Escolar Documentos
Profissional Documentos
Cultura Documentos
SUPREME COURT
Manila
EN BANC
[G.R. No. L-61388. April 20, 1983.]
IN THE MATTER OF THE PETITION FOR THE ISSUANCE OF THE
WRIT OF HABEAS CORPUS FOR DR. AURORA PARONG,
NORBERTO
PORTUGUESE,
SABINO
PADILLA,
FRANCIS
DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA,
ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG,
LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR.,
JUANITO GRANADA and TOM VASQUEZ. JOSEFINA GARCIAPADILLA, petitioner, vs. MINISTER JUAN PONCE ENRILE, GEN.
FABIAN C. VER, GEN. FIDEL V. RAMOS, and LT. COL. MIGUEL
CORONEL, respondents.
Lorenzo M. Taada, Jose W. Diokno, Joker P. Arroyo, Efren M. Mercado
and Alexander A. Padilla for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; WHEN LAWFUL
WITHOUT A JUDICIAL WARRANT; A CASE OF; ARREST OF THE ACCUSED IN
FLAGRANTE DELICTO; CASE AT BAR. Where prior to the arrest of the nine
(9) of the fourteen (14) detainees, the latter were under surveillance as they
were then identified as members of the Communist Party of the Philippines
(CCP) engaging in subversive activities and using the house of detainee Dra.
Aurora Parong in Bayombong, Nueva Viscaya, as their headquarters and when
caught in flagrante delicto, the nine (9) detainees mentioned scampered
5. CONSTITUTIONAL
LAW;
EXECUTIVE
POWER;
ISSUANCE
OF
PRESIDENTIAL COMMITMENT ORDER; MERELY PREVENTIVE AND NOT
SUBJECT TO JUDICIAL INQUIRY. The arrest and detention of persons
ordered by the President through the issuance of Presidential Commitment
Order (PCO) is merely preventive. "When it comes to a decision by the head of
the State upon a matter involving its life, the ordinary rights of individuals
must yield to what he deems the necessities of the moment. Public danger
warrants the substitution of executive process for judicial process." (Mover vs.
Peabody, 212 U.S. 78, citing Keely vs. Sanders, 99 U.S. 441, 446, 25 L. Ed.
327, 328) What should be underscored is that if the greater violation against
life itself such as killing, will not be the subject of judicial inquiry, as it cannot
be raised as transgressing against the due process clause that protects life,
liberty and property, lesser violations against liberty such as arrest and
detention, may not be insisted upon as reviewable by the courts.
6. ID.; ID.; SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS; LEGAL BASIS FOR THE ISSUANCE OF PRESIDENTIAL
COMMITMENT ORDER TO VALIDATE ARREST WITHOUT WARRANT AND
CONTINUED DETENTION THEREUNDER. The function of the PCO is to
validate, on constitutional ground, the detention of a person for any of the
offenses covered by Proclamation No. 2045 which continues in force the
suspension of the privilege of the writ of habeas corpus, if the arrest has been
made initially without any warrant. Its legal effect is to render the writ
unavailing as a means of judicially inquiring into the legality of the detention in
view of the suspension of the privilege of the writ. The grant of the power to
suspend the said privilege provides the basis for continuing with perfect legality
the detention as long as the invasion or rebellion has not been repelled or
quelled, and the need therefor in the interest of public safety continues.
7. ID.; ID.; ID.; SIGNIFICANCE OF CONFERNMENT OF POWER UPON THE
PRESIDENT AS COMMANDER-IN-CHIEF; NOT SUBJECT OF JUDICIAL
INQUIRY AS TO LEGALITY UNDER THE BILL OF RIGHTS. The significance
of the confernment of this power, constitutionality upon the President as
Commander-in-Chief, is that the exercise thereof is not subject of judicial
inquiry, with a view to determining its legality in the light of the bill of rights
guarantee to individual freedom. This must be so because the suspension of
the privilege is a military measure the necessity of which the President alone
may determine as an incident of his grave responsibility as the Commander-inChief of the Armed Forces, of protecting not only public safety but the very life
of the State, the government and duly constituted authorities.
(109 SCRA 273), decided after Proclamation No. 2045 was issued, which in
terms clear and categorical, held that the constitutional right to bail is
unavailing when the privilege of the writ of habeas corpus is suspended with
respect to certain crimes as enumerated or described in above-mentioned
Proclamation.
