Testing Constitutional Waters IX: The

Constitutional Parameters of the Exercise of
Executive Powers in Non-International
Armed Conflict Situations
Sedfrey M. Candelaria*
Ma. Carmel M. Baquilod**

I. INTRODUCTION .......................................................................... 352  

II. REVIEW OF CONSTITUTIONAL POWERS IN TIMES OF
EMERGENCY AND ARMED CONFLICT SITUATIONS .................... 356  
A. State Principles  
B. The Powers of the President  
II. NON-INTERNATIONAL ARMED CONFLICT IN THE PHILIPPINES. 370  
A. History  
B. War Without Winners  
III. RESPONSE OF THE GOVERNMENT .............................................. 377  
A. Peace Process  
B. The Elusive Bangsamoro Nation  
C. No Right Solution for the Left  
IV. LAWS RELATED TO ARMED CONFLICT ....................................... 386  
A. The Anti-Subversion Law  
B. The Human Security Act  
C. Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity  
V. THE PRESIDENT’S ACTIONS ........................................................ 394  
VI. THE PRESIDENT’S DILEMMA ....................................................... 396  
A. Implications of the Peace Process  
B. Implications of Declaration of Martial Law  
C. The Lincolnian Dilemma  
VII.CONCLUSION: THE PATH TO TRANSITIONAL JUSTICE ............... 404  

I. INTRODUCTION
On 23 May 2017, the City of Marawi became the battleground of the
vehement hostilities between the Armed Forces of the Philippines (AFP) and
2017] EXECUTIVE POWERS 353

the Maute Group. 1 These emerging extremists were believed to be

supporters of the global terrorist group, Islamic State of Iraq and Syria (ISIS),

* ’90 LL.M., University of British Columbia; ’84 LL.B., Ateneo de Manila

University School of Law. The Author is currently the Dean of the Ateneo de
Manila University School of Law and is a professorial lecturer on Constitutional
Law, Public International Law, Political Law Review, International Economic Law,
Children’s Rights Law, Indigenous Peoples’ Rights Law, and Peace Process for the
same university. He is a former member of the Government of the Republic of the
Philippines Negotiating Panel for talks with the Communist Party of the
Philippines/New People’s Army/National Democratic Front; former Chief Legal
Consultant to the GRP Negotiating Panel for talks with the Moro Islamic
Liberation Front; head of Research, Publication, and Linkages Office and the
Department of Special Areas of Concern of the Philippine Judicial Academy of the
Supreme Court of the Philippines; former head of the Indigenous Peoples’ Desk of
the Ateneo Human Rights Center; and President of the Court Appointed Special
Advocates for Children/Guardians Ad Litem Foundation of the Philippines, Inc.
The Author’s previous works published in the Journal include Testing Constitutional
Waters VIII: Coming Full Circle: Executive Power and Judicial Consistency as Applied to
Marcos v. Manglapus and Ocampo v. Enriquez, 62 ATENEO L.J. 1 (2017); Testing
Constitutional Waters VII: Nationality, Citizenship, and Foundlings as Pronounced in Poe-
Llamanzares v. Commission on Elections, 61 ATENEO L.J. 29 (2016); Testing
Constitutional Waters VI: Developments in Treaty-Making and the Enhanced Defense
Cooperation Agreement, 61 ATENEO L.J. 1 (2016); Testing Constitutional Waters V: The
Proposed Bangsamoro Basic Law and the Primacy of the Sovereign Power of the State, 59
ATENEO L.J. 1027 (2015); Testing Constitutional Waters IV: Power of the Purse in Light
of the Araullo and Belgica Rulings, 59 ATENEO L.J. 317 (2014); Walking the Line: The
Philippine Approach to Church-State Conflict, 58 ATENEO L.J. 842 (2014); Testing
Constitutional Waters III: Areas for Constitutional Reform in the System of Checks and
Balances — Making Sense of P-Noy’s Tuwid Na Landas, 57 ATENEO L.J. 1 (2012), A
Review of Legal Education in the Philippines, 55 ATENEO L.J. 567 (2010); Testing
Constitutional Waters II: Political and Social Legitimacy of Judicial Decisions, 55 ATENEO
L.J. 1 (2010); Postscript to the Supreme Court MOA-AD Judgment: No Other Way but to
Move Forward, 54 ATENEO L.J. 269 (2009); Consultation and the Courts: Reconfiguring
the Philippine Peace Process, 54 ATENEO L.J. 59 (2009); An Overview of the International
Legal Concept of Peace Agreements as Applied to Current Philippine Peace Processes, 53
ATENEO L.J. 263 (2008); The Juvenile Justice and Welfare Act of 2006: Changing Patterns
and Responses for Juvenile Offending, 52 ATENEO L.J. 293 (2007); Legal Concept of
Terrorism Under International Law and Its Application to Philippine Municipal Law, 51
ATENEO L.J. 823 (2007); Testing Constitutional Waters: Balancing State Power, Economic
Development, and Respect for Human Rights, 51 ATENEO. L.J. 1 (2006); Courts and
Social Context Theory; Philippine Judicial Reform as Applied to Vulnerable Sectors, 50
354 ATENEO LAW JOURNAL [vol. 62:353

whose goal was to establish an ISIS base in the Philippines.2 What started as a
government operation to capture leaders of the Abu Sayyaf and Maute
Group turned into a five-month long war that has caused the devastation of
the entire city, displacement of thousands of residents, and deaths of soldiers,
militants, and civilians. 3 In no less than 24 hours after the start of the
intrusion, President Rodrigo Roa Duterte (President Duterte) issued
Proclamation No. 216, declaring a state of martial law and suspending the
privilege of the writ of habeas corpus over the entire region of Mindanao.4
This was to prevent the “deterioration of public order and safety in Marawi
City ... and of the entire Island of Mindanao.”5

ATENEO L.J. 823 (2006); The Philippines and the Convention on the Rights of a Child:
Evaluating Compliance with Respect to International Standards for Procedural Rules
Involving Children, 49 ATENEO L.J. 1016 (2004); Introducing the Indigenous Peoples’
Rights Act, 47 ATENEO L.J. 571 (2002); The Rights of Indigenous Communities in
International Law, 46 ATENEO L.J. 273 (2001); The Legal Characterization of the Asia-
Pacific Economic Conference (APEC) and the Individual Action Plans in International Law,
44 ATENEO L.J. 405 (2000); & The IMF and the Philippines: Anatomy of a Third World
Debt, 36 ATENEO L.J. 18 (1992).

Cite as 62 ATENEO L.J. 352 (2017).

1. Joseph Hincks, What the siege of a Philippine city reveals about the ISIS’ deadly new
front in Asia, TIME, May 25, 2017, available at http://time.com/marawi-
philippines-isis (last accessed Oct. 31, 2017).
2. Rommel C. Banlaoi, The Maute Group and the rise of family terrorism,
available at https://www.rappler.com/thought-leaders/173037-maute-group-
rise-family-terrorism (last accessed Oct. 31, 2017).
3. Agence France-Presse, Marawi: City destroyed in Philippines’ longest urban war,
PHIL. DAILY INQ., Oct. 19, 2017, available at http://newsinfo.
inquirer.net/939202/marawi-war-maute-terrorism-duterte-isnilon-hapilon-is-
islamic-state (last accessed Oct. 31, 2017).
4. Office of the President, Declaring a State of Martial Law and Suspending the
Privilege of the Writ of Habeas Corpus in the Whole of Mindanao, Proclamation
No. 216, s. 2017 (May 23, 2017).
5. Representative Edcel C. Lagman, et. al. v. Hon. Salvador C. Medialdea, et. al.,
G.R. No. 231658, July 4, 2017, at 31, available at
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/july
2017/231658.pdf (last accessed Oct. 31, 2017).
2017] EXECUTIVE POWERS 355

The war in Marawi is the most recent chapter in the dark history of
non-international armed conflict situation in the Philippines. Non-
international armed conflict is defined as
a protracted armed violence between governmental authorities and
organized armed groups or between such groups within that State;
Provided, That such force or armed violence gives rise, or may give rise, to
a situation to which the Geneva Conventions of 12 August 1949,
including their common Article 3, apply.
...
It does not cover internal disturbances or tensions such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.6
For almost five decades, various Presidents, who served as Commanders-
in-Chief, have been faced with the herculean task of resolving the problems
with the insurgents who are based in the country. These include the
established rebel groups such as the Moro Islamic Liberation Front and the
Communist Party of the Philippines-New People’s Army-National
Democratic Front, and known terrorist groups, the Abu Sayyaf and the
Maute Group. The Presidents employed different tactics to end the conflict
with the rebels, either by engaging in peace talks or by exercising any of the
emergency powers granted by the Constitution. However, to this day, such
efforts remain unsuccessful in attaining peace, in light of the ever-changing
political landscape of the country and unstable leadership on both sides.
This Article examines the powers bestowed upon the President in
dealing with the predicament with insurgents and secessionists. Part I is this
Introduction. Part II is a review of the provisions in the 1987 Constitution
that expressly provide the emergency powers of the President, including the
restrictions on such exercise as interpreted by various Supreme Court
decisions. Part III is an account of the emergence of internal armed conflicts
in the country. Part IV is a narration of the responses taken by past
administrations. Part V presents a survey of the recently enacted laws related
to armed conflicts. Part VI provides for a comparative study of the
approaches of the President to the different rebel groups in the context of
the peace process and the different laws. Part VI tackles the complexities of

6. An Act Defining And Penalizing Crimes Against International Humanitarian

Law, Genocide And Other Crimes Against Humanity, Organizing Jurisdiction,
Designating Special Courts, And For Related Purposes [Philippine Act on
Crimes Against International Humanitarian Law, Genocide, and Other Crimes
Against Humanity], Republic Act No. 9851, § 3 (c) (2009).
356 ATENEO LAW JOURNAL [vol. 62:353

the exercise of the powers and their legal implications. Finally, the Article
concludes with a discussion of transitional justice as a new legal framework
that the President may use in achieving just and sustainable solutions to the
conflict.

II. REVIEW OF CONSTITUTIONAL POWERS IN TIMES OF EMERGENCY

AND ARMED CONFLICT SITUATIONS

It is known that the 1987 Philippine Constitution serves as a reaction to the

excesses and abuses of the Marcos Regime. 7 The 1986 Constitutional
Commission put several safeguards to ensure that the Philippines remains a
“democratic and republican State” 8 where “[s]overeignty resides in the
people[,]” 9 and shall not be under any form of authoritarian rule. 10
Therefore, even if the country has one individual, the President, as Head of
State, his or her powers are restricted by the existence of the three branches
of government.11 This is in accordance with what sovereign authority entails
— a delegation by the Filipino people to “concrete persons in whose hands
the powers of the government temporarily reside.”12
Despite this, the framers still provided the President with certain options
for times when the country is in great peril. As early as the American
occupation, the President was already equipped with “extraordinary powers
to safeguard the integrity of the Philippines and to [e]nsure the tranquility of
its inhabitants[.]”13

A. State Principles

7. JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF

THE PHILIPPINES: A COMMENTARY 903 (2009 ed.).

8. PHIL. CONST. art. II, § 1.

9. PHIL. CONST. art. II, § 1.
10. BERNAS, supra note 7, at 65.
11. PHIL. CONST. arts. II-IV. These are the legislative, executive, and judicial
departments.
12. BERNAS, supra note 7, at 55.
13. An Act Declaring a State of Emergency and Authorizing the President to
Promulgate Rules and Regulations to Safeguard the Integrity of the Philippines
and to Insure the Tranquility of its Inhabitants, Commonwealth Act No. 600, §
1 (1940).
2017] EXECUTIVE POWERS 357

The emergency powers of the President are rooted in the State’s principles
of “renunciation of war,” 14 the supremacy of civilian authority, 15 the
government’s prime duty of serving and protecting the people, 16 the
“maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare.” 17 In times of
international or domestic conflict, the President has the option to exercise
any of the powers defined by the Constitution, in the hope that it will be the
least destructive response to antagonistic forces.
Civilian supremacy is emphasized by the fact that the President, who is a
civilian, serves as the Commander-in-Chief. 18 An integral part of this
provision is the police force, which “shall be national in scope and civilian in
character.” 19 The 1935 Constitution did not provide for an express
declaration of civilian supremacy, and it was only in the 1973 Constitution
that this clause was recognized as a State principle.20 The second part of this
provision, which first appeared in the 1987 Constitution, states that the
“Armed Forces of Philippines is the protector of the people of the State [and] its
goal is to secure the sovereignty of the State and the integrity of the national
territory.”21 Fr. Joaquin G. Bernas, S.J. (Fr. Bernas), a prominent authority
in Constitutional Law, explains that the phrase “protector of the people” is
truly intended as a “corrective” measure to the abuses of the military during
the Martial Law era.22
This, however, does not completely dispossess the military of
participation in civilian affairs. In the case of Integrated Bar of the Philippines v.

14. PHIL. CONST. art. II, § 2. The provision on “renunciation of war” came from
the Kellogg-Briand Pact of 1928 that renounces only “wars of aggression.”
JOAQUIN BERNAS, S.J., FOREIGN RELATIONS IN CONSTITUTIONAL LAW 21
(1995).
15. PHIL. CONST. art. II, § 3.
16. PHIL. CONST. art. II, § 4.
17. PHIL. CONST. art. II, § 5.
18. PHIL. CONST. art. VII, § 18.
19. PHIL. CONST. art. XVI, § 6.
20. 1973 CONST. art. II, § 7 (superseded 1987).
21. PHIL. CONST. art. II, § 3 (emphasis supplied). See BERNAS, supra note 7, at 897.
22. BERNAS, supra note 7, at 65.
358 ATENEO LAW JOURNAL [vol. 62:353

Zamora, 23 the Court recognized the need for military assistance in the
“implementation and execution of certain traditionally ‘civil’ functions.”24
The Court enumerated activities25 that have emulated “mutual support and
cooperation” 26 between the military and police force which in no way
derogates from civilian supremacy.27
In turn, civilians may also be required by law to render personal military
or civil service in fulfillment of the duty of the government to serve and
protect the State.28 It is to be noted that prior to the 1987 Constitution, the
prime duty of the government was only to defend the State.29 The 1935
Constitution reads, “[t]he defense of the State is a prime duty of

23. Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 (2005).

