Supreme Court Padre Faura, Manila

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. 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.

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

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.

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

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

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. 216.

A. THE MAJORITY DECISION AND THE SEPARATE CONCURRING OPINIONS EVEN USED MEDIA ACCOUNTS TO SUPPORT THEIR DISQUISITION.

B. THE NEWS ACCOUNTS CITED BY THE PETITIONERS PUBLISHED THE UNCONTROVERTED STATEMENTS OF RESPONSIBLE MILITARY AND CIVILIAN

OFFICIALS WHOSE STATEMENTS ARE IMPRESSED WITH REGULARITY.

C. SAID NEWS ACCOUNTS ARE CORROBORATED BY INDEPENDENT NEWS OUTLETS.

D. THE SOLICITOR GENERAL, ON BEHALF OF THE RESPONDENTS, FAILED TO SUBMIT THE CLARIFICATORY AFFIDAVIT OF COL. EDGARD AREVALO, AFP PUBLIC AFFAIRS OFFICE CHIEF, WHICH WAS REQUIRED OF HIM BY ASSOCIATE JUSTICE ALFREDO CAGUIOA AND THE HONORABLE COURT, SO MUCH SO THAT AREVALO’S STATEMENTS IN THE AFP WEBSITE THAT THERE ARE NO ISIS IN THE PHILIPPINES AND THE MILITARY WAS IN CONTROL OF THE MARAWI SITUATION REMAIN UNRETRACTED.

III. DISCUSSION

SECTION 18 OF ARTICLE VII OF THE CONSTITUTION.

14. 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.

15. 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).

16. 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).

17. The foregoing defeatist disquisitions were echoed in the separate concurring opinions of some of the Justices, to wit:

a) Justice Estela Perlas-Bernabe: “While the Court’s power under Section 18 Article VII is designed as an important check to the President’s martial law power, the reality is that this Court carries no technical competence to assess the merits of a particular military strategy. Meanwhile, ‘the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state in the exercise of the power to call [(as well as the power to declare martial law])”.

(Emphasis supplied; page 20 of separate concurring opinion). She also underscored “the Court’s institutional incapacity to externally vet the information submitted by the Executive as some of them may even be classified as confidential.” (Emphasis supplied; page 23).

b) Justice Teresita Leonardo-De Castro: “x x x since the President possesses the means and wherewithal to access vital and classified information from the government’s entire intelligence apparatus, he is given wide latitude to define the metes and bounds within which martial law or the suspension of the privilege of the writ of habeas corpus should take effect.” (Emphasis supplied; page 21).

c) Justice Diosdado Peralta: “In view of President Duterte’s possession of information involving public safety which are unavailable to us, the Court cannot interfere with the exercise of his discretion to declare martial law and suspend the privilege of the writ of habeas corpus in the whole of Mindanao.” (Emphasis supplied; p. 14).

18. 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.

19. 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.”

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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?”

B. THE SUPREME COURT WAS APPARENTLY OBLIVIOUS OF ITS INHERENT POWER TO SUBPOENA WITNESSES IN ORDER TO DETERMINE FACTUAL SUFFI- CIENCY AFTER THE CONSTITUTION GRANTED IT EXCEPTIONAL FACT- FINDING JURISDICTION.

29. 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.

30. 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).

31. As a trier of facts in the instant proceeding, the Supreme Court should not have limited its fact-finding inquiry to the in-camera

12 presentation and interpellation of the respondents National Defense Secretary Lorenzana and AFP Chief-of-Staff Gen. Año.

32. 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].

33. 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.

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.

34. Before the start of the closed door session in the morning of 15 June 2017, herein petitioner Edcel Lagman informed the Honorable Court that he has not received the required Manifestation from the Solicitor General showing the justifications for an executive

15 session to hear the briefings of Respondents Defense Secretary Lorenzana and AFP Chief Gen. Año as well as the data or information which may not be shared with the public because they are confidential in nature affecting national security or compromising military operations.