16. ID.; ID.; ID.; AVAILABILITY OF THE WRIT OF HABEAS CORPUS IN
INDIVIDUAL CASES AFTER SUSPENSION, NOT INTENDED IN THE LANSANG
CASE. In Lansang vs. Garcia (42 SCRA 488), the Court went no further than
to pronounce the suspension of the writ of the privilege of habeas corpus on
August 21, 1971, valid and constitutional, on a finding that there was no
arbitrariness attendant to the suspension. It never intended to suggest that for
every individual case of arrest and detention, the writ of habeas corpus is
available, even after the suspension of this privilege, to question the legality of
the arrest and detention on ground of arbitrariness.
17. ID.; ID.; ID.; FINDING OF PROBABLE CAUSE NOT IMMEDIATELY
REVIEWABLE BY THE SUPREME COURT ON CLAIM OF ARBITRARINESS.
When a person is charged in court for an ordinary offense, the law does not
authorize the filing of a petition for habeas corpus based on the ground that
there is absolutely no evidence to hold him for trial, which, in effect constitutes
an allegation of arbitrariness in the filing of the case against him. The law had
afforded him adequate safeguards against arbitrariness, such as the
requirement of determining the existence of a probable cause by the judge
before the issuance of the warrant of arrest. The finding of such probable cause
may not be immediately brought for review by this Court in a habeas corpus
proceeding, on the claim of arbitrariness. The matter is to be decided on the
basis of evidence, and this Court is not the proper forum for the review sought,
not being a trial of facts. Moreover, arbitrariness, while so easy to allege, is
hard to prove, in the face of the formidable obstacle built up by the
presumption of regularity in the performance of official duty.
18. ID.; ID.; ID.; ISSUANCE OF PRESIDENTIAL COMMITMENT ORDER;
LETTER OF INSTRUCTION NO. 1211; MERE GUIDELINES FOR THE ARREST
AND
DETENTION
OF
PERSONS
COVERED
BY
PRESIDENTIAL
PROCLAMATION NO. 2045. LOI 1211, by its very nature, and clearly by its
language, is a mere directive of the President as Commander-in-Chief of the
Armed Forces of the Philippines to his subordinates or implementing officers
for the ultimate objective of providing guidelines in the arrest and detention of
the persons covered by Presidential Proclamation No. 2045.
19. ID.; ID.; ID.; ID.; ID.; PURPOSE. The purpose is "to insure protection to
individual liberties without sacrifying the requirements of public order and
safety and the effectiveness of the campaign against those seeking the forcible
overthrow of the government and duly constituted authorities."
20. ID.; ID.; ID.; ID.; ID.; DOES NOT LIMIT OR CURTAIL THE POWER OF THE
PRESIDENT IN FAVOR OF THE JUDICIARY. LOI 1211 does not, in any
mane, limit the authority of the President to cause the arrest and detention of
persons engaged in, or charged with the crimes or offenses mentioned in said
Proclamation in that he (President) would subject himself to the superior
authority of the judge, who under normal judicial processes in the prosecution
of the common offenses, is the one authorized to issue a judicial warrant after
a preliminary investigation is conducted with a finding of probable cause. In
the event that the judge believes no warrant shall issue, the President, under
Presidential Proclamation No. 2045 and Letter of Instruction No. 1211, is not
bound by such finding, as explicitly provided in paragraph 2 of LOI 1211. VOL.
206 p. 398.
21. ID.; ID.; ID.; ID.; ID.; DOES NOT FORM PART OF THE LAW OF THE LAND.
To form part of the law of the land, the decree, order or LOI must be issued
by the President in the exercise of his extraordinary power of legislation as
contemplated in Section 6 of the 1976 amendments to the Constitution,
whenever in his judgment. there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasan Pambansa or the regular
National Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action. There can be no
pretense, much less a showing, that these conditions prompted the President to
issue LOI 1211.
22. ID.; ID.; ID.; ID.; CONSTITUTES A FINDING THAT THE CONDITIONS
PRESCRIBED IN LETTER, OF INSTRUCTION NO. 1211 HAVE BEEN MET.
The issuance of the PCO by the President necessarily constitutes a finding that
the conditions he has prescribed in LOI 1211 for the issuance of the PCO have
been met, and intends that the detention would be pursuant to the executive
process incident to the government campaign against the rebels, subversives
and dissidents waging a rebellion or insurrection.
23. ID.; ID.; ID.; RULING IN LANSANG CASE COMPARED WITH RULING OF
BARCELON VS, BAKER AND MONTENEGRO VS. CASTAEDA. in Barcelon
vs. Baker (5 Phil. 87, a 1905 decision, and Montenegro vs. Castaeda (91 Phil.
