9 October 2019

TO: SUPREME COURT OF THE PHILIPPINES

SUBJECT: Legal Memorandum Responding to Petitions Involving

Proclamation 100081.

FROM: The Judge Advocate General Office of the Military, represented by

Jochebed D. Dela Cruz, Julia Manrique, and Edgardo Alegre, Jr.

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Dear Magistrates:

Our office was notified of the said petitions on Proclamation 100081 issued by
President Rodrigo R. Duterte where we were impleaded as respondents. We are thankful
that we were given time and opportunity to respond to the questions and issues contained
therein.

We humbly submit this legal memorandum before you that was drafted by our legal
research team. We hope that your institution would be able to take cognizance of our
willingness and position to function in accordance with Article II, Sections 3 to 5 of the
1987 Constitution where we believe that 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, that the prime duty of the Government is to serve
and protect the people, and that the maintenance of peace and order, the protection of
life, liberty, and property, and promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.

We affirm those principles even as we advance our own constitutional goals and
interests with respect to the nature, functions, and authority of the military under martial
law. We are affording the Court its due respect by submitting this response, and we hope
that the Court would also uphold the application of constitutional provisions for the military
to properly function in our present context as the State exercises its inherent police power
through the armed forces.

Please find our responses under each question below:

1. Can the Supreme Court review Proc. 100081 or is this a political question
outside the power of the Court?

Yes, the Supreme Court can review Proclamation 100081.

The language of the Constitution is clear on this matter. Our legal basis is heavily
drawn from Article VIII of the 1987 Constitution that speaks of the nature and functions of
the judicial branch of government.

1
 Section 1 is clear that judicial power "includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government."

Section 4 clarifies: "All cases involving the constitutionality of a treaty, international

or executive agreement, or law, which shall be heard by the Supreme Court en banc...
including those involving the constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions... shall be decided with the concurrence of
a majority of the Members who actually took part in the deliberations on the issues in the
case and voted thereon."

Furthermore, section 5 says that the Supreme Court has the power to "review,
revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in all cases in which the
constitutionality or validity of any… law, presidential decree, proclamation, order… is in
question."

The Court also said that while it is prohibited from questioning the wisdom or policy
of co-equal branches of government, a case involving a political question does not
automatically mean that the petition is non-justiciable and the Constitution allows the
Court to step in and at least exercise its judicial power as defined in Section 1 of Article
VIII of the Constitution.1

In this petition, the Supreme Court can decide on the petition to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Executive Department, through the President, in his
declaration of martial law through Proclamation 100081. Since this petition pertains to the
constitutionality of the said proclamation, this must be heard and decided by the Supreme
Court en banc. It is within the power of the Supreme Court to review, modify, reverse, or
affirm the President’s declaration. There is nothing in the language of the Constitution
that says that the nature of a political question can be a legal obstacle for the Supreme
Court to decide on the constitutionality of this proclamation for as long as it would operate
within its power as defined in Section 1 of Article VIII of the Constitution.

2. Can the Supreme Court order the Congress to convene to revoke or ratify
the declaration of martial law/revolutionary government or is this also a political
question?

Yes, the Supreme Court can legally order Congress to convene for the purpose of
revoking or ratifying the declaration of martial law/revolutionary government. However,
this is subject to certain rules and may not be immediately enforced.

1
Garcia vs. Executive Secretary 583 SCRA 119, April 02, 2009

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 The declaration of martial law does not suspend the Constitution (Article VII, Sec.
18, par. 4). The President is mandated to submit a report in person or in writing to
Congress within forty-eight hours after the declaration of martial law, while Congress is
required to convene within twenty-four hours following such proclamation in accordance
with its rules without need of a call (Article VII, Sec. 18, par. 1). The Constitution, however,
did not specifically provide on how to deal with an incumbent president’s declaration of a
revolutionary government. Nevertheless, the Court may recognize only a new
Constitution to be in place if Article XVII on amendments and revisions have been
complied with or a collective action of the sovereign people can be interpreted that they
have formally adopted or ratified a new Constitution.

This case is different from the EDSA People Power where the Court ruled in
Republic vs. Sandiganbayan2 that there was no Constitution or bill of rights to speak of
because someone who was not legally recognized as the President of the Philippines had
successfully overthrown an incumbent regime with the collective purpose of changing the
Constitution and political system, and this was not the late President Corazon Aquino’s
lone decision. The legitimacy of President Aquino’s revolutionary government may be
credited to the people’s support for her presidency and the diplomatic recognition of the
international community of her administration. A diplomatic recognition is an act by which
a State acknowledges the existence of another State, a government, or a belligerent
community, and indicates its willingness to deal with the entity as such under international
law.3

Even when President Marcos proclaimed martial law and adapted the 1973
Constitution, the Court in Javellana vs. Executive Secretary only decided that such a
revolutionary government was culminated only when the Citizen Assemblies informally
ratified the 1973 Constitution, breaking away from the 1935 Constitution.4

There is no fact alleged in this case that such a new constitution, other than the
1987 Constitution, has taken effect. There is no fact alleging that the people or the
international community formally acquiesced or recognized a revolutionary government.
Since there is ambiguity, the principle of State continuity may be appreciated in favor for
the continued effectivity of the 1987 Constitution.