24. Id. at 114.
25. These activities are:
(1) Elections;
(2) Administration of the Philippine National Red Cross;
(3) Relief and rescue operations during calamities and disasters;
(4) Amateur sports promotion and development;
(5) Development of the culture and the arts;
(6) Conservation of natural resources;
(7) Implementation of the agrarian reform program
(8) Enforcement of customs laws;
(9) Composite civilian-military law enforcement activities;
(10) Conduct of licensure examinations;
(11) Conduct of nationwide tests for elementary and high school
students;
(12) Anti-drug enforcement activities;
(13) Sanitary inspections;
(14) Conduct of census work;
(15) Administration of the civil aeronautics board;
(16) Assistance in installation of weather forecasting devices, [and;]
(17) Peace and order policy formulation in local government units.
Id. at 114-18.
26. Id. at 118.
27. Id. at 114-18.
28. PHIL. CONST. art. II, § 4.
29. 1935 PHIL. CONST. art. II, § 2 (superseded 1973).
2017] EXECUTIVE POWERS 359

government, and in the fulfillment of this duty all citizens may be required
by law to render personal military or civil service.”30
The 1973 Constitution acknowledges that this must be the duty of the
people as well. It states, “[t]he defense of the State is a prime duty of the
Government and the people, and in the fulfillment of this duty, all citizens
may be required by law to render personal military or civil service.”31
The framers saw that there was an “inordinate emphasis on national
security,” and they rephrased this provision in the 1987 Constitution to be
more “people-centered than national security-centered.” 32 It now reads,
“[t]he prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the
fulfillment thereof, all citizens may be required, under conditions provided
by law, to render personal military or civil service.”33
As Fr. Bernas narrates, however, “[n]ational defense is placed merely as
one of the modes of serving and protecting the people.”34 The other modes
are embodied in the next State principle, which gives importance on the
“maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare.”35 This provision does
not appear in previous versions of the Constitution. However, this State
principle, as discussed in the case of Pamatong v. Commission on Elections,36 is
to be treated only as “a guideline for legislative or executive action.”37

B. The Powers of the President

To fully realize these State principles, the President, as the head of the
executive department, 38 is clothed with extraordinary powers by the

30. 1935 PHIL. CONST. art. II, § 2 (superseded 1973).

31. 1973 PHIL. CONST. art. II § 2 (superseded 1987) (emphasis supplied).
32. BERNAS, supra note 7, at 66.
33. PHIL. CONST. art. II, § 4 (emphasis supplied).
34. BERNAS, supra note 7, at 66.
35. PHIL. CONST. art. II, § 5.
36. Pamatong v. Commission on Elections, 427 SCRA 96 (2004).
37. Id. at 101.
38. PHIL. CONST. art. VII, § 1.
360 ATENEO LAW JOURNAL [vol. 62:353

Constitution, especially in times when there are threats to national security.39

These include: (1) emergency powers delegated by Congress,40 (2) calling-
out powers,41 (3) the power to suspend the privilege of the writ of habeas
corpus,42 (4) the power to declare martial law,43 and (5) the power to enter
into foreign relations.44 This is also in consonance with the duty of the
President to “ensure that the laws be faithfully executed.”45

1. Emergency Powers delegated by Congress

The 1935 Constitution states that the Congress has “the sole power to
declare war.” 46 This phrase, in the amendments, now reads that the
Congress has the “sole power to declare the existence of a state of war[,]”47 and
emphasizes the State principle of renunciation of aggressive war.48 During
this period, Congress may delegate to the President emergency powers
which are “necessary and proper to carry out a declared national policy.”49
Therefore, it is actually the President who has the power to make war. Put
more illustratively, “[it is] the executive power which holds the sword of
war.”50
The delegated powers are not specified in the current version, in
contrast to the 1935 Constitution wherein the ability of the President to
“promulgate rules and regulations” 51 was expressly provided. This, however,
does not mean that the President can enact laws by himself or herself. The

39. PHIL. CONST. art. VII, § 18.

40. PHIL. CONST. art. VI, § 23 (2).
41. PHIL. CONST. art. VII, § 18.
42. PHIL. CONST. art. VII, § 18.
43. PHIL. CONST. art. VII, § 18.
44. PHIL. CONST. art. VII, § 21.
45. PHIL. CONST. art. VII, § 17.
46. 1935 CONST. art. VI, § 15 (superseded 1973).
47. PHIL. CONST. art. VI, § 23 (1) (emphasis supplied).
48. BERNAS, supra note 7, at 772.
49. PHIL. CONST. art. VI, § 23 (2).
50. BERNAS, supra note 7, at 772-73 (citing Prize Cases, 2 U.S. 635, 668 (1862)).
51. 1935 PHIL. CONST. art. VI, § 16 (superseded 1973).
2017] EXECUTIVE POWERS 361

Supreme Court has stated that it is “anomalous” for the President to make
laws, as it will result in the formation of two legislative bodies — the
President and the Congress — which would perform the same work at the
same time and may even contradict each other.53
The phraseology of both the 1973 and 1987 Constitutions, even without
the above-mentioned clause, suggests a more expansive scope of the
emergency powers. At present, the President may enact laws, but subject to
very stringent conditions. 54 First, the Congress retains the power to
withdraw such emergency powers through a resolution.55 Fr. Bernas makes a
notable distinction that the withdrawal must be done through a resolution
and not a statute, as the latter needs the approval of the President, while the
former does not.56 Second, the period to exercise the emergency powers
coincides with the current session of Congress, which means that the
adjournment of the session ceases the emergency powers of the President.57
Finally, the extent of the emergency powers is still heavily reliant on how
the Congress formulates it.58

53. Araneta v. Dinglasan, 84 Phil. 368, 377 (1949).

54. PHIL. CONST. art. VI, § 23 (2).
55. PHIL. CONST. art. VI, § 23 (2).
56. BERNAS, supra note 7, at 774.
57. PHIL. CONST. art. VI, § 23 (2) & BERNAS, supra note 7, at 774.
58. PHIL. CONST. art. VI, § 23 (2) & BERNAS, supra note 7, at 774.
362 ATENEO LAW JOURNAL [vol. 62:353

2. Calling-Out Powers

Article VII, Section 18 of the Constitution provides for the sequence of

graduated powers of the President as Commander-in-Chief.59 These have
been reformulated by the framers by revising the “grounds for the activation
of emergency powers, the manner of activating them, the scope of the
powers, and review of presidential action.”60 The first of these is the broad
power to “call out such armed forces to prevent or suppress lawless violence,
invasion[,] or rebellion.”61
The factual bases which would trigger the exercise of such power are
fully discretionary on the part of the President. 62 This is clear from the
deliberations of the Constitutional Commission, to wit —
[FR.] BERNAS. 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.
...
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 [if he] feel[s] that there is imminent
danger of invasion or rebellion, instead of imposing martial law or
suspending the [privilege of 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.63

59. 2 RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND

DEBATES, NO. 42, at 409 (1986).
60. Representative Edcel C. Lagman, et. al. v. Hon. Salvador C. Medialdea, et. al.,
G.R. No. 231658, July 4, 2017, at 31, available at
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/july
2017/231658.pdf (last accessed Oct. 16, 2017) (citing JOAQUIN G. BERNAS S.J.,
THE INTENT OF THE 1986 CONSTITUTION WRITERS 456 (1995 ed.)).
61. PHIL CONST. art. VII, § 18, para. 1.
62. Integrated Bar of the Philippines, 338 SCRA at 107.
2017] EXECUTIVE POWERS 363

The case of Integrated Bar of the Philippines also highlights the “vast
intelligence network” the President has in gathering information, which may
be highly classified or confidential, and which concerns the security of the
country.64 Thus, in times of emergency, “on-the-spot decisions” are made
by the President in order to prevent the destruction of lives and property.
To subject the same to the review of the judiciary or legislature is futile, as it
will hinder the protection needed by the people from imminent danger.65
Furthermore, a formal declaration of state of rebellion is not required to call
out the armed forces. 66 Thus, the calling-out power is considered as the
most “benign” among the powers of the President as Commander-in-
Chief.67

3. The Power to Suspend the Privilege of the Writ of Habeas Corpus

Unlike the calling-out power, the power to suspend the writ of habeas corpus
and the power to declare martial law in any part of the country are subject to
very stringent conditions. It may only be exercised in instances of invasion or
rebellion and when public safety requires it.68 The 1987 Constitution also
provides for a more important role for Congress and the Supreme Court on
this matter. 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.”69 The
Supreme Court also has the authority to review the “sufficiency of the
factual basis” of such proclamation or suspension through an appropriate
proceeding initiated by the citizens.70 This power to review by the Court

63. Integrated Bar of the Philippines, 338 SCRA at 109 (citing 2 RECORD, 1987 PHIL.
CONST., at 409, 412)) (emphases supplied).
64. Integrated Bar of the Philippines, 338 SCRA at 111.
65. Id.
66. Sanlakas v. Executive Secretary, 421 SCRA 656, 678 (2004).
67. See Sanlakas, 421 SCRA at 669 & Integrated Bar of the Philippines, 338 SCRA at
135.
68. See PHIL. CONST. art. III, § 15 & art VII, § 18, para. 1.
69. PHIL. CONST. art. VII, § 18, para. 1 (emphasis supplied).
70. PHIL CONST. art. VII, § 18, para. 3. This is an iteration of the pronouncement
in the case of Lansang v. Garcia, which states that the Court indeed has the
authority to inquire into the existence of said factual bases in order to determine
364 ATENEO LAW JOURNAL [vol. 62:353

can be exercised independently from the power of the Congress to revoke as

clarified by the case of Lagman v. Medialdea. 71 An explanation for these
measures is that both powers involve the “curtailment and suppression of
certain basic civil rights and individual freedoms[.]”72 Thus, there is more
assurance that the President will not be left with unrestrained exercise of
these powers.
For instance, the general prohibition on the suspension of the privilege
of the writ of habeas corpus is enshrined in the Bill of Rights.73 Habeas corpus is
defined as
a writ directed to the person detaining another and commanding him to
produce the body of the prisoner at a certain time and place, with the day
and cause of his caption and detention, to do, submit to, and receive what
issue the court or judge awarding the writ shall consider in that behalf.74
It is described as the “best and only sufficient defense of personal
freedom[.]”75 Therefore, there are only very special circumstances wherein
the privilege of the writ of habeas corpus may be suspended. Both the 1935

the constitutional sufficiency thereof. Lansang v. Garcia, 42 SCRA 448, 473

(1971).
71. Representative Edcel C. Lagman, et. al. v. Hon. Salvador C. Medialdea, et. al.,
G.R. No. 231658, July 4, 2017, at 29, available at
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/july
2017/231658.pdf (last accessed Oct. 16, 2017). The intent of the framers states
—
MS. QUESADA. But now, if they cannot meet because they have
been arrested or that the Congress has been padlocked, then who is
going to declare that such a proclamation was not warranted?
...
MR. REGALADO. May I also inform Commissioner Quesada that
the judiciary is not exactly just standing by. A petition for a writ of
habeas corpus, if the Members are detained, can immediately be applied
for, and the Supreme Court shall also review the factual basis.
Id.
72. Integrated Bar of the Philippines, 338 SCRA at 110.
73. PHIL. CONST. art III, § 15.
74. BOUVIER’S LAW DICTIONARY 1400 (6th ed. 1856).
75. Lansang, 42 SCRA at 519 (citing Villavicencio v. Lukban, 39 Phil. 778, 788
(1919)).
2017] EXECUTIVE POWERS 365

and 1973 Constitutions enumerate four situations wherein such power may
be exercised: “invasion, insurrection, or rebellion, or imminent danger
thereof[.]” 76 The 1987 Constitution excluded insurrection and imminent
danger as grounds for the suspension, limiting it only to instances of invasion
or rebellion when public safety requires it.77
The 1987 Constitution also adds other safeguards to this power wherein
the suspension “shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion[,]”78 and that such
person “arrested or detained shall be judicially charged within three days,
otherwise he shall be released.”79
The purpose of the judicial charge, as Constitutional Commissioner
Ambrosio B. Padilla explains, is to prevent the practices in the past wherein
the period of detention of an individual is indefinite and is aggravated by the
absence of any criminal charge and an understanding of the reason behind
his or her confinement.80

4. The Power to Declare Martial Law

As tackled recently in the case of Lagman, the declaration of martial law is
essentially an exercise of police power which is usually lodged with the
Legislature.81 With the assistance of the military, the President “ensure[s]
public safety [ ] in place of government agencies which for the time being
are unable to cope with the condition in a locality, which remains under the