882, 1952), the President's decision to suspend the privilege of the writ of
habeas corpus is "final and conclusive upon the courts, and all other persons."
This well-settled ruling was diluted in the Lansang case which declared that
the "function of the Court is merely to check-not to supplant the Executive,
or ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction not to exercise the power vested in him to determine the wisdom of
his act." Judicial interference was thus held as permissible, and the test as laid
down therein is not whether the President acted correctly but whether he acted
arbitrarily.
24. ID.; ID.; ID.; ID.; NEED FOR REVERSION TO THE RULINGS OF
BARCELON VS. BAKER AND MONTENEGRO vs. CASTAEDA, SHOWN. The
ruling in the Lansang case would seem to be pure semanticism if the Supreme
Court would consider that with particular reference to the nature of the actions
the President would take on the occasion of the grave emergency he has to deal
with, which, as clearly indicated in Section 9, Art, VII of the Constitution
partakes of military measures, the judicial can, with becoming modesty, ill
afford to assume the authority to check or reverse or supplant the presidential
actions. On these occasions, the President takes absolute command, for the
very life of the Nation and its government, which, incidentally, includes the
courts, is in grave peril, In his separate opinion in the Lansang case, then
Justice Fernando, now our owned Chief Justice, went along with the
proposition that the decision of the Executive in the exercise of his power to
suspend the privilege of the writ of habeas corpus is not alone, and in his own
language, is "ordinarily beyond the ken of the Courts." Amendment No. 6 of the
1973 Constitution, affords further reason for the re-examination of the
Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro
vs, Castaeda.
25. ID.; ID.; ID.; "POLITICAL QUESTION"; CONCEPT. The Founding Fathers
must have felt that in the particular situations at hand, the Executive and the
Judiciary should maintain a mutually deferential attitude. This is the very
essence of the doctrine of "political question," as determining the justiciability
of a case. The wisdom of this concept remains well-recognized in advanced
constitutional systems. To erase it from our own system as seems to be what
was done in the Lansang case, may neither be proper nor prudent. A good
example could be given in the exercise of the presidential power of pardon
which is beyond judicial review specially under the new Constitution where the
condition that it may be granted only after final conviction has been done away
with.
acts of the President in the exercise of his exclusive power, for possible fault of
arbitrariness, it would not itself go so far as to commit the self-same fault.
Hence, in the case at bar, the issuance of the Presidential Commitment Order
against herein petitioners, their continued detention is rendered valid and legal,
and their right to be released even after the filing of charges against them in
court, to depend on the President, who may order the release of a detainee or
his being placed under house arrest, as he has done in meritorious cases.
FERNANDO, C.J., concurring:
1. CONSTITUTIONAL LAW; JUDICIARY; POWER OF JUDICIAL REVIEW;
COURTS TO INQUIRE INTO COMPLAINTS FOR DEPRIVATION OF LIBERTY.
An inquiry into the validity of executive or legislative acts has been fitly
characterized as both awesome and delicate. Nonetheless, for the judiciary,
there is no choice. This is so especially where the writ of habeas corpus has
been invoked. It is then incumbent on a court to pass on the legality of the
detention. As I had occasion to state in my scoarate opinion in Aquino, Jr. v.
Enrile: (L-35546, September 17, 1974, 39 SCRA 183) "This Court has to act
then. The liberty enshrined in the Constitution, for the protection of which
habeas corpus is the appropriate remedy, imposes that obligation. Its task is
clear. It must be performed. That is a trust to which it cannot be recreant.
Whenever the grievance complained of is deprivation of liberty, it is its
responsibility to inquire into the matter and to render the decision appropriate
under the circumstances. Precisely, a habeas corpus petition calls for that
response."
2. ID.; RIGHT TO LIBERTY; WRIT OF HABEAS CORPUS; THE PRINCIPAL
SAFEGUARD TO PERSONAL LIBERTY. It cannot be overemphasized that the
writ of habeas corpus, as a constitutional right, is, for eminent commentators,
protean in scope. A reference to the opinion of the Court in Gumaben v.
