REPUBLIC OF THE PHILIPPINES SUPREME COURT MANILA CHRISTIAN S. MONSOD and CARLOS P. MEDINA JR.

, Petitioners, - versus EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent. xx -- -- -- -- -- -- -- -- -- -- -- -- -- xx G.R. No. ____________________ For: Certiorari under Rule 65

PETITION
PETITIONERS in the above-entitled case, by their undersigned counsel, and to this Honorable Court, respectfully state:

THE PARTIES
Petitioner CHRISTIAN S. MONSOD is a Filipino, of legal age, with address at 2304 Morado Street Dasmarias Village, Makati City. Petitioner CARLOS P. MEDINA JR. is a Filipino, of legal age, with address at c/o 20 Rockwell Drive, Rockwell Center, Makati City, 1200. All petitioners are citizens and taxpayers, and may be served with notices and other processes of this Honorable Court through

Respondent EDUARDO R. ERMITA is the Executive Secretary of the Republic of the Philippines, and may be served with summons and other processes of this Honorable Court at the Office of the Executive Secretary, Malacaang Palace, Manila. On 4 December 2009, respondent, acting on orders of President Gloria MacapagalArroyo, issued Proclamation No. 1959 dated 4 December 2009, entitled Proclaiming a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Province of Maguindanao, Except for Certain Areas (hereinafter Proclamation No. 1959), a true copy of which is hereto attached marked as Annex A and made an integral part hereof.

JURISDICTION
A. NATURE OF THE PETITION The instant petition is for certiorari under Rule 65 of the Rules of Court and the jurisdiction of this Honorable Court is being invoked by herein petitioners pursuant to Article VII, Section 18 of the 1987 Constitution, on the ground that Proclamation No. 1959, declaring a state of martial law in the province of Maguindanao, except for the identified areas of the Moro Islamic Liberation Front as referred to in the Implementing Operational Guidelines of the GRP-MILF

Agreement on the General Cessation of Hostilities, and suspending

duration of the state of martial law, was clearly issued by respondent without any factual or legal basis and in gross contravention of the 1987 Constitution, existing law and prevailing jurisprudence. Hence, as Proclamation No. 1959 is patently offensive and oppressive not only to herein petitioners as citizens and taxpayers, but at odds with the Constitution, law and jurisprudence, and have been issued in obvious excess of respondents jurisdiction and in grave abuse of his discretion amounting to lack or excess of jurisdiction, where appeal or any other plain, speedy and adequate remedy does not lie, resort to the instant petition for certiorari was rendered necessary to arrest this jurisdictional travesty because in Lazatin vs. Kapunan,1 this Honorable Court stressed that It has been said that a wide breadth of discretion is granted a court of justice in certiorari proceedings. The cases in which certiorari will issue cannot be defined. Because, to do so would be to destroy its comprehensiveness and usefulness. So wide is the discretion of the court that authority is not wanting to show that certiorari is more discretionary than either prohibition or mandamus. In the exercise of our superintending control over inferior courts, we are to be guided by all the circumstances of each particular case as the ends of justice may require. So it is, that the writ will be granted where necessary to prevent a substantial justice. x x x. It is better, on balance, that we look beyond procedural requirements and overcome the ordinary reluctance to exercise our supervisory powers. And this, to the end that the orders issued below may be controlled to make them conformable to law and justice.

Stated differently, where, as in the instant case, the issuance of Proclamation No. 1959 issued by herein respondent is in blatant disregard of the Constitution, law and jurisprudence, immediate correction by this Honorable Court is rendered imperative through the instant special civil action for certiorari and prohibition, consistent with Demetria vs. Alba,2 which stressed that x x x where the legislature or the executive acts beyond the scope of its constitutional powers, it becomes the duty of the judiciary to declare what the other branches of the government had assumed to do as void. This is the essence of judicial power conferred by the Constitution in one Supreme Court and in such lower courts as may be established by law [Art. VIII, Section 1 of the 1935 Constitution; Art. X, Section 1 of the 1973 Constitution and which was adopted as part of the Freedom Constitution, and Art. VIII, Section 1 of the 1987 Constitutional and which power this Court has exercised in many instances. Public respondents are being enjoined from acting under a provision of law which We have earlier mentioned to be constitutionally infirm. The general principle relied upon cannot therefore accord them the protection sought as they are not acting within their sphere of responsibility but without it.

