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ORIGINAL

Republic of the Philippines SUPREME COURT

Manila

FORMER SEN. WIGBERTO E. TAÑADA, BISHOP EMERITUS DEOGRACIAS S. INIGUEZ, BISHOP BRODERICK PABILLO, BISHOP ANTONIO R. TOBIAS, MO. ADELAIDA YGRUBAY, SHAMAH BULANGIS, and CASSANDRA D. DELURIA,

Petitioners,

- versus - CONGRESS OF THE PHILIPPINES, CONSISTING OF THE SENATE AND THE HOUSE OF REPRESENTATIVES, AQUILINO “KOKO” PIMENTEL III, President, Senate of the Philippines, and PANTALEON D. ALVAREZ, Speaker, House of Representatives,

Respondents. x-------------------------------------x

G.R. No. Petition for Certiorari & Mandamus under Rule 65

PETITION FOR CERTIORARI & MANDAMUS1

THE PETITIONERS FORMER SEN. WIGBERTO E. TAÑADA, BISHOP EMERITUS DEOGRACIAS S. INIGUEZ, BISHOP BRODERICK PABILLO, BISHOP ANTONIO R. TOBIAS, MO. ADELAIDA YGRUBAY, SHAMAH BULANGIS, and CASSANDRA D. DELURIA (hereinafter, referred to as the “Petitioners”), through the undersigned counsel in the above-

1 This Petition has been prepared in the format prescribed by the Honorable Supreme Court in A.M. No. 11-9-14-SC, otherwise known as the “Efficient Use of Paper Rule.”

Petition for Certiorari & Mandamus. Tañada, et al. vs. Aquilino “Koko” Pimentel III, et al., G.R. No. _, June 6, 2017. x-----------------------------------------------------x

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captioned case, and unto this Honorable Supreme Court, most respectfully aver and state that:

Prefatory Statement

Created in the aftermath of the revolution that toppled two decades of dictatorship, the 1987 Constitution carries on its shoulders both the weight of our country’s bloody history under Martial Law, and the desire for a vibrant and inclusive democracy with full enjoyment of human rights and civil liberties.

Ours is a constitution that learns from the past, and speaks to the future. Predicated on this, a key principle that underlies the fundamental law of the land is the check and balance mechanisms among the three great branches of government and the institutionalization of safeguards against executive overreach.

One such safeguard is legislative review.

This Petition brings before this Honorable Court by way of a Certiorari and Mandamus Petition under Rule 65 of the Rules of Court one justiciable question: whether or not the Seventeenth Congress of the Philippines, composed of the Senate and the House of Representatives, reneged on its Constitutional duty when it failed to convene in joint session to review Proclamation No. 216 by President Rodrigo Duterte, declaring a state of Martial Law and suspending the Privilege of the Writ of Habeas Corpus in the whole of Mindanao.

We make the following arguments for the consideration of this Honorable Court:

Firstly, a plain reading of the 1987 Constitution leads to the indubitable conclusion that a Joint Session of Congress to review a declaration of Martial Law by the President is mandatory;

Secondly, it is the intent of the framers of the 1987 Constitution that legislative review be mandatory, and that the convening of a joint session contemplates a physical convening;

Thirdly, jurisprudence holds that the power to declare Martial Law or suspend the privilege of the writ of habeas corpus, while vested in the President, is shared with Congress; in order for Congress to exercise its power, it necessarily must convene jointly; and


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Fourthly, failure to convene a joint session deprives lawmakers of a deliberative and interrogatory process to review Martial Law, and deprives the public of transparent proceedings within which to be informed of the factual bases of the declaration and the intended parameters of its implementation.

Petitioners pray that this Honorable Court declare the refusal of Congress to convene a joint session for the purpose of considering Proclamation No. 216, s. 2017, to be in grave abuse of discretion and direct Congress to convene in joint session for the aforementioned purpose.

This question of first impression is of paramount importance to the future of our democracy. While we must quell legitimate threats to public safety and protect our peace-loving citizens from enemies of the state, let us not do it by compromising the democratic principles that form the bedrock of our nation.

Nature of the Petition

1. This is a Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court (hereinafter, referred to as the “Rules”), on a pure question of law, namely whether or not Section 18, Article VII of the 1987 Constitution requires the Senate and House of Representatives to automatically convene a joint session of Congress immediately after any declaration of martial law or suspension of the Privilege of the Writ of Habeas Corpus.

2. In this regard, it is respectfully submitted that Section 18, Article VII of the Constitution clearly provides that such a joint session must be held after the President submits his or her report to Congress vis-à-vis any such declaration or suspension.

3. It is further submitted that the failure of Congress to convene a joint session for the aforementioned purpose constitutes grave abuse of discretion amounting to lack or excess of jurisdiction.