76. 1935 PHIL. CONST. art. VII, § 11 (2) (superseded 1973) & 1973 PHIL. CONST.
art. VII, § 9 (superseded 1987).
77. PHIL. CONST. art. VII, § 18, para. 1. Fr. Bernas, in his book, explains that the
concept of insurrection was outdated as “[it] was ... carried over from the
Spanish and American campaigns against the Filipino insurrectos.” BERNAS, supra
note 7, at 553. The ground of imminent danger, on the other hand, was prone
to possible abuse by the President. With the broad scope of the calling-out
power, the Constitutional Commission found it unnecessary to still include this
ground in the proclamation of martial law or suspension of the privilege of the
writ of habeas corpus. Id. at 554.
78. PHIL. CONST. art. VII, § 18, para. 5.
79. PHIL. CONST. art. VII, § 18, para. 6.
80. BERNAS, supra note 7, at 555 (citing 2 RECORD, 1987 PHIL. CONST., at 397-
98).
81. Lagman, G.R. No. 231658, at 34.
366 ATENEO LAW JOURNAL [vol. 62:353

control of the State.”82 The case of David v. Macapagal-Arroyo, 83 through the

statements of Justice Vicente M. Mendoza, specifically enumerates what the
President may do during the period of valid declaration of martial law
period. 84 These are: “(a) arrests and seizures without judicial warrants; (b)
ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees.”85
Similar to the power to suspend the privilege of the writ of habeas corpus,
there exist numerous restrictions on the exercise of the power to declare
martial law in any part of the country. This, once again, is largely attributed
to the unbridled discretion that former President Ferdinand E. Marcos had
during the 1972 Martial Law era. 86 The grounds for the declaration of
martial law and suspension of the privilege of the writ of habeas corpus are
similar, and both are subject to legislative and judicial review. 87 In the
previous Constitutions, the period of effectivity of martial law was
indefinite,88 whereas the 1987 Constitution limits the period to 60 days,
extendible only by Congress.89 In contrast to the policy of President Marcos
to issue Presidential Decrees with the force of law, the declaration of martial
law neither deprives the Congress of its sole authority to legislate, nor
suspends the the operation of civil courts and the implementation of the
Constitution.90
As part of the powers of the Commander-in-Chief, the President may
also extend the tour of duty of members of the Armed Forces of the

82. Id. (citing JOAQUIN G. BERNAS, S.J., CONSTITUTIONAL STRUCTURE AND

POWERS OF GOVERNMENT, NOTES AND CASES PART I, 473 (2001 ed.)).
83. David v. Macapagal-Arroyo, 489 SCRA 160 (2006).
84. Id. at 244.
85. Id.
86. See BERNAS, supra note 7, at 904.
87. PHIL. CONST. art. VII, § 18.
88. 1935 PHIL. CONST. art. VII, § 11, ¶ 2 (superseded 1973) & 1973 PHIL. CONST.
art. VII, § 9 (superseded 1987).
89. PHIL. CONST. art. VII, § 18, para. 1.
90. PHIL. CONST. art. VII, § 18, para. 4. The declaration neither “authorize[s] 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.”
2017] EXECUTIVE POWERS 367

Philippines beyond the prescribed three years, in times of war or national

emergency.91

5. The Power to Grant Amnesty

The President can also grant pardons, reprieves, commutation, parole, and
amnesty, subject to certain restrictions. 92 A valid amnesty requires the
concurrence of the majority of Congress, 93 and is a “grant of general pardon
to a class of political offenders either after conviction or even before the
charges are filed.”94 It has the effect of completely extinguishing the criminal
liability of the accused or convicted.95

6. The Power to Enter into Foreign Relations

The power of the Philippines to enter into treaties or international
agreements is lodged with the executive department subject to Senate
concurrence. 96 The President, however, may also enter into executive
agreements with other states without the need for legislative participation.97
In engaging in foreign relations, the President must always uphold “the
sovereignty of the nation, the integrity of its territory, its interest, and the
right of the sovereign Filipino people to self-determination.”98 The other
limitation set forth by the Constitution in relation to this power involves the
entry of foreign troops and the establishment of foreign military bases and
facilities.99 Under this provision, there must be a formal treaty concurred in

91. PHIL. CONST. art. XVI, § 5, ¶ 7.

92. PHIL. CONST. art. XVII, § 19.
93. PHIL. CONST. art. XVII, § 19.
94. BERNAS, supra note 7, at 929.
95. An Act Revising the Penal Code and Other Penal Laws [REVISED PENAL
CODE], Act. No. 3815, art. 89, ¶ 7 (1932).
96. PHIL. CONST. art. XVIII, § 4. At least two-thirds of all the members of the
Senate must vote for the validity and effectivity of the treaty or international
agreement. PHIL. CONST. art. XVIII, § 4.
97. See, e.g., Abaya v. Ebdane, Jr., 515 SCRA 720 (2007); Bayan Muna v. Romulo,
641 SCRA 244 (2011); & Lim v. Executive Secretary, 380 SCRA 739 (2002).
98. Saguisag v. Ochoa, 779 SCRA 241, 304 (2016).
99. PHIL. CONST. art. XVIII, § 25.
368 ATENEO LAW JOURNAL [vol. 62:353

by the Senate.100 The Congress may also require a national referendum and
the other contracting State must also recognize the agreement as a treaty.101

7. Residual Powers
The Court has also recognized the legitimacy of powers exercised by the
President that are not necessarily provided by the Constitution, but are in
line with the nature of his position as head of the executive department.
This is illustrated in the case of Marcos v. Manglapus,102 wherein then
President Corazon C. Aquino (President Corazon Aquino) was confronted
with the problem of “balancing the general welfare and the common good
against the exercise of rights of certain individuals[,]”103 in terms of barring
the entry of former President Marcos and his family who are all Filipino
citizens. The case elaborates the role of the President as the “protector of
peace.”104 It states —
The power of the President to keep the peace is not limited merely to
exercising the [C]ommander-in-[C]hief powers in times of emergency or
to leading the State against external and internal threats to its existence. The
President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day problems of
maintaining peace and order and ensuring domestic tranquility in times
when no foreign foe appears on the horizon.105
This existence of residual powers of the President opens a wide range of
possibilities wherein the President can act on his or her own, even without
an express authority provided for by the Constitution. An important
condition is that the exercise of such is for the purpose of protecting the
Filipinos.106
Therefore, the President also has the power to declare a state of
rebellion,107 or lawlessness. This is not expressly stated in the Constitution,

100. PHIL. CONST. art. XVIII, § 25.

101. PHIL. CONST. art. XVIII, § 25.
102. Marcos v. Manglapus, 177 SCRA 668 (1989).
103. Id. at 694.
104. Id. at 682-83.
105. Id. at 694.
106. Id. at 693.
107. Sanlakas, 421 SCRA at 677.
2017] EXECUTIVE POWERS 369

but is correlated with the executive power of the President. 108 Lagman
affirmed the dissent of Justice Antonio T. Carpio in the case of Fortun v.
President Macapagal-Arroyo, 109 which dealt with the determination of the
existence of probable cause in rebellion.110 It states that “the President only
needs to convince himself that there is probable cause or evidence showing
that more likely than not a rebellion was committed or is being
committed.”111

8. The Power to Enter into Peace Agreements

Perhaps one of the most powerful residual powers of the President is the
ability to conduct peace negotiations. Entering into peace agreements is
believed to be a rather creative way of resolving conflicts with rebel groups,
involving immunities in exchange for the cessation of hostilities. The Court
elucidated on the leeway given to the President when it comes to the peace
process —
Similarly, the President’s power to conduct peace negotiations is implicitly
included in [his or her] powers as Chief Executive and Commander-in-
Chief.
...
As the experience of nations which have similarly gone through internal
armed conflict will show, however, peace is rarely attained by simply
pursuing a military solution. Oftentimes, changes as far-reaching as a
fundamental reconfiguration of the nation’s constitutional structure [are]
required.
...

108. Id.
109. Fortun v. Macapagal-Arroyo, 668 SCRA 504 (2012).
110. Lagman, G.R. No. 231658, at 53 (citing Fortun, 668 SCRA at 595 (J. Carpio,
dissenting opinion)).
111. Id. Rebellion is to be understood by its definition in the Revised Penal Code.
Art. 134. Rebellion or insurrection. [ — ] How committed. [ — ] The
crime of rebellion or insurrection is committed by 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
Philippine Islands or any part thereof, of any body of land, naval or
other armed forces, depriving the Chief Executive or the Legislature,
wholly or partially, of any of their powers or prerogatives.
REVISED PENAL CODE, art. 134.
370 ATENEO LAW JOURNAL [vol. 62:353

If the President is to be expected to find means for bringing this conflict to

an end and to achieve lasting peace in Mindanao, then [he or she] must be
given the leeway to explore, in the course of peace negotiations, solutions
that may require changes to the Constitution for their implementation.
Being uniquely vested with the power to conduct peace negotiations with
rebel groups, the President is in a singular position to know the precise
nature of their grievances which, if resolved, may bring an end to
hostilities.
The President may not, of course, unilaterally implement the solutions that
[he or she] considers viable, but [he or she] may not be prevented from
submitting them as recommendations to Congress, which could then, if it
is minded, act upon them pursuant to the legal procedures for
constitutional amendment and revision.112
Seen as an “extra-constitutional” remedy, the Court has always
emphasized that the peace agreements must always be in accordance with the
limitations set forth by the Constitution, and any proposed legislation must
go through review by the Congress and the Court.113 A more substantial
discussion on the Philippine peace process will be provided later in this
Article.

The 1987 Constitution has truly endowed the President with vast
powers in order to fulfill his or her prime duty of serving and protecting the
people at all times.

II. NON-INTERNATIONAL ARMED CONFLICT IN THE PHILIPPINES

A. History
At the forefront of the insurgent movement in the Philippines are two major
groups: (1) Moro National Liberation Front (MNLF), together with its
separatists, the Moro Islamic Liberation Front (MILF) and Abu Sayyaf Group
(ASG), and the (2) Communist Party of the Philippines–New People’s
Army–National Democratic Front (CPP-NPA-NDF). 114 The prolonged

112. Province of North Cotabato v. Government of the Republic of the Philippines

Peace Panel on Ancestral Domain (GRP), 568 SCRA 402, 502 & 504 (2008).
113. Id. at 432 & 504.
114. Raymundo B. Ferrer & Randolph G. Cabangbang, Non-International Armed
Conflicts in the Philippines, 88 INT’L LAW STUD. 263, 264 (2012). The
Communist Party of the Philippines — New People’s Army (CPP-NPA-NDF)
and Moro Islamic Liberation Front — Moro National Liberation Front (MILF-
MNLF) are referred to as Maoist and Moro, respectively. Id.
2017] EXECUTIVE POWERS 371

conflict between these groups and the Government of the Philippines (GRP)
is characterized by firefights at the grass-roots level, rooted in clashes of
ideologies and the struggle for self-determination.115

1. The MNLF, MILF, and ASG

The war in Mindanao dates back to the Spanish colonial times.116 Leaders of
the Moros117 resisted the arrival of Christianity118 and its imposed integration
in the Philippines.119 Though not as prevalent as a hundred years ago, the
animosities among the various communities in the Southern Philippines
continue to this day where prejudices and marginalization still exist.120 The
six elements of the conflict in Mindanao are: “economic marginalization and
destitution, political domination, physical insecurity, threatened Moro and
Islamic identity, a perception that government is the principal culprit[,] and a
perception of hopelessness under the present order of things.”121

On 18 March 1968, roughly 27 young soldiers of Muslim faith were

allegedly killed by their own superiors from the AFP, in the event now

115.Id. at 264; Bangsamoro Development Agency, Bangsamoro Development Plan, at 6,

available at http://bangsamorodevelopment.org/wp-content/uploads/2015/05/
BDPIR.pd f (last accessed Oct. 31, 2017) [hereinafter Bangsamoro Development
Agency]; & SOLIMAN M. SANTOS & PAZ VERDADES M. SANTOS, PRIMED AND
PURPOSEFUL ARMED GROUPS AND HUMAN SECURITY EFFORTS IN THE
PHILIPPINES 297 (2010 ed.).
116. Bangsamoro Development Agency, supra note 115, at 6.
117. The term Moro refers to the Muslim population in the Philippines.
Encyclopedia Britannica, Moro, available at https://www.britannica.com/topic/
Moro (last accessed Oct. 31, 2017).
118. Jamail A. Kamlian, Ethnic and Religious Conflicts in Southern Philippines : A
Discourse on Self-Determination, Political Autonomy and Conflict Resolution
(A Lecture presented at the Islam and Human Rights Fellow Lecture at School
of Law, Emory University) at 2, available at http://mindanaosj.org/wp-
content/uploads/2014/05/Ethnic-and-Religious-Conflict-in-Southern-
Philippines-by-Jamail-Kamlian.pdf (last accessed Oct. 31, 2017).
119. Id.
120. Id. These groups are the Moros, Christian settlers, and the Lumads which refer
to the indigenous peoples community in Mindanao.
121. Ferrer & Cabangbang, supra note 114, at 267.
372 ATENEO LAW JOURNAL [vol. 62:353

known as the “Jabidah Massacre.” 122 Although several cases of warfare

between the Moros and the military occurred prior to this incident,123 many
believe that this prompted the rise of the Moro National Liberation Front.
The MNLF described the Jabidah massacre as a culmination of the
oppression against the Moros.124 Led by Nur Misuari, the MNLF used the
anger of Moro youth at the killing of their fellows and recruited them as part
of their quest for secession and an independent Bangsamoro nation.125 The
MNLF set forth a full-blown war against the GRP after the declaration of
Martial Law in 1972,126 with a set-up akin to a military organization. 127
President Marcos then initiated a series of peace talks with the leadership
of the MNLF, which saw the birth of the Tripoli Agreement in 1976.128 The

122. See Marites Dañguilan Vitug & Glenda M. Gloria, Jabidah and Merdeka: The
Inside Story, available at https://www.rappler.com/newsbreak/24025-jabidah-
massacre-merdeka-sabah (last accessed Oct. 31, 2017) & Bangsamoro
Development Agency, supra note 115, at 6. These young soldiers were killed
while in training in Corregidor in order “to prevent a leak of the Philippine
Government’s intent of fomenting unrest in Sabah.” Id.
123. Kamlian, supra note 118, at 5.
124. Id. at 6. The Moro National Liberation Front (MNLF) Manifesto states —
We, the five million oppressed [Bangsamoro] people, wishing to free
ourselves from the terror, oppression, and tyranny of Filipino
colonialism, that had caused us untold sufferings and miseries by
criminally usurping our land, by threatening Islam through wholesale
desecration of its places of worship and its Holy Book, [a]nd
murdering our innocent brothers, sisters and folks in genocidal
campaign of terrifying magnitude... [ ] Aspiring to have the sole
prerogative of defining and chartering our national destiny in
accordance with our own free will in order to ensure our future and
that of our children[.]
Id.
125. Bangsamoro Development Agency, supra note 114. Their “struggle is principally
a nationalist and territorial one, although religion has certainly served as a
rallying call and focal point of resistance to the central government.” KUMAR
RAMAKRISHNA & SEE SENG TAN, AFTER BALI: THE THREAT OF TERRORISM
IN SOUTHEAST ASIA 112 (2003).

