9. Power to Revoke or Extend Suspension of Privilege of Writ of Habeas Corpus or Declaration of Martial Law

Commander-in-Chief Powers

• Calling Out Powers
• Declaration of Martial Law and Suspension of the Privilege of the Writ of Habeas Corpus; Extension and Revocation

1987 CONST., art. VII, sec. 18

> SECTION 18. The President shall be the Commander-in-Chief of all 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. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call. 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. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Power to Revoke/Extend the Suspension of the Privilege of the Writ of Habeas Corpus and Declaration of Martial Law

Besides his calling out powers, the President may also:

• Suspend the privilege of the writ of habeas corpus
• Proclaim a state of martial law

A state of martial law is peculiar because the President, at such a time, exercises police power, which is normally a function of the Legislature. In particular, the President exercises police power, with the military’s assistance, to ensure public safety and in place of government agencies which for the time being are unable to cope with the condition in a locality, which remains under the control of the State. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017)

Grounds For The Suspension Of The Privilege Of The Writ Of Habeas Corpus And Declaration Of Martial Law

• Actual rebellion or invasion (not imminent)
• Public safety requires it

Checks and Balances to Limit the Exercise of the Martial Law and Suspension Powers/Safeguards against Abuse

• The President may declare martial law or suspend the privilege of the writ of habeas corpus only when there is an invasion or rebellion and public safety requires such declaration or suspension.
• The President's proclamation or suspension shall be for a period not exceeding 60 days.
• Within 48 hours from the proclamation or suspension, the President must submit a Report in person or in writing to Congress.
• The Congress, voting jointly and by a vote of at least a majority of all its Members, can revoke the proclamation or suspension.
• The President cannot set aside the Congress' revocation of his proclamation or suspension.
• The President cannot, by himself, extend his proclamation or suspension. He should ask the Congress' approval.
• Upon such initiative or request from the President, the Congress, voting jointly and by a vote of at least a majority of all its Members, can extend the proclamation or suspension for such period as it may determine.
• The extension of the proclamation or suspension shall only be approved when the invasion or rebellion persists and public safety requires it.
• The Supreme Court may review the sufficiency of the factual basis of the proclamation or suspension, or the extension thereof, in an appropriate proceeding filed by any citizen.
• The Supreme Court must promulgate its decision within 30 days from the filing of the appropriate proceeding
• Martial law does not suspend the operation of the Constitution. Accordingly, the Bill of Rights remains effective under a state of martial law. Its implementers must adhere to the principle that civilian authority is supreme over the military and the armed forces is the protector of the people. They must also abide by the State's policy to value the dignity of every human person and guarantee full respect for human rights.
• Martial law does not supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function.
• The suspension of the privilege of the writ applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.
• Finally, during the suspension of the privilege of the writ, any person thus arrested or detained should be judicially charged within three days, otherwise he should be released.

(Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, 2018)

Congressional Check on the Exercise of Martial Law and Suspension Powers

• The power to review the President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus, and to revoke such proclamation or suspension.
• The power to approve any extension of the proclamation or suspension, upon the President's initiative, for such period as it may determine, if the invasion or rebellion persists and public safety requires it. (Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, 2018)

Extension of Martial Law

When approved by the Congress, the extension of the proclamation or suspension, as described during the deliberations on the 1987 Constitution, becomes a "joint executive and legislative act" or a "collective judgment" between the President and the Congress. (Lagman v. Medialdea, G.R. No. 243522, Feb. 19, 2019)

The Court need not make an independent determination of the factual basis for the proclamation or extension of martial law and the suspension of the privilege of the writ of habeas corpus. The Court is not a fact-finding body required to make a determination of the correctness of the factual basis for the declaration or extension of martial law and suspension of the writ of habeas corpus. It would be impossible for the Court to go on the ground to conduct an independent investigation or factual inquiry, since it is not equipped with resources comparable to that of the Commander-inChief to ably and properly assess the ground conditions. (Id.)

In determining the sufficiency of the factual basis for the extension of martial law, the Court needs only to assess and evaluate the written reports of the government agencies tasked in enforcing and implementing martial law in Mindanao. (Id.)

The test of sufficiency is not accuracy nor preciseness but reasonableness of the factual basis adopted by the Executive in ascertaining the existence of rebellion and the necessity to quell it. (Id.)

Judicial Power to Review vs. Congressional Power to Revoke Martial Law and Suspension of the Writ of Habeas Corpus

(Lagman v. Medialdea, G.R. No. 231658, July 4, 2017)

The Court can simultaneously exercise its power of review with, and independently from, the power to revoke by Congress. Corollary, any perceived inaction or default on the part of Congress does not deprive or deny the Court of its power to review. (Id.)