4. Consequently, this petition also seeks to compel the Senate and House of Representatives to convene a joint session of Congress for the purpose of considering whether or not to revoke, or even extend, Presidential Proclamation (P.P.) No. 216, s. 2017, promulgated by President Rodrigo Roa Duterte on May 23, 2017.

5. This petition is being filed as an original special civil action as no remedy exists from the acts or omissions of Congress, and neither


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is any other plain, speedy and adequate remedy available to the Petitioners in the ordinary course of law.

Parties

6. Petitioner Former Senator Wigberto E. Tañada is of legal age, Filipino, with principal office address at 6th Floor Strata 2000 Bldg., F. Ortigas Road, Ortigas Center, Pasig City. He may also be served with summons, notice and other process of this Honorable Court through the undersigned counsel. The Petitioner is filing this petition as a Filipino citizen and a former legislator.

7. Petitioner Bishop Emeritus Deogracias Iñiguez is of legal age, Filipino, with principal office address at Bishop’s Residence, A. Mabini Street, Caloocan City. He may also be served with summons, notice and other process of this Honorable Court through the undersigned counsel. The Petitioner is filing this petition as a Filipino citizen.

8. Petitioner Bishop Broderick Pabillo is of legal age, Filipino, with principal office address at Sto. Nino Church, Chacon St., Tondo, Manila. He may also be served with summons, notice and other process of this Honorable Court through the undersigned counsel. The Petitioner is filing this petition as a Filipino citizen.

9. Petitioner Bishop Antonio Tobias is of legal age, Filipino, with principal office address at the Bishop’s Residence, Regalado Avenue, Fairview Park, Quezon City. He may also be served with summons, notice and other process of this Honorable Court through the undersigned counsel. The Petitioner is filing this petition as a Filipino citizen.

10. Petitioner Mo. Adelaida Ygrubay is of legal age, Filipino, with principal office address at 2560 Leon Guinto Street, Malate, Manila. She may also be served with summons, notice and other process of this Honorable Court through the undersigned counsel. The Petitioner is filing this petition as a Filipino citizen.

11. Petitioner Shamah Bulangis is of legal age, Filipino, with principal office address at 29B Magiting Street, Bgy. Teachers Village, Diliman, Quezon City. She may also be served with summons, notice and other process of this Honorable Court through the undersigned counsel. The Petitioner is filing this petition as a Filipino citizen.


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12. Petitioner Cassandra D. Deluria is of legal age, Filipino, with principal address at 1059 San Rafael Street, Bgy. Plainview, Mandaluyong City. She may also be served with summons, notice and other process of this Honorable Court through the undersigned counsel. The Petitioner is filing this petition as a Filipino citizen.

13. Public Respondents Senate and House of Representatives comprise the Congress of the Philippines pursuant to Section 1, Article VI of the 1987 Constitution (hereinafter, referred to as the “Constitution”). Respondents may be served with summons, notice and other process of this Honorable Court at the GSIS Bldg., Financial Center, Diokno Blvd., Pasay City, 1300 Philippines, and House of Representatives Building Complex, National Government Center, Constitution Hills, Quezon City, 1126 Philippines, respectively.

14. In the event martial law is declared or the writ of habeas corpus suspended pursuant to Section 18, Article VII of the Constitution, it is respectfully submitted that Congress is mandated to meet in joint session for the purpose of considering the report submitted by the President and, if warranted, revoking or extending such declaration or suspension.

15. Aquilino Martin “Koko” de la Llana Pimentel III is impleaded as a Public Respondent in his capacity as President of the Philippine Senate. He may be served with summons, notice and other process of this Honorable Court at his principal office address: Rm. 606-609 & 1, GSIS Bldg., Financial Center, Diokno Boulevard, Pasay City, 1300 Philippines.

16. Respondent Senate President is the third highest official in the government and presides over the sessions of the Senate, calls the session to order, disposes of all matters appearing in the Order of Business, decides on all questions of order, signs all acts, resolutions, memorials, writs, warrants and subpoenas issued by or upon order of the Senate, and exercises other administrative functions.

17. Pantaleon D. Alvarez is impleaded as a Public Respondent in his capacity as Speaker of the House of Representatives. He may be served with summons, notice and other process of this Honorable Court at his principal office address: S-217-218 House of Representatives Building Complex, National Government Center, Constitution Hills, Quezon City, 1126 Philippines.


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18. Respondent Speaker is the fourth highest official in the Philippines and presides over the sessions of the House, calls the session to order, disposes of all matters appearing in the Order of Business, decides on all questions of order, signs all acts, resolutions, memorials, writs, warrants and subpoenas issued by or upon order of the House, and exercises other administrative functions.