Director of Bureau of Prisons, (L-30026, January 30, 1971, 37 SCRA 420), may
not be amiss. Thus: "The writ imposes on judges the grave responsibility of
ascertaining whether there is any legal justification for a deprivation of physical
freedom. Unless there be such a showing, the confinement must thereby
cease." It continues: "Rightly then could Chafee refer to the writ as 'the most
important human rights provision' in the fundamental law. Nor is such praise
unique. Cooley spoke of it as `one of the principal safeguards to personal
liberty.' For Willoughby, it is `the greatest of the safeguards erected by the civil
law against arbitrary and illegal imprisonment by whomsoever detention may
be exercised or ordered.' Burdick echoed a similar sentiment, referring to it as
of the Constitution: "All persons, except those charged with capital offenses
when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties. Excessive bail shall not be required.") Inasmuch as the
return to the writ filed by the Solicitor General states that a warrant of arrest
against detainee Dra. Aurora Parong was issued on August 4, 1982, by the
Municipal Court of Bayombong, for illegal possession of firearm and
ammunition, then clearly, she has a right to invoke such right, notwithstanding
the suspension of the privilege of the writ. So I did argue as counsel in
Hernandez v. Montesa, 90 Phil. 172 (1951), where a majority of this Court with
one vote lacking to make their conclusion doctrinal agreed with such
submission. There was adherence to such a view in my separate opinions in
Lansang, (L-7185, 42 SCRA 448), and in Buscayno v. Enrile, (L-7185, January
15, 1981, 102 SCRA 7), I do so again and to that extent dissent.
it speaks to the contrary. It was by virtue of this decision that the function of
judicial review owes its original notwithstanding the absence of any explicit
provision in the American Constitution empowering the courts to do so.
9. ID.; JUDICIARY; COURTS TO CONSIDER ENVIRONMENTAL FACTS AND
CONTEMPORARY PROBLEMS IN MAKING ITS OPINIONS. An opinion of a
court, especially this Tribunal, should not ignore the environmental facts which
gave rise to a litigation where the issues arise from problems inseparable from
national security. There is, in addition, the need to take into consideration the
pressure of contemporary events. For as has so often been stressed, judicial
process does not take place in a social void. The questions before the Court are
to be viewed with full awareness of the consequences attendant to the decision
reached. As so tersely expressed by Justice Tuason in Araneta v. Dinglasan, 84
Phil. 368 (1949). "We test a rule by its results." More often than not especially
during times of stress, it is inescapable that efforts be made to reconcile timetested principles to contemporary problems. The judiciary is called upon to do
its part.
TEEHANKEE, J., dissenting:
1. CONSTITUTIONAL LAW; RIGHT TO LIBERTY; SUSPENSION OF THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS; NO NECESSITY FOR THE
RE-EXAMINATION AND OVERRULING OF LANSANG V. GARCIA. Justice
Teehankee submits that the resolution of the issues in this case does not call
for the all-encompassing ruling in the main opinion with its sweeping scope
that would reexamine and overturn the benchmark ruling in Lansang. The
limited suspension of the privilege of the writ of habeas corpus in the two
instances provided under Presidential Proclamation No. 2045 has not been
challenged in this case. Lansang recognizes the greatest deference and respect
that is due the President's determination for the necessity of suspending the
privilege of the writ of habeas corpus. But Lansang sets at the same time the
constitutional confines and limits of the President's power to suspend the
privilege of the writ and enunciates the constitutional test, not of the
correctness of the President's decision, but that the President's decision to
suspend the privilege not suffer from the constitutional infumity of
arbitrariness.
2. ID.; ID.; ID.; RIGHT TO BAIL MAY BE INVOKED NOTWITHSTANDING THE
DURATION THEREOF. Justice Teehankee submits, that notwithstanding the
suspension of the privilege of the writ of habeas corpus and the issuance on
deprived of the constitutional right of speedy trial have been set free. (Conde vs.
Diaz, 45 Phil. 173). And likewise persons detained indefinitely without charges
so much so that the detention becomes punitive and not merely preventive in
character are entitled to regain their freedom. The spirit and letter of our
Constitution negates as contrary to the basic precepts of human rights and
freedom that a person be detained indefinitely without any charges.
