusions of fact and law,
neither Proclamation No. 216 nor the President’s Report to the Congress laid
down the factual basis for the need to secure public safety. The serious
gravity of the circumstances requiring the protection of public safety
proximate to the issuance of Proclamation No. 216 dated 23 May 2017 is belied
by the uniform assessment by the military of the situation in Marawi City hours
before and contemporaneous with the declaration of martial law and suspension
of the privilege of the writ of habeas
corpus by the President.
a)
According to
responsible military officials, the situation in Marawi City was under control
and the military was on top of the situation shortly before and at the time Proclamation
No. 216 was issued.
b)
At 7:28 PM or four
hours before President Duterte issued Proclamation No. 216 in Moscow at 11:20
PM (Philippine time), on 23 May 2017, National Security Adviser Hermogenes
Esperon, Jr. categorically said that the Armed Forces of the Philippines was in
full control of the situation.
c)
About two hours
later, at 9:45 PM on 23 May 2017, Respondent Gen. Eduardo Año, Chief of Staff
of the Armed Forces of the Philippines, who was with the President in Moscow, told
ANC Live that the military was in full control.
d)
One hour before
the issuance of Proclamation No. 216 or at 10:30 PM on 23 May 2017, Marawi
Operations Spokesperson Lt. Col. Jo-Ar Herrera confirmed in an interview with
CNN Philippines that the military was on top of the situation.
e)
Twenty minutes
before the issuance of Proclamation No. 216, or at 11:00 PM on 23 May 2017,
Col. Edgard Arevalo, Chief of the AFP Public Affairs Office, asserted in a
briefing that the situation in Marawi has stabilized and security forces are in
full control of the situation.
Verily, not only was there no sufficient basis on the
existence of rebellion, there was also no factual anchorage for the necessity
of imposing martial law in order to secure public safety.
Terrorism does not equate to rebellion
Acts of terrorism are not necessarily equivalent to
actual rebellion and the consequent requirement of securing public safety to
justify the assailed declaration and suspension. No less than Justice Secretary
Aguirre admitted that acts of terrorism do not automatically constitute
rebellion. It is for this reason that the Human Security Act of 2007 (R.A. No.
9372) was enacted to punish acts of terrorism which do not constitute
rebellion.
Moreover, the inculpatory elements of rebellion under
Article 134 of the Revised Penal Code are different from the elements of
terrorism.
The criminal essence of terrorism is “sowing and
creating a condition of widespread and extraordinary fear and panic among the
populace, in order to coerce the government to give in to an unlawful demand”.
(Section 3 of R.A. No. 9372).
As defined, terrorism is essentially politically
neutral unlike rebellion.
While rebellion could be a predicate crime of
terrorism, it is actual rebellion as a separate offense which is a ground for
the declaration of martial law and the suspension of the writ of habeas corpus.
Rebellion has a culpable political purpose: removing
the Philippines or a part thereof from allegiance to the Republic or preventing
the President or the Legislature from exercising their powers and prerogatives.
This culpable political purpose is utterly absent in
the alleged “rebellion” in Marawi City and elsewhere in Mindanao.
Defense and military officials have admitted that the
current armed conflict in Marawi City was government-initiated and the armed
confrontation was precipitated by the military operation to neutralize or
capture Hapilon, which was resisted by the Maute Group.
Consequently, there is lawless violence or terrorism
in Marawi City, but not actual rebellion.
After rejecting the news accounts presented by the
petitioners to show absence of sufficient basis for the President’s declaration
of martial law and suspension of the writ of habeas corpus on the ground that said news reports from online
sources are hearsay and, therefore, inadmissible and lacks probative value, the
Justices themselves cited online information to justify their respective
disquisitions x x x.
The majority of the Honorable Court ruled that the burden
of proof in the instant proceeding is on the government or the public
respondents, the alter egos of the President, since it is the Executive who has
the monopoly of intelligence information to which the petitioner-citizens do
not have access.
For this reason, petitioners are not obligated to
controvert the factual allegations of the President over which they do not
naturally have personal knowledge.
Consequently, the petitioners resort to reliable
secondary sources of information like news reportage and online accounts,
should be exempt from the hearsay rule.
If the Honorable Justices availed of online
information and even online ISIS propaganda materials to justify their
findings, why should the petitioners be hamstrung by a strict application of
the hearsay rule?
There are instances when newspaper or media accounts
are admissible in evidence as exception to the hearsay rule, like in the
following:
a)
In Bedol
vs. COMELEC (G.R. No. 179830, December 03, 2009), it was ruled that
hearsay evidence (news clippings published in the Philippine Daily Inquirer)
may be admitted by the courts on grounds of “relevance, trustworthiness and
necessity”.
b)
Another exception
to the hearsay rule is the doctrine of independently relevant statements (Bedol
vs. COMELEC, supra).
c)
The “law
governing hearsay is somewhat less than pellucid. And, as with many rules, the
hearsay rule is not absolute, it is replete with exceptions. Witnesses die,
documents are lost, deeds are destroyed, memories fade. All too often, primary
evidence is not available and courts and lawyers must rely on secondary
evidence.” (Dallas County vs. Commercial Union Assurance Co.,
286 F 2d 388 [156 Cir. 1961]).
d)
“News articles,
however, may be introduced if they are bolstered by supporting evidence that confers
circumstantial guarantees of trustworthiness upon them.” Trustworthiness is met when three independent newspapers attributed
similar quotations to the same person. (A
Student’s Guide to Trial Objections, pp. 242-243, Thomas Reuters, United
States of America, 2015).
It must be underscored that the Solicitor General
failed to submit the affidavit required by Associate Justice Alfredo Caguioa
and this Honorable Court to clarify or retract his statement which appeared in
the AFP website and AFP Facebook page that: (1) there are no ISIS members in
the Philippines; and (2) the government security forces were in control of
Marawi on 23 May 2017.
X x x.”
LAGMAN LAGMAN & MONES LAW FIRM
Counsel for the Petitioners
2/F Tempus Place Condominium
Makatarungan and Matalino
Streets,
Brgy. Central, Diliman,
Quezon City
Telefax:
433-5354
|
EDCEL GRECO A. B. LAGMAN
Roll of Attorney’s No. 45738 24 May 2001
IBP Lifetime No. 012364
16 January 2014/Albay
Chapter
Mobile No. 09163324958
|