35. The Chief Justice replied that the executive session was already agreed upon but petitioner Lagman was not privy to such agreement, like the other counsel for petitioners in the consolidated petitions.

36. With respect to the holding of an executive session, the following transpired the previous day, 14 June 2017:

“Congressman Lagman: “We have reservations, Your Honor, with respect to executive sessions because of our experience in the House of Representatives. There was an omnibus executive session and during the proceedings, no confidential matter affecting the said (state) security was disclosed.

“Solicitor General Calida: “Well, we cannot use the experience in Congress and assume that it will be done here also, Your Honor.

“Chief Justice Sereno: “Solicitor General and Congressman we will discuss this during the session break that we will have for lunch, but we have already discussed several times, even during the Preliminary Conference the possibility of an executive session.

“Solicitor General Calida: “Yes, Your Honor.

“Chief Justice Sereno: “Now, with respect first before I refer on the matter to documents, Mr. Solicitor General, we can, which you may covey to the Court, what matters are confidential or not, the degree of confidentiality, so that we may discuss among ourselves whether the status of these documents will help as far as the Court in this case is concerned, and whether who will have access to such documents. In which case also, if you formally manifest that the briefing will be done in executive session, kindly

do that and indicate to us the level of confidentiality that must attempt that executive session. As well as the presence of Petitioner’s Counsel, because, remember, this is an, in a certain sense, Petitioners are actually entitled to know. To what extent they need to know, that is a matter that you can convey to us. Mr. Solicitor General. (Emphasis supplied).

“Solicitor General Calida: “Yes, Your Honor, I will do that, Your Honor.

“Chief Justice Sereno: “Congressman Lagman, do you have thoughts on the matter before we discuss this?

“Congressman Lagman: “We will subscribe to the directive of the Honorable Chief Justice.” (T.S.N., 14 June 2017, pp. 46 to 47).

37. Solicitor General Calida did not file any formal Manifestation on the necessity for holding an executive or closed- door session.

38. 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.

39. 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,

17 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.’”

40. It will be recalled that the Honorable Court gave respondents Lorenzana and Año the full discretion whether or not to disclose to the public, either fully or partially, the data contained in their PowerPoint presentations.

41. Until now, respondents Lorenzana and Año have not made any pubic disclosure relative to their PowerPoint presentations and statements during the aforesaid internal and executive sessions of the Honorable Court.

42. What a party conceals is presumed to be against his interest.

43. Judicial secrecy must be avoided and the right of the public to know must be given primacy.

44. 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).

45. The above statements were supported by Justice Lucas Bersamin who stated in his separate concurring opinion that: “[w]hether or not such facts are later shown by subsequent events to be fabricated or false or inadequate is not a decisive factor unless the President is credibly shown to have known of the fabrication or falsity or inadequacy of the factual bases at the time he or she issued the proclamation of martial law.” (Emphasis supplied; pages 7 to 8).”

46. Of the same opinion is Justice Presbitero Velasco, Jr. who said that “[a] subsequent discovery of the falsity of such facts will not render his act invalid at its inception.” (Page 2).

47. 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?

48. Justice Tijam in his separate concurring opinion disputed the ponencia’s subject pronouncements when he said that: “[t]he accuracy or veracity of the information upon which the President based his decision, if properly challenged before the Court, would have to be passed upon and determined.” (page 17).

49. 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.

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 OF HABEAS CORPUS TO THE EXTENT OF DENIGRATING ITS POWER OF JUDICIAL REVIEW UNDER SECTION 18 OF ARTICLE VII.

50. Continuing with its disquisition weakening the power of judicial review of the Supreme Court under Section 18 of Article VII, the ponencia conceded that “[i]t must also be reiterated that martial law is a matter of urgency and much leeway and flexibility should be accorded the President. (Emphasis supplied; page 54 of the ponencia).

51. The following Justices supported the ponencia’s articulation in their respective separate concurring opinions, to wit:

(a) Justice Reyes: “In the discharge of that duty, he necessarily is accorded a very broad authority and discretion in asserting the nature and extent of the danger that confronts the nation and in selecting the means and measures necessary for the preservation of the safety of the Republic.” (Emphasis supplied; page 3).