126. Ferrer & Cabangbang, supra note 114, at 268.

127. SANTOS & SANTOS, supra note 115, at 334.
128. Id.
2017] EXECUTIVE POWERS 373

other members of the MNLF were not satisfied with the implementation of
the Tripoli Agreement and chose to separate themselves from the MNLF to
form the Moro Islamic Liberation Front.129
In its battle for secession, the MILF grounds itself in the ideals of “radical
Islamic revivalism or radical political Islamism,” but not strictly a “Jihadi
Islamism.”130 This is evidenced by the integration of Islamic scholars into its
leadership.131 Nevertheless, the group continued to carry out acts of terror
that led to then President Joseph E. Estrada’s (President Estrada) declaration
of “all-out war” against the group.132
Despite this fragmentation, the two groups later on cooperated with the
GRP in the resumption of the negotiations, ceasefires, and reforms in
legislations, in the hopes of achieving their sought-after independence. Aside
from the creation of the Autonomous Region of Muslim Mindanao
(ARMM), mandated by the 1987 Constitution,133 the parties put forward
variations of the Bangsamoro framework.
Not all members of the Muslim community agreed to the plans of action
made by both the MILF and MNLF. Many believed that it had failed to
achieve the Bangsamoro.134 This led to the emergence of the fundamentalist
terrorist group,135 Abu Sayyaf.136 Founded in the early 1990s by Abdujarak
Janjalani, the ASG partakes in several criminal and lawless activities such as

129. Id. The founder of the MILF is Hashim Salamat who served as MNLF’s former
Vice-Chairman.
130. SANTOS & SANTOS, supra note 115, at 345-45.
131. Id. at 347 & Ferrer & Cabangbang, supra note 114, at 269.
132. Nathaniel R. Melican, Estrada stands by all-out war strategy vs MILF, PHIL.
DAILY INQ., Jan. 27, 2015, available at http://newsinfo.inquirer.net/668386/
estrada-stands-by-all-out-war-strategy-vs-milf (last accessed Oct. 31, 2017).
133. PHIL. CONST. art. X, § 15. The MNLF was hostile to the idea of the ARMM at
first; the implementation of the ARRM was only fully realized during the
Ramos presidency in 1996. See Kamlian, supra note 117, at 9.
134. Ferrer & Cabangbang, supra note 114, at 271.
135. Id. The Abu Sayyaf was listed as part of the list of terrorist groups by both the
United States and Europe. It was allegedly linked to the global terrorist group,
Al Qaeda Internation Terrorist Network and the Jemmah Islamiyah. Id.
136. Abu Sayyaf means “Bearer of the Sword.” Kamlian, supra note 117, at 10.
374 ATENEO LAW JOURNAL [vol. 62:353

kidnappings and bombings.137 The extremist behavior displayed by the ASG

is heavily condemned by both the MILF and MNLF, as it impedes the
outcome of the peace talks for Mindanao.138

2. The Communist Party of the Philippines–New People’s Army–National

Democratic Front (CPP-NPA-NDF)
Karl Marx and Freidrich Engels’ opus, “The Communist Manifesto[,]”139
sparked a global revolution where large countries in the world and their
leaders, as exemplified by China and Mao Zedong, adopted communist
ideals in its governance.140 Although the Philippines never recognized this
type of government, thousands of Filipinos resonated with its message,
giving rise to the “longest-running Maoist insurgency in the world[,]”141 the
Communist Party of the Philippines and its military arm, the New People’s
Army.
This rebel group, modeled after China’s Maoist movement, was
established in 1968 by student activist Jose Maria Sison.142 The goal was to

137. See, e.g., CBC News, Abu Sayyaf has 25-year record of kidnappings and
bombings, available at http://www.cbc.ca/news/world/abu-sayyaf-militants-
1.3552346 (last accessed Oct. 31, 2017) & GMA News Online, Abu Sayyaf
kidnappings, bombings and other attacks available at
http://www.gmanetwork.com/news/news/content/154797/abu-sayyaf-
kidnappings-bombings-and-other-attacks/story (last accessed Oct. 31, 2017).
138. BBC News, Guide to the Philippines Conflict, available at
http://www.bbc.com/news/world-asia-17038024 (last accessed Oct. 31, 2017).
139. KARL MARX & FRIEDRICH ENGELS, COMMUNIST MANIFESTO (1847). The
book highlights the class struggle and largely criticizes the market structure of
capitalism. Mao Zedong’s variation of communism focuses on empowering the
laborers from the rural areas.
140. See generally Business Insider, How China went from communist to capitalist,
available at http://www.businessinsider.com/how-china-went-from-
communist-to-capitalist-2015-10 (last accessed Oct. 31, 2017) & Fox
Butterfield, Mao Tse-Tung: Father of Chinese Revolution, available at
http://www.nytimes.com/learning/general/onthisday/bday/1226. html (last
accessed Oct. 31, 2017).
141. Ferrer & Cabangbang, supra note 114, at 265.
142. Stanford University, Mapping Militant Organizations: Communist Party of the
Philippines - New People’s Army, available at http://web.stanford.edu/
group/mappingmilitants/cgi-bin/groups/view/149 (last accessed Oct. 31, 2017).
2017] EXECUTIVE POWERS 375

“overthrow the Philippine government in favor of a new state led by the

working class[,] and to expel [United States] influence from the
Philippines,”143 where a socialist state shall rise.144 Its composition originally
began with college students from the metropolitan cities who were starting
to resist the Marcos regime. 145 Their reach extends across the national
territory with camps located in the rural areas.146
The CPP-NPA-NDF strongly expressed its opposition to the political
landscape under President Corazon Aquino, whose election unseated
President Marcos.147 The group urged its members to fight both the Armed
Forces of the Philippines, and the United States in the 1990s. 148 The
relationship of the CPP-NPA-NDF with the GRP remains to be unstable
despite initial peace talks, due to the sheer number of political prisoners who
are from the ranks of the rebel group. There are cases of individuals who
were alleged members of the NPA were tortured and kidnapped by the
military, even without proof of their membership.149 And yet, the group has
ties with some active party-list groups in Congress, such as Bayan Muna,
Gabriela, and Anakpawis.150

The current CPP-NPA-NDF originated from the Maoist-oriented youth

faction Partido Komunista ng Pilipinas. Id.
143. Id. (citing Communist Party of the Philippines, Program For A People’s
Democratic Revolution, available at http://www.bannedthought.net/
Philippines/CPP/1960s/ProgramForPeoplesDemRev-681226.pdf (last accessed
Oct. 31, 2017)).
144. Ferrer & Cabangbang, supra note 114, at 265.
145. Stanford University, supra note 142.
146. Id.
147. SANTOS & SANTOS, supra note 115, at 21.
148. Id.
149. See, e.g., Philippine Daily Inquirer, What Went Before: Abduction of UP students
Karen Empeño and Sherlyn Cadapan, PHIL. DAILY INQ., Dec. 17, 2011, available at
http://newsinfo.inquirer.net/112599/what-went-before-abduction-of-up-
students-karen-empeno-and-sherlyn-cadapan (last accessed Oct. 31, 2017).
150. SANTOS & SANTOS, supra note 115, at 264.
376 ATENEO LAW JOURNAL [vol. 62:353

B. War Without Winners

The current situation of non-international armed conflict in the Philippines
is described as “particularly complex.”151 The conflict groups are riddled
with internal conflicts on “ideological orientation, political strategy, and
ethnic allegiances, and [ ] on personality clashes.”152 Disputes inside the rebel
groups can either be “inter-communal[,] between political and
ethnolinguistic groups[,]” or “inter-elite violence[,] rido or local clan
feuds[.]”153
Using poverty and oppression as rhetoric,154 the groups also maintain a
formidable force that consists of militants who are also laborers and
contributors of society, coining the term — “farmer[s] by day[,] [ ] guerilla
by night.” 155 This makes it more difficult for the Philippine military to
distinguish between a combatant and a civilian.156
The failure of these belligerent groups to make amends within their own
ranks and resolve hostilities with the GRP has cost the lives of thousands of
Filipinos. 157 Many have lost homes and properties. 158 Children have also
been recruited to take up arms instead of continuing their education.159 It
has impeded the development of the affected regions where the war zones
remain to be the poorest regions in the country.160 The upsurge of the
“shadow economy” or “nonconformist economic activities” or prevalence
of “illicit drug economy, illicit weapons, informal land markets, cross-border

151. Ferrer & Cabangbang, supra note 114, at 263.

152. SANTOS & SANTOS, supra note 115, at 345.
153. Bangsamoro Development Agency, supra note 114, at 8.
154. See Ferrer & Cabangbang, supra note 114, at 264.
155. Ferrer & Cabangbang, supra note 114, at 272.
156. Id.
157. See Ferrer & Cabangbang, supra note 114, at 272.
158. Internal Displacement Monitoring Centre & Norwegian Refugee Council,
Global Report on Internal Displacement 2017, available at http://www.internal-
displacement.org/assets/publications/2017/20170522-GRID.pdf (last accessed
Oct. 31, 2017).
159. U.N. Secretary General, Children and Armed Conflict, ¶¶ 202-210, 70th Session
of the General Assembly, U.N. Doc. A/70/836–S/2016/360 (Apr. 20, 2016).
160. Ferrer & Cabangbang, supra note 114, at 267.
2017] EXECUTIVE POWERS 377

trade, informal credit provision, and kidnapping for ransom”161 can also be
attributed to the instability in the areas.162

III. RESPONSE OF THE GOVERNMENT

Over the years, the Philippine government, past and present, have employed
various approaches in resolving the situation of internal armed conflict in the
country. These can be summarized into three policies:
(1) ‘Military victory’ or crushing the armed groups in a decisive military
manner;

(2) ‘Pacification’ or making sure that the hostilities do not escalate but
without seriously addressing the root causes of the problem; and

(3) ‘Institutional change’ or responding to the root causes of the conflict by

seeking a transformation of Philippine society.163
The nature of the tension dictates the type of approach that the
President decides to utilize. For example, “military victory” is illustrated
when President Estrada declared war against the MILF164 or when President
Duterte declared martial law earlier this year.165 But the hostilities with the
MNLF, MILF and the CPP-NPA-NDF are usually tempered by the
“pacification” and “institutional change” approaches with the
implementation of the peace agreements.

161. Anna Louise Strachan, Conflict Analysis of Muslim Mindanao (A December

2015 Report from the Australian Government on the Bangsamoro Region) at 10,
available at http://www.gsdrc.org/wp-content/uploads/2016/02/Conflict
AnalysisARMM.pdf (last accessed Oct. 31, 2017).
162. Id. at 2.
163. Camilo Miguel M. Montesa, Is There a New Government Paradigm in Addressing
Internal Armed Conflicts?, 54 ATENEO L.J. 280, 281 (2009) (emphases supplied).
164. See Jun Mercado, All-out war in Mindanao, available at
http://www.gmanetwork.com/news/opinion/content/186572/all-out-war-in-
mindanao/story (last accessed Oct. 31, 2017) & Jerry Botial, Erap wants all-out
war vs separatist rebels in Mindanao, PHIL. STAR, available at
http://www.philstar.com/headlines/739647/erap-wants-all-out-war-vs-
separatist-rebels-mindanao (last accessed Oct. 31, 2017).
165. Proclamation No. 216, s. 2017 (May 23, 2017).
378 ATENEO LAW JOURNAL [vol. 62:353

A. Peace Process
Peace process is “a political process in which conflicts are resolved by
peaceful means.”166 This is achieved through the signing of peace treaties
where, “agreement or contract [is] made by belligerent powers, in which
they agree to lay down their arms, and by which they stipulate the
conditions of peace and regulate the manner in which it is to be restored and
supported.”167
The components of the peace process consist of a series of negotiations
and documents168 where the roots of the disputes, such as territory, security,
and economic reforms are addressed, and the protection of human rights and
rule of law are upheld.169
Even when the peace process in the Philippines began as early as 1976, it
was only in 2001 that a sitting President laid out a standard framework in the
approach of peace process through the issuance of Executive Order No. 3.170
For the pursuit of “a just comprehensive and enduring peace under the rule
of law and in accordance with constitutional processes,”171 President Gloria

166. Sedfrey M. Candelaria & Maria Luisa Isabel L. Rosales, Consultation and the
Courts: Reconfiguring the Philippine Peace Process, 54 ATENEO L.J. 59, 62 (2009)
(citing Harold H. Saunders, Prenegotiation and Circum-negotiation: Arenas of the
Multilevel Peace Process in TURBULENT PEACE 483-96 (Chester A. Crocker, Fen
Osler Hampson & Pamela Aall, eds., 2001)).
167. Sedfrey M. Candelaria & Regina Ann L. Nonato, An Overview of the
International Legal Concept of Peace Agreements as Applied in Current Philippine
Process, 53 ATENEO L.J. 263, 266 (2008) (citing BLACK’S LAW DICTIONARY 1502
(6th ed. 1990)).
168. Nita Yawanarajah & Julian Ouellet, Peace Agreements (An Essay in
collaboration with United Nations Peacemaker Databank Policy Planning
Unit), available at http://www.beyondintractability.org/essay/structuring_
peace_agree (last accessed Oct. 31, 2017).
169. See CHRISTINE BELL, NEGOTIATING JUSTICE? HUMAN RIGHTS AND PEACE
AGREEMENTS 21 (2006 ed.)
170. Defining Policy and Administrative Structure for Government’s Comprehensive
Peace Efforts, Executive Order No. 3, s. 2001 [E.O. No. 3, s. 2001] (Feb. 28
2001).
171. Id. whereas cl. 1.
2017] EXECUTIVE POWERS 379

Macapagal-Arroyo institutionalized the methods to be used,172 and provided

for the creation of various offices that will take part in the negotiations and
carry out implementation of the peace treaties.173
In the context of the insurgent groups in the Philippines who fight for
secession and self-determination, peace agreements offer a non-violent way
to “end violent conflicts by designing frameworks that aim to accommodate
the competing demands of the conflict’s contenders.” 174 A cessation of
hostilities or “ceasefire” is always the initial step in assuming the negotiations.
However, the series of negotiations had periodically been interrupted as
political tensions overshadow the attainment of an accord between the
secessionists and the government.