7. ID.; ID.; ID.; ID.; CONCERN AND SECURITY OF THE NATION NOT
SUFFICIENT JUSTIFICATION FOR THE VIOLATION OF HUMAN DIGNITY AND
RIGHTS. As to the "self-evident" submittal of the main opinion that "the
duty of the judiciary to protect individual rights must yield to the power of the
Executive to protect the State, for if the State perishes, the Constitution, with
the Bill of Rights that guarantees the right to personal liberty, perishes with it,"
Justice Teehankee only recalls the exhortation of the Holy Father John Paul II
in his address to the Philippine nation on February 17, 1981, thus: "Even in
exceptional situations that may at times arise, one can never justify any
violation of the fundamental dignity of the human person or of the basic rights
that safeguard this dignity. Legitimate concern for the security of a nation, as
demanded by the common good, could lead to the temptation of subjugating to
the State the human being and his or her dignity and rights. Any apparent
conflict between the exigencies of security and of the citizens' basic rights must
be resolved according to the fundamental principle upheld always by the
church that social organization exists only for the service of man and for the
protection of his dignity, and that it cannot claim to serve the common good
when human rights are not safeguarded. People will have faith in the
safeguarding of their security and the promotion of their well-being only to the
extent that they feel truly involved, and supported in their very humanity."
DECISION
DE CASTRO, J p:
Petition for a writ of habeas corpus and mandamus seeking the following relief:
"WHEREFORE, petitioners pray this Honorable Court:
"1. To immediately issue a writ of habeas corpus directing
respondents to appear and produce the bodies of Dr. AURORA
Camp Crame Intelligence Units) took full control of the investigation, counsels
were allowed to visit only on weekends; that when the detainees were
transferred on August 10, 1982 to a place known only to respondents, the
detainees' counsels and relatives were not notified, raising the apprehension
that petitioners' constitutional rights to silence, to counsel and against selfincrimination are being violated; that counsels have tried to locate if the
detainees were taken to Camp Crame or Camp Bago Bantay but to no avail;
that Major Forondo of the PC Command in Nueva Viscaya informed Mrs.
Josefina Padilla that the detainees were transferred to Tuguegarao, Cagayan,
others to Echague, Isabela; that there seems to be a deliberate and concerted
effort by respondents to conceal from counsel and relatives the detainees' place
of detention, raising the apprehension that respondents are using force,
violence, threat, intimidation and other means which vitiate free will to obtain
confession and statements from the detainees in violation of their
constitutional rights.
In the resolution of this Court en banc dated August 17, 1982, the writ of
habeas corpus was issued and respondents were required to make a return of
the writ. Hearing on the petition was set on August 26, 1982.
In the return to the writ filed on August 23, 1982, respondents, through the
Solicitor General, alleged, to wit:
for
illegal
commit such crimes, and other crimes and offenses committed in the
furtherance on the occasion thereof, or incident thereto, or in connection
therewith under Presidential Proclamation No. 2045, are all in the nature of
continuing offenses which set them apart from the common offenses, aside
from their essentially involving a massive conspiracy of nationwide magnitude.
Clearly then, the arrest of the herein detainees was well within the bounds of
the law and existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion,
is more an act of capturing them in the course of an armed conflict, to quell
the rebellion, than for the purpose of immediately prosecuting them in court
for a statutory offense. The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which requires the determination by a
judge of the existence of probable cause before the issuance of a judicial
warrant of arrest and the granting of bail if the offense is bailable. Obviously,
the absence of a judicial warrant is no legal impediment to arresting or
capturing persons committing overt acts of violence against government forces,
or any other milder acts but equally in pursuance of the rebellious movement.
The arrest or capture is thus impelled by the exigencies of the situation that
involves the very survival of society and its government and duly constituted
authorities. If killing and other acts of violence against the rebels find
justification in the exigencies of armed hostilities which is of the essence of
waging a rebellion or insurrection, most assuredly so in case of invasion,
merely seizing their persons and detaining them while any of these
contingencies continues cannot be less justified. In the language of Moyer vs.
Peabody, 1 cited with approval in Aquino, et al. vs. Ponce Enrile, 2 the
President "shall make the ordinary use of the soldiers to that end that he may
kill persons who resist, and, of course, that he may use the milder measure of
seizing the bodies of those whom he considers to stand in the way of restoring
peace. Such arrests are not necessarily for punishment, but are by way of
precaution, to prevent the exercise of hostile power."
Thus characterized, the arrest and detention of persons ordered by the
President through the issuance of Presidential Commitment Order (PCO) is
merely preventive. "When it comes to a decision by the head of the State upon a
matter involving its life, the ordinary rights of individuals must yield to what he
deems the necessities of the moment. Public danger warrants the substitution
of executive process for judicial process." 3 What should be underscored is that
if the greater violation against life itself such as killing, will not be the subject
The presidential responsibility is one attended with all urgency when so grave a
peril to the life of the Nation besets the country in times of the aforementioned
contingencies. In the discharge of this awesome and sacred responsibility, the
President should be free from interference. The existence of warlike conditions
as are created by invasion, rebellion or insurrection, the direst of all
emergencies that can possibly confront a nation, argues, beyond dispute,
against subjecting his actions in this regard to judicial inquiry or interference
from whatever source. If freedom from judicial review is conceded in the
exercise of his peacetime powers as that of appointment and of granting
pardon, denominated as political powers of the President, it should
incontestably be more so with his wartime power, as it were, to adopt any
measure in dealing with situations calling for military action as in case of
invasion, rebellion or insurrection.