Timeliness of this Petition

19. On June 3, 2017, Congress adjourned its session without having convened jointly to consider the report submitted by the President on May 25, 2017 vis-à-vis Proclamation No. 216, s. 2017, declaring a state of Martial Law and suspending the privilege of the Writ of Habeas Corpus in Mindanao.

20. The failure of Congress to convene a joint session of the Senate and House of Representatives is evidenced, in part, by Proposed Senate Resolution (P.S.R.) No. 388, a certified true copy of which has been attached hereto as Annex “A”.

21. Twenty-four (24) hours have also passed since the end of the First Regular Session of Congress, as Section 18, Article VII of the Constitution also mandates a joint session to be convened within this period if martial law is declared or the privilege of the writ of habeas corpus suspended, while the legislative branch is in recess.

22. Thus, pursuant to Section 4, Rule 65 of the Rules, the Petitioner had Sixty (60) days from June 4, 2017, or until August 3, 2017, within which to file a petition for to compel Congress to convene a joint session to consider Proclamation No. 216, s. 2017.

23. Hence, this Petition for Certiorari and Mandamus, filed within the period provided by the Rules.

Statement of Facts

24. It is respectfully submitted that this Honorable Court may wish to take judicial notice of the events constituting the facts of this case, which consist, in the main, of official acts of the Executive and Legislative branches of government.

25. In the evening of May 23, 2017, President Rodrigo Roa Duterte issued Proclamation No. 216, declaring a State of Martial Law and suspending the Privilege of the Writ of Habeas Corpus in the whole of Mindanao.


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26. This proclamation came at the heels of a firefight between government troops, consisting of the Armed Forces of the Philippines and the Philippine National Police, and the Maute group, a radical Islamist group that has pledged allegiance to the Islamic State of Iraq and Syria, that began in the early afternoon of May 23, 2017, and resulted in the burning of government facilities and the massive dislocation of Marawi’s residents.

27. On May 24, 2017, President Duterte was quoted in news reports as stating that he “may decide to expand the area to include Visayas because it is just walking distance actually”, and that he “might declare martial law throughout the country to protect the people.”

28. On May 25, 2017, in a document marked received at 21:55 by Respondents Senate President Aquilino “Koko” Pimentel III and Speaker of the House Pantaleon Alvarez, President Duterte submitted to Congress a Report relative to Proclamation No. 216, pursuant to Section 18, Article VII of the 1987 Constitution.

29. Amid mounting public clamor for a joint session to review, debate, and, if necessary, revoke Proclamation No. 216, Respondent Speaker Alvarez stated that Congress would not convene in joint session.

30. To quote Speaker Alvarez, “Natanggap po namin yung written report ng ating Pangulo kagabi. Wala po kaming gagawin na pag-convene ng Kongreso pero bibigyan ng kopya ang bawa't miyembro (We already received the written report of the President last night. We won't convene Congress but we will give each member a copy)”.

31. In like manner, Respondent Senate President Pimentel was quoted by the media as saying that, “xxx if the sentiment is we agree, then the question now is do we need to still assemble in joint session just to express our sentiment that we agree. I don't think we have to do that.”

32. On May 29, 2017, Senators Francis N. Pangilinan, Franklin M. Drilon, Risa Hontiveros, Antonio F. Trillanes IV, and Paolo Benigno Aquino IV filed P.S.R. No. 390, entitled “Resolution to Convene Congress in Joint Session and Deliberate on Proclamation No. 216 Dated 23 May 2017 Entitled, ‘Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao’”, a copy of which has been attached hereto as Annex “B”.


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33. On the same day, P.S.R. No. 388 entitled “Resolution Expressing the Sense of the Senate Supporting Proclamation No. 216 Dated May 23, 2017, Entitled ‘Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao’ and Finding No Cause to Revoke the Same”, was filed with the Senate.

34. P.S.R. No. 388 was filed by fifteen (15) Majority Senators, namely Respondent Senate President Pimentel, Senators Vicente Sotto III, Ralph Recto, Juan Edgardo “Sonny” Angara, Maria Lourdes Nancy Binay, Joseph Victor “JV” Ejercito, Sherwin Gatchalian, Richard Gordon, Gregorio Honasan, Panfilo Lacson, Loren Legarda, Emmanuel Pacquiao, Joel Villanueva, Cynthia Villar, and Miguel Zubiri.

35. During plenary session in the Philippine Senate on May 30, 2017, despite separate manifestations by Senator Franklin Drilon and Senator Risa Hontiveros that they would vote to revoke Proclamation No. 216, the Senate led by Respondent Senate President Pimentel, in a 12-9 vote, decided not to adopt P.S.R. No. 390.

36. The Senate, therefore, made its will known that a joint session would not be convened to deliberate on the declaration of Martial Law. A copy of the transcript of the Senate plenary proceedings dated May 30, 2017, is attached hereto as Annex “C”.