B. The Elusive Bangsamoro Nation

As earlier discussed, the first attempt to provide the MNLF with what they
sought came in the form of the 1976 Tripoli Agreement under the Marcos
presidency. It promised for an “establishment of autonomy in the Southern
Philippines” 175 where the Muslims “shall have their own administrative

172. Id. § 4. Section 4 pertains to the six paths to peace. These are: (1) pursuit of
social, economic, and political reforms, (2) consensus-building and
empowerment for peace, (3) peaceful, negotiated settlement with the different
rebel groups, (4) programs for reconciliation, reintegration into mainstream
society and rehabilitation, (5) addressing concerns arising from continuing
armed hostilities, and (6) building and nurturing a climate conducive to peace.
Id.
173 Id. §§ 5-9. The agencies part of this are the: (1) Presidential Adviser on the
Peace Process, (2) Government Peace Negotiating Panels, (3) National Program
for Unification and Development Council, (4) National Amnesty Commission,
(5) National Peace Forum and (6) Office of the Presidential Adviser on the
Peace Process. Id.
174. CHRISTINE BELL, ON THE LAW OF PEACE: PEACE AGREEMENTS AND THE LEX
PACIFICATORIA 107 (2008 ed.) [hereinafter BELL, ON THE LAW OF PEACE].
175. Government of the Republic of the Philippines & the Moro National
Liberation Front, The Tripoli Agreement (An Agreement Between the
Government of the Philippines and the Moro National Liberation Front),
available at http://www.seasite.niu.edu/tagalog/modules/modules/muslimmin
danao/tripoli_agreement.htm (last accessed Oct. 31, 2017).
380 ATENEO LAW JOURNAL [vol. 62:353

system.”176 The failure to fully implement such policy resulted to armed

struggle by the MNLF and the newly-formed MILF. This continued on,
even with the creation of the ARMM.177 It was only 20 years later, in 1996,
under the presidency of Fidel V. Ramos (President Ramos), that the MNLF
reached a Final Peace Agreement with the government. 178 The MILF
followed suit by signing the Agreement on General Cessation of Hostilities
in 1997 and the General Framework of Agreement in 1998.179
The MNLF’s leader, Nur Misuari, served as ARMM’s first governor;
however, his tenure was “marred with issues of corruption and
mismanagement”180 and as a consequence the MNLF’s influence declined.181
As problems in the ARMM persisted with the interference of the MILF and
ASG, President Estrada abandoned all peace negotiations and proclaimed an
“all-out war” against the rebel groups as retaliation.182
A change in administration prompted the resumption of the talks with
the MILF. Under President Macapagal-Arroyo’s term, the military offense
against the MILF was suspended.183 The GRP sought the assistance of the
Malaysian government to “help convince the MILF to return to the
negotiating table.”184 This led to a series of renewed peace talks between the

176. Id. Included in this proposed autonomous region are: Basilan; Sulu; Tawi-tawi;
Zamboanga del Sur; Zamboanga del Norte; North Cotabato; Maguindanao;
Sultan Kudarat; Lanao del Norte; Lanao del Sur; Davao del Sur; South
Cotabato; and Palawan.
177. An Act Providing For An Organic Act For The Autonomous Region In
Muslim Mindanao, Republic Act No. 6734 (1989).
178. See Ferrer & Cabangbang, supra note 114, at 269.
179. Province of North Cotabato, 568 SCRA at 433.
180. Leah Angela V. Robis, The Sun Rises Anew in Mindanao: Towards Recognizing the
Bangsamoro Nation Within the Context of the Philippine Republic, 59 ATENEO L.J.
1117, 1122 (2015) (citing John Unson, Nur Misuari as leader of the ARMM and
MNLF, PHIL. STAR. Sep. 11, 2013, available at
http://www.philstar.com/headlines/2013/09/11/1198131/nur-misuari-leader-
armm-and-mnlf (last accessed Oct. 31, 2017)).
181. Id.
182. Melican, supra note 132.
183. Province of North Cotabato, 568 SCRA at 434.
184. Id.
2017] EXECUTIVE POWERS 381

the GRP and the MILF, including a new version of the Tripoli
Agreement185 that culminated to the scheduled signing of the Memorandum
of Agreement on the Ancestral Domain Aspect (MOA-AD) of the GRP-
MILF Tripoli Agreement in 2008. This was supposed to initiate the
formation of the Bangsamoro Juridical Entity (BJE).186
Through fervent opposition from members of some of the provinces
affected by the MOA-AD, the BJE was held as unconstitutional by the
Supreme Court 187 for going against the State principle of national
sovereignty and territorial integrity.188 The Supreme Court was of the view
that the BJE would grant complete independence from the State.189
The efforts of the GRP to replace the ARMM continued under
President Benigno Simeon C. Aquino, III (President Aquino), who pushed
to resume the negotiations. This formed, under the supervision of the
executive department, the Framework Agreement on the Bangsamoro (FAB)
and Comprehensive Agreement on the Bangsamoro (CAB), which “called for
the creation of an autonomous political entity named Bangsamoro, replacing
the ARMM.”190 Unlike the MOA-AD, the Court upheld the validity of
both the CAB and FAB in the recent case of Philippine Constitution
Association (PHILCONSA) v. Philippine Government (GPH),191 as the CAB
and FAB contained a requirement that a subsequent legislation must be

185. Id. The GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001)
contain[s] the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. Id.
186. Id. at 445. The Bangsamoro Juridical Entity (BJE) is granted the authority and
jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.
187. Province of North Cotabato, 568 SCRA at 480-82.
188. Id.
189. Id.
190. Philippine Constitution Association (PHILCONSA) v. Philippine Government
(GPH), G.R. No. 218406, Nov. 29, 2016, at 6, available at
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/nov
ember2016/218406.pdf (last accessed Oct. 31, 2017).
191. Philippine Constitution Association (PHILCONSA) v. Philippine Government
(GPH), G.R. No. 218406, Nov. 29, 2016, available at http://sc.judiciary.
gov.ph/pdf/web/viewer.html?file=/jurisprudence/2016/november2016/218406
.pdf (last accessed Oct. 31, 2017).
382 ATENEO LAW JOURNAL [vol. 62:353

passed in order to enact the peace agreements.192 However, the Bangsamoro

Basic Law, the integral part of these agreements, had not yet been passed in
Congress by the time President Aquino’s term ended. 193 Still, President
Duterte promises that a Bangsamoro “homeland” will be in effect by the end
of his term and talks with the MILF will continue.194
The current FAB provides for “shared governance” between the central
government and the Bangsamoro government.195 It clothes the Bangsamoro
government with powers on various aspects, such as wealth and revenue
generation, justice institutions, territory, and enforcement of basic rights.196
An integral part of the enforcement of the FAB is “normalization,” in
which “communities can return to conditions where they can achieve their
desired quality of life[.]”197 The main driver for normalization is ensuring
human security. In line with this, President Aquino promised in 2014 to
grant amnesty to MILF rebels who had been charged with rebellion and
related crimes, and pardon those already convicted, under the condition that
the MILF will deactivate their arms.198 This is embodied in the Annex on
Normalization, which states that the “[g]overnment shall take immediate
steps through amnesty, pardon[,] and other available processes towards the

192. Id. at 11. CAB and FAB were recognized as “preparatory documents.”
193. Many allude the failure of Congress to pass the Bangsamoro Basic Law to the
Mamamasapano incident. Albert F. Arcilla, Revisiting Mamasapano: A disaster
for the BBL, available at http://www.bworldonline.com/content.php?section=
Nation&title=revisiting-mamasapano-a-disaster-for-the-bbl&id=122002 (last
accessed Oct. 31, 2017).
194. Philip C. Tubeza, Duterte vows Bangsamoro homeland in 3 years, PHIL DAILY INQ.,
June 22, 2017, available at http://newsinfo.inquirer.net/907592/duterte-vows-
bangsamoro-homeland-in-3-years (last accessed Oct. 31, 2017).
195. Framework Agreement on the Bangsamoro, at 3, available at
http://www.officialgazette.gov.ph/downloads/2012/10oct/20121012-
Framework-Agreement-on-the-Bangsamoro.pdf (last accessed Oct. 31, 2017).
196. Id. at 3-4.
197. Id. at 11.
198. Nikko Dizon, Gov’t plans amnesty for MILF insurgents, PHIL. DAILY INQ., Jan.
27, 2014, available at http://newsinfo.inquirer.net/569627/ph-to-grant-amnesty-
pardon-muslim-rebels (last accessed Oct. 31, 2017).
2017] EXECUTIVE POWERS 383

resolution of cases of persons charged with or convicted of crimes and

offenses connected to the armed conflict in Mindanao.”199

C. No Right Solution for the Left

While the peace agreements with the Moros branch out to areas such as
socio-economic reforms and territory settlements, the agreements with the
communist rebels are still in its early stages. At the outset of her term,
President Corazon Aquino declared a ceasefire with the CPP-NPA-NDF
and ordered the release of several of the political prisoners.200 Peace talks
with the rebel group were also begun.201 These did not end well, as the
NPA returned to its militant activities against the government.202 From then
on, the government has used a two-pronged approach in resolving the
conflict with the CPP-NPA-NDF: “hard power[,]” or military offensive,
and “soft power,” or socioeconomic development.203

Over “40 rounds of talks” have been conducted by the GRP with the
CPP-NPA-NDF since 1986.204 Out of this series of negotiations, there have
been only two signed agreements: the Comprehensive Agreement to
Respect Human Rights and International Humanitarian Law
(CARHRIHL) 205 and the Joint Agreement on Safety and Immunity

199. Annex on Normalization, at 9, available at http://peacemaker.un.org/sites/

peacemaker.un.org/files/PH_140125_AnnexNormalization.pdf (last accessed
Oct. 31, 2017).
200. Stanford University, supra note 141.
201. Id.
202. Ferrer & Cabangbang, supra note 114, at 266.
203. Id.
204. Office of the Presidential Adviser on the Peace Process, Frequently Asked
Questions on the GPH-CPP/NPA/NDF, available at https://peace.gov.ph/
cpp-npa-ndf/faqs (last accessed Oct. 31, 2017).
205. Comprehensive Agreement on Respect for Human Rights and International
Humanitarian Law between the Government of the Republic of the Philippines
and the National Democratic Front of the Philippines (An Agreement entered
into between the Philippines and the National Democratic Front of the
Philippines to bind each other to recognize and respect human rights), available
at http://peacemaker.un.org/sites/peacemaker.un.org/files/PH_980316_Comp
rehensive%20Agreement%20on%20Respect%20for%20Human%20Rights.pdf
(last accessed Oct. 31, 2017) [hereinafter CARHRIHL].
384 ATENEO LAW JOURNAL [vol. 62:353

Guarantees (JASIG), 206 which were all formed under President Ramos’
term.207
The current talks with the CPP-NPA-NDF have been narrowed down
to the protection of human rights and the upholding of safeguards for those
who are involved in the negotiations. JASIG enumerates several privileges
granted to the CPP-NPA-NDF in order “to facilitate the peace negotiations,
create a favorable atmosphere conducive to free discussion and free
movement during the negotiations, and avert any incident that may
jeopardize the peace negotiations.”208 Some of these are:
(1) Free and unhindered passage in all areas of the Philippines, and
in travelling to and from the Philippines in connection to their
duties in the negotiations;
(2) Right to issue documents of identification;

(3) Freedom from surveillance, harassment, search, arrest, detention,

prosecution, and interrogation, or any other similar punitive
action due to any involvement or participation in the peace
negotiations;
(4) Suspension of prosecutions of criminal proceedings or processes
including arrest and search, for acts committed prior to the
effectivity of this Joint Agreement;
(5) Exemption from passport cancellation; and

206. Joint Agreement on Safety and Immunity Guarantees, entered into by and
between the Government of the Republic of the Philippines and the National
Democratic Front of the Philippines, including the Communist Party of the
Philippines and the New People’s Army, available at http://bulatlat.com
/main/wp-content/uploads/peace-talks-documents/jasig.pdf (last accessed Oct.
31, 2017). The immunity guarantees shall mean “that all duly accredited persons
are guaranteed immunity from surveillance, harassment, search, arrest[,] or any
other similar punitive actions due to any involvement or participation in the
peace negotiations.” [hereinafter JASIG].
207. Office of the Presidential Adviser on the Peace Process with the Support of the
United Nations Development Programme, Part 1: Overview of the GRP-NDF
Peace Negotiations, in THE GRP-NDF PEACE NEGOTIATIONS (Compendium of
Documents) (2006). In entering into these agreements, President Ramos
invoked its presidential power to negotiate with domestic entities, such as the
CPP-NPA-NDF.
208. JASIG, supra note 206, at 1.
2017] EXECUTIVE POWERS 385