The suspension of the privilege of the writ of habeas corpus is one such
measure. To be effective, the occasion for its application on specific individuals
should be left to the exclusive and sound judgment of the President, at least
while the exigencies of invasion, rebellion or insurrection persist, and the
public safety requires it, a matter, likewise, which should be left for the sole
determination of the President as Commander-in-Chief of the Nation's armed
forces. The need for a unified command in such contingencies is imperative
even axiomatic as a basic military concept in the art of warfare.
4. From the clear language of the Lansang case, 4 "the function of Court is
merely to check not to supplant the Executive, or to ascertain merely
whether he has gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom of his act." If,
however, the constitutional right to bail is granted to the herein petitioners by
the court, through the procedure laid down under Rule 114 of the Rules of
court, what inevitably results is the supplanting of the decision of the
President to detain pursuant to Proclamation No. 2045, of persons who come
under its coverage.
The specific mention in the Constitution of rebellion and insurrection along
with invasion and imminent danger thereof, shows that the terms "rebellion
and insurrection" are used therein in the sense of a state or condition of the
Nation, not in the concept of a statutory offense. What, therefore, should
determine the legality of imposing what is commonly referred to as "preventive
detention" resulting from the suspension of the privilege of habeas corpus, is
the necessity of its adoption as a measure to suppress or quell the rebellion, or
beat off an invasion. The necessity for such measure as a means of defense for
national survival quite clearly transcends in importance and urgency the claim
of those detained to the right to bail to obtain their freedom. To hold otherwise
would defeat the purpose of the constitutional grant of the power to suspend
the privilege of the writ of habeas corpus on the occasions expressly mentioned
in the charter. For what indeed could the purpose be of suspending the
privilege of the writ of habeas corpus other than to restrict, at least for the
duration of the emergency of invasion or rebellion, the right to personal liberty,
dictated as it is, in the greater interest of public safety and national security.
So it is that Proclamation No. 2045 mentions not only rebellion or insurrection
as coming within the suspension of the privilege of the writ of habeas corpus,
but also other offenses, including subversion which is not mentioned in the
Constitution, committed by reason or on the occasion of the rebellion, or in
connection therewith, or in the furtherance thereof. There need be no alarm
over what libertarian jurists fear as violation of the constitutional right to
personal liberty when the President decrees the suspension of the privilege of
habeas corpus. Only those who give cause for it will be subject to restriction of
their liberty, as the necessity therefor arises in the interest of national defense
and survival. The constitutional guarantee of individual freedom is intact in all
its plenitude and sanctity, save only as the Constitution has envisioned the
need for its limitation, and only to a few, in relation to the entire population, as
the Constitution itself permits in case of overwhelming and imperious
necessity.
5. Worthy of profound notice and keen appreciation is the fact that the
authority to suspend the privilege of the writ of habeas corpus has been
deliberately vested on the President as the Commander-in-Chief of the armed
forces, together with the related power to call out the armed forces to suppress
lawless violence and impose martial law. 5 The choice could not have been
more wise and sound, for no other official may, with equal capability and
fitness, be entrusted with the grave responsibility that goes with the grant of
the authority. The legislature was considered in the alternative upon which to
lodge the power, or to share in its exercise, but the distilled wisdom of the
Constitutional Convention finally made its choice for the President alone.
As previously noted, "invasion" which is not a statutorily-defined offense and
"imminent danger thereof" as mentioned in the Constitution indicate that
"rebellion and insurrection" are also mentioned therein not in their concept as
statutorily-defined public crimes, but as a state or condition of extreme
emergency resulting from the existence of the aforesaid events. Now, if captured
enemies from the invading force may not be charged with any statutory offense
that would provide the occasion to demand the right to bail, it is obvious that
persons engaged in rebellion or insurrection may not claim the right to be
released on bail when similarly captured or arrested during the continuance of
the aforesaid contingency. They may not even claim the right to be charged
immediately in court, as they may rightfully do so, were they being charged
with an ordinary or common offense. This is so because according to legal
writers or publicists, the suspension of the privilege of the writ of habeas
corpus "has the sole effect of allowing the executive to defer the trials of
persons charged with certain offenses during the period of emergency." 6 This
clearly means denial of the right to be released on bail on being charged in
court with bailable offenses.