37. On May 31, 2017, the House of Representatives, led by Respondent Speaker Alvarez, convened itself as a Committee of the Whole to discuss President Duterte’s Report.

38. On June 2, 2017, the First Regular Session of Congress adjourned. No joint session of the Senate and the House of Representatives was convened.

Hierarchy of Courts

39. The doctrine of hierarchy of courts provides that although this Court, the Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus, and injunction, such concurrence does not give petitioners unrestricted choice of forum.

40. As stated in Chamber of Real Estate and Builders Associations, Inc. (CREBA) v. Secretary of Agrarian Reform2, regard 2 G.R. No. 183409, June 18, 2010, 621 SCRA 295, 309-310.


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for judicial hierarchy demands that a direct invocation of the Supreme Court’s original jurisdiction should be allowed only when there are special and important reasons therefor:

xxx A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (inferior) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. xxx (Emphasis supplied.)

41. In this case, the direct invocation of this Court’s original jurisdiction is proper considering the extraordinary nature of the subject matter, i.e. a proclamation imposing martial law and suspending the privilege of the Writ of Habeas Corpus.

42. Moreover, considering that the 3rd paragraph of Section 18, Article VII of the Constitution already provides that this Honorable Court may review the sufficiency of the factual basis of such a proclamation, it is respectfully submitted that a direct recourse to the Supreme Court will avoid multiplicity of suits and result in a speedier resolution of the controversy.

Propriety of Judicial Review

43. Black’s Law Dictionary defines the power of Judicial Review as the Court’s power to review the actions of other branches or levels of government, especially the power to invalidate legislative and executive actions for being unconstitutional.

44. In the landmark case of Marbury vs. Madison3 decided by the Supreme Court of the United States, it was held that the judiciary had the authority, as well as the duty, to strike down constitutionally-objectionable enactments of the legislature:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

3 5 U.S. (Cranch 1) 137 (1803).


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So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. (Emphasis supplied.)

45. In this jurisdiction, the power of Judicial Review is expressly conferred upon the Court by Section 1, Article VIII of the 1987 Constitution, quoted verbatim hereunder:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

46. In Ernesto B. Francisco, Jr., et al., vs. House of Representatives4, this Honorable Court, citing the earlier case of Jose A. Angara vs. The Electoral Commission5, enumerated the essential requisites for the exercise of the power of Judicial Review, namely: (a) an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have “standing,” i.e. a personal and substantial interest in the case such that he or she has sustained, or will sustain, direct injury; (c) constitutionality must be raised at the earliest possible opportunity; and (d) the issue of constitutionality must be the very lis mota of the case.

An Actual Case or Controversy Calling for the Exercise of Judicial Power

4 G.R. No. 160261, et al., November 10, 2003. 5 G.R. No. L-45081, July 16, 1936.


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Exists

47. As stated by this Honorable Court in Province of North Cotabato, et al. vs. Government of the Republic of the Philippines Peace Panel on Ancestral Domain6, the power of Judicial Review is limited to actual cases or controversies:

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence. The Court can decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for judicial determination. (Emphasis supplied.)

48. Related to the requirement of an actual case or controversy is the requirement of ripeness. A question has been held to be ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.

49. For a case to be considered ripe for adjudication, it is a prerequisite that: (a) something had been accomplished or performed by a branch of government before a court may come into the picture; and (b) the petitioner must allege the existence of an immediate or threatened injury as a result of the challenged action.

50. Considering that the leadership of the Senate and House of Representatives have expressly stated that, contrary to the Constitution, they will not convene a joint session of Congress to consider Proclamation No. 216, despite stringent objections from members of Congress, it is respectfully submitted that an actual case or controversy exists.

51. Furthermore, because of the failure of Congress to convene in joint session, legislators have thus been deprived of a venue within which to raise a motion for the revocation (or even extension) of Proclamation No. 216, and the public deprived of an opportunity to be properly informed as to the bases and particulars thereof.

6 G.R. No. 183591, et al., October 14, 2008.


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Petitioner Possesses the Standing to File this Case

52. Locus standi or legal standing has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the act being challenged.

53. In a long line of cases, however, and under specific circumstances, the Court has relaxed this rule by giving standing to concerned citizens and legislators. As summarized in Ernesto B. Francisco, Jr., et al., vs. House of Representatives:

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest. (Emphasis supplied.)

54. In a number of cases, this Honorable Court has even adopted a liberal attitude vis-à-vis the requirement of locus standi by allowing parties not otherwise clothed with standing to sue considering the transcendental importance of the issues involved and their paramount interest to the public7.