(b) Justice Mendoza: “It must be borne in mind that it is the people, through the Constitution, who entrusted to the President their safety and security. They gave him enough latitude and discernment on how to execute such emergency powers.” (Emphasis supplied; page 7). He also asserted that: “This is to say that the President is afforded much leeway in determining the sufficiency of the factual basis on the declaration of martial law.” (Emphasis supplied; page 14).

(c) Justice Perlas-Bernabe: “Further, the Court should give leeway to the President’s estimation of the rebels’ future plan of action. If the estimation, when taken together with all of the foregoing factors, does not seem implausible or farfetched, then this Court should defer to the President’s military strategy.” (Emphasis supplied; page 21).

(d) Justice De Castro: “… since the President possesses the means and wherewithal to access vital and classified information from the government’s entire intelligence apparatus, he is given wide latitude to define the metes and bounds within which martial law or the suspension of the privilege of the writ of habeas corpus should take effect.” (Emphasis supplied; page 21).

52. 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.

53. After giving to the President inordinate leeway and deference, sustaining his declaration of martial law and suspension of the writ of habeas corpus was virtually a matter of course.

54. The ponencia agreed with the contention of the Office of the Solicitor General that the petitioners failed to refute the facts cited by the President in Proclamation No. 216 and his Report to the Congress, and consequently, the “legal presumption bestowed on governmental acts” has not been overcome. (Emphasis supplied; page 17 of the ponencia).

55. The following Justices agreed with the ponencia in their separate concurring opinions, to wit:

a) Justice Tijam: “Under our Rules of Court, it is presumed that an official duty has been regularly performed. It has likewise been held that a public officer is presumed to have acted in good faith in the performance of his duties.” (Emphasis supplied; pages 10-11).

b) Justice Bersamin: “… the President is entitled to the strong presumption of the constitutionality of his or her acts as the Chief Executive and head of one of the great departments of government.” (Emphasis supplied; page 9). He also stated that: “… despite embedding numerous safeguard mechanisms, the 1987 Constitution has not dissolved the presumption of good faith in favor of the President. In other words, we should presume that the President, in proclaiming a state of martial law, did so in good faith.” (Emphasis supplied; page 9).

c) Justice Peralta: “Confidentiality still has its place in a free and transparent society. Otherwise, greater danger may ensue. There is, therefore, a presumption in favor of

the Chief Executive that he knows what he is doing, unless it could clearly be shown that he acted arbitrarily in the sense that he did not have any acceptable factual basis to justify what he did.” (Emphasis supplied; page 10). He also said that: “We cannot second guess what he should have done under the prevailing circumstances. If the President was wrong in his assessment and in exercising his judgment call, he shall be answerable to the people and history and not to this Court.” (Emphasis supplied; page 9).

56. 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.

57. 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.

58. 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.

59. 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.

60. 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).

61. In his dissenting opinion, Justice Alfredo Caguioa stressed: “I submit that presumption of regularity or constitutionality

24 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).

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.

62. 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.

63. 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

64. 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.

65. 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."

66. 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.

67. 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

68. 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.”

69. The foregoing allegations of facts and conclusions of fact and law do not establish a sufficient factual basis for the imposition

27 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.

70. 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

30 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.

71. 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.

72. 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

73. 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.”

74. It is contended that granting that the foregoing facts are indeed false and inaccurate, the “other facts” contained in the Proclamation and Report are not controverted and they constitute sufficient factual basis.

75. 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.

Zamboanga siege and Davao Night Market bombing are irrelevant because they do not have any nexus to the crime or state of rebellion

76. Reference in the President’s Report to the “Zamboanga siege” and the bombing of the Davao City night market, among other previous terroristic acts, are not relevant because they are not proximate to 23 May 2017 when Proclamation No. 216 was issued.