The suspension of the privilege of the writ of habeas corpus must, indeed,
carry with it the suspension of the right to bail, if the government's campaign
to suppress the rebellion is to be enhanced and rendered effective. If the right
to bail may be demanded during the continuance of the rebellion, and those
arrested, captured and detained in the course thereof will be released, they
would, without the least doubt, rejoin their comrades in the field thereby
jeopardizing the success of government efforts to bring to an end the invasion,
rebellion or insurrection.
Realistically, a person engaged in the rebellion does not, upon being arrested or
captured, cease to be as committed to the cause of the movement. Through a
grand conspiracy, as is of the essence of how rebellion is committed, involving a
great mass of confederates bound together by a common goal, he remains in a
state of continued participation in the criminal act or design. His heart still
beats with the same emotion for the success of the movement of which he
continues to be an ardent adherent and ally. It is simple logic then to hold that
there should be no legal compulsion for a captured rebel to be charged in court,
only to be released on bail, while he is, realistically and legally, still as much as
part and parcel of the movement, continuing as it is, as those still engaged in
carrying on actively to attain their goal of overthrowing the established regime.
Hence, it is easy to perceive how impressed with absolute verity is the opinion
expressed by two acknowledged authorities on Constitutional law in our
country, 7 which We quote:
". . . If the return to the writ shows that the person in custody
was apprehended and detained in areas where the privileges of
the writ have been suspended or for the crimes mentioned in the
executive proclamation, the court will suspend further
proceedings in the action."
Impeccable as it is, the opinion could not but find a resonant echo as it did in
the recent case of Buscayno vs. Military Commission; 8 decided after
Proclamation No. 2045 was issued, which in terms clear and categorical, held
that the constitutional right to bail is unavailing when the privilege of the writ
of habeas corpus is suspended with respect to certain crimes as enumerated or
described in the abovementioned Proclamation.
It is, likewise, all too well-known that when the rebel forces capture government
troopers or kidnap private individuals, they do not accord to them any of the
rights now being demanded by the herein petitioners, particularly to be set at
liberty upon the filing of bail. As a matter of common knowledge, captives of the
rebels or insurgents are not only not given the right to be released, but also
denied trial of any kind. In some instances, they may even be liquidated
unceremoniously. What is then sought by the suspension of the privilege of the
writ of habeas corpus is, among others, to put the government forces on equal
fighting terms with the rebels, by authorizing the detention of their own rebel
or dissident captives as the rebellion goes on. In this way, the advantage the
rebellion forces have over those of the government, as when they resort to
guerrilla tactics with sophisticated weapons, is, at least, minimized, thereby
enhancing the latter's chances of beating their enemy. It would, therefore, seem
to be ignoring realities in the name of misplaced magnanimity and compassion,
and for the sake of humanity, to grant the demand for respect of rights
supposedly guaranteed by the Constitution by those who themselves seek to
destroy that very same instrument, trampling over it already as they are still
waging war against the government. This stark actuality gives added force and
substance to the rationale of the suspension of the privilege of the writ of
habeas corpus in case of invasion, insurrection, rebellion, or imminent danger
thereof, when public safety requires it.
6. Invoking the Lansang case, 9 however, petitioners would ask this Court to
review the issuance of the PCO against them, intimating that arbitrariness
attended its issuance because, relying on the evidence supposedly available in
the hands of the military, they claim they are not guilty of rebellion. They also
contend that the provisions of LOI No. 1211 have not been complied with.