55. In Chavez vs. PCGG8, another petition for mandamus, the Court upheld the right of a citizen to bring a taxpayers suit on matters of transcendental importance to the public:

7 Kilosbyan. Inc., et al. vs. Teofisto Guingona, Jr., et al., G.R. No. 113375, May 5, 1994.

8 299 SCRA 744 (1998).


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Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an issue of transcendental importance to the public. He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if the issues raised are of paramount public interest, and if they immediately affect the social, economic and moral well-being of the people.

Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves the assertion of a public right, such as in this case. He invokes several decisions of this Court which have set aside the procedural matter of locus standi, when the subject of the case involved public interest.

xxx

In Tañada v. Tuvera, the Court asserted that when the issue concerns a public right and the object of mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of the laws, he need not show that he has any legal or special interest in the result of the action. In the aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973 Constitution, in connection with the rule that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they sought to be enforced is a public right recognized by no less than the fundamental law of the land.

Legaspi v. Civil Service Commission, while reiterating Tañada, further declared that when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general 'public' which possesses the right. (Emphasis supplied.)


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56. Considering that this is a question of first impression - one of paramount importance to the future of our democracy - as well as the extraordinary nature of Martial Law itself, it is respectfully submitted that the circumstances of this case call for the aforementioned liberality of this Court.

Constitutionality has been Raised at the Earliest Possible Opportunity

57. It is respectfully submitted that the facts of this case make it clear that this petition was filed with the Honorable Court as soon as it became apparent that the Senate and House of Representatives would not convene a joint session to consider, discuss, and review Proclamation No. 216, s. 2017.

Constitutionality is the very Lis Mota of this Petition

58. Black’s Law Dictionary defines “lis mota” to mean a dispute which has arisen upon a point or question which afterwards forms the issue upon which the legal proceedings are instituted. Simply put, courts will not decide the issue of constitutionality unless it is truly unavoidable and the very crux of the controversy. As quoted in Francisco vs. House of Representatives:

x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable.

59. Considering that this case involves the proper interpretation of Congress’ mandate to review declarations of martial law and suspensions of the privilege of the Writ of Habeas Corpus as embodied in Section 18, Article VII of the Constitution, it is respectfully submitted that the constitutionality of Congress’ refusal to convene in joint session is the very lis mota of the controversy.

Propriety of Mandamus


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60. Mandamus is a remedy in cases where any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station9.

61. Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law10.

62. This definition recognizes the public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of enforcing the performance of duties in which the public has no interest11.

63. The writ is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, especially when the public right involved is mandated by the Constitution.

64. While a writ of mandamus will not generally lie from one branch of the government to a coordinate branch, or to compel the performance of a discretionary act, this admits of certain exceptions, such as in instances of gross abuse of discretion, manifest injustice or palpable excess of authority, when there is no other plain, speedy and adequate remedy12.

65. As will be shown in the succeeding discussion, it is respectfully submitted that the requisites for the issuance of a Writ of Mandamus to compel Congress to convene a joint session to consider Proclamation No. 216, s. 2017, are present in this case.

Issues

WHETHER OR NOT CONGRESS IS CONSTITUTIONALLY-MANDATED TO AUTOMATICALLY CONVENE A JOINT SESSION OF BOTH ITS CHAMBERS IMMEDIATELY AFTER ANY

9 Section 3, Rule 65, Rules of Court. 10 Abaga v. Panes, G.R. No. 147044, August 24, 2007, 531 SCRA 56, 61-62. 11 Segre v. Ring, 163 A.2d 4, 5 (1960). 12 Pagoda Philipines, Inc. vs. Universal Canning, Inc., G.R. No. 160966, October 11, 2015.


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DECLARATION OF MARTIAL LAW OR SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS

WHETHER OR NOT THE REFUSAL OF CONGRESS TO CONVENE IN JOINT SESSION TO CONSIDER PROCLAMATION NO. 216, S. 2017 CONSTITUTES GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

Arguments

I A Plain Reading of the 1987 Constitution Leads to the Indubitable Conclusion that a Joint Session of Congress to Review a Declaration of Martial law by the President is Mandatory.

II Failure to Convene a Joint Session Deprives Lawmakers of a Deliberative and Interrogatory Process to Review Martial Law.

III Failure to Convene a Joint Session Deprives the Public of Transparent Proceedings within which to be Informed of the Factual Bases of Martial Law and the Intended Parameters of its Implementation.

IV The Framers of the Constitution Intended that a Joint Session of Congress be Convened Immediately After the Declaration of Martial Law.

Discussion

A Plain Reading of the 1987 Constitution Leads to the Indubitable Conclusion that a Joint Session of Congress to Review a Declaration of Martial law by the President is Mandatory

66. The respondents, in separate statements given to the media and in proceedings in the Senate and the House of Representatives, aver that a joint session is only mandatory if there is an intent of Congress, as a body, to revoke the declaration of Martial Law.