Moreover, Zamboanga City is back to normal with the culprits apprehended and charged, while the Davao City night market bombing has been solved with the capture and prosecution of the suspected terrorists.

77. The Zamboanga siege is different from the Marawi siege because according to Gen. Mison in the “Zamboanga siege sila po ang pumasok. Sa Marawi, tayo po ang nagsimula.” He also maintained that the armed conflict in Marawi City was “government-initiated” as differentiated from the Zamboanga siege.

78. Verily, both Proclamation No. 216 dated 23 May 2017 and the President’s Report to the Congress dated 25 May 2017 failed to sustain sufficient factual basis for the declaration of martial law and the suspension of the writ of habeas corpus.

Unwarranted and baseless conclusions of fact and law have no legal pedigree or evidentiary value

79. After a verbatim quotation of the definition of rebellion under Article 134 of the Revised Penal Code and paraphrasing the inculpatory elements of rebellion, Proclamation No. 216 and the President’s Report proceeded to conclude without sufficient factual basis that rebellion is being committed in Marawi City and other parts of Mindanao for the purpose of removing the latter from allegiance to the Republic or preventing the President from exercising his powers and prerogatives, copying the phraseology or language of Article 134.

80. 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

81. 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.

82. 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.

83. 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

84. The ponencia and some of the concurring separate opinions identified the following as indicative of culpable political purpose in the armed conflict in Marawi City:

a) The display by the terrorists of the DAESH or ISIS flag;

b) Reported allegiance of the terrorist groups to ISIS;

c) The purported objectives of the terrorist groups to establish a wilayah in Marawi City or Mindandao;

d) The alleged appointment of Hapilon as emir for all the terrorist forces in Mindanao; and

e) The discovery of a video footage allegedly showing Hapilon and the Maute brothers planning the Marawi siege.

85. The foregoing do not evince the culpable political purpose of a rebellion in view of the following reasons:

a) The raising of the DAESH or ISIS flag is cheap propaganda of the terrorist groups to attract ISIS support. This is nothing new because the terrorists have used this stunt in other violent or lawless incidents in the past. Moreover, the so-called ISIS flag is a generic emblem being used by other international terrorist fronts.

b) The reported allegiance of the terrorist groups to ISIS is another publicity stunt. Justice Reyes in his separate concurring opinion said that “Further, based on the ISIS’ propaganda material Dabiq, which was obtained by the AFP, as early as November 2014, a number of local rebel groups in Mindanao, particularly the Maute group, the ASG, the Ansarul Khilafah Philippines, and the Bangasmoro Islamic Federation Fighters, have already pledged their allegiance to the ISIS caliphate” (Emphasis

supplied; page 9). In other words, this is admittedly sheer propaganda.

c) The purported objective of establishing a wilayah or IS caliphate province in Mindanao has not been credibly established by the government. It is another propaganda to attract ISIS support and as a recruitment strategy.

d) The alleged appointment of Hapilon as emir is also a malevolent propaganda bereft of credible anchorage which was purportedly announced in the ISIS weekly online news letter Al Naba. (Please see separate concurring opinions of Justices Reyes [page 9], Justice De Castro [page 19], and Justice Perlas-Bernabe [page 27]. There is no independent validation from the Philippine military establishment.

e) The video footage showing Hapilon and the Maute brothers purportedly planning the Marawi siege was discovered on the second day after the proclamation of martial law. Consequently, it was not an input in the President’s decision to declare martial law and suspend the writ of habeas corpus on 23 May 2017. The conversation in said video is hardly audible. Moreover, the video of the alleged meeting taken by the terrorists themselves, which should have been made completely secret, is patently a propaganda material to impress ISIS and again, to intensify recruitment efforts and funding support. It is unfortunate that the military considered what appeared in the video as gospel truth.

Summary of the grounds why there is no sufficient factual basis for Proclamation No. 216

86. 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.

39 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.

87. 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.

88. These were not the prevailing conditions at the time Proclamation No. 216 was issued on 23 May 2017.

89. 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.

90. 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.

91. 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.

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.