B. LEGAL STANDING OF THE PETITIONERS

The petitioners are all concerned citizens and taxpayers of the Philippines, and are therefore entitled under Article VII, Section 18 of the 1987 Constitution, to petition this Honorable Court to review the sufficiency of the factual basis of the issuance of Proclamation No. 1959, thus

Sec. 18. x x x. x x x. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon with in thirty days from its filing x x x. Moreover, the instant case involves issues of paramount importance as the constitutionality of a declaration of state of martial law and suspension of the privilege of the writ of habeas corpus is in question, and the very future of our nation is at stake, what with the possibility of setting a dangerous precedent that may undermine the fundamental law of the land and lead to the unbridled exercise of Commander-in-Chief powers in derogation of our most cherished constitutional precepts and principles. Hence, the transcendental importance to the public and the nation of the issues raised demands that this petition for certiorari and prohibition be settled promptly and definitely, regardless whether the Commander-in-Chief withdraws or terminates the declaration,

brushing aside technicalities of procedure and calling for the admission of a citizens taxpayers suit, as this Honorable Court held in David vs. Macapagal-Arroyo,3 It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying

legal tenet of the liberality doctrine on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the transcendental importance doctrine, a relaxation of the standing requirements for the petitioners in the PP 1017 cases.

C. RIPENESS OF THE PETITION

The instant petition is ripe for adjudication inasmuch as the respondents issuance of the assailed Proclamation No. 1959, notwithstanding its patent unconstitutionality, involves a clearly justiciable controversy, consistent with Francisco, Jr. v.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.,4 which held that In Sanidad v. Commission on Elections, questioned was the power of the President to propose amendments to the Constitution on the ground that it was exercised beyond the limits prescribed by the Constitution. Holding that it was a justiciable controversy, this Court made the following disquisition: The amending process both as to proposal and ratification, raises a judicial question. x x x. The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself. The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authority to determine whether that power has been discharged within its limits.

Under the circumstances obtaining and where time is of the essence, no appeal or any plain, speedy and adequate remedy is available to the herein petitioners in the ordinary course of law and to whose interests further delay would be prejudicial.

D. TIMELINESS OF THE PETITION

The assailed Proclamation No. 1959 was issued on 4 December 2009. Hence, the instant petition is being filed within sixty (60) days from the issuance thereof and within the period under Section 4, Rule 65 of the Rules of Court.

STATEMENT OF THE FACTS

On 23 November 2009, a convoy of six (6) vehicles from Buluan, Maguindanao, with around sixty (60) persons composed of family members and supporters of Buluan Vice-Mayor Esmael Mangudadatu, as well as media personalities, were flagged down in Brgy. Masilay, Ampatuan, Maguindanao, and taken by about one hundred (100) armed men reportedly led by Datu Unsay Mayor Datu Andal Ampatuan, Jr. (Andal, Jr.) and Police Chief Inspector Zukarno Adil Dicay, OIC of the Shariff Aguak PNP and concurrent Provincial Director of the Maguindanao Police Provincial Office. As events

turned out, the passengers of the convoy were killed and their bodies were found in mass graves in Brgy. Saniag, Ampatuan.5

Andal, Jr. is part of the Ampatuan clan, which holds various positions in Maguindanao and in the Autonomous Region of Muslim Mindanao (ARMM), i.e., Andal, Jr.s father, Andal, Sr., is the incumbent governor of Maguindanao, while his brother, Zaldy, is the governor of the ARMM. The massacre is the worst election-related violence in the Philippines history, and is widely held to have been undertaken to sow fear into anyone who would challenge the Ampatuans in the May 2010 elections. On 24 November 2009, as an immediate response to suppress lawlessness, the President issued Proclamation No. 1946 declaring the state of emergency in the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato and calling out the Armed Forces of the Philippines to assist the restoration and maintenance of peace and order in the aforecited areas.6 On 26 November 2009, the government authorities held Andal, Jr. in their custody, and criminal charges for multiple murder were eventually filed against him by the Department of Justice.7 All

throughout, Andal, Jr. vehemently denied any participation in the massacre. Notably, respondent Macapagal-Arroyos deputy spokesperson, Lorelei Fajardo, issued a statement on said respondents behalf, to

wit, I dont think the Presidents friendship with the Ampatuans will be severed. Just because theyre in this situation doesnt mean we will turn our backs on them. From the issuance of the Proclamation No. 1946 on 24 November 2009 up to the issuance of the assailed Proclamation No. 1959, no further incidents of violence occurred as the military had effectively suppressed the lawless elements in Maguindanao. In fact, several other members of the Ampatuan clan had, within the said period, been arrested, and on 2 December 2009, Andal, Sr. and seven members of the Ampatuan clan were charged with multiple murder. Moreover, the military had taken over the houses and areas owned and controlled by the Ampatuans, and had seized a large cache of firearms and ammunition. Furthermore, the Supreme Court had directed the courts to proceed with the criminal action against the Ampatuans. It must also be stressed that throughout this period, there was no declaration by the Ampatuans or their supporters of their intent to overthrow the Government, much less was there any public uprising by them or any other act that would endanger public safety. Despite all these, on 4 December 2009, the President, through respondent Ermita, issued Proclamation No. 1959. Clearly, therefore, there is no sufficient factual basis for the imposition of martial law and the suspension of the privilege of the writ of habeas corpus.

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Hence, this petition.

REASONS RELIED UPON FOR THE ALLOWANCE OF THIS PETITION

The petitioners respectfully submit that they are entitled to the allowance of this petition, upon the following grounds: (A) THE RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING PROCLAMATION NO. 1959 CONSIDERING THAT THERE IS ABSOLUTELY NO FACTUAL OR LEGAL BASIS TO SUPPORT A FINDING OF THE EXISTENCE OF A REBELLION THAT WOULD WARRANT THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN MAGUINDANAO, BECAUSE: 1. 2. THERE IS NO PUBLIC UPRISING AND TAKING UP ARMS AGAINST THE GOVERNMENT; AND THE PURPOSE OF THE UPRISING OR MOVEMENT IS NOT TO REMOVE ALLEGIANCE FROM THE NATIONAL GOVERNMENT OF THE PROVINCE OF MAGUINDANAO, OR TO DEPRIVE THE CHIEF EXECUTIVE, WHOLLY OR PARTIALLY, OF ANY OF HER POWERS OR PREROGATIVES. (B) THE RESPONDENT COMMITED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN ISSUING PROCLAMATION NO. 1959 CONSIDERING THAT THERE IS NO FACTUAL BASIS TO SUPPORT A FINDING THAT THE PUBLIC SAFETY REQUIRES THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF

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THE WRIT OF HABEAS CORPUS IN MAGUINDANAO, BECAUSE: 1. THERE IS NO SHOWING THAT ALLEGED FAILURE TO FUNCTION OF THE LOCAL JUDICIAL SYSTEM AND OTHER GOVERNMENT MECHANISMS IN MAGUINDANAO ENDANGER PUBLIC SAFETY; AND THE EXERCISE OF THE PRESIDENTS CALLING OUT POWER HAS SUFFICIENTLY ENSURED PUBLIC SAFETY.

2.

DISCUSSIONS
(A) THE RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING PROCLAMATION NO. 1959 CONSIDERING THAT THERE IS ABSOLUTELY NO FACTUAL OR LEGAL BASIS TO SUPPORT A FINDING OF THE EXISTENCE OF A REBELLION THAT WOULD WARRANT THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN MAGUINDANAO. Article VII, Section 18, of the 1987 Constitution provides both the necessary conditions and corresponding limits to the power of the President to impose martial law, thus: Sec. 18. The President shall be the Commanderin-Chief of all the armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof, under martial law. x x x. (Emphasis and underscoring supplied)

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It is clear from the foregoing provision that, as constitutionalist Fr. Joaquin G. Bernas, S.J. put it, [m]artial law depends on two factual bases: (1) the existence of invasion or rebellion, and (2) the requirements of public safety. Necessity creates the conditions for martial law and at the same time limits the scope of martial law.8 This is in stark contrast to the counterpart provisions in the 1935 and 1973 Constitutions, which provide that the privilege of the writ of habeas corpus could be suspended and martial law could be imposed in case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it.9 Thus, one will note that insurrection has been eliminated as a ground for declaring martial law or suspending the [privilege of the] writ of habeas corpus and the phrase imminent danger thereof has also been deleted. So that under this Article the grounds for

declaring martial law are invasion and rebellion when the public safety requires it.10 In determining whether or not rebellion exists that would warrant the imposition of martial law or suspension of the privilege of the writ of habeas corpus, the framers of the 1987 Constitution refer to the definition of rebellion under the Revised Penal Code.11

Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Ed., p. 872. 9 Article VII, Section 10(2), 1935 Constitution; Article VII, Section 9, 1973 Constitution. 10 II Record of the Constitutional Commission, p. 386 (1986).

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Rebellion under Article 134 of the Revised Penal Code is committed as follows [B]y rising publicly 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, or 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. The elements of the crime of rebellion are 1. 2. That there be a (a) public uprising and (b) taking arms against the Government. That the purpose of the uprising or movement is either a. to remove from the allegiance to said Government or its laws: (1) (2) b. the territory of the Philippines or any part thereof; or any body of land, naval, or other armed forces; or

to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.12

Here, none of the foregoing elements of rebellion are present. 1. THERE IS NO PUBLIC UPRISING AND TAKING UP ARMS AGAINST THE GOVERNMENT; AND

It is settled that the crime of rebellion is by nature a crime of masses, of a multitude. It is a vast movement of men and a complex

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net of intrigues and plots.13 Thus, this Honorable Court had, in the recent case of Ladlad v. Velasco, reiterated that x x x by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a political end.14 Here, the issuance of Proclamation No. 1959 is predicated on the allegation that heavily armed groups in the province of Maguindanao have established positions to resist government troops.15 In the Presidents Report, it was stated that [d]etailed

accounts pertaining to the rebel armed groups and their active movments in Maguindanao have been confirmed,16 and that [t]he existence of this armed rebellion is further highlighted by the recent recovery of high powered firearms and ammunitions from the 400 security escorts of Datu Andal Ampatuan Sr.17 Based on the

foregoing, the Presidents Report jumps to the unjustified conclusion that Indeed, the nature, quantity and quality of their weaponry, the movement of heavily armed rebels in strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay Municipal Hall, and fourteen other municipal halls, and the use of armored vehicles, tanks and patrol cars with unauthorized PNP/Police markings, all together confirm the existence of armed public uprising x x x.18

13

II Reyes, The Revised Penal Code, supra at p. 74, citing People v. Almazan, CA., 37 O.G.

1932)
14 15

523 SCRA 318 (2007), citing People v. Lovedioro, 250 SCRA 389 (1995). Proclamation No. 1959, Fourth Whereas Clause. 16 Presidents Report dated 6 December 2009, pp. 13-15.

15

However, whether in Proclamation No. 1959 itself or in the Presidents Report which serves as its factual basis, there is no allegation of an actual public uprising or taking up arms against the Government. Certainly, the mere threat of a public uprising and

taking up of arms against the Government which isat bestonly what the Presidents Report seeks to paint, is insufficient. The President and respondent ought to be reminded that in rebellion (or insurrection), there must be a public uprising and taking up of arms.19 Thus, as held in People v. Lovedioro, [t]he

gravamen of the crime of rebellion is an armed public uprising against the government. By its very nature, rebellion is essentially a crime of the masses or multitudes involving crowd action x x x.20 In this

regard, the landmark case of People v. Hernandez is instructive that One of the means by which rebellion may be committed, in the words of said Article 135, is by engaging in war against the forces of the government and committing serious violence in the prosecution of said war. These expressions imply everything that war connotes, namely, resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wakeexcept that, very often, it is worse than war in the international sense, for it involves internal struggle, a fight between brothers, with a bitterness and passion or ruthlessness seldom found in a contest between strangers. x x x.21

19

Cario v. People, 7 SCRA 900, 905 (1963).

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It is this concept of rebellion that the framers of our 1987 Constitution have adopted, in an effort to return to the traditional concept of martial law as it was developed especially in American jurisprudence, where martial law has reference to the theatre of war.22 Accordingly, under the 1987 Constitution, the

ground of imminent danger of rebellion as basis for the declaration of martial law or suspension of the privilege of the writ of habeas corpus has been deleted. Thus, the only grounds now for martial law are actual invasion and actual rebellion.23 Clearly, therefore, there is no factual basis for finding that there is a public uprising and taking up arms against the government such that rebellion exists to justify the issuance of Proclamation No. 1959. 2. THE PURPOSE OF THE UPRISING OR MOVEMENT IS NOT TO REMOVE ALLEGIANCE FROM THE NATIONAL GOVERNMENT OF THE PROVINCE OF MAGUINDANAO, OR TO DEPRIVE THE CHIEF EXECUTIVE, WHOLLY OR PARTIALLY, OF ANY OF HER POWERS OR PREROGATIVES.

It is equally settled that [t]he political motivation for the crime must be shown in order to justify finding the crime committed to be rebellion.24 Thus, Article 134 of the Revised Penal Code provides that the rebellion must be for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic

22 23

II Record at p. 398. II Record at p. 386.

