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Martial Law




Constitutionality and Validity of Martial Law in Mindanao

Martial Law has been given a double-edged sword name during the time of the late
President Ferdinand Edralin Marcos. It was perceived as one of the “dark ages” in the Philippine
history because of the several incidents of violation of human rights of our fellow Filipinos.
Many were traumatized and most of the time, tremble in fear whenever the President of our
country utters the threat of imposition of Martial Law.

Due to the unfortunate Marawi siege, Martial Law was already enforced not only in the
Marawi city but in the entire Mindanao. Numerous petitioners have surfaced and questioned the
validity and constitutionality of the imposition of Martial Law. Now, the Supreme Court has
finally broke its silence and ruled in Lagman vs. Medialdea and affirmed the validity and
constitutionality of the Martial Law in Mindanao.

It is significant to know, scrutinize and understand the decision given by the Supreme
Court and so this paper will entirely focus on the vital points and doctrine laid down in the case
of Lagman vs. Medialdea.

Before going to the opinions of the Supreme Court of the Philippines, it will be very
material to create distinction between the concept of Martial Law in the 1935 Constitution and
the 1987 Constitution.

The constitutional imprimatur of the Old Martial Law is Article VII, Section 11(2) of the
1935 Constitution, to wit:

“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, or imminent danger thereof, when the public safety
requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines
or any part thereof under martial law.”
Patently, as far as setting the boundaries of martial law, the 1935 Constitution was very
sparse. Hence, when President Marcos declared Martial Law in 1972, he was able to assume
complete authority over the state. Consequently, he wielded absolute power over everything and
everybody in the country.

The New Martial Law is totally different. Article VII, Section 18 of the 1987 Constitution
has established a severely limited martial law regime as evidenced by this specific prescription-

“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 civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ.”

Simply put, under the 1987 Constitution, the President will be bound by limitations on
state action set forth in the Constitution even under Martial Law. The extraordinary powers
enjoyed by Marcos during his Martial Law reign is no longer available. Meaning, check points
and warrantless arrests are permitted now but still only within the parameters established by the

Indeed, immediately after the President released his Martial Law proclamation the Department of
National Defense issued a memorandum to its personnel stating-

“Any arrest, search, and seizure executed or implemented in the area or place where martial law
is effective, including the filing of charges, should comply with the revised rules of court and
applicable jurisprudence.”

And just to quell any doubts as to the scope of the New Martial Law regime, Armed
Forces of the Philippines spokesman Brig. Gen. Restituto Padilla was quoted saying, “critics
should understand that martial law under President Duterte is different from what was imposed
by dictator Ferdinand Marcos.”1

To further analyze the rationale of the Supreme Court in declaring the constitutionality of
Martial Law in Mindanao it is important to take a look at some of the remarkable statements of
the justices who have concurred its validity in their respective separate concurring opinions.

In the separate concurring opinion of Justice Velasco:

Martial Law is the law of necessity in the actual presence of an armed conflict. The
power to declare it is exercised precisely upon the principle of self-preservation in times of
extreme emergency. To an extent, the power to declare Martial Law under Section 18, Article
VII of the 1987 Constitution is similar to the citizen's right to self-defense under Article 11 of the
Revised Penal Code (RPC), as unquestionably a State may use its military power to put down a
rebellion too strong to be controlled by the civil authorities to preserve its "sovereignty ... and the
integrity of [its] national territory." As it is a necessity-the confluence of the existence of an
actual rebellion or invasion and the requirements of public safety-that gives the power to the
President to proclaim Martial Law, such necessity must be shown to exist before such
proclamation. However, as discussed in the ponencia, in deciding upon the existence of this
necessity, the facts as they were presented to the President at the moment he made the
proclamation must govern; his decision must be scrutinized based on the information that he
possessed at the time he made the proclamation and not the information he acquired later. Thus,
if the facts that were presented to him would excite a reasonable and prudent mind to believe that
actual invasion or rebellion existed and the public safety required the imposition of Martial Law,
the President is justified in acting on such belief. A subsequent discovery of the falsity of such
facts will not render his act invalid at its inception.2

In the separate concurring opinion of Justice Leonardo-De Castro:

Particularly, the 1987 Constitution categorically institutionalized (a) the power of this
Court to review the sufficiency of the factual basis of the proclamation of martial law and the
suspension of the said privilege; and (b) the power of Congress to revoke or, upon the initiative
of the President, to extend the said proclamation and suspension. The 1987 Constitution
expressly laid out as well the consequences or effects of a state of martial law, specifically that:
the operation of the Constitution is not suspended; civil courts and legislative bodies shall
continue to function; no jurisdiction is conferred on military courts or agencies over civilians
where civil courts are able to function; the privilege of the writ of habeas corpus is not
automatically suspended by the declaration of martial law; and any citizen has legal standing to

initiate before the Supreme Court an appropriate proceeding as the avenue for the exercise of the
power of judicial review of the aforesaid Presidential actions.

