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A Critique of Lagman V. Executive Secretary: Analyzing the Justiciability of the President's Power to Declare

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A Critique of Lagman V. Executive Secretary: Analyzing the Justiciability of the President's Power to Declare A CRITIQUE OF LAGMAN V. EXECUTIVE SECRETARY: Analyzing the Justiciability of the President’s Power to Declare Martial Law or to Suspend the Privilege of the Writ of Habeas Corpus as Regards its Territorial Scope and to Provide Standards Therefor ARVIN PAOLO DIALOGO CORTEZ A thesis presented in partial fulfilment of the requirements for the degree of JURIS DOCTOR 2019 ABSTRACT There is no other Constitutional, legal and military measure that has attracted such attention and notoriety into the national political consciousness as that of martial law. The imposition of martial law in 1972 and the subsequent deposition of the regime of President Ferdinand E. Marcos have led to the reexamination of the concept to ensure that the abuses of the past may not be repeated again. In any case, the framers of the present Constitution intended to return martial law to its original conception, apply the open-courts theory, and to constitutionalize the American case of Ex Parte Milligan. Since May 2017, President Rodrigo R. Duterte has placed Mindanao under martial law and suspended the privilege of the writ of habeas corpus. He has since extended such proclamation twice. The Supreme Court, in the landmark cases of Lagman v. Medialdea and related cases, upheld its constitutionality, giving the President the discretion to place any part of the Philippines under martial law by applying the statutory construction principle of verba legis. In this paper, the Author proposes that while the Supreme Court correctly laid down the two standards in declaring martial law, namely: (1) the existence of actual rebellion or invasion and (2) the requirement of public safety, it erred in characterizing the question of the territorial scope of martial law as a political question. The initial determination of the President of the necessity of martial law based on the probable cause standard does not preclude the Supreme Court in the exercise of its special authority under the Constitution to review the sufficiency of its factual basis. In the absence of any express limitation of its power, the Supreme Court has the power to review the sufficiency of the factual basis of all three components of martial law, namely: material, durational, and geographical scope. The dichotomy between the material and geographical aspect, as laid down in Lagman v. Medialdea and the related cases, emasculates the powers of the Supreme Court and renders nugatory the existence of the standards in proclaiming martial law. In this case, an analysis of the Proclamation and the President’s Reports to the Congress would show that martial law should have been limited to the largest political subdivision affected by the rebellion, Lanao del Sur. With the demise of the terrorist leaders and the capitulation of the City of Marawi, the justifications as laid down in Proclamation No. 216 are no longer existent and thus the factual basis of its extensions are insufficient. Thus, it is respectfully submitted that Lagman v. Medialdea and the related cases should be overturned insofar as it deviated from the intention of the framers of the present Constitution to limit martial law in an actual theater of war where civil courts no longer operate or where civil administration is unable to function. Should the proclamation of the President be too expansive to include areas where the standards are not met, the Supreme Court has the duty and power to strike down the proclamation as unconstitutional, regardless whether the Congress has authorized its proclamation or extension. In aid of its power to resolve the constitutionality of martial law, the Supreme Court is not limited to considering submissions of the Executive. It may also motu proprio conduct its own investigation, and may require intelligence agencies to submit confidential information on national defense and security in camera session. ACKNOWLEDGMENT The Author dedicates this thesis to his family - his ever-supportive parents, his late father, Pablo Gallor Cortez, and his mother, Rose Marie Dialogo Cortez; to his sister, Kimberly Rose Dialogo Cortez; his grandfather, the Honorable Jose Pante Dialogo, Jr., A.V.A., labor leader of the DIALOGWU (Defender of Industrial Agricultural Labor Organizations and General Workers’ Union) Labor Center; his grandmother, Maria Relloso Dialogo; and his cousins for their inspiration. The Author would like to thank his thesis adviser, Atty. Laurence Arroyo, for his time, mentorship, and guidance in writing this thesis. He would also like to thank his professors and the following men and women who have inspired and mentored him for the past four years in law school: Chief Justice Artemio V. Panganiban, Jr. (ret.), Associate Justice Arturo D. Brion (ret.), Dean Sedfrey M. Candelaria, Dean Maria Ngina Teresa V. Chan-Gonzaga; Atty. Maria Tanya Karina A. Lat; and Atty. Eugenio H. Villareal. Likewise, he would like to thank his law school blockmates from Block 4A, Batch 2019, especially Antonio Noguera and Reziene Esteban for accompanying him in his research and for their loyalty in all these years; and his close friends, the Bords. Finally, the Author extends his heartfelt gratitude to his friends and fellow batch-mates in law school, especially to Jason Sy for his help in editing and proofreading this work, and to the Author’s uncle, Noel Dialogo, Sr. for accompanying the Author almost every night in drafting this thesis. Above all, the Author dedicates this work to the service of the Almighty God through the intercession of Our Lady of Peñafrancia, the Patroness of Bicolandia, for His continued love, mercy, and guidance for all these years; and to the service of the Filipino People for the defense of their freedom and democracy. TABLE OF CONTENTS ABSTRACT………………,………………………………………………....i ACKNOWLEDGMENT…….………………………………………………...ii CHAPTER I: INTRODUCTION ..................................................................................... 1 A. Background of the Study .................................................................................. 1 B. Statement of the Problem / Thesis Statement ................................................... 4 C. Objectives of the Study ..................................................................................... 5 D. Research Methodology ..................................................................................... 5 E. Significance of the Study .................................................................................. 6 F. Scope and Limitation ...................................................................................... 10 G. Organization of the Thesis ............................................................................. 10 CHAPTER II: NATURE OF MARTIAL LAW AND SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS, ITS PURPOSES AND IMPLICATIONS ......................................................................................................... 12 A. Martial Law as Police Power .......................................................................... 12 B. Open Court Theory ......................................................................................... 13 C. Public Safety as Object of Martial Law and the Suspension of the Privilege of the Writ ............................................................................................. 14 D. History of Martial Law ................................................................................... 15 E. Effects of Martial Law .................................................................................... 16 F. The Scope and Extent of the Writ of Habeas Corpus .................................... 25 G. Suspension of the Privilege of the Writ of Habeas Corpus ........................... 30 H. The History of the Law on Habeas Corpus ................................................... 26 I. Effect of Suspension of the Privilege of the Writ of Habeas Corpus ............. 34 J. Justiciability of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus ........................................................................................ 32 CHAPTER III: THE COMMANDER-IN-CHIEF CLAUSE OF THE CONSTITUTION (MARTIAL LAW UNDER THE 1987 CONSTITUTION) ................... 42 A. Commander-in-Chief Clause .......................................................................... 44 B. Calling Out Power .......................................................................................... 46 C. Martial Law .................................................................................................... 47 D. Congressional Review .................................................................................... 55 E. Other Limitations to Martial Law and the Power to Suspend the Privilege of the Writ of Habeas Corpus ............................................................... 58 CHAPTER IV: REBELLION AS CONTINUING CRIME ............................................... 62 A. Crime of Rebellion ......................................................................................... 62 B. Doctrine of Absorption ................................................................................... 64 C. Continuing Crime ........................................................................................... 65 D. Rebellion as a Predicate Crime ....................................................................... 65 CHAPTER V: MAIN OPINION AND SEPARATE OPINIONS OF LAGMAN V. MEDIALDEA .............................................................................................................
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