REPUBLIC OF THE PHILIPPINES SUPREME COURT PADRE FAURA, MANILA EN BANC REP. EDCEL C. LAGMAN, ET. AL, PETITIONERS, G.R. NO. 231658 -versus- HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY, ET AL., RESPONDENTS. x--------------------------------------------x EUFEMIA CAMPOS CULLAMAT, ET AL., PETITIONERS, G.R. NO. 231771 -versus- PRESIDENT RODRIGO DUTERTE, ET AL., RESPONDENTS. x--------------------------------------------x NORKAYA S. MOHAMAD, ET AL., PETITIONERS, G.R. NO. 231774 -versus- EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, ET AL., RESPONDENTS. x--------------------------------------------x MOTION FOR RECONSIDERATION PETITIONERS in G.R. No. 231658, through counsel, respectfully submit the instant motion for reconsideration based on the following presentation: 1 1. Petitioners received on 06 July 2017 copies of the Majority Decision (ponencia) dated 04 July 2017 together with the separate concurring and dissenting opinions. The dispositive portion of the ponencia reads: WHEREFORE, the Court FINDS sufficient factual bases for the issuance of Proclamation No. 216 and DECLARES it as CONSTITUTIONAL. Accordingly, the consolidated Petitions are hereby DISMISSED. SO ORDERED. 2. The motion for reconsideration of petitioners is due on or before 21 July 2017. 3. This motion for reconsideration is seasonably filed. I. PRELIMINARY STATEMENT 4. It is significant that the Honorable Justices who concurred with the Majority Decision and those who dissented all highlighted the multiple safeguards provided for in the 1987 Constitution which seek to: (a) Prevent the misuse and abuse of the President’s power to declare martial law and suspend the privilege of the writ of habeas corpus; and (b) Foreclose the recurrence of atrocities and corruption which marred the martial law regime of the late President Ferdinand Marcos. 5. 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. 6. The reiteration of these safeguards is a stern reminder to the President that his exercise of extraordinary emergency powers must be judicious, not absolute or unbridled, and confined within the limitations and parameters of the Constitution. 2 7. It is also a wake-up call on the citizens not to sleep on their rights and be always vigilant against any design or attempt by the Government to violate their civil liberties. 8. However, the reality is these constitutional safeguards are only good and vibrant with a President who respects the Constitution and upholds the rule of law. 9. It is in this context that the people and the Honorable Supreme Court must be wary of the motives of the President who has deliberately announced that his brand of martial law will be harsh and no different from that of the late President Ferdinand Marcos’. President Duterte publicly rated the Marcos martial law regime as “very good”, despite its documented excesses and repressions. 10. Moreover, these constitutional safeguards are only concrete and cogent with a Supreme Court which will accord them efficacy in proper cases brought before it, and with a High Court which does not abdicate its special jurisdiction to review the sufficiency of the factual basis of a presidential imposition of martial law and suspension of the privilege of the writ of habeas corpus by giving inordinate deference to the President’s exercise of extraordinary emergency powers. 11. Furthermore, these safeguards would be meaningless if the Honorable Supreme Court engages in a balancing act of appeasement vis-à-vis the President. 