OSG asks Supreme Court: Allow Duterte to protect the people

Ina Reformina, ABS-CBN News

Posted at Jun 19 2017 10:03 PM

MANILA - The Office of the Solicitor General (OSG) submitted its memorandum on three consolidated petitions assailing the factual bases for Proclamation No. 216 declaring martial law in Mindanao and suspending the privilege of the writ of habeas corpus.

"Rebellion is afoot in Mindanao. In the western, central and eastern areas of the Mindanao region, there have been armed attacks against the civilian population, and pillage of public and private establishments," the memorandum read.

"As the survival of the State hangs in the balance, respondents respectfully ask this Honorable Court to sustain the constitutionality of Proclamation No. 216, and allow the president to perform his constitutional mandate of protecting the people.”

President Duterte signed the declaration on May 23, as local terror group Maute group waged attacks and atrocities in predominantly Muslim Marawi City, which sits at the heart of the southern Philippine region.

Petitioners, led by opposition solon and Albay Representative Edcel Lagman, Eufemia Campos Cullamat, et al., and Norkaya Mohamad, et al. went to the high court, invoking its mandate under Article VII, Section 18 of the 1987 Constitution to review the sufficient factual bases for the president’s resort to the extraordinary powers.

As government troops and local armed groups reportedly affiliated with the Islamic State of Iraq and Syria (ISIS) entered on Monday, day 27 of their continuing battle for control of the war-torn city, 59 fatalities have been reported on the government side, with at least 380 injured from the ranks of soldiers and policemen.

The local terrorists incurred 228 deaths, while 26 civilians died in the firefight.

As of June 14, over 59,000 families or over 260,000 individuals were displaced.

The 84-page comment of Solicitor General Jose Calida defended the executive issuance, insisting there is “more than sufficient factual bases” in declaring martial law and suspending the privilege of the habeas corpus writ in Mindanao, and “[p]etitioners failed to discharge their burden of proving that Pres. Duterte’s proclamation No. 216 is bereft of factual basis.”

PRESIDENT HINGED DECISION ON INTELLIGENCE REPORTS

The OSG argued that the president’s action "cannot be said to have been made in a whimsical or arbitrary manner” as it was made "on the basis of intelligence reports when available to him.”

In fact, as early as the first quarter of 2017, Defense Secretary Delfin Lorenzana and National Security Adviser Hermogenes Esperon, Jr. expressed "the advisability of declaring martial law in Mindanao" following a series of lawless activities and crimes “in pursuit of rebellion" by ISIS-linked local rebel groups, as stated in Lorenzana’s affidavit, dated June 17, 2017, submitted to the SC.

In an affidavit, also dated June 17, 2017, submitted to the high court, Armed Forces of the Philippines (AFP) chief of staff General Eduardo Año identified these rebel groups as the following:

a. The Abu Sayyaf Group (ASG) from Basilan, led by Isnilon Hapilon;

b. Ansarul Khilafah Philippines (AKP), also known as the Maguid Group, from Saranggani and Sultan Kudarat, led by Mohammad Jaafar Maguid;

c. The Maute Group from Lanao del Sur led by Omar Maute; and,

d. Bangsamoro Islamic Freedom Fighters (BIFF), based in Liguasan Marsh, Maguindanao.

"These groups have formed an alliance for the purpose of establishing a wilayah, or Islamic province, in Mindanao… [T]he ISIS-linked rebel groups have the common mission of wresting control of Mindanaoan territory from the government…," the OSG said.

The OSG bared there exist “ISIS cell groups that operate all over Mindanao” which stage “coordinated attacks” with the four rebel groups namely, Ansar Dawiah Fi Filibbin, Rajah Solaiman Islamic Movement, Al Harakatul Islamiyah Battalion, Jama’at Ansar Khilafa, Ansharul Khilafah Philippines Battalion, Bangsamoro Justice Movement, Khilafah Islamiya Mindanao, Abu Sayyaf Group (Sulu faction), Syuful Khilafa Fi Luzon, Ma’rakah Al-Ansar Battalion, Dawla Islamiyyah Cotabato, Dawlat Al Islamiyah Waliyatul Masrik, Ansar Al-Shariyah Battalion, Jamaah al-Tawhid wal Jihad Philippines, Abu Dujanah Battalion, Abu Khubayn Battalion, Jundallah Battalion, Abu Sadr Battalion, Jamaah Al Muhajirin wal Anshor, and Balik-Islam Group.

The attacks and incidents referred to by Lorenzana were:

-- 6 kidnappings since January 2017, translating to 16 victims;

-- attack on the 51st Infantry Battalion of the Philippine Army in Barangay Bayabao, Butig, Lanao del Sur on February 20, 2016;

-- Kidnapping of 6 sawmill workers and the beheading of 2 of the victims on April 4 and 11, 2016, respectively;

-- attack at the Lanao del Sur Provincial Jail, located in Marawi City, on August 27, 2016 aimed at freeing detained rebels;

-- improvised explosive device (IED) attack at the Davao City night market on September 2, 2016, killing 15 and wounding over 60 others;

-- abduction of German national Juergen Kantner on November 5, 2016, and killing his wife, Sabine Merz;

-- siege on Butig, Lanao del Sur from November 26 to December 1, 2016;

-two grenade explosions perpetrated by the Bangsamoro Islamic Freedom Fighters (BIFF) at the provincial office of Shariff Maguindanao on December 28, 2016;

-- IED explosion in Barangay Campo Uno, Basilan, resulting in the death of one civilian and wounding of another;

-- kidnapping of 3 Indonesian crew members near Bakungan Island, Tawi-tawi by the Abu Sayyaf Group (ASG);

-- IED explosion perpetrated by the ASG in Barangay Danapah, Basilan, resulting in the death of 2 children and the wounding of 3 others;

-- ambush of soldiers in Marawi City on February 16, 2017, to include Major Jerico P. Mangalus and one enlisted personnel;

-- carnapping in Iligan City on February 24, 2017 which led to a firefight between government forces and the perpetrators;

-- beheading of Kantner by the ASG on February 26, 2017 in Sulu;

-- kidnapping of Mrs. Omera Lotao Madid on March 5, 2017 in Saguiaran, LDS by suspected Maute elements;

-- infiltration of the ASG in Inabanga, Bohol on April 11, 2017;

-- beheading of Filipino kidnap victim Noel Besconde by the ASG on April 13, 2017;

-- kidnapping of SSgt. Anni Siraji by the ASG on April 20, 2017, and beheading him 3 days later; and, 

-- separate IED explosions by the BIFF in various parts of Mindanao from February to May 2017, resulting in the deaths and wounding of several soldiers and civilians.

“This declaration of martial law by the president was prompted by the security briefings he received of the situation in Marawi City from security officials of the government, particularly, when he was informed of the political motives and continued armed attacks against the government,” read Lorenzana’s affidavit.

Año also attested to the presence of sufficient factual basis in the executive issuance.

"There exists a sufficient factual basis for the imposition of Martial Law in the whole of Mindanao by the President and the suspension of the privilege of the writ of habeas corpus. These facts had been principally anchored on certain validated intelligence reports…

“[T]he undersigned affirms the sufficiency of his factual basis of declaring martial law in the entire Mindanao island group and not only in Marawi City where the atrocities are being blatantly committed by the rebels. This consideration is backed by established historical data and ensuing validated intelligence reports gathered from operating units, specifically anchored on the following material facts,” Año’s affidavit read.

THE MARAWI SIEGE

The OSG debunked petitioners’ claims it was government that initiated the Maute group’s attacks on Marawi City, when state forces attempted to serve outstanding warrants of arrest for Hapilon and Maute brothers Omar and Abdullah on May 23.

In fact, government was able to stop a major and deadlier attack, the OSG explained.

"According to intelligence reports, the ISIS-linked local rebel groups had intended to burn down the entire city of Marawi on the day of Ramadan, or on May 26, 2017.

"The said attack would have served as the precursor for other rebel groups to stage their own uprisings across Mindanao in a bid to simultaneously establish a wilayah in the region,” the OSG said, adding the terror and rebel groups chose Marawi because of its strategic location due to its "favorable terrain and accessibility to Northern and Central Mindanao.”

"Military intelligence point to Hapilon’s tactical intent of using Maguindanao and Cotabao as escape routes, supply line, and backdoor passage for reinforcements from other ISIS-linked rebel groups.

"These would have aided them in gaining control over and consolidating not just Marawi City, but a larger part of the Mindanao region,” the OSG said.

Cornered, the armed groups were forced "to prematurely execute their planned siege of Marawi,” and committed acts constituting rebellion, a continuing offense, the OSG stressed.

"As a crime without borders, the rebellion perpetrated by the ISIS-linked rebel groups is not confined to the acts they have committed in Marawi City. Hence, acts or crimes done in furtherance of the purposes of the said rebellion, in places outside of Marawi City, are part of the crime of rebellion itself.

"This unified mission of the said ISIS-linked rebel groups, coupled by their rising of arms publicly against the government, indubitably constitutes the crime of rebellion,” the OSG said.

PUBLIC SAFETY REQUIRES DECLARATION OF MARTIAL LAW, SUSPENSION OF PRIVILEGE OF WRIT OF HABEAS CORPUS 

The president, exercising his constitutional mandate and performing his function as commander-in-chief of all Philippine armed forces, declared martial law and suspended the privilege of the habeas corpus writ in Mindanao to preserve and maintain public safety, the OSG stressed, as it pointed out:

(1) the rebellion by the ISIS-linked local rebel groups has been endangering public safety in the entirety of Mindanao even prior to the Marawi siege; 

(2) due to the unified goal of the ISIS-linked local rebel groups to establish a wilayah in Mindanao, the danger to public safety is not isolated only in Marawi City—conformably with the nature of rebellion as a crime without borders; and, 

(3) ensuring the safety of the public requires the use of the powers inherent in the proclamation of martial law.

The OSG pointed out Proclamation No. 216 and the president’s Report to Congress "sufficiently described the scope of the uprising, the nature, quantity, and quality of the rebels’ weaponry, and the purposes of their lawless activities, giving fair notice to the public for the state of martial law in Mindanao” whereas, petitioners allegedly failed to assert grave abuse of discretion on the part of the president, and failed to discharge their burden of proving their assertions.

PRESIDENT HAS SOLE PREROGATIVE ON WHICH COMMANDER-IN-CHIEF POWERS HE CHOOSES TO EXERCISE

The OSG explained the extraordinary power of imposing martial law rests in the president alone, which is why the Constitution is silent on the "guideline or standard as to the form and details of its proclamation.”

This lack of specific details in the exercise of the presidential prerogative was intended by the framers of the Constitution so as "not to unduly hamper with technicalities the President's authority to declare a state of martial law,” the OSG said.

While the Constitution provides that the SC may review the sufficiency of the factual bases for the proclamation of martial law and suspension of the privilege of the writ, the OSG argued the president’s choice of which commander-in-chief power to exercise is beyond the review of the court.

This also debunks petitioners’ position that there must be a “graduated” exercise of commander-in-chief powers (calling out power, martial law, suspension of the privilege of the writ), where the president must first call out the armed forces to suppress lawless violence before resorting to martial law or suspension of the privilege of the writ.

"Nothing in the text of the 1987 Constitution suggests that the powers, as claimed by petitioners, must be exercised only in a sequential manner or graduated approach. Stated otherwise, the use of calling-out powers is not a condition precedent to the proclamation of martial law; neither is the latter a condition precedent to the suspension of the privilege of the writ of habeas corpus,” the OSG said.

Further, the OSG stressed that the high court’s review power is merely limited to the determination of sufficient factual bases for the declaration, which is described by the OSG as "absence of arbitrariness" on the part of the president.

Anything that happens after the issuance of the proclamation is not under the SC’s review power under Article VII, Section 18, the OSG argued.

"With all due respect to this honorable court, any implementing or operational guidelines, general orders, special orders, or other orders issued subsequent to Proclamation No. 216 should not be included in the review subject of the present case…

"The implementing and operational guidelines, general or special orders, and arrest orders deal with how martial law is to be implemented, and has absolutely nothing to do with why it was declared by the President. Reviewing the operational guidelines would, thus, go beyond scope of review that the sovereign has granted to this honorable court under the 1987 Constitution,” the OSG explained.

The SC has up to July 5 to resolve the consolidated petitions since it is constitutionally mandated to resolve any petition involving the review of the factual bases for the declaration of martial law and suspension of the privilege of the habeas corpus writ within 30 days upon filing of a petition. The Lagman petition, the first case filed among the 3 petitions, was filed last June 5.