92. 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.

93. 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.

94. Neither Marawi City Hall nor the Provincial Capitol of Lanao del Sur was occupied or captured by the terrorist groups.

95. Civilian authorities both in Marawi City and in Lanao del Sur continue to operate.

96. Verily, since Marawi City and Lanao del Sur were never effectively captured by the terrorists, then there is nothing to retake or liberate.

D. AT NO INSTANCE BEFORE, DURING AND AFTER THE ISSUANCE OF PROCLAMATION NO. 216 WAS THE REPUBLIC’S SOVEREIGNTY IMPERILED AND ITS TERRITORIAL INTEGRITY COMPROMISED.

97. 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.

98. The military’s superior might was at all times ascendant over the terrorist forces.

99. The oft-repeated reference that Mindanao is the “hotbed of rebellion” is now more a matter of expression than a dangerous verity.

E. THE DOCTRINE ON REBELLION AS A “CONTINUING OFFENSE” WAS MISAPPLIED.

100. 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.

101. 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.

102. In other words, “continuing rebellion” means that the culpability or complicity of a suspected rebel attaches to his person wherever he goes.

103. 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.

104. 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.

105. 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.

106. 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.”

107. 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.

108. Verily, the ponencia and the separate concurring opinions of some of the Justices misapplied the “doctrine of rebellion as a

43 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

109. 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.

110. 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

111. 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.

112. Moreover, the inculpatory elements of rebellion under Article 134 of the Revised Penal Code are different from the elements of terrorism.

113. 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).

114. As defined, terrorism is essentially politically neutral unlike rebellion.

115. 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.

116. 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.

117. This culpable political purpose is utterly absent in the alleged “rebellion” in Marawi City and elsewhere in Mindanao.

118. 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.

119. Consequently, there is lawless violence or terrorism in Marawi City, but not actual rebellion.

IV. CONSIDERING THAT THE PRESIDENT HAS THE MONOPOLY OF SO-CALLED INTELLIGENCE INFORMATION, THE HEARSAY RULE MUST NOT BE APPLIED ON 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. 216.

A. THE MAJORITY DECISION AND THE SEPARATE CONCURRING OPINIONS EVEN USED MEDIA ACCOUNTS TO SUPPORT THEIR DISQUISITION.

120. 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

46 hearsay and, therefore, inadmissible and lacks probative value, the Justices themselves cited online information to justify their respective disquisitions, to wit:

a) Justice Reyes: “Further, based on the ISIS’ propaganda material Dabiq, which was obtained by the AFP, as early as November 2014, a number of local rebel groups in Mindanao, particularly the Maute group, the ASG, the Ansarul Khilafah Philippines, and the Bangasmoro Islamic Federation Fighters, have already pledged their allegiance to the ISIS caliphate. In April 2016, the ISIS’ weekly online newsletter Al Naba announced the appointment of ASG’s leader Isnilon Hapilon (Hapilon) as the emir or leader of all ISIS forces in the Philippines. What is clear from the foregoing circumstances is the rebel groups in Mindanao already have the organization and manpower to realize their goal of removing the whole of Mindanao from the allegiance to the government.” (Emphasis supplied, page 9). b) Justice Perlas-Bernabe: “We need not look any further than the published chronicles about the Abu Sayyaf Group (ASG) – currently led by Isnilon Hapilon (Hapilon) and affiliated with the Maute Group – to paint a picture of how a rebellion may intricately operate”, citing http://www.dtic.mil/tr/fulltext/u2/a404925.pdf. (Emphasis supplied, pages 17-18). She also added: “In this light, the OSG asserted that the ISIS had already appointed Hapilon as the emir in the Philippines, which is the third step in establishing wilayah in Mindanao. This fact was validated through an announcement in the ISIS weekly newsletter, Al Naba and confirmed in a June 21, 2016 video by ISIS entitled ‘The Solid Structure’.” (Emphasis supplied, page 27).