The detailed provisions of the 1987 Constitution have thus eliminated many of the
controversial issues that previously confronted the Court in the Marcos martial law cases, which
were brought about by the obscurity of the concept of martial law, notwithstanding that unlike
the United States Constitution, the 1935 and 1973 Philippine Constitutions already explicitly
empowered the chief executive, as Commander-in-Chief of the Armed Forces of the Philippines,
to proclaim martial law and suspend the privilege of the writ of habeas corpus. Still, there are
provisions in the 1987 Constitution that have engendered varying interpretations among the
Members of this Court, which resulted in our differences in opinion on such issues as the nature
of the "appropriate proceeding" where the Supreme Court may review the factual basis of the
aforesaid Presidential actions, the test to determine the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus by the
President, and the concept of "rebellion" adverted to in Section 18, Article VII.3

In the separate concurring opinion of Justice Peralta:

To limit the declaration of martial law and the suspension of the privilege of the writ of
habeas corpus in Marawi City alone where there is actual rebellion verges on the absurd. If we
are to follow a ''piece-meal" proclamation of martial law, the President would have to declare it
repeatedly. Where there is already a declaration of martial law and/or suspension of the privilege
of the writ of habeas corpus, considering that rebellion is a continuing crime, there is no need for
actual rebellion to occur in every single town or city of Mindanao in order to validate the
proclamation of martial law or suspension of the privilege of the writ of habeas corpus in the
entire island. Indeed, there is no need for a separate declaration because the declaration itself
already covers the whole of Mindanao. The validity of the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus in the whole of Mindanao is further
bolstered by the fact that rebellion has no "predetermined bounds." Quoting People v. Lovedioro,
the OSG raised:

the gravamen of the crime of rebellion is an armed public uprising
against the government. By its very nature, rebellion is essentially a crime of
masses or multitudes involving crowd action, which cannot be confined a
priori within predetermined bounds. One aspect noteworthy in the
commission of rebellion is that other acts committed in its pursuance are, by
law, absorbed in the crime itself because they acquire a political character.
This peculiarity was underscored in the case of People v. Hernandez, thus: In
short, political crimes are those directly aimed against the political order, as
well as such common crimes as may be committed to achieve a political

purpose. The decisive factor is the intent or motive. If a crime usually
regarded as common, like homicide, is perpetrated for the purpose of
removing from the allegiance 'to the Government the territory of the
Philippine Islands or any part thereof,' then it becomes stripped of its
"common" complexion, inasmuch as, being part and parcel of the crime of
rebellion, the former acquires the political character of the latter.

Consistent with the nature of rebellion as a continuing crime and a crime without borders,
the rebellion being perpetrated by the ISIS-linked rebel groups is not limited to the acts
committed in Marawi City. The criminal acts done in furtherance of the purpose of rebellion,
which are absorbed in the offense, even in places outside the City are necessarily part of the
crime itself. More importantly, the ISIS-linked rebel groups have a common goal of taking
control of Mindanao from the government for the purpose of establishing the region as a
wilayah. This political purpose·, coupled with the rising of arms publicly against the
government, constitutes the crime of rebellion and encompasses territories even outside Marawi
City, endangering the safety of the public not only in said City but the entire Mindanao.4

In the separate concurring opinion of Justice Reyes:

Although the President is accorded wide discretion in ascertaining the nature and extent
of the danger that confronts the State, as well as the course of action necessary to deal with the
same, his exercise of the powers as Commander-in-Chief under Section 18 of Article VII of the
Constitution is nevertheless subject to certain constitutional limitations pursuant to the system of
separation of powers and balancing of powers among the three great departments. Thus, the
President is required to submit a report to Congress within 48 hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus. Thereupon, 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. In the same manner, Congress may likewise extend such proclamation or suspension
upon request by the President if the invasion or rebellion shall persist and public safety requires
it. I I Further, the 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 of habeas corpus, or the extension thereof, and must promulgate its decision
thereon within 30 days from its filing. 12 I agree with the majority opinion that the term
"appropriate proceeding," refers to a sui generis proceeding, which is separate and distinct from
the jurisdiction of the Court laid down under Article VIII of the Constitution. Indeed, contrary to
the respondents' assertion, the term "appropriate proceeding" under Section 18 of Article VII of
the Constitution could not have referred to a certiorari proceeding under Rule 65 of the Rules of
Court. The "appropriate proceeding" under Section 18, unlike a certiorari suit, must be resolved
by the Court within 30 days from the institution of the action. More importantly, as articulated by

Associate Justice Antonio T. Carpio, certiorari is an extraordinary remedy designed for the
correction of errors of jurisdiction. What is at issue in the "appropriate proceeding" referred to
under Section 18 is only the sufficiency of the factual basis for the declaration of martial law or
the suspension of the privilege of the writ of habeas corpus.5