Therefore, legally speaking, the Supreme Court can still order Congress to
convene.

3. Is 100081 constitutionally a proper exercise of the commander-in-chief

power of the president to declare martial law/a revolutionary government? Based
on the facts agreed, is there sufficient basis for such declaration?

2
407 SCRA 10, July 21, 2003
3
Nachura, Antonio E.B., Gatdula, Jeremy Benigno. (2017). Outline Introduction to Public International Law.
Quezon City, Philippines: Rex Printing Company Inc., 28-31.
4
50 SCRA 30, March 31, 1973

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 Yes and no. While the President is allowed to declare martial law under conditions
specified in Article VII of the 1987 Constitution, there is no provision for the establishment
of a revolutionary government by an incumbent president who conclusively won in an
election for his position without any form of ratification or formal acquiescence for the
revolutionary government he declares to exist.

Section 18 of Article VII of the 1987 Constitution allows the President to declare
martial law or suspend the writ of habeas corpus in case of invasion or rebellion. In the
case of Lagman vs. Medialdea, the Court ruled that the parameters for determining the
sufficiency of factual basis are as follows: 1) actual rebellion or invasion; 2) public safety
requires it; the first two requirements must concur; and 3) there is probable cause for the
President to believe that there is actual rebellion or invasion. Requiring the Court to
determine the accuracy of the factual basis of the President contravenes the Constitution
as Section 18, Article VII only requires the Court to determine the sufficiency of the factual
basis. Accuracy is not the same as sufficiency as the former requires a higher degree of
standard. The President only needs to convince himself that there is probable cause or
evidence showing that more likely than not a rebellion was committed or is being
committed.5

Based on the agreed facts, the President seems to be convinced that there is an
actual rebellion or invasion due to the bombings, none has yet ruled out the possibility
that the bombs were planted by other groups with political agendas which may include
the overthrow of the government, the MILF and military are having tense moments in
Maguindanao while the IS have regrouped and Chinese coast guards have moved again
to restrict the fishing activities of Filipino fisherfolk in Panatag Shoal.

Therefore, there is sufficient basis for such declaration.

4. Is the provision mandating Congress to convene within 24 hours after the

declaration of martial law mandatory or simply directory?

The provision is mandatory.

In Filipino vs. Macabuhay, the Court ruled that the word "shall" is imperative,
operating to impose a duty which may be enforced.6

In this case, Article VII Section 18, paragraph two, of the 1987 Constitution
mandates: “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.”

Therefore, this provision is mandatory.

5. Is the order to detain Senator Trillanes, other opposition figures, and the
anti-Duterte military officials valid? Can such arrests and detention be done legally

5
Lagman vs. Medialdea 847 SCRA 580, December 05, 2017
6
Filipino vs. Macabuhay 508 SCRA 50, November 24, 2006

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as a consequence of a martial law/revolutionary government declaration or does
this require also a suspension of the privilege of habeas corpus?

Yes and no because it depends on the circumstances of their arrest.

Article VII Section 18 of the Constitution says that the President “may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law.” The Court, in Romulo, et. al. vs. Home
Development Fund, ruled that the use of the disjunctive “or” alone will exclude the
combination of several of the alternatives.7 The Constitution in Article VII, Section 18
paragraph 4 says that a state or martial law does not automatically suspend the writ of
habeas corpus. However, Section 5 Rule 113 of the Rules of Court provides for
circumstances when a lawful arrest can be done without warrant:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraph (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.

In this case, the declaration of martial law does not automatically mean the
suspension of the writ of habeas corpus. The President has to declare it, however, he did
not. Nevertheless, if the arrests are made within the circumstances legally allowed by the
Rules of Court, then they are valid. There were some arrested while holding meetings
against the Government.

Therefore, legally speaking, the orders are not valid if circumstances of their arrest
are not within the purview of the Rules of Court but, if they are, then the arrest for those
within that purview is valid.

6. Assuming that the arrests and detention can be done legally with the
declaration of martial law/revolutionary, is the filing of charges of illegal assembly
in military courts sufficient to keep the Ombudsman and others in detention?

It depends on who was charged.