c) Justice De Castro: “[I]n April 2016, the ISIS’ weekly online newsletter Al Naba announced the appointment of ASG Basilan leader, Hapilon, as the emir or leader of all ISIS forces in the Philippines. The appointment of Hapilon as its Philippine emir was further confirmed in June 21, 2016 online video by ISIS entitled ‘The Solid Structure’. The video hailed Hapilon as the mujahid authorized to lead the soldiers of the Islamic State in the Philippines.” (Emphasis supplied, page 19).

d) Justice Martires: “To better understand who these rebel groups are, Professor Rommel C. Banlaoi, (Professor Banlaoi), Chairman of the Board and Executive Director of

the Philippine Institute for Peace Violence and Terrorism Reasearch (PIPVTR) and head of its Center for Intelligence and National Security Studies, gives an in-depth analysis. (The Maute Group and rise of family terrorism. www.rappler.com/though-leaders/173037-maute-group-rise- family-terrorism.) [page 17].

121. 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.

122. For this reason, petitioners are not obligated to controvert the factual allegations of the President over which they do not naturally have personal knowledge.

123. Consequently, the petitioners resort to reliable secondary sources of information like news reportage and online accounts, should be exempt from the hearsay rule.

124. 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?

125. 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).

B. THE NEWS ACCOUNTS CITED BY THE PETITIONERS PUBLISHED THE UNCONTROVERTED STATE- MENTS OF RESPONSIBLE MILI- TARY AND CIVILIAN OFFICIALS WHOSE STATEMENTS ARE IMPRESSED WITH REGULARITY.

126. The persons quoted in the media accounts and online reports presented by the petitioners are responsible military/police officials, whose statements are impressed with regularity. They are, among others, the following:

a) AFP Public Affairs Office Chief Col. Edgard Arevalo;

b) Marawi Operations Spokesperson Lt. Col. Jo-Ar Herrera;

c) National Security Adviser Hermogenes Esperon, Jr.;

d) Respondent Gen. Eduardo Año;

e) Deputy Chief of Staff Lt. Gen. Salvador Mison, Jr. (military briefing); and

f) PNP Director General Ronald dela Rosa.

127. Additionally, the following responsible government officials were referred to in the petitioners’ submission of news reportage/online accounts:

a) Marawi City Mayor Majul Gandamra;

b) Marawi City Schools Divisions Assistant Superintendent Ana Alonto; and

c) The responsible officials of the Landbank of the Philippines, Marawi Branch;

128. The statements of the abovementioned officials and government functionaries were never contradicted nor retracted.

C. SAID NEWS ACCOUNTS ARE CORROBORATED BY INDEPENDENT NEWS OUTLETS.

129. It should be underscored that the news accounts and online reports submitted by the petitioners were all corroborated by independent news outlets, both local and international.

130. The statements quoted, which were attributed to the subject officials, were virtually the same.

131. Corroboration by independent news outlets is an indicia of correctness, accuracy and truth.

132. 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

50 are no ISIS members in the Philippines; and (2) the government security forces were in control of Marawi on 23 May 2017.

133. The following transpired in the afternoon session of the Honorable Court on 14 June 2017:

“Associate Justice Caguioa: “In the PhilStar article, Colonel Edgard Arevalo, AFP Public Affairs, was quoted as saying the following and I quote: ‘Pag pinapangalanan natin ang local terrorist group, pinapapogi natin sila, pinapasikat natin sila.’ When we call them ISIS were are making them famous” and then Col Arevalo is quoted as further saying we don’t have ISIS in the Philippines. I’d like to ask you if this is factually correct.” (Emphasis supplied).

“Solicitor General Calida: “No, Your Honor.”

“Associate Justice Caguioa: “So the statement of Col. Arevalo here was not factually correct.”

“Solicitor General Calida: “I don’t know if he said that, Your Honor. I have no personal knowledge.”

“Associate Justice Caguioa: “Alright, so, may I ask that you supply the Court with an affidavit from Col. Arevalo that he debunks this and denies that he said this. Okay.”

“Solicitor General Calida: “Well, I will consult with his superiors first, Your Honor.”