12. It is also noteworthy that the Honorable Supreme Court settled the following issues: (a) 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. (b) 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 3 of discretion or arbitrariness on the part of the public respondent. (c) 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. (d) 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. (e) 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). II. GROUNDS FOR RECONSIDERATION 13. With due respect to the Honorable Supreme Court, the Majority Decision (ponencia) which upholds the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in Marawi City and the whole of Mindanao under Proclamation No. 216, is flawed for the following overriding reasons: I. THE SUPREME COURT HAS VIRTUALLY ABDICATED THE ORIGINAL, EXCLUSIVE AND SPECIAL JURISDICTION WHICH SECTION 18 OF ARTICLE VII OF THE CONSTITUTION CONFERRED ON IT TO REVIEW THE SUFFICIENCY OF THE FACTUAL BASIS OF THE PRESIDENT’S DECLARATION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS. 4 A. THE EXCUSE THAT THE SUPREME COURT DOES NOT HAVE THE “COMPETENCE” AND “LOGISTICAL MACHINERY”, COMPARED TO THE PRESIDENT, TO “ABLY AND PROPERLY ASSESS THE GROUND CONDITIONS” ALLEGED BY THE PRESIDENT IN HIS PROCLAMATION AND REPORT, IS AN OMINOUS PRELUDE TO AN ABANDONMENT OF ITS POWER OF JUDICIAL REVIEW UNDER SECTION 18 OF ARTICLE VII OF THE CONSTITUTION. B. THE SUPREME COURT WAS APPARENTLY OBLIVIOUS OF ITS INHERENT POWER TO SUBPOENA WITNESSES IN ORDER TO DETERMINE FACTUAL SUFFICIENCY AFTER THE CONSTITUTION GRANTED IT EXCEPTIONAL FACT-FINDING JURISDICTION. C. RELIANCE ON THE IN-CAMERA PRESENTATIONS AND TESTIMONIES OF RESPONDENTS DEFENSE SECRETARY DELFIN LORENZANA AND AFP CHIEF-OF- STAFF EDUARDO AÑO IS MISPLACED SINCE THEY LACKED TRANSPARENCY AND THEIR INTERPELLATION WAS NOT IN AN OPEN COURT PUBLIC SESSION. D. THE PONENCIA DELIMITED AND EMASCULATED THE SUPREME COURT’S JURISDICTION TO REVIEW THE SUFFICIENCY OF FACTUAL BASIS BY PRONOUNCING THAT ITS REVIEW DOES NOT EXTEND TO DETERMINING THE CORRECTNESS AND VERACITY OF THE PRESIDENT’S FACTUAL ALLEGATIONS AND IT IS IRRELEVANT THAT THE REPORTS GIVEN TO THE PRESIDENT TURNED OUT TO BE FALSE OR INACCURATE. E. THE SUPREME COURT ACCORDED “MUCH LEEWAY AND FLEXIBILITY” AND UNDUE DEFERENCE TO THE PRESIDENT’S EXERCISE OF HIS POWER TO IMPOSE MARTIAL LAW AND SUSPEND THE WRIT 5 OF HABEAS CORPUS TO THE EXTENT OF DENIGRATING ITS POWER OF JUDICIAL REVIEW UNDER SECTION 18 OF ARTICLE VII. F. THE INVOCATION OF THE PRESUMPTIONS OF GOOD FAITH AND REGULARITY IN FAVOR OF THE PRESIDENT’S ACTIONS DEFEATS OR DIMINISHES THE SUPREME COURT’S POWER TO DETERMINE THE SUFFICIENCY OF THE FACTUAL BASIS OF THE DECLARATION AND SUSPENSION. II. PROCLAMATION NO. 216 DATED 23 MAY 2017 AND THE PRESIDENT’S REPORT TO THE CONGRESS DATED 25 MAY 2017 FAILED TO SHOW SUFFICIENT FACTUAL BASIS FOR THE DECLARATION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN MARAWI CITY AND THE WHOLE OF MINDANAO. A. THERE WAS NO ACTUAL REBELLION ON 23 MAY 2017 IN MARAWI CITY AND THE WHOLE OF MINDANAO, AND WHAT WAS OBTAINING WAS LAWLESS VIOLENCE. B. THE ESCALATING DEATHS OF COMBATANTS AND CIVILIANS, MASSIVE DESTRUCTION OF MARAWI CITY AND THE HORRIFIC DISPLACEMENT OF RESIDENTS ARE ALL THE AFTERMATH OF THE DECLARATION OF MARTIAL LAW WHICH WERE NOT THE PREVAILING FACTS WHEN PROCLAMATION NO. 216 WAS ISSUED ON 23 MAY 2017. C. IT IS A FARCE TO POSIT AND ADMIT THAT THERE WAS A “MARAWI SIEGE” AND THERE IS NEED TO RETAKE OR LIBERATE MARAWI CITY BECAUSE IT WAS NEVER CAPTURED IN THE FIRST PLACE. D. AT NO INSTANCE BEFORE, DURING AND AFTER THE ISSUANCE OF PROCLAMATION 6 NO. 216 WAS THE REPUBLIC’S SOVEREIGNTY IMPERILED AND ITS TERRITORIAL INTEGRITY COMPROMISED. E. THE DOCTRINE ON REBELLION AS A “CONTINUING OFFENSE” WAS MISAPPLIED. F. THERE WAS NO NECESSITY OF SAFEGUARDING PUBLIC SAFETY ON 23 MAY 2017 WHEN PROCLAMATION NO. 216 WAS ISSUED BECAUSE THE SITUATION IN MARAWI WAS UNDER CONTROL AND THE MILITARY WAS ON TOP OF THE SITUATION AS REPORTED NO LESS BY RESPONSIBLE MILITARY OFFICIALS. III. ABSENT THE ELEMENTS OF REBELLION, TERRORISM AND LAWLESS VIOLENCE DO NOT CONSTITUTE VALID GROUNDS FOR THE DECLARATION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS. IV. CONSIDERING THAT THE PRESIDENT HAS THE MONOPOLY OF SO-CALLED INTELLIGENCE INFORMATION, THE HEARSAY RULE MUST NOT BE APPLIED ON PETITIONERS’ SECONDARY SOURCES OF INFORMATION LIKE NEWS REPORTAGE WHICH BELIE THE VERACITY OF INTELLIGENCE INFORMATION AND/OR CONTEST THE SUFFICIENCY OF THE FACTUAL BASIS OF PROCLAMATION NO.