7
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles vs. Home Development Mutual Fund 333 SCRA
777 , June 19, 2000

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 Section 13 of Article III of the Constitution says: “All persons, except those
charged with offenses punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or be released on recognizance
as may be provided by law.” Furthermore, this was affirmed by Section 17 Rule 114 of
the Rules of Court: “Section 7. Capital offense or an offense punishable by reclusion
perpetua or life imprisonment, not bailable. — No person charged with a capital offense,
or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to
bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.”
If the guilt or offense of the person detained amounts to a heinous crime as defined in RA
7659 where reclusion perpetua to death can be imposed, then they cannot be released
on bail.

The following are considered as specific acts of heinous crime: treason, piracy,
qualified bribery, parricide, murder, infanticide, kidnapping and serious illegal detention,
robbery with violence against or intimidation of persons, destructive arson, rape, plunder,
RA 6425 (Sections 3 to 5, 7 to 9, 14, 14-A, 15, and 16), and carnapping.8

Furthermore, the Constitution says that 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 of habeas corpus (Article VII, Sec. 18, par. 4).

However, members of the Armed Forces of the Philippines are subject to military
law according to R.A. 7055.

In this case, the charge of illegal assembly was filed against the detained persons.
Since there was no allegation that any of them posted bail, then it is sufficient to keep
them in detention. However, the jurisdiction over the civilians detained may be transferred
to an ordinary civil court. But they may not be released unless they posted bail. The
military officers arrested shall be tried according to the military law or other laws that
govern their case, and may only be released based on what those laws say they have to
fulfill.

7. Is the creation of temporary military courts a valid exercise of the martial

law/revolutionary government power?

Yes, it can be a valid exercise of martial law/revolutionary government power.

The creation of such courts may be viewed as a military necessity as defined in

RA 9851, and the Supreme Court shall designate special courts to try cases involving
crimes punishable under this Act. This law defines and penalizes crimes against
international humanitarian law, genocide, and other crimes against humanity, organizing
jurisdiction, designating special courts, and for related purposes.

8
Official Gazette of the Republic of the Philippines. (1993). Republic Act No. 7659. Retrieved
from https://www.officialgazette.gov.ph/1993/12/13/republic-act-no-7659/

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 Based on the agreed facts, there is a sufficient basis to acknowledge the existence
of an armed conflict, attack directed against any civilian population, and other related acts
that may be penalized by RA 9851.

Therefore, temporary military courts may be created.

8. Are the takeovers of media, public utilities and telecommunication

services valid exercises of the martial law/revolutionary government power?

No, this takeover is not a valid exercise of martial law government power.

In David vs. Macapagal-Arroyo, the Court ruled that to impose standards on media
or any form of prior restraint on the press, is ultra vires and unconstitutional. The Court
also rules that under Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public utility and private
business affected with public interest.9

In this case, there is no law alleged where the takeovers of media, public utilities,
and telecommunication services are allowed during a state of martial law.

Therefore, such a takeover is not allowed by the Constitution or our laws.

9. Does martial law/revolutionary government suspend the Bill of Rights,

thus rendering all the rights of the accused unavailable?

No, it does not suspend the Bill of Rights.

Article VII, Section 18, paragraph 4 of the Constitution is clear: "A state of martial
law does not suspend the operation of the Constitution." This, in effect, does not suspend
the bill of rights.

This is different from the ruling of the Court in Republic vs. Sandiganbayan when
it ruled that during the interregnum—i.e., after the actual and effective take-over of power
by the revolutionary government up to 24 March 1986 (immediately before the adoption
of the Provisional Constitution)—a person could not invoke any exclusionary right under
a Bill of Rights because there was neither a constitution nor a Bill of Rights then. 10 This
is different because there was no clear positive constitutional safeguards in favor of the
natural rights of a persons’ life, property, abode, and other natural rights with respect to
due process, although we hold that natural rights exist and must be respected even
without a positive recognition because they are inherent in every person.11

9
David vs. Macapagal-Arroyo, 489 SCRA 160, May 03, 2006
10
Republic vs. Sandiganbayan 407 SCRA 10, July 21, 2003
11
SEE: Concurring opinion of Justice Puno on G.R. No. 104768 where he explained what natural law is. It can
also be found in the following book: Marquez, Jose Midas. (2005). The Constitutional Philosophy of Philippine
Jurisprudence. Quezon City, Philippines: Central Books Supply, Inc., pages 2-16.

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 However, in the present Constitution, this continued natural right of due process
even during the state of martial law is explicitly provided. Furthermore, the Court in
Republic vs. Sandiganbayan clarified that while there was no constitutional bill of rights
to speak of during the period of unlawful seizure, the respondent could still avail of other
rights under international law.

Therefore, the present constitution does not suspend the Bill of Rights during a
state of martial law. In addition, even if there was no express provision granting it, there
are still rights available that must be respected and granted under international and
natural laws.

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