67. It is respectfully submitted that this position, adopted by both Houses of Congress led by Respondents, is constitutionally-


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infirm and constitutive of grave abuse of discretion amounting to lack of jurisdiction.

68. While the spirit of Article VII, Section 18 is clear – to institutionalize the check and balance power of the legislature against executive excesses – the letter of the law is no less unequivocal.

69. The first paragraph of Article VII, Section 18 reads:

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

70. Meanwhile, the second paragraph of the same provision reads that Congress, if not in session, “shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.”

71. The only plausible and reasonable interpretation of both paragraphs of Section 18 Article VII is that a joint session is mandatory, whether or not Congress is in session.

72. If the position of Respondents as well as the 17th Congress, is correct, a joint session is mandatory (whether or not there is intent to revoke) when Congress is not in session, but is optional (and dependent on whether or not there is intent to revoke) when Congress is in session.

73. Clearly, this interpretation is unreasonable and ridiculous, as the matter of whether or not Congress is in session is merely a matter of happenstance and is not germane to the fundamental question of whether or not Congress should exercise its review powers over the extraordinary act of declaring Martial Law.

74. In any event, since the First Regular Session of the 17th Congress ended on June 2, 2017 without convening a joint session,


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the clear mandatory duty under the second paragraph of Article VII, Section 18, is activated and Congress is required to convene within twenty-four hours without need of call. No joint session was convened on June 3, 2017.

Failure to Convene a Joint Session Deprives Lawmakers of a Deliberative and Interrogatory Process to Review Martial Law

75. It is the public position of the Respondents that if there is no intent to revoke, then there is no need to hold a joint session.

76. The Petitioner takes exception to this interpretation.

77. A joint session should be a deliberative process in which, after debate and discussion, legislators can come to an informed decision as to the factual and legal bases for the declaration of Martial Law.

78. Minds are - and should not be - cast in stone, and the collegial atmosphere afforded by a joint session, where for instance, a Senator from Manila might have the opportunity to listen to a Representative from Lanao del Sur, provides the optimal environment for making an informed and educated decision on such a transcendental question.

79. Also, legislators who wish to revoke the Martial Law proclamation should have the right to put that vote on historical record in joint session – and, in like manner, the public should have the right to know the position of their legislators with respect to this matter of the highest national interest.

Failure to Convene a Joint Session Deprives the Public of Transparent Proceedings within which to be Informed of the Factual Bases of Martial Law and the Intended Parameters of its Implementation

80. Given previous experiences with Martial Law, where proceedings were fraught with secrecy, a public, transparent and


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deliberative process is necessary to quell the people’s fears against executive overreach.

81. Petitioners Tañada and Ygrubay are survivors of Presidential Decree No. 1081 under Ferdinand Marcos and have experienced first-hand the mischief and danger of the gross use of executive powers under the mantle of Martial Law. These fears are not speculative; they are grounded on collective and documented experience.

82. Moreover, the deficiency of not convening in joint session cannot be cured by separate briefings given by the Executive Branch and the Armed Forces of the Philippines to both Houses of Congress.

83. An important distinction is that during a briefing, Executive and military officials are not put under oath. If resource persons are put under oath during regular committee hearings in aid of legislation, then it is but reasonable to demand that these officials also be put under oath when testifying as to the factual bases of Martial Law.

84. In this wise, in the event that a citizen files a petition before the Supreme Court, the statements of the officials given in joint session will carry greater probative value.

The Framers of the Constitution Intended that a Joint Session of Congress be Convened Immediately After the Declaration of Martial Law

85. The current formulation of Section 18, Article 7 of the 1987 Constitution evolved from the original proposal of the members of the Constitutional Commission to require concurrence of Congress for a declaration of martial law to be effective, with the implied - but eventually made explicit - requirement for Congress to immediately convene after a declaration of Martial Law, to wit:

“MR. RAMA: Another point is on the martial law power of the President. It says here that the President can declare martial law with the concurrence of Congress. It has been explained that there is no effect to such martial law declaration by the President until concurred in by Congress. Does not the Commissioner think that we should also try to contemplate the situation where


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Congress is not in session and there is an urgent need for the President to declare martial law? So on Section 15 between the words “Assembly” and “suspend”, I propose to insert the words which is automatically convened if not in session.

MR. REGALADO: I recall that during our deliberations, I invited the attention of former President Macapagal and his group where they did propose the immediate convening by Congress without call by the President the moment this contingency arises. It is in the Macapagal proposal.”

xxx

MR. REGALADO: We will entertain that at the proper time, although this has been discussed by us because in the event of a rebellion or an invasion which may not be of such a magnitude as to require the suspension of the privilege of the writ of habeas corpus or the declaration of martial law, the first sentence takes care of it. The President, as Commander-in-Chief, can right away order all Armed Forces to suppress the lawless violence, invasion or insurrection.

Where, however, the matter has deteriorated to the point, and the situation has been so aggravated, that the President may have to declare martial law or suspend the privilege of the writ of habeas corpus, that is where the second clause comes in. And during that intervening period, I assume that the Members of Congress are also aware of the situation and will seek to convene precisely to meet the situation as a second option now. The initial problem of actual invasion or insurrection, or rather, rebellion is taken care of by the first sentence. That does not require concurrence of Congress. The President as Commander-in-Chief, can right away order the entire Armed Forces to meet the situation.”

86. During the debate on the proposal to delete the concurrence of Congress as requirement for the validity of the declaration of martial law, Father Bernas made a distinction between the so-called “calling out powers” of the President and the power to suspend the writ of Habeas Corpus, the latter power requiring a review by the Supreme Court and Congress:


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“FR. BERNAS: It will not make any difference. I may add that there is a graduated power of the President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence, then he can suspend the privilege of the writ of habeas corpus, his judgment is subject to review. We are making it subject to the 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.”

87. Even when the concurrence of Congress was deleted as requirement for the validity of the declaration of martial law, a joint session remained to be a Constitutional requirement for Congress to review the declaration.

88. The declaration of martial law and the suspension of the writ of habeas corpus were held as exclusive prerogatives of the President but subscribing to the principles of check and balances, Congress was still required to convene jointly to determine the validity of such declarations:

“MR. SUAREZ: So in both instances, the Commissioner is suggesting that this would be an exclusive prerogative of the President?

MR. PADILLA: At least initially, for a period of 60 days. But even that period of 60 days may be shortened by the Congress or the Senate because the next sentence says that the Congress or the Senate may even revoke the proclamation.”

89. Further, the Commissioners emphasized the need for the session to be held JOINTLY. To quote the exchanges of Father Bernas and Commissioner Monsod, which was later on approved by the commission:

“FR. BERNAS: To balance the fact that the President acts unilaterally, then the Congress voting as one body and not separately can revoke the declaration of martial law or the suspension of the privilege of the writ of habeas corpus.

MR. MONSOD: In other words, voting jointly.


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FR. BERNAS: Jointly, yes.

FR. BERNAS: I am consciously proposing this as an exception to this practice because of the tremendous effect on the nation when the privilege of the writ of habeas corpus is suspended and then martial law is imposed. Since we have allowed the President to impose martial law and suspend the privilege of the writ of habeas corpus unilaterally, we should make it a little more easy for Congress to reverse such actions for the sake of protecting the rights of the people.”

xxx

“MR. MONSOD: I would prefer to have the vote of both Houses because this is a very serious question that must be fully discussed. By limiting it alone to the House of Representatives, then we lose the benefit of the advice and opinion of the Members of the Senate. I would prefer that they would be in joint session, but I would agree with Father Bernas that they should not be voting separately as part of the option. I think they should be voting jointly, so that in effect, the Senators will have only one vote. But at least we have the benefit of their advice.”

90. Commissioner Monsod explained that the rationale for the proposed amendment was “to prevent a deadlock that would enable the President to continue the full 60 days in case one House revokes and the other House does not. The proposal also allows the Senators to participate fully in the discussions and whether we like it or not, the Senators have very large persuasive powers because of their prestige and their national vote.”

91. When the proposal of Commissioner Monsod was put into vote, the president of the Commission clarified that a joint session was still required and that the issue was just a choice between separate or joint voting.

“REV. RIGOS: Just a question on this proposed amendment of Commissioner Monsod. If the proposed amendment of Commissioner Monsod is not approved, does it mean that the interpretation of the recommendation of the Committee is that the Congress will have to vote separately in case the proposed amendment of Commissioner is not approved?


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THE PRESIDENT: Not necessarily, because there is an amendment to include, “VOTING JOINTLY.” As it is, the phrase “VOTING JOINTLY” is not there although the interpretation is that it is supposed to be a joint session.”

92. The amendment of Commissioner Monsod won and “voting jointly” was made a part of Section 18, Article VII. This necessarily requires that Congress convene in joint session after martial law is declared.

93. This is because “voting jointly” was intended to be in lieu of the concurrence requirement that was deliberately deleted. The wisdom of a joint session was further explained by Commissioners Sarmiento and Rama in this wise:

“MR. SARMIENTO: Madam President, we need the wisdom of the Senators. What is at stake is the future of our country - human rights and civil liberties. If we separate the Senators, then we deprive the Congressmen of the knowledge and experience of these 24 men. I think we should forget the classification of “Senators” or “Congressmen.” We should all work together to restore democracy in our country. We need the wisdom of 24 Senators.”