(6) Freedom to return abroad after the termination of the

Agreement.209
Furthermore, the CARHRIHL also provides the obligation on the
government to repeal any of “subsisting repressive laws, decrees, or other
executive issuances,” 210 which include General Order Nos. 66 and 67
(authorizing checkpoints and warrantless searches), Presidential Decree
(P.D.) No. 1866 (allowing the filing of charges of illegal possession of
firearms with respect to political offenses), and Executive Order No. 272
(lengthening the allowable periods of detention).211 The government must
also review the cases of “all prisoners or detainees who have been charged,
detained, or convicted contrary to this doctrine, and shall immediately
release them.”212
In three decades, no settlement was ever fully realized with the CPP-
NPA-NDF. There still exists an active armed struggle despite the presence of
the aforementioned agreements. A huge deterrent to the accomplishment of
the agreements is the CCP’s stance on the release of political prisoners,
which up to now has not been fully resolved. The ceasefire that was declared
at the beginning of President Duterte’s term was also halted.213
Before the suspension of the ceasefire, the Duterte administration had
actually initiated the resumption of negotiations with the CPP-NPA-NDF
through the Oslo Talks. 214 This series of meetings aimed to affirm the
agreements and setting of a timeline for the completion of agenda.215 The

209. Id. at 1-3.

210. CARHRIHL, supra note 205, art. 7.
211. Id.
212. Id. art. 6.
213. Karlos Manlupig, et. al., Duterte terminates ceasefire with the Reds, PHIL. DAILY
INQ., Feb. 4, 2017, available at http://newsinfo.inquirer.net/868131/duterte-
terminates-ceasefire-with-reds (last accessed Oct. 31, 2017).
214. Katerina Francisco, The CPP-NPA-NDF and the Oslo talks, available at
https://www.rappler.com/newsbreak/iq/143551-cpp-npa-ndf-peace-talks (last
accessed Oct. 31, 2017).
215. Id.
386 ATENEO LAW JOURNAL [vol. 62:353

CPP-NPA-NDF wanted a general amnesty proclamation for the release of

over 500 political prisoners.216

IV. LAWS RELATED TO ARMED CONFLICT

Aside from the constitutional safeguards lodged in the President, the
Philippine Congress has also enacted legislation to address the dangers that
insurgent groups bring, particularly those carrying out acts of terrorism.

A. The Anti-Subversion Law

A controversial example was Republic Act (R.A.) No. 1700 or the “Anti-
Subversion Law.”217 Passed before the formation of the CPP-NPA-NDF as
known today, the law defined the members of the “Communist Party of the
Philippines” 218 to be those criminally liable for being an “organized
conspiracy to overthrow the Government of the Republic of the Philippines
for the purpose of establishing in the Philippines a totalitarian regime and
place the Government under the control and domination of an alien
power.”219 This law was eventually repealed in 1992.220
Prior to its repeal, however, the main criticism against the Anti-
Subversion Law was that it was a bill of attainder.221 Under that law, the

216. Id.
217. An Act To Outlaw The Communist Party Of The Philippines And Similar
Associations, Penalizing Membership Therein, And For Other Purposes, [Anti-
Subversion Act], Republic Act No. 1700 (1957) (repealed 1992). This law was
passed following the United States’ acts to combat communism during the Cold
War era. Guillermo M. Canlas, Jr., The Anti-Subversion Law and Subversion, 46
PHIL. L.J. 721, 723 (1971).
218. Anti-Subversion Act, § 3. The term “Communist Party of the Philippines” shall
mean and include the organizations now known as the Communist Party of the
Philippines and its military arm, the Hukbong Mapagpalaya ng Bayan, formerly
known as HUKBALAHAPS, and any successors of such organizations. Id.
219. Id. § 2.
220. An Act Repealing Republic Act Numbered One Thousand Seven Hundred, as
Amended, Otherwise Known as the Anti-Subversion Act, Republic Act No.
7636 (1992).
221. People v. Ferrer, 48 SCRA 382, 393 (1972) (the case defines “bill of attainder”
as a legislative act which inflicts punishment without trial — there is no judicial
determination of guilt). Bills of attainder are expressly prohibited by the 1987
Constitution. Id. at 418 & PHIL. CONST. art. III, § 22.
2017] EXECUTIVE POWERS 387

mere membership in the Communist Party of the Philippines “and/or its

successor or of any subversive association” was punishable. 222 This was
therefore a possible avenue for prosecutors to indict dissenters.223 The Court
never declared such law unconstitutional — it was only through legislative
action that the Anti-Subversion Law was repealed.
In the speech of President Ramos at the Signing of the Bill Repealing
the Anti-Subversion Law, he emphasized the importance of providing a
“political space” for the rebels and strengthening the government’s relations
with them in order to achieve peace.224 The President extended a hand of
peace in this wise —
Even so, we are willing to sit and dialogue with them in the hope that we
can put an end to the killing and the suffering; and bring back to civil
society the young men and women [ ] — [ ] the cadres of the movement
[ ] — [ ] who are also its sacrificial victims.
...
To these young Filipinos I say: You have fought long enough. You have
proved your courage. Now, take the peace we offer: a peace with honor
and justice, a peace that will enable you to take hold of your life again and
rejoin the mainstream of Philippine society in the rebuilding of the
nation.225

B. The Human Security Act

As fear of international terrorist groups in the Philippines heightened,226 due
in no small part to an increased number of deaths attributed to bombings,227

222. Anti-Subversion Act, § 4.

223. Canlas Jr., supra note 217, at 721.
224. President Fidel V. Ramos, Former President of the Philippines, At the Signing
of the Bill Repealing the Anti-Subversion Law (Sep. 2, 1992) (transcript
available at http://www.officialgazette.gov.ph/1992/09/02/speech-of-president-
ramos-at-the-signing-of-the-bill-repealing-the-anti-subversion-law (last
accessed Oct. 31, 2017)).
225. Id.
226. See Brent H. Lyew, An Examination Of The Philippines’ Antiterror Law — Suaviter
In Modo, Fortiter In Re, 19 PAC. RIM L. & POL’Y J. 187, 189 (2010).
227. Human Rights Watch, Philippines: Extremist Groups Target Civilians, available
at https://www.hrw.org/news/2007/07/30/philippines-extremist-groups-target
-civilians (last accessed Oct. 31, 2017).
388 ATENEO LAW JOURNAL [vol. 62:353

the country passed its first law to combat terrorism — R.A. No. 9372, or
the “Human Security Act of 2007.”228 Before the enactment of this law, the
only strategy to counter terrorism was through military offense, with aid
from the United States military.229 With the “unilateral power” given to the
commanding officers to determine who the terrorists are, this strategy
became the subject of numerous human rights violations.230 Therefore, the
Human Security Act emphasizes the need to strike a balance between
effectively countering terrorism while still providing an absolute protection
for human rights.231
Section 3 of the law defines the acts considered under terrorism, as
follows —
Any person who commits an act punishable under any of the following
provisions of the Revised Penal Code:

(a) Article 122 (Piracy in General and Mutiny in the High Seas or in the
Philippine Waters);
(b) Article 134 (Rebellion or Insurrection);
(c) Article 134-a (Coup d’ Etat), including acts committed by private
persons;
(d) Article 248 (Murder);
(e) Article 267 (Kidnapping and Serious Illegal Detention);
(f) Article 324 (Crimes Involving Destruction), or under

(1) [P.D.] No. 1613 (The Law on Arson);

(2) [R.A.] No. 6969 (Toxic Substances and Hazardous and Nuclear
Waste Control Act of 1990);

228. An Act To Secure The State And Protect Our People From Terrorism [Human
Security Act of 2007], Republic Act No. 9372 (2007).
229. Lyew, supra note 226, at 191.
230. Id. (citing James Petras & Robin Eastman-Abaya, Philippines: The Killing Fields
of Asia, available at http://petras.lahaine.org/articulo.php?c=1&more=1&p=
1660 (last accessed Oct. 31, 2017) Reports from various human rights
organizations showed that “at least 830 people [were] killed in an extrajudicial
fashion, including 365 mostly left-leaning political and social activists, ...
journalists, judges, and lawyers known to be sympathetic to leftist causes.” Id.
231. Human Security Act of 2007, § 2. Some of the safeguards the law provides are
rigid procedure for surveillance, protection against wiretap communications,
maximum period of detention and prohibition against torture. Id.
2017] EXECUTIVE POWERS 389

(3) [R.A.] No. 5207, (Atomic Energy Regulatory and Liability Act of
1968);
(4) [R.A.] No. 6235 (Anti-Hijacking Law);

(5) [P.D.] No. 532 (Anti-Piracy and Anti-Highway Robbery Law of

1974); and,
(6) [P.D.] No. 1866, as amended (Decree Codifying the Laws on
Illegal and Unlawful Possession, Manufacture, Dealing in,
Acquisition or Disposition of Firearms, Ammunitions or
Explosives)
thereby 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[.]232
The draft versions of the bill provided an enumeration of specific acts
that would constitute terrorism.233 However, the legislators later on took
“extra caution” in defining terrorism so as not to aggravate the hostile
conditions with the MNLF, MILF, and the CPP-NPA-NDF or affect the
on-going peace negotiations at that time. 234 Thus, the law utilized the
already existing crimes under the Revised Penal Code and other special
penal laws, underlining the presence of two integral elements: (1) sowing
and creating a condition of widespread and extraordinary fear and panic
among the populace (2) in order to coerce the government to give in to an
unlawful demand.235

232. Id. § 3 (emphasis supplied).

233. Pelagio V. Palma, Jr., The Problem of Excessive Human Rights Safeguards in a
Counter-Terror Measure: An Examination of the Human Security Act of the
Philippines, 58 ATENEO L.J. 476, 479 (2013). The Article also provides for an
extensive narration of the origins of the law from the Congressional
deliberations and comparisons with the anti-terrorism laws of other countries
such as the United States and United Kingdom.
234. Id. at 480.
235. Human Security Act of 2007, § 3. This is in accordance to the standards set
forth in United Nations Security Council Resolution No. 1566 on threats to
international peace and security caused by terrorist acts. Threats to International
Peace and Security caused by Terrorist Acts, U.N. Doc. S/RES/1566 (Oct. 8,
2004).
390 ATENEO LAW JOURNAL [vol. 62:353

The constitutionality of the Human Security Act of 2007 was challenged

in the case of Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council236 where the petitioners alleged that the definition of the crime of
terrorism was “intrinsically vague and impermissibly broad.”237 They further
posited that law enforcers were left with the discretion to determine the
standards to measure the twin elements of terrorism as provided by law.238
Other areas of concern 239 include: the power of regional trial courts to
declare “[a]ny organization, association, or group of persons organized for
the purpose of engaging in terrorism, or which, although not organized for
that purpose, actually uses the acts to terrorize mentioned in this Act[,]”
upon application by the Department of Justice;240 the doubled period of
detention without judicial supervision;241 and the absence of the definition
of an “actual or imminent terrorist attack.”242 However, the Court could not
find any defect in the law as the petitioners mistakenly applied the vagueness
test to a penal statute. 243 Without an actual charge for violation of the
Human Security Act, the law cannot be challenged on its face; thus, a
limited vagueness analysis was “legally impermissible.”244

236. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,

632 SCRA 146 (2010).
237. Id. at 180.
238. Id. at 181.
239. Human Rights Watch, Philippines: New Terrorism Law Puts Rights at Risk,
available at http://pantheon.hrw.org/legacy/english/docs/2007/07/16/philip
16404.htm (last accessed Oct. 31, 2017).
240. Human Security Act of 2007, § 17.
241. Id. § 18.
242. Id. § 19.
243. Southern Hemisphere Engagement Network, Inc., 632 SCRA at 191.
244. Id. at 189.
2017] EXECUTIVE POWERS 391

C. Philippine Act on Crimes Against International Humanitarian Law, Genocide,

and Other Crimes Against Humanity
The body of law that regulates conduct during times of armed conflict is the
International Humanitarian Law (IHL) as embodied in Article 2 of the 1949
Geneva Convention,245 which states —
In addition to the provisions which shall be implemented in peacetime, the
present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of
them.
The Convention shall also apply to all cases of partial or total occupation of
the territory of a High Contracting Party, even if the said occupation meets
with no armed resistance.
Although one of the Powers in conflict may not be a party to the present
Convention, the Powers who are parties thereto shall remain bound by it
in their mutual relations. They shall furthermore be bound by the
Convention in relation to the said Power, if the latter accepts and applies
the provisions thereof.246
Often compared with International Human Rights Law (IHRL), the
two bodies of law are treated as complements of each other. 247 The
distinction lies in that IHRL must be observed in both times of war and
peace and that “emergency derogations from [IHRL] are possible, they are
not from [IHL], because [IHL] applies precisely to those situations which are
among those justifying the emergency derogations from human rights
treaties.”248

245. Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, signed Aug. 12, 1949, 75 U.N.T.S. 135.
246. Id. art. 2.
247. See Alexander Orakhelashvili, The Interaction between Human Rights and
Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?, 19 EUR. J.
INT’L. L. 161, 164 (2008) & Office of the United Nations High Commissioner
for Refugees & International Criminal Tribunal for Rwanda, Expert Meeting
on Complementarities between International Refugee Law, International
Criminal Law and International Human Rights Law, available at
http://www.unhcr.org/protection/expert/4dd119889/agenda-expert-meeting-
complementarities-international-refugee-law-international.html (last accessed
Oct. 31, 2017).
248. Orakhelashvili, supra note 247, at 165.
392 ATENEO LAW JOURNAL [vol. 62:353

Following the state principle of adopting generally accepted principles of

international law as part of the law of the land,249 the Philippines enacted
R.A. No. 9851, “An Act Defining and Penalizing Crimes Against
International Humanitarian Law, Genocide and Other Crimes Against
Humanity, Organizing Jurisdiction, Designating Special Courts, and for
Related Purposes”250 in 2009. The punishable acts under this law are divided
into three categories: war crimes or crimes against IHL, genocide, and other
crimes against humanity.251 No one is exempted from the applicability of the
law; even government officials may be held criminally liable for violations of
this act.252
The governing laws during periods of non-international armed conflict
is determined by Article 3 of the 1949 Geneva Convention253 and Section
4(b) of R.A. No. 9851 which provides —

249. PHIL. CONST. art. II, § 2.

250. An Act Defining and Penalizing Crimes Against International Humanitarian
Law, Genocide and Other Crimes Against Humanity, Organizing Jurisdiction,
Designating Special Courts, and for Related Purposes [Philippine Act on
Crimes Against International Humanitarian Law, Genocide, and Other Crimes
Against Humanity], Republic Act No. 9851 (2009).
251. Id. §§ 4-6.
252. Id. § 9. However, this Section recognizes immunities or special privileges
attached to the official capacity of a person such as that of the President.
253. Article 3 of the Geneva Convention provides —
In the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties, each
Party to the conflict shall be bound to apply, as a minimum, the
following provisions:
(1) Persons taking no active part in the hostilities, including members
of armed forces who have laid down their arms and those placed
‘hors de combat’ by sickness, wounds, detention, or any other
cause, shall in all circumstances be treated humanely, without any
adverse distinction founded on race, colour, religion or faith, sex,
birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any
time and in any place whatsoever with respect to the above-mentioned
persons:
(a) violence to life and person, in particular murder of all
kinds, mutilation, cruel treatment and torture;
2017] EXECUTIVE POWERS 393

(b) In case of a non-international armed conflict, serious violations of

common Article 3 to the four (4) Geneva Conventions of 12 August
1949, namely, any of the following acts committed against persons
taking no active part in the hostilities, including member of the armed
forces who have laid down their arms and those placed hors de combat
by sickness, wounds, detention or any other cause;

(1) Violence to life and person, in particular, willful killings,

mutilation, cruel treatment and torture;

(2) Committing outrages upon personal dignity, in particular,

humiliating and degrading treatment;

(3) Taking of hostages; and

(4) The passing of sentences and the carrying out of executions

without previous judgment pronounced by a regularly constituted
court, affording all judicial guarantees which are generally
recognized as indispensable.254
There has been no petition yet filed before the Supreme Court
questioning the provisions of R.A. No. 9851. But the challenge remains in
effectively implementing the law where civilians are protected against the
effects of the war and those who “fall into the hands of the adverse party are
treated humanely.”255 A particular difficulty in the Philippine situation of
non-international armed conflict is that there is a thin line between the

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating
and degrading treatment;
(d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by
civilized peoples.
(2) The wounded and sick shall be collected and cared for.
Geneva Convention Relative to the Protection of Civilian Persons in Times of
War art. 3, entered into force Oct. 21 1950, 75 U.N.T.S. 287.
254. Philippine Act on Crimes Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity, § 4 (b).
255. International Committee of the Red Cross in the Philippines, Interview with
Richard Desgagme, available at https://www.icrc.org/eng/assets/files/
2011/philippines-newsletter-august-2011-icrc-eng.pdf (last accessed Oct. 31,
2017).
394 ATENEO LAW JOURNAL [vol. 62:353

identity of the civilian and the militants.256 This may pose some unfortunate
consequences since under IHL, “civilians lose their protection from attacks if
they directly participate in hostilities.”257

V. THE PRESIDENT’S ACTIONS

The peace process, or more significantly, the lack thereof, also affects the way
the President responds in times when the insurgents commit overt acts of
rebellion or terrorism.

In 2013, when the MNLF forces besieged Zamboanga City, President

Aquino did not declare a state of emergency or exercise his power to declare
martial law or suspend the privilege of the writ of habeas corpus.258 He placed
his confidence in the military commanders, his Cabinet members, and the
city officials to handle the situation. 259 In a statement, President Aquino
assured that the presence of the government forces was sufficient to defeat
the hostile rebels.260
The Government Peace Panel also denied the allegations that it had
ignored peace talks with Nur Misuari and the MNLF. 261 Amidst the
standoff, the government actually continued to engage MNLF in
negotiations as another way to defuse the situation.262 However, the crisis

256. Ferrer & Cabangbang, supra note 114, at 273.

257. International Committee of the Red Cross of the Philippines, supra note 255.
258. Kimberly Jane Tan, PNoy: No need to declare state of emergency in
Zamboanga, available at http://www.gmanetwork.com/news/news/nation/
325792/pnoy-no-need-to-declare-state-of-emergency-in-zamboanga/story (last
accessed Oct. 31, 2017).
259. Andrei Medina, Timeline: Crisis in Zamboanga City, available at
http://www.gmanetwork.com/news/news/regions/325855/timeline-crisis-in-
zamboanga-city/story/ (last accessed Oct. 31, 2017)
260. Tan, supra note 258.
261. Kimberly Jane Tan, Gov't panel denies disregarding Misuari, MNLF in peace
process, available at http://www.gmanetwork.com/news/news/nation/
326045/gov-t-panel-denies-disregarding-misuari-mnlf-in-peace-process/story/
(last accessed Oct. 31, 2017).
262. Medina, supra note 259.
2017] EXECUTIVE POWERS 395

ended after only 20 days, with a military victory and the surrender of some
of the key MNLF officials responsible for the siege.263
After the crisis, the Department of Justice created a special panel of
prosecutors to properly charge the perpetrators from the MNLF with
rebellion and violation of R.A. No. 9851.264 At that time, 100 members of
the MNLF, including their leader, Misuari, were charged. 265 Currently,
there is no news of any convictions.266 In April 2017, Misuari was granted
extended provisional liberty in order to “allow him to attend peace talk
sessions with the government.”267
In contrast, the government held a more aggressive stance against
terrorist groups with whom there were no peace agreements. On the same
day that the Maute group caused acts of violence and destruction in Marawi
City in May 2017, President Duterte, exercising his powers as Commander-
in-Chief under Article VII, Section 18, immediately issued Proclamation
No. 216. This placed the entire Mindanao under martial law and suspended
the privilege of the writ of habeas corpus.268 In the factual report submitted to
Congress, the President narrated the long-running conflict in Mindanao in
recent years which he believed to be committed by the Maute Group and
the Abu Sayyaf Group. 269 He stated that there was actual rebellion in

263. Id.
264. Philstar.com, DOJ creates panel to handle deadly Zamboanga siege case, PHIL. STAR,
Oct. 29, 2013, available at http://www.philstar.com/headlines/2013/10/29/
1250932/ doj-creates-panel-handle-deadly-zamboanga-siege-case (last accessed
Oct. 31, 2017).
265. Id.
266. RJ Rosalado, Evidence vs MNLF members in Zamboanga siege weak, lawyer
says, available at http://news.abs-cbn.com/nation/regions/02/11/16/evidence-
vs-mnlf-members-in-zamboanga-siege-weak-lawyer-says (last accessed Oct. 31,
2017). From rebellion, some were charged with lesser offenses such as illegal
assembly and sedition.
267. Carolyn O. Arguillas, Misuari’s temporary liberty ends April 27; MNLF
working on extension, available at http://www.mindanews.com/peace-
process/2017/04/misuaris-temporary-liberty-ends-april-27-mnlf-working-on-
extension/ (last accessed Oct. 31, 2017).
268. Proclamation No. 216, s. 2017, § 2.
269. Lagman, G.R. No. 231658, at 9.
396 ATENEO LAW JOURNAL [vol. 62:353

Marawi that may spill over to other parts of Mindanao as well, and that
public safety required the proclamation of martial law.270
Despite the many complaints that assailed the validity of such due to lack
of factual bases for such declaration, the Court gave credence to the wisdom
of the President in deciding when to invoke the extraordinary powers
granted by the Constitution.271
In connection to this, the police force in Mindanao has been steadfast in
arresting key members of the terrorist groups.272 President Duterte has also
been vocal about denying the Abu Sayyaf of any type of amnesty or
inclusion in the Mindanao peace process.273

VI. THE PRESIDENT’S DILEMMA

The current legal framework and mechanisms in addressing non-
international armed conflict “are expressed and found in two main
paradigms: Comprehensive Peace Process Paradigm and Counter-Insurgency
Paradigm.”274 There lies a conflict before the President in deciding which of
the two paradigms to utilize.
While on the one hand, the Comprehensive Peace Process Paradigm seeks
to go beyond the resolution of the issues that underlie and trigger armed
violence and seeks a long-term and sustainable solution to the problem of
internal conflict; on the other hand, the Counter-Insurgency Paradigm
seeks only the destruction of the insurgency by addressing the symptoms
and consequences of the conflict.275

270. Id.
271. Id. at 35.
272. Roel Pareño, 13 suspected Maute members arrested in Zamboanga del Sur hospital,
PHIL. STAR, June 18, 2017, available at http://www.philstar.com/
nation/2017/06/18/1711230/13-suspected-maute-members-arrested-
zamboanga-del-sur-hospital (last accessed Oct. 31, 2017).
273. Pia Ranada, Duterte: No amnesty for Abu Sayyaf, available at
https://www.rappler.com/nation/147403-philippines-duterte-no-amnesty-abu
-sayyaf (last accessed Oct. 31, 2017).
274. Montesa, supra note 163, at 284.
275. Id.
2017] EXECUTIVE POWERS 397

Thus, in attempting to accommodate all the possible remedies to handle

the rebel groups, the President is confronted by several barriers set by the
peace agreements and the laws.

A. Implications of the Peace Process

The obligation to comply with the peace agreements, though not explicitly
provided for in the 1987 Constitution, is ultimately lodged with the
President through his or her mandated duty to “ensure that laws be faithfully
executed.”276 Therefore, the government is bound to uphold the actions and
reforms it has promised to undertake. The main area of criticism in the
existing peace agreements that the government has with the MNLF, MILF,
and the CPP-NPA-NDF is the significance of the safety guarantees,
immunities, and amnesty it has granted to the rebel groups while the peace
talks are on-going.
The problem is illustrated in the case of Nur Misuari. Though the leader
of the MNLF was charged with rebellion and violation of R.A. No. 9851 for
the Zamboanga siege, the executive department did not fully exercise its
prosecutorial powers in pursuing his conviction. Instead, he was granted
provisional liberty to ensure his and the MNLF’s participation in the
resumption of peace talks. 277 Another example is the case of Ocampo v.
Abando,278 where the Court affirmed the grant of bail given to members of
the CPP-NPA-NDF who were allegedly involved in multiple murders as
already absorbed in the crime of rebellion, and was further remanded to the
lower courts.279 The bail was granted despite the notion that the offenses
were punishable by reclusion perpetua.280

276. PHIL. CONST. art. VII, § 17. This pertains to the faithful execution clause.
277. Arguillas, supra note 267.
278. Ocampo v. Abando, 715 SCRA 673 (2014).
279. Id.
280. REVISED PENAL CODE, art. 134 & PHIL. CONST. art. III, § 13. The latter
provides that —
SECTION 13. All persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
398 ATENEO LAW JOURNAL [vol. 62:353

These instances strengthened the perception that “[t]he logic of a peace

agreement points towards compromise over accountability as necessary.”281
In the past, peace panels considered the prosecution of the rebel leaders for
crimes they had committed as a setback to the negotiations where their
cooperation is vital to achieving proper settlements. The resort to approaches
outside the legal framework bestowed upon these groups may also be due to
the fact that the Constitution is neither recognized nor respected by the
insurgents.282 While many are of the belief that foregoing justice is a small
price to pay for the long-lasting peace that the peace process promises, the
practice of impunity will be more costly.283
This holds true especially when there are laws already set in place to
hold the perpetrators liable. In the Philippine setting, R.A. No. 9851 already
provides for the punishment of acts committed in situation of domestic
armed conflicts. 284 In his concurring opinion in Ocampo, Justice Marvic
Mario Victor F. Leonen (Justice Leonen) expressed the importance of
upholding this law in light of the offenses allegedly committed by the
members of the CPP-NPA-NDF. 285 He stated that if it was proved that the
CPP-NPA-NDF is responsible for the multiple murders then they should be
prosecuted under IHL, and not rebellion.286 Further, he explains —
Thus, all persons are protected in both times of war and peace. The
protection accorded by human rights laws does not cease to apply when
armed conflict ensues. Still, some ‘human rights’ are allowed to be
derogated in times of ‘emergency which threatens the life of the nation.’
Nevertheless, provisions on the right to life, prohibition from torture,
inhuman and degrading treatment, and slavery remain free from any
derogation whatsoever, having acquired a jus cogens character.

PHIL. CONST. art. III, § 13.

281. BELL, ON THE LAW OF PEACE, supra note 174, at 239.
282. Candelaria & Nonato, supra note 167, at 276.
283. See Sara Darehshori, Selling Justice Short: Why Accountability Matters (A
Report for Human Rights Watch), available at https://www.hrw.org/sites/
default/files/reports/ij0709webwcover_3.pdf (last accessed Oct. 31, 2017).
284. Philippine Act on Crimes Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity, §§ 4-6.
285. Ocampo, 716 SCRA at 709 (J. Leonen, concurring opinion).
286. Id.
2017] EXECUTIVE POWERS 399

We do not need to go further to determine whether these norms form part

of ‘generally accepted principles of international law’ to determine whether
they are ‘part of the law of the land.’ At minimum, they have been
incorporated through statutory provisions.

R.A. No. 9851 defines and provides for the penalties of crimes against
humanity, serious violations of IHL, genocide, and other crimes against
humanity. This law provides for the non-prescription of the prosecution of
and execution of sentences imposed with regard to the crimes defined in
the Act. It also provides for the jurisdiction of the Regional Trial Court
over the crimes defined in the Act.
These crimes are, therefore, separate from or independent from the crime
of rebellion even if they occur on the occasion of or argued to be
connected with the armed uprisings.287
Justice Leonon emphasizes the presence of documents signed by the
CPP-NPA-NDF such as the CARHRIHL in which, together with the
government, it had declared to uphold the recognition and protection of
human rights even amidst the presence of conflict.288 He adds —
Concomitantly, persons committing crimes against humanity or serious
violations of international humanitarian law, international human rights
laws, and [R.A.] No. 9851 must not be allowed to hide behind a doctrine
crafted to recognize the different nature of armed uprisings as a result of
political dissent. The contemporary view is that these can never be
considered as acts in furtherance of armed conflict no matter what the
motive. Incidentally, this is the view also apparently shared by the CPP[-]
NPA[-]NDF and major insurgent groups that are part of the present
government’s peace process.289

B. Implications of Declaration of Martial Law

All said, the exercise of emergency powers, such as the declaration of martial
law, may also have adverse effects on the on-going peace process.

In 1972, President Marcos grounded his declaration of martial law over

the entire country on the imminent danger that the rise of the then
Communist Party of the Philippines brought.290 As history shows, the period

287. Id. at 729-30.

288. Id. at 731.
289. Id. at 737-38.
290. Proclaiming a State of Martial Law in the Philippines, Proclamation No. 1081,
s. 1972, whereas cl. para. 8.
400 ATENEO LAW JOURNAL [vol. 62:353

of martial law, together with the suspension of the privilege of the writ of
habeas corpus, brought about the suppression of the rights of members of the
Communist Party, including those who were merely alleged to be part of
the NPA. This period also saw the emergence of the Moro rebels as a
countermeasure to the aggressive military forces. Therefore, the recent
declaration of Martial Law in Mindanao by President Duterte has prompted
doubts and fears from the stakeholders of the peace process.

The President, in declaring Proclamation No. 216, exercised the full

extent of the powers of the Commander-in-Chief where military offense is
encouraged with the grant of “blanket authority.”291 Current members of
the CPP-NPA-NDF, MILF, and MNLF have already voiced out their
concern that this may lead to the commencement of new conflicts by the
rebels and the government.292 The fact that the scope of the declaration of
martial law covers the entire Mindanao region may also aggravate the
tensions among the military and the MILF, MNLF or the CPP-NPA-NDF
outside of the city of Marawi.293
In fact, in the Operation Directive released by the Chief of Staff in
connection with Proclamation No. 216, one of the key tasks involved in the
mission against the local terrorist groups included the dismantling of the
NPA together with “other terror-linked private armed groups, illegal drug
syndicates, peace spoilers[,] and other lawless armed groups.”294 Another key
task stated is to “[d]egrade armed capabilities of the NPA to compel to remain
in the peace process.”295 This directive, together with the other guidelines and

291. Christian Esguerra, Martial law in Mindanao may harm peace process, scholar
warns, available at http://news.abs-cbn.com/focus/05/24/17/martial-law-in-
mindanao-may-harm-peace-process-scholar-warns (last accessed Oct. 31, 2017).
292. Delfin T. Mallari, Jr. & Nikko Dizon, In declaring martial law in Mindanao,
Duterte playing with fire, says Joma, PHIL. DAILY INQ., May 25, 2017, available at
http://newsinfo.inquirer.net/899372/in-declaring-martial-law-in-mindanao-
duterte-playing-with-fire-says-joma (last accessed Oct. 31, 2017).
293. See Lagman, G.R. No. 231658, available at http://sc.judiciary.gov.ph/pdf/
web/viewer.html?file=/jurisprudence/2017/july2017/231658_sereno.pdf, at 49
(last accessed Oct. 31, 2017) (C.J. Sereno, dissenting opinion).
294. Lagman, G.R. No. 231658, available at http://sc.judiciary.gov.ph/pdf/
web/viewer.html?file=/jurisprudence/2017/july2017/231658_leonen.pdf, at 48
(last accessed Oct. 31, 2017) (J. Leonen, dissenting opinion).
295. Id. (emphasis supplied).
2017] EXECUTIVE POWERS 401

issuances released after the proclamation, were all legal as pronounced by the
Court in Lagman. Justice Mariano C. Del Castillo, in his ponencia, stated that
“there is no need for the Court to determine the constitutionality of the
implementing and/or operational guidelines, general orders, arrest orders and
other orders issued after the proclamation for being irrelevant to its review,”
and if the Court does exercise its power to review, “it would be deemed as
trespassing” into the exclusive power of Congress to revoke the questioned
orders or issuances.296
The implications of martial law on the current relations of the
government with the rebel groups are elaborated in the dissents of Lagman.
Justice Antonio T. Carpio (Justice Carpio) stated a declaration of martial law
or suspension of privilege of writ of habeas corpus has a “built-in trigger
mechanism” that may limit the exercise of constitutional rights as authorized
by existing laws. 297 This involves the rights of rebels during apprehension and
detention, restrictions on privacy, take-over of privately-owned public
utilities, and expansion of jurisdiction of military courts and agencies over
civilians when civil courts are not able to function.298 In the context of
rebellion, Justice Carpio discussed that
in a state of martial law, trial courts can take judicial notice of the rebellion
for the purpose of applying the continuing crime doctrine ... In contrast,
without a declaration of martial law, the prosecution will have to prove the
fact of rebellion to justify the arrest on the ground of continuing rebellion;
trial courts cannot take judicial notice of the new rebellion for the purpose
of automatically applying the continuing rebellion doctrine.299
This distinction is more relevant in situations when there is actual
rebellion by new rebel groups compared to already established rebel
movements such as that of the CPP-NPA-NDF.300
Chief Justice Maria Lourdes P.A. Sereno, in her dissent, laid out the
parameters for the implementation of martial law and the suspension of the
privilege of the Writ of Habeas Corpus to determine the legality of the

296. Lagman, G.R. No. 231658, at 44.  

297. Lagman, G.R. No. 231658, available at http://sc.judiciary.gov.ph/pdf/
web/viewer.html?file=/jurisprudence/2017/july2017/231658_carpio.pdf, at 27
(last accessed Oct. 31, 2017) (J. Carpio, dissenting opinion).
298. Id. at 26-34.
299. Id. at 27.
300. Id. at 25.
402 ATENEO LAW JOURNAL [vol. 62:353

seemingly additional powers granted to the President for the duration of

martial law.301 Chief Justice Sereno agrees with Justice Carpio’s contentions
that restrictions on the enjoyment of constitutional rights are only enacted if
there are already laws that allowed the State to renege on its promise to
uphold the rights for the interests of national security, such as the Human
Security Act. Furthermore, she states that the applicability of R.A. No. 9851
is not suspended during martial law. This law continues to hold both agents
of the State and rebels liable for the commission of any of the punishable
acts.302
However, the majority opinion in Lagman continues to recognize the
“flexibility” accorded to the President in declaring martial law. In this case,
one of the main issues concerned the territorial aspect of the declaration and
the Court stated that
the President's duty to maintain peace and public safety is not limited only
to the place where there is actual rebellion; it extends to other areas where
the present hostilities are in danger of spilling over.
...
The Court can only act within the confines of its power. For the Court to
overreach is to infringe upon another’s territory. Clearly, the power to
determine the scope of territorial application belongs to the President.303
Thus, the President is capable of exercising any of the emergency
powers over places where he or she believes is in danger of being the
breeding ground of new rebels — which may coincidentally also be where
the MILF, MNLF, or CPP-NPA-NDF operates. The brewing tensions
among the rebel groups and the government persists even when a peace
framework has already been established.

C. The Lincolnian Dilemma

During the American Civil War, United States President Abraham Lincoln
was confronted by the question, “[m]ust a government of necessity be too
strong for the liberties of its people, or too weak to maintain its own

301. See Lagman, G.R. No. 231658, available at http://sc.judiciary.gov.ph/pdf/

web/viewer.html?file=/jurisprudence/2017/july2017/231658_sereno.pdf, (last
accessed Oct. 31, 2017) (C.J. Sereno, dissenting opinion).
302. Id. at 48.
303. Lagman, G.R. No. 231658, at 74-75.
2017] EXECUTIVE POWERS 403

existence?”304 The same dilemma is faced by the Philippine President in

addressing the various interests involved in the resolution of non-
international armed conflict.
The peace process is a double-edged sword. The President must abide
by both the agreements set in the peace documents, as well as the provisions
of the special laws holding the other side of the negotiating table accountable
for the crimes they may have committed. Meanwhile, a sword of Damocles
hangs over the agreements as one slip on either side can mean the end of the
decades-long worth of negotiations. And in all of these, the challenge of
upholding the rights of citizens is always present.
Whatever remedy or mechanism the President chooses to apply, the
1987 Constitution established safeguards to ensure that the exercise of
presidential powers will not be subject to grave abuse.305 The Court has
practiced judicial review over such exercise throughout the years as
exemplified by its decisions on the validity of the calling-out power, 306
MOA-AD and FAB on the Bangsamoro, 307 and most recently in the
declaration of martial law in Mindanao. 308 With this, the legality of
Presidential action is kept in place through the system of checks and
balances.
However, a gray area remains in aspects where the exercise of the
presidential power is left solely on the wisdom of the President. As illustrated
in Integrated Bar of the Philippines309 and most recently in Lagman, the Court
reiterated the presumption of good faith and regularity on the part of the
President when he decides to exercise any of the available emergency powers
on the fact that the President “receives vital, relevant, classified, and live
information which equip and assist him in making decisions.”310 However,
Justice Leonen, in his dissent in Lagman, argued that the process of obtaining

304. Raymundo A. Armovit, Emergency Powers, 29 PHIL. L.J. 686, 686 (1954).
305. See PHIL. CONST. art. VII, § 18, para. 3 & art. VIII, § 1, para. 2.
306. Integrated Bar of the Philippines, 338 SCRA at 135.
307. See Province of North Cotabato, 568 SCRA 402 & Philippine Constitution
Association (PHILCONSA), G.R. No. 218406.
308. See Lagman, G.R. No. 231658.
309. Integrated Bar of the Philippines, 338 SCRA at 111.
310. Lagman, G.R. No. 231658, at 67.  
404 ATENEO LAW JOURNAL [vol. 62:353

the information and using it as basis for declarations must still undergo an
“analytical process” and is not outside of the reach of courts to review.311
Still, it will ultimately be the President’s call on what to do based on
what he or she deems fit to be the appropriate response. Justice Del Castillo
stressed that “[t]he Constitution recognizes that any further curtailment,
encumbrance, or emasculation of the presidential powers would not generate
any good among the three co-equal branches, and to the country and its
citizens as a whole.”312 This may provide an explanation for why for over
three decades, different presidents have employed different approaches to the
situation of the rebels guided only by the objective of “just and
comprehensive peace.”

VII. CONCLUSION: THE PATH TO TRANSITIONAL JUSTICE

It is undisputed that the human and other related costs of years of conflict
with the MNLF, MILF, CPP-NPA-NDF, and the new breed of terrorist
groups, have been devastating enough that reforms in the past strategies
employed are called for. The emerging policy of transitional justice may
provide an adequate solution where neither accountability nor genuine
peace is compromised.
Professor Christine Bell proposes a “new law” of transitional justice
where government action is facilitated by the principles of international law
that serve as a regulatory mechanism.313 Its main thrust frowns upon both
blanket amnesty and comprehensive prosecution but rather is grounded on
good faith of State action.314 This allows for a certain level of amnesty “to
facilitate the release, demilitarization[,] and demobilization of conflict-related
prisoners and detainees.”315 The period of ceasefire must be simultaneous
with the development of quasi-legal mechanisms for accountability.316

311. Lagman, G.R. No. 231658, available at http://sc.judiciary.gov.ph/pdf/

web/viewer.html?file=/jurisprudence/2017/july2017/231658_leonen.pdf, at 56
(last accessed Oct. 31, 2017) (J. Leonen, dissenting opinion).
312. Lagman, G.R. No. 231658, at 71.
313. BELL, ON THE LAW OF PEACE, supra note 174, at 240.
314. Id.
315. Id.
316. Id.
2017] EXECUTIVE POWERS 405

The Philippines has slowly adopted the policy of transitional justice with
the creation of the Transitional Justice and Reconciliation Commission
under the Annex on Normalization of the FAB.317 In its latest report, the
recommendations for rebuilding the Bangsamoro includes the right to truth,
right to reparation, duty of the State to investigate and prosecute the
violators of IHRL and IHL related to the Bangsamoro conflict, and to ensure
good governance and the rule of law.318
The concept of peace varies for each stakeholder in the internal armed
conflict situation. For the Moros, peace is the establishment of the
Bangsamoro; while for the CPP-NPA-NDF, peace may mean a drastic
change in the economic system. The government also has its own
interpretation of peace that must have the State principles as the foundation
where human rights and social justice are upheld. 319 The President is
burdened with the monumental task of balancing all the concerns of the
stakeholders precisely at a time when the tensions reach its peak. Each
President must ensure that in exercising any of the powers assumed by his or
her office, the rule of law shall not be compromised and normalization is
achieved.

317. Annex on Normalization, supra note 199, at 8-9.

318. Transitional Justice and Reconciliation Commission, Report of the Transitional
Justice and Reconciliation Commission, at 80-92, available at
http://www.tjrc.ph/skin/vii_tjrc/pdfs/report.pdf (last accessed Oct. 31, 2017).
319. See Cristina J. Montiel, Peace Negotiations as a Subjective Conversation Between
Groups, 54 ATENEO L.J. 287, 290 (2009).