Ways to Lift the Proclamation of Martial Law and/or Suspension of the Privilege

• Lifting by the President himself;
• Revocation by Congress;
• Nullification by the Supreme Court; and
• By operation of law after 60 days, unless Congress validly extends the proclamation or suspension upon the President’s initiative (PHIL. CONST. art. VII, § 18).

Updated: The Court may seek additional information when reviewing the factual basis for martial law or suspension of the privilege of the writ, but is not required to summon witnesses (Lagman v. Medialdea, G.R. No. 231658, 5 December 2017).

Checks and Balances to Limit the Exercise of the Martial Law and Suspension Powers/Safeguards against Abuse

• The President may declare martial law or suspend of the privilege of the writ of habeas corpus only when there is actual invasion or rebellion and public safety requires such declaration or suspension.
• The President's proclamation or suspension shall be for a period not exceeding 60 days.
• Within 48 hours from the proclamation or suspension, the President must submit a Report in person or in writing to Congress.
• The Congress, voting jointly and by a vote of at least a majority of all its Members, can revoke the proclamation or suspension.
• The President cannot set aside the Congress' revocation of his proclamation or suspension.
• The President cannot, by himself, extend his proclamation or suspension. He should ask the Congress' approval.
• Upon such initiative or request from the President, the Congress, voting jointly and by a vote of at least a majority of all its Members, can extend the proclamation or suspension for such period as it may determine.
• The extension of the proclamation or suspension shall only be approved when the invasion or rebellion persists and public safety requires it.
• The Supreme Court may review the sufficiency of the factual basis of the proclamation or suspension, or the extension thereof, in an appropriate proceeding filed by any citizen.
• The Supreme Court must promulgate its decision within 30 days from the filing of the appropriate proceeding
• Martial law does not suspend the operation of the Constitution. Accordingly, the Bill of Rights remains effective under a state of martial law. Its implementers must adhere to the principle that civilian authority is supreme over the military and the armed forces is the protector of the people. They must also abide by the State's policy to value the dignity of every human person and guarantee full respect for human rights.
• Martial law does not supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function.
• The suspension of the privilege of the writ applies only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.
• Finally, during the suspension of the privilege of the writ, any person thus arrested or detained should be judicially charged within three days, otherwise he should be released.

(Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, 2018)

Instances when Congress is Voting Jointly

• Revoking or extending proclamation suspending the privilege of writ of habeas corpus (PHIL. CONST., art. VII, § 18.)
• Revoking or extending declaration of martial law (PHIL. CONST., art. VII, § 18.)

Congressional Check on the Exercise of Martial Law and Suspension Powers

• The power to review the President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus, and to revoke such proclamation or suspension.
• The power to approve any extension of the proclamation or suspension, upon the President's initiative, for such period as it may determine, if the invasion or rebellion persists and public safety requires it. (Lagman v. Pimentel III, G.R. No. 235935, Feb. 6, 2018)

Supreme Court Review

• In an appropriate proceeding filed by any citizen
• The SC may review the sufficiency of the factual basis of the proclamation or suspension, or the extension thereof
• Its decision must be promulgated within 30 days from filing

Parameters of the Court for Determining the Sufficiency of the Factual Basis for the Declaration of Martial Law and/or the Suspension of the Privilege of the Writ of Habeas Corpus (Sufficiency of the Factual Basis Test)

• Actual rebellion or invasion
• Public safety requires it
• There is probable cause for the President to believe that there is actual rebellion or invasion. (Lagman v. Medialdea, G.R. No. 231658, July 4, 2017)

The scope of the Supreme Court’s power to review the declaration of Martial Law or suspension of the writ of habeas corpus is limited to a determination of the sufficiency (not accuracy) of the factual basis of such declaration or suspension. (Id.)

The nature of the Supreme Court’s jurisdiction to determine the sufficiency of the factual basis for the declaration of martial law and the suspension of the privilege of the writ of habeas corpus by the President is sui generis and granted by Sec. 18, Art. VII of the Constitution. It does not stem from Sec. 1 or 5 of Art. VIII. (Id.)

Extension of Martial Law

When approved by the Congress, the extension of the proclamation or suspension, as described during the deliberations on the 1987 Constitution, becomes a "joint executive and legislative act" or a "collective judgment" between the President and the Congress. (Lagman v. Medialdea, G.R. No. 243522, Feb. 19, 2019)

The Court need not make an independent determination of the factual basis for the proclamation or extension of martial law and the suspension of the privilege of the writ of habeas corpus. The Court is not a fact-finding body required to make a determination of the correctness of the factual basis for the declaration or extension of martial law and suspension of the writ of habeas corpus. It would be impossible for the Court to go on the ground to conduct an independent investigation or factual inquiry, since it is not equipped with resources comparable to that of the Commander-in-Chief to ably and properly assess the ground conditions. (Id.)