“MR. RAMA: That is the rationale of the amendment - that as soon as the President declares martial law, there must be an automatic convening of Congress in session in order for it to exercise the right to revoke or not to scrutinize the circumstances of martial law and its validity.”

94. Thus, it is respectfully submitted that the intent of the framers was very clear. Though the declaration of martial law and suspension of the writ of habeas corpus is immediately effective and an exclusive prerogative of the President, Congress retains the authority to conduct an immediate legislative review of such an action.

95. It is therefore mandatory for Congress to convene jointly, as one body, to determine the validity of the declaration. A joint session, hence, is a procedural requirement, necessary for Congress to decide voting jointly whether to revoke, affirm, or even extend the declaration.


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The Failure of Congress to Convene in Joint Session Constitutes Grave Abuse of Discretion Amounting to Lack or Excess of Jurisdiction

96. The term grave abuse of discretion is defined as a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility13.

97. In this case, as previously discussed, Section 18, Article VII of the Constitution clearly mandates that both houses of Congress convene in joint session immediately after a declaration of Martial Law or the suspension of the Privilege of the Writ of Habeas Corpus.

98. First, the only plausible and reasonable interpretation of both paragraphs of Section 18 Article VII is that a joint session is mandatory, whether or not Congress is in session.

99. It would be absurd to interpret Section 18, Article VII as making a joint session optional while Congress is in session but mandatory otherwise.

100. Second, failure to convene a joint session deprives legislators of a deliberative and interrogatory process to review Martial Law. It also deprives them of a forum within which to move for its revocation or extension.

101. Third, failure to convene a joint session also deprives the public of transparent proceedings within which to be informed of the factual bases of Martial Law and the intended parameters of its implementation.

102. Lastly, the minutes of the Constitutional Convention make it clear that the Framers of the Constitution intended that a Joint Session be convened immediately after a declaration of Martial Law by the President.

103. This is because “voting jointly” was intended to be in lieu of the condition that Congress concur with the President for any such

13 Office of the Ombudsman vs. Magno, G.R. No. 178923, November 27, 2008.


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declaration to be effective.

104. Considering the foregoing, it is respectfully submitted that Congress committed a grave abuse of discretion by refusing to convene a joint session to consider Proclamation No. 216, s. 2017.

105. Thus, this Honorable Court is respectfully urged to exercise its power of judicial review and correct a palpable violation of the Constitution by directing Congress to convene for the aforementioned purpose.

PRAYER

WHEREFORE, premises considered, it is most respectfully PRAYED that this Honorable Supreme Court: DECLARE the refusal of Congress to convene a joint session for the purpose of considering Proclamation No. 216, s. 2017, to be in grave abuse of discretion amounting to a lack or excess of jurisdiction; and ISSUE a Writ of Mandamus DIRECTING Congress to convene in joint session for the aforementioned purpose.

The Petitioner also prays for such other relief, just and equitable under the premises.

RESPECTFULLY SUBMITTED.

Quezon City for the City of Manila, June 6, 2017.

By:

HERMILIA CAMPOS BANAYAT Counsel for the Petitioners

34 Matiyaga Street, Bgy. Pinyahan, Diliman, Quezon City [email protected]

Roll No. 62650 PTR No. 2181655; January 19, 2017, Quezon City

IBP Life Member Roll No. 012050; September 3, 2013 MCLE Compliance No. V – 0006750; March 10, 2015

Admitted to the Bar: May 2013

COPY FURNISHED:

Senate of the Philippines Respondent

By registered mail. Date: June 7, 2017

mailto:hermie.nas@gmail


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GSIS Bldg., Financial Center, Diokno Blvd., Pasay City, 1300 Philippines

Registry Receipt No.

House of Representatives Respondent House of Representatives Building Complex, National Government Center, Constitution Hills, Quezon City, 1126 Philippines

By registered mail. Date: June 7, 2017 Registry Receipt No.

Aquilino Martin “Koko” de la Llana Pimentel III Respondent Rm. 606-609 & 1, GSIS Bldg., Financial Center, Diokno Boulevard, Pasay City, 1300 Philippines


Pantaleon D. Alvarez Respondent S-217-218 House of Representatives Building Complex, National Government Center, Constitution Hills, Quezon City, 1126 Philippines


EXPLANATION FOR THE MODE OF FILING/SERVICE (Pursuant to Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure)

A copy of this Petition is being served upon the other parties to this case, as well as upon the Honorable Supreme Court, by registered mail, personal service being impracticable due to limitations on available time, manpower, and resources.

HERMILIA CAMPOS BANAYAT

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tanada et al petition - InterAksyonmedia.interaksyon.com/wp-content/uploads/2017/06/tanada-et-al... · Thirdly, jurisprudence holds that the power to declare Martial Law or suspend