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of the Philippines or any part thereof, or 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. Here, the issuance of Proclamation No. 1959 is predicated on the allegation that heavily armed groups in the province of Maguindanao have established positions to resist government troops, thereby depriving the Executive of its powers and prerogatives to enforce the laws of the land and to maintain public order and safety25 without any allegation of the connective intent between the supposed acts of rebellion and the result achieved thereby. Similarly, in the Presidents Report dated 6 December 2009, it is hastily and forcibly concluded that Indeed, the nature, quantity and quality of their weaponry, the movement of heavily armed rebels in strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay Municipal Hall, and fourteen other municipal halls, and the use of armored vehicles, tanks and patrol cars with unauthorized PNP/Police markings, all together confirm the existing of armed public uprising for the political purpose of: (i) removing allegiance from the national government of the Province of Maguindanao; and depriving the Chief Executive of her powers and prerogatives to enforce the laws of the land and to maintain public order and safety.26

(ii)

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However, there is nothing in the assailed Proclamation or the Presidents Report which would even remotely suggest that the purpose of the alleged rebellion is political in nature, much less to overthrow the Government. Not once have the Ampatuans or their supporters even hinted at overthrowing the Government or depriving the Chief Executive of her powers and prerogatives. Accordingly, the charges that have been filed against the Ampatuans are for murder and not rebellion. Worse, even the President, through her deputy spokesperson, has expressed her intent to keep the continued friendship with the Ampatuans. All these lead to the conclusion that there is no political motive that would justify a finding of rebellion, as is required by People v. Lovedioro,27 wherein this Honorable Court held x x x. In deciding if the crime is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated. In such cases the burden of demonstrating political motive falls on the defense, motive, being a state of mind which the accused, better than any individual, knows. x x x. x x x. [I]t is not enough that the overt acts of rebellion are duly proven. Both purpose and overt acts are essential components of the crime. With either of these elements wanting, the crime of rebellion legally does not exist. x x x. (Emphasis and underscoring supplied)

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Neither can the alleged failure to function by the local government be invoked to show that the purpose thereof is to commit rebellion. If at all, such allegation can only be cited in support of a claim of insurrection (which, again, is not the case here), because The term rebellion is more frequently used where the object of the movement is completely to overthrow and supersede the existing government, while the term insurrection is more commonly employed in reference to a movement which seeks merely to effect some change of minor importance, or to prevent the exercise of governmental authority with respect to particular matters or subjects.28 As had been previously discussed, insurrection has been eliminated as a ground for declaring martial law or suspending the privilege of the writ of habeas corpus.29 More importantly, the alleged failure to function of the local government mechanisms in Maguindanao areif at allattributable not to a public uprising and taking up arms against government, but a simple abdication or abandonment by the Ampatuans and their supporters of their duties as elected and/or appointed public officials. Certainly, rebellion cannot be committed by mere abandonment of ones public post. All told, it is evident that the President and respondent are desperately grasping at straws and ascribing political motive where there is clearly none.

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(B) THE RESPONDENT COMMITED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN ISSUING PROCLAMATION NO. 1959 CONSIDERING THAT THERE IS NO FACTUAL BASIS TO SUPPORT A FINDING THAT THE PUBLIC SAFETY REQUIRES THE IMPOSITION OF MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN MAGUINDANAO. 1. THERE IS NO SHOWING THAT ALLEGED FAILURE TO FUNCTION OF THE LOCAL JUDICIAL SYSTEM AND OTHER GOVERNMENT MECHANISMS IN MAGUINDANAO ENDANGER PUBLIC SAFETY.

As previously discussed, an essential requisite for the declaration of martial law or the suspension of the privilege of the writ of habeas corpus is when the public safety requires it. 30 Here, the issuance of Proclamation No. 1959 is predicated on the allegation that the condition of peace and order in the province of Maguindanao has deteriorated to the extent that the local judicial system and other government mechanisms in the province are not functioning, thus endangering public safety31 This allegation is

expounded on in the Presidents Report, citing the non-functioning by local government offices, the local civil registrar, and local judicial system as endangering public safety.

29

II Record at p. 386.

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However, there is no rational explanation or connection given either in the assailed Proclamation or the Presidents Report dated 6 December 2009 that would show how public safety is endangered by the closure of local government offices. As to the supposed failure to function of the local judicial system, which has no immediate connection to endangering public safety, this Honorable Court has itself belied such claim and has directed that the cases against the Ampatuans proceed. 2. THE EXERCISE OF THE PRESIDENTS CALLING OUT POWER HAS SUFFICIENTLY ENSURED PUBLIC SAFETY.