In determining the sufficiency of the factual basis for the extension of martial law, the Court needs only to assess and evaluate the written reports of the government agencies tasked in enforcing and implementing martial law in Mindanao. (Id.)

The test of sufficiency is not accuracy nor preciseness but reasonableness of the factual basis adopted by the Executive in ascertaining the existence of rebellion and the necessity to quell it. (Id.)

Judicial Power to Review vs. Congressional Power to Revoke Martial Law and Suspension of the Writ of Habeas Corpus

(Lagman v. Medialdea, G.R. No. 231658, July 4, 2017)

The Court can simultaneously exercise its power of review with, and independently from, the power to revoke by Congress. Corollary, any perceived inaction or default on the part of Congress does not deprive or deny the Court of its power to review. (Id.)

Updated: The Court may seek additional information when reviewing the factual basis existing at the time of the declaration, but need not summon witnesses if already satisfied (Lagman v. Medialdea, G.R. No. 231658, 5 December 2017).

Ways to Lift the Proclamation of Martial Law and/or Suspension of the Privilege:

• Lifting by the President himself;
• Revocation by Congress;
• Nullification by the Supreme Court; and
• By operation of law upon expiration of the 60-day period, unless Congress validly extends the proclamation or suspension upon the President’s initiative (PHIL. CONST. art. VII, § 18).

Military powers

SECTION 18, ARTICLE VII. The President shall be the Commander-in-Chief of all 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. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call.

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.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

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Four (4) ways for the Proclamation of Martial Law or the Suspension of the Privilege of the Writ of Habeas Corpus to be Lifted:

• Lifting by the President himself
• Revocation by Congress
• Nullification by the Supreme Court
• Operation of law upon expiration of the 60-day period, unless Congress validly extends the proclamation or suspension upon the President’s initiative

Declaration of Martial Law and Suspension of the Privilege of the Writ of Habeas Corpus; Extension

Requisites of Proclaiming Martial Law

• There must be an invasion or rebellion
• Public safety requires the proclamation of martial law all over the Philippines or in any part thereof

A declaration of martial law does not suspend the Constitution or the Bill of Rights. Any suspension of the privilege of the writ of habeas corpus is subject to the limitations in Article VII, Section 18. Thus, the declaration of martial law serves as a warning to citizens that the Executive Department has called upon the military assist in the maintenance of law and order, and while the emergency remains, the citizens must, under pain of arrest and punishment, not act in a manner that will render it more difficult to restore order and enforce the law [Lagman v. Medialdea, supra].

The following cannot be done by a proclamation of Martial Law [Section 18, Article VII, 1987 Constitution]:

• Suspend the operation of the Constitution;
• Supplant the functioning of the civil courts and legislative assemblies
• Confer jurisdiction upon military courts and agencies over civilians, where civil courts are able to function
• Automatically suspend the privilege of the writ of habeas corpus. The President must expressly suspend the privilege.

Open Court Doctrine: Civilians cannot be tried by military courts if the civil courts are open and functioning. Martial law usually contemplates a case where the courts are already closed and the civil institutions have already crumbled, i.e. a "theater of war." [Olaguer v. Military Commission No. 34, G.R. No. L-54558 (1987)].

The Role of Congress [See Section 18, par. 1 & 2, Article VII, 1987 Constitution]

• Congress may revoke the proclamation of martial law or suspension of the privilege of the writ of habeas corpus before the lapse of 60 days from the date of suspension or proclamation.
• Upon such proclamation or suspension, Congress shall convene at once. If it is not in session, it shall convene in accordance with its rules without need of a call within 24 hours following the proclamation or suspension.
• Within 48 hours from the proclamation or the suspension, the President shall submit a report, in person or in writing, to Congress.
• Congress may, voting jointly by at least a majority of all its Members, exercise either of the following powers; extension requires the President’s initiative and the persistence of invasion or rebellion and a public-safety need:
• To revoke such proclamation or suspension. When it is so revoked, the President cannot set aside (or veto) the revocation as he normally would do in the case of bills.
• To extend it beyond the 60-day period of its validity.

Congress can only so extend the proclamation or suspension upon the initiative of the President. The period need not be 60 days; it could be more, as Congress would determine, based on the persistence of the emergency.

Note: If Congress fails to act before the measure expires, it can no longer extend it until the President again re-declares the measure.

If Congress extends the measure, but before the period of extension lapses the requirements for the proclamation or suspension no longer exist, Congress can lift the extension, since the power to confer implies the power to take back.