“Associate Justice Caguioa: “Of course. This is very few. Okay, as statement was made likewise by Public Affairs Office Chief Marine Colonel, again Col. Edgar Arevalo on May 23, 2017 and he says the situation in Marawi has stabilized, this is May 23, 2017. Security forces are in full control of the situation, the armed men we are dealing with are not ISIS but members of local terrorist groups and he made other statements. Again, to your knowledge, as a fact

finding exercise, could you know if these statements are false or true?”

“Solicitor General Calida: “First of all, I don’t know if he made such statement at all, Your Honor.”

“Associate Justice Caguioa: “This is a statement by Public Affairs Colonel Arevalo as appearing in AFP’s website on May 24, 2017. This is AFP’s website. It’s also posted in AFP’s Facebook with a video and it is dated at 11:14 P.M. on May 23, 2917.”

“Solicitor General Calida: “Well, as I said, Your Honor, I have no personal knowledge of that if it is posted in the … (interrupted)

“Associate Justice Caguioa: “Exactly, my point, it is posted in the AFP website, can we assume that these statements are accurate?”

“Solicitor General Calida: “I disagree with that, Your Honor, actually. It could be, as I said, psywar.”

“Associate Justice Caguioa: “Alright, so maybe again with due deference to the superiors of Colonel Arevalo, can you supply the Court with the statement, notarized statement, that this statement of Arevalo posted in the AFP Website is in fact not accurate and was in fact it was dated May 24, 2017 just part of psywar.”

“Solicitor General Calida: “I will ask his superiors, Your Honor.” (T.S.N. pages 204 to 206).

134. The Solicitor General did not submit the affidavit of Col. Arevalo clarifying or retracting his statements.

135. Consequently, the statements of Arevalo appearing in the AFP website and Facebook page remain unretracted.

PRAYER

ACCORDINGLY, it is respectfully prayed that:

(1) The Majority Decision (ponencia) dated 04 July 2017 which declared Proclamation No. 216 constitutional be reversed, and Proclamation No. 216 be declared unconstitutional; and

(2) The Dissenting Opinions, all dated 04 July 2017, of Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio and Associate Justice Alfredo Caguioa, insofar as they separately declared the validity of Proclamation 216 in Marawi City (Justice Carpio) and the Provinces of Lanao del Sur, Maguindanao and Sulu (Chief Justice Sereno and Justice Caguioa) be likewise reversed.

Petitioners pray for other just and equitable reliefs.

Quezon City, for Manila 20 July 2017

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 [email protected]

EDCEL GRECO A. B. LAGMAN Roll of Attorney’s No. 45738 24 May 2001 PTR No. 4750746/Quezon City/09 June 2017 IBP Lifetime No. 012364 16 January 2014/Albay Chapter MCLE Compliance No. V No. 000288 Mobile No. 09163324958

EXPLANATION

The foregoing motion for reconsideration will be filed personally with the Honorable Court on 21 July 2017 while copies of the same

53 were served on 20 July 2017 by registered mail to the other parties, through counsel, due to time and personnel constraints.

EDCEL GRECO A. B. LAGMAN

Copy furnished:

SOLICITOR GENERAL JOSE C. CALIDA Quezon City Post Office Counsel for the Public Respondents Registry Receipt No. _____ OSG Building, 134 Amorsolo St., Legaspi 20 July 2017 Village, Makati City

ATTY. NERI J. COLMENARES Quezon City Post Office Counsel in G.R. No. 231771 Registry Receipt No. _____ National Union of People’s Lawyers (NUPL) 20 July 2017 3/F Erythrina Bldg., No. 1 Matatag corner Maaralin Sts., Central District Quezon City

ATTY. MARLON J. MANUEL Quezon City Post Office Counsel in G.R. No. 231774 Registry Receipt No. _____ Alternative Law Groups, Inc. 20 July 2017 Room 215, Institute of Social Order Social Development Complex Ateneo de Manila University Loyola Heights, Quezon City