As previously discussed, an essential requisite for the declaration of martial law or the suspension of the privilege to the writ of habeas corpus is when the public safety requires it. 32 Here, the issuance of Proclamation No. 1959 is predicated on the allegation that the condition of peace and order in the province of Maguindanao has deteriorated to the extent that the local judicial system and other government mechanisms in the province are not functioning, thus endangering public safety33 However, as earlier discussed, neither the assailed

Proclamation nor the Presidents Report dated 6 December 2009 show that there is a danger to public safety which had not otherwise

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been addressed by the previous Proclamation declaring a state of emergency and calling out the Armed Forces of the Philippines to suppress the lawless violence. In fact, as of the issuance of the

assailed Proclamation on 4 December 2009, the leaders of the Ampatuan clan responsible for the massacre have been arrested and charged with multiple murder, and the military has already seized numerous firearms, ammunition, vehicles, and equipment used by the Ampatuans. By its own press releases, the government has claimed it remained in control of the peace and order situation in Maguindanao. Under the foregoing circumstances, it is evident that there is no public safety requirement that would justify the declaration of martial law and suspension of the privilege of the writ of habeas corpus. Neither can it be claimed that the President is powerless against the lawless violence that occurred on 23 November 2009, as the Constitution itself provides her a graduated power as

Commander-in-Chief, as was held in Integrated Bar of the Philippines v. Zamora,34 thus FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated sequence.

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When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his judgment cannot be reviewed by anybody. x x x. FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first sentence: The President may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger. MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled by the First Sentence: The President....may call out such Armed Forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing martial law or suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea? MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review. The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by this Court. Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out the

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becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. The implication is that the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other powers. (Emphasis and underscoring supplied) In fine, there is absolutely no factual or legal basis for the issuance of Proclamation No. 1959. Clearly, therefore, the same

should be nullified on the ground that it was issued by respondent with grave abuse of discretion amounting to lack or excess of jurisdiction.

PRAYER
WHEREFORE, it is most respectfully prayed that this Honorable Court give due course to this petition and, after hearing the case on its merits, render judgment declaring Proclamation No. 1959 null and void, as well as commanding the respondent to desist from further implementing the same. Petitioners likewise respectfully pray for such other just and equitable reliefs that this Honorable Court may deem just and equitable under the premises. Makati City for the City of Manila, 9 December 2009.

CARLOS P. MEDINA JR. Counsel for the Petitioners

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Telephone number: 632-8993632 E-mail address: [email protected] Roll of Attorneys No. 33331 PTR No. 1578473, 01/13/2009, Makati City IBP Lifetime Member No. 00331, Davao City Chapter MCLE Exemption No. II-000125

VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING WE, CHRISTIAN S. MONSOD and CARLOS P. MEDINA JR., all of legal age, Filipino, with office address at c/o 20 Rockwell Drive, Rockwell Center, Makati City 1200, after having been duly sworn to in accordance with law, hereby depose and state that we are the petitioners in the above-captioned case and we caused the preparation of the foregoing petition, which we have read, and the contents of which are all true and correct based on our own knowledge and/or authentic records. Moreover, we certify that: (a) we have not heretofore commenced any action or filed any claim involving the same issues in the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency; (b) to the best of our knowledge, no such action or claim is pending in the Supreme Court, the Court of Appeals, or the different divisions thereof, or any other tribunal or agency; and (c) if we should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, we undertake to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. AFFIANTS FURTHER SAYETH NAUGHT. CHRISTIAN S. MONSOD Affiant CARLOS P. MEDINA JR. Affiant

SUBSCRIBED AND SWORN TO BEFORE ME this 9th day of December 2009, at Makati City, affiants exhibiting to me their Passport/Drivers License as follows:

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CHRISTIAN S. MONSOD - Passport No. CARLOS P. MEDINA JR. - Passport No.ZZ214109;03/19/07, Manila

NOTARY PUBLIC Doc. No. _____; Page No. _____; Book No. _____; Series of 2009. EXPLANATION (Pursuant to Section 11, Rule 13 of the 1997 Rules of Civil Procedure) Due to lack of personnel to effect personal service, service was made by registered mail upon the parties as hereinbelow indicated by the corresponding registry receipts. CARLOS P. MEDINA JR.

COPY FURNISHED: EDUARDO R. ERMITA Office of the Executive Secretary Malacaanag Palace, Manila