The Lansang case went no further than to pronounce the suspension of the
writ of the privilege of habeas corpus on August 21, 1971, valid and
constitutional, on a finding that there was no arbitrariness attendant to the
suspension. It never intended to suggest that for every individual case of arrest
and detention, the writ of habeas corpus is available, even after the suspension
of this privilege, to question the legality of the arrest and detention on ground
of arbitrariness. When a person is charged in court for an ordinary offense, the
law does not authorize the filing of a petition for habeas corpus based on the
ground that there is absolutely no evidence to hold him for trial, which, in
effect, constitutes an allegation of arbitrariness in the filing of the case against
him. The law has afforded him adequate safeguards against arbitrariness, such
as the requirement of determining the existence of a probable cause by the
judge before the issuance of the warrant of arrest. The finding of such probable
cause may not be immediately brought for review by this Court in a habeas
corpus proceeding, on the claim of arbitrariness. The matter is to be decided on
the basis of the evidence, and this Court is not the proper forum for the review
sought, not being a trial of facts. If such a procedure were allowed, it would be
easy to delay and obstruct the prosecution of am offense by a resort to a
petition for habeas corpus based on arbitrariness, which most accused, if not
all, would be most inclined, specially when they are out on bail. The petition
now before Us is exactly one of this kind. If granted, the effect is to transfer the
jurisdiction of the trial courts in criminal cases to this Court, which is simply
inconceivable. Moreover, arbitrariness, while so easy to allege, is hard to prove,
in the face of the formidable obstacle built up by the presumption of regularity
in the performance of official duty. Unexhilaratingly, this is the revealing
experience of this Court in the Lansang case, where it doubtlessly realized how
hardly possible it is to adduce evidence or proof upon which to show the
President having acted with arbitrariness.
7. The last question relates to the legality of the Presidential Commitment
Order (PCO) issued by the President on July 12, 1982, tested by the conformity
of its issuance to the procedure laid down under LOI 1211, petitioners insisting
that the LOI limits the authority of the President to cause the arrest and
detention of persons engaged in or charged with, the crimes mentioned in
Proclamation No. 2045. They contend that the procedure prescribed in the LOI
not having been observed, the PC issued thereunder did not validate the initial
illegal arrest of the herein petitioners as well as their continued detention.
It must be noted that LOI No. 1211, which provides the guidelines in the arrest
and detention of persons engaged in, or charged with, the crimes mentioned in
measures, the judiciary can, with becoming modesty, ill afford to assume the
authority to check or reverse or supplant the presidential actions. On these
occasions, the President takes absolute command, for the very life of the Nation
and its government, which, incidentally, includes the courts, is in grave peril.
In so doing, the President is answerable only to his conscience, the people and
to God. For their part, in giving him the supreme mandate as their President,
the people can only trust and pray that, giving him their own loyalty with
utmost patriotism, the President will not fail them.
In his separate opinion in the Lansang case, then Justice Fernando, now our
learned Chief Justice, went along with the proposition that the decision of the
Executive in the exercise of his power to suspend the privilege of the writ of
habeas corpus is his alone, and in his own language, is "ordinarily beyond the
ken of the Courts." This is so, as the Founding Fathers must have felt that in
the particular situations at hand, the Executive and the Judiciary should
maintain a mutually deferential attitude. This is the very essence of the
doctrine of "political question," as determining the justiciability of a case. The
wisdom of this concept remains well-recognized in advanced constitutional
systems. To erase it from our own system as seems to be what was done in the
Lansang case, may neither be proper nor prudent. A good example could be
given in the exercise of the presidential power of pardon which is beyond
judicial review, specially under the new Constitution where the condition that it
may be granted only after final conviction has been done away with.
True, the Constitution is the law "equally in war and in peace," 12 as Chief
Justice Fernando cited in his brilliant separate opinion in the same Lansang
case. Precisely, it is the Constitution that gives the President specific "military
power" in times of warlike conditions as exist on the occasion of invasion,
insurrection or rebellion. Both power and right are constitutionally granted,
with the difference that the guarantee of the right to liberty is for personal
benefit, while the grant of the presidential power is for public safety. Which of
the two enjoys primacy over the other is all too obvious. For the power is
intended as a limitation of the right, in much the same way as individual
freedom yields to the exercise of the police power of the State in the interest of
general welfare. The difference again is that the power comes into being during
extreme emergencies the exercise of which, for complete effectiveness for the
purpose it was granted should not permit interference, while individual
freedom is obviously for full enjoyment in time of peace, but in time of war or
grave peril to the nation, should be limited or restricted. In a true sense then,
our Constitution is for both peacetime and in time of war; it is not that in time
be in a state of insurrection, had called out troops to put down the trouble, and
had ordered that the plaintiff should be arrested as a leader of the outbreak,
and should be detained until he could be discharged with safety, and that then
he should be delivered to the civil authorities, to be dealt with according to
law." 26 On those facts the American Supreme Court held that preventive
detention was allowable, the test of its validity being one of good faith. The state
governor then could "make the ordinary use of the soldiers to that end; that he
may kill persons who resist, and, of course, that he may use the milder
measure of seizing the bodies of those whom he considers to stand in the way
of restoring peace. Such arrests are not necessarily for punishