Topic: Presidency

81. Fortun v. Macapagal-Arroyo (2012)

DOCTRINE: It is evident that under the 1987 Constitution the President and the Congress act in tandem in
exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They
exercise the power, not only sequentially, but in a sense jointly since, after the President has initiated the
proclamation or the suspension, only the Congress can maintain the same based on its own evaluation of
the situation on the ground, a power that the President does not have.

FACTS:
On November 23, 2009 heavily armed men, believed led by the ruling Ampatuan family, gunned down and
buried under shoveled dirt 57 innocent civilians on a highway in Maguindanao. In response to this carnage,
President Arroyo issued Presidential Proclamation 1946 the following day, declaring a state of emergency
in Maguindanao, Sultan Kudarat, and Cotabato City to prevent and suppress similar lawless violence in
Central Mindanao.

Afterwards, President Arroyo issued Presidential Proclamation 1959 declaring martial law and suspending
the privilege of the writ of habeas corpus in that province except for identified areas of the Moro Islamic
Liberation Front (MILF). Two days later, she submitted her report to Congress in accordance with Section
18, Article VII of the 1987 Constitution which required her, within 48 hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus, to submit to that body a report in person
or in writing of her action.

Congress, in joint session, convened pursuant to Section 18, Article VII of the 1987 Constitution to review
the validity of the President’s action, but (2 days later) before Congress could act, the President issued
Presidential Proclamation 1963, lifting martial law and restoring the privilege of the writ of habeas corpus in
Maguindanao.

Petitioners Philip Sigfrid A. Fortun and the other petitioners in G.R. 190293, 190294, 190301,190302,
190307, 190356, and 190380 brought the present actions to challenge the constitutionality of President
Arroyo’s Proclamation 1959 affecting Maguindanao.

ISSUE: Whether the President’s proclamation of martial law and the suspension of the privilege of habeas
corpus were unconstitutional.

RULING: Consolidated petitions were dismissed for being moot and academic.

Given the prompt lifting of that proclamation before Congress could review it and before any serious
question affecting the rights and liberties of Maguindanao’s inhabitants could arise, the Court deems any
review of its constitutionality the equivalent of beating a dead horse.

The Court has in exceptional cases passed upon issues that ordinarily would have been regarded as moot.
But the present cases do not present sufficient basis for the exercise of the power of judicial review.

The issue of constitutionality, said the Court in Biraogo v. Philippine Truth Commission of 2010, must be
the very issue of the case, that the resolution of such issue is unavoidable.

The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:

1. President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of
habeas corpus before the joint houses of Congress could fulfill their automatic duty to review and validate
or invalidate the same. The pertinent provisions of Section 18, Article VII of the 1987 Constitution state:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of writ of habeas corpus, the President shall submit a report in person
or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members
in regular or special session, may revoke such proclamation or suspension, which revocation shall not be
set aside by the President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.

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

Although the above vests in the President the power to proclaim martial law or suspend the privilege of the
writ of habeas corpus, he shares such power with the Congress. Thus:

1. The President’s proclamation or suspension is temporary, good for only 60 days;

It is evident that under the 1987 Constitution the President and the Congress act in tandem in exercising
the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the
power, not only sequentially, but in a sense jointly since, after the President has initiated the proclamation
or the suspension, only the Congress can maintain the same based on its own evaluation of the situation
on the ground, a power that the President does not have.

Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency
of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow
Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress
defaults in its express duty to defend the Constitution through such review should the Supreme Court step
in as its final rampart. The constitutional validity of the President’s proclamation of martial law or
suspension of the writ of habeas corpus is first a political question in the hands of Congress before it
becomes a justiciable one in the hands of the Court.

Here, President Arroyo withdrew Proclamation 1959 before the joint houses of Congress, which had in fact
convened, could act on the same. Consequently, the petitions in these cases have become moot and the
Court has nothing to review. The lifting of martial law and restoration of the privilege of the writ of habeas
corpus in Maguindanao was a supervening event that obliterated any justiciable controversy.

2. Since President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the
writ of habeas corpus in just eight days, they have not been meaningfully implemented. The military did not
take over the operation and control of local government units in Maguindanao. The President did not issue
any law or decree affecting Maguindanao that should ordinarily be enacted by Congress. No indiscriminate
mass arrest had been reported. Those who were arrested during the period were either released or
promptly charged in court. Indeed, no petition for habeas corpus had been filed with the Court respecting
arrests made in those eight days.

Justice Antonio T. Carpio points out in his dissenting opinion the finding of the RTC of Quezon City that no
probable cause exist that the accused before it committed rebellion in Maguindanao since the prosecution
failed to establish the elements of the crime. But the Court cannot use such finding as basis for striking
down the President’s proclamation and suspension. For, firstly, the Court did not delegate and could not
delegate to the RTC of Quezon City its power to determine the factual basis for the presidential
proclamation and suspension. Secondly, there is no showing that the RTC of Quezon City passed upon the
same evidence that the President, as Commander-in-Chief of the Armed Forces, had in her possession
when she issued the proclamation and suspension.
The Court does not resolve purely academic questions to satisfy scholarly interest, however intellectually
challenging these are. The Court’s duty is to steer clear of declaring unconstitutional the acts of the
Executive or the Legislative department, given the assumption that it carefully studied those acts and found
them consistent with the fundamental law before taking them. "To doubt is to sustain."

Justice Carpio of course points out that should the Court regard the powers of the President and Congress
respecting the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus as
sequential or joint, it would be impossible for the Court to exercise its power of review within the 30 days
given it.

But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its duty without pre-
empting congressional action. Section 18, Article VII, requires the President to report his actions to
Congress, in person or in writing, within 48 hours of such proclamation or suspension. In turn, the Congress
is required to convene without need of a call within 24 hours following the President’s proclamation or
suspension. Clearly, the Constitution calls for quick action on the part of the Congress. Whatever form that
action takes, therefore, should give the Court sufficient time to fulfill its own mandate to review the factual
basis of the proclamation or suspension within 30 days of its issuance.

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension
within the short time expected of it, then the Court can step in, hear the petitions challenging the
President’s action, and ascertain if it has a factual basis. If the Court finds none, then it can annul the
proclamation or the suspension. But what if the 30 days given it by the Constitution proves inadequate?
Justice Carpio himself offers the answer in his dissent: that 30-day period does not operate to divest this
Court of its jurisdiction over the case. The settled rule is that jurisdiction once acquired is not lost until the
case has been terminated.

Of course, the Court has in exceptional cases passed upon issues that ordinarily would have been
regarded as moot. But the present cases do not present sufficient basis for the exercise of the power of
judicial review. The proclamation of martial law and the suspension of the privilege of the writ of habeas
corpus in this case, unlike similar Presidential acts in the late 60s and early 70s, appear more like saber-
rattling than an actual deployment and arbitrary use of political power.

DISPOSITIVE: WHEREFORE, the Court DISMISSES the consolidated petitions on the ground that the
same have become moot and academic.

Carpio Dissenting:
 I find Proclamation No. 1959 unconstitutional for lack of factual basis as required in Section 18,
Article VII of the 1987 Constitution for the declaration of martial law and suspension of the writ. The
majority in effect refuses to exercise this Court’s constitutional power in Section 18 of Article VII, to
"review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ or the extension thereof."
 Proclamation No. 1963 is allegedly a "supervening event" that rendered of no practical use or value
the consolidated petitions.
 In David v. Arroyo, this Court held that the "moot and academic" principle is not a magical formula
that automatically dissuades courts in resolving a case. Courts are not prevented from deciding
cases, otherwise moot and academic, if (1) there is a grave violation of the Constitution; (2) the
situation is of exceptional character and of paramount public interest; (3) the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar, and the public; and
(4) the case is capable of repetition yet evading review.
 Contrary to the majority opinion, the present petitions fall squarely under these exceptions, justifying
this Court’s exercise of its review power.
o First, whether Proclamation No. 1959 complied with the requirements under Section 18,
Article VII of the Constitution is without doubt an extremely serious constitutional question. In
order to forestall any form of abuse in the exercise of the President’s extraordinary
emergency powers, as what happened during the Martial Law regime under former
President Ferdinand Marcos (President Marcos), the 1987 Constitution has carefully put in
place specific safeguards, which the President must strictly observe. Any declaration of
martial law or suspension of the writ falling short of the constitutional requirements must be
stricken down as a matter of constitutional duty by this Court.
 o Second, whether the President exercised her Commander-in-Chief powers in accordance
with the Constitution indisputably presents a transcendental issue fully imbued with public
interest. I agree with amicus curiae Father Joaquin Bernas’ opinion: "The practice of martial
rule can have a profoundly disturbing effect on the life, liberty and fortunes of people.
Likewise, the actions taken by the police and military during the period when martial law is in
effect can have serious consequences on fundamental rights."
o Third, the issue on the constitutionality of Proclamation No. 1959 unquestionably requires
formulation of controlling principles to guide the Executive, Legislature, and the public.
o Fourth, the present case is capable of repetition yet evading review. I agree with Father
Bernas’ view: "[H]istory clearly attests that the events that can lead to martial law, as well as
the imposition of martial law itself, and the suspension of the privilege together with actions
taken by military and police during a period of martial law are capable of repetition and are
too important to allow to escape review through the simple expedient of the President lifting
a challenged proclamation."
o Fifth, the respondent’s or doer’s voluntary cessation of the questioned act does not by itself
deprive the Court of its jurisdiction once the suit is filed. In this case, President Arroyo, after
eight days from the issuance of Proclamation No. 1959, issued Proclamation No. 1963
revoking Proclamation No. 1959. President Arroyo’s lifting of martial law and restoration of
the writ translate to a voluntary cessation of the very acts complained of in the present
petitions. However, the present petitions were filed with this Court while Proclamation No.
1959 was still in effect and before Proclamation No. 1963 was issued, thus foreclosing any
legal strategy to divest this Court of its jurisdiction by the mere cessation or withdrawal of the
challenged act.
 There is absolutely nothing which shows that the Ampatuans and their armed followers, at any point
in time, intended to overthrow the government. On the contrary, the Ampatuans were publicly
known as very close political allies of President Arroyo. There is not a single instance where the
Ampatuans denounced, expressly or impliedly, the government, or attempted to remove allegiance
to the government or its laws or to deprive the President or Congress of any of their powers. Based
on the records, what the government clearly established, among others, were (1) the existence of
the Ampatuans’ private army; and (2) the Ampatuans’ vast collection of high powered firearms and
ammunitions.
 These shocking discoveries, however, do not amount to rebellion as defined in Article 134 of the
Revised Penal Code. Based on the statements made by ranking government and military officials,
and as clearly found by the RTC-Quezon City in Criminal Case No. Q-10-162667 and affirmed by
the Court of Appeals, there was no public uprising and taking arms against the government for the
purpose of removing from the allegiance to the government or its laws the territory of the Philippines
or any part thereof, or depriving the Chief Executive or Congress, wholly or partially, of any of their
powers and prerogatives. The Ampatuans’ amassing of weaponry, including their collection of
armored cars, tanks and patrol cars, merely highlights this political clan’s unbelievably excessive
power and influence under the Arroyo administration.

Velasco Dissenting:
 In sum, since the President should not be bound to search for proof beyond reasonable doubt of the
existence of rebellion and since deciding whether public safety demands action is a prudential
matter, the function of the President is far from different from the function of a judge trying to decide
whether to convict a person for rebellion or not. Put differently, looking for rebellion under the Penal
Code is different from looking for rebellion under the Constitution.15
 Significantly, the President has the discretion to make a declaration of martial law or suspension of
the writ of habeas corpus based on information or facts available or gathered by the President’s
office. It would be preposterous to impose upon the President to be physically present at the place
where a threat to public safety is alleged to exist as a condition to make such declaration or
suspension.
 In the present case, it should not escape the attention of the Court that President Arroyo complied
with the reportorial requirement in Sec. 18, Art. VII of the Constitution, which states that "within forty-
eight hours from the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus, the President shall submit a report in person or in writing to the Congress." Further,
it appearing thereafter that when President Arroyo subsequently received intelligence reports on the
advisability of lifting martial law or restoring the writ of habeas corpus in Maguindanao, she
immediately issued the corresponding proclamation.
  To a certain extent, I conform to Justice Carpio’s dissent as to the unconstitutionality of
Proclamation No. 1959. To my mind, however, it is one thing to declare a decree issued by the
President as unconstitutional, and it is another to pronounce that she indisputably violated the
Constitution. Notably, the power to issue the subject decree is expressly granted the President.
There is also compliance with the report required after the issuance of said decree. However, the
issuance of the subject decree may not be sustained after due consideration of the circumstances
which may or may not support such decree.

Peres Separate:
 I concur in the resulting dismissal of these petitions, more than by reason of their mootness but
because I find our action overdue, it being my well-thought-out position that the constitutional
authority of the Supreme Court to review the sufficiency of the factual basis of Proclamation No.
1959 has expired and is no more.
 The authority of this Court to act on the petitions is embodied in the third paragraph of Section 18,
Article VII of the 1987 Constitution which states:
o The Supreme Court may review in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.
 Clearly, the mandate is both grant and limitation of authority. For while the Court, upon a proceeding
filed by any citizen, may review the sufficiency of the factual basis of the proclamation of martial law
by the President, or even its extension by Congress, it can only do so within thirty days from filing of
the proceeding, the period within which it MUST PROMULGATE its decision.
 Over two (2) years have passed since the seven petitions at bar were filed. Today, unquestionably,
the Constitutional authority granted to the Court to decide the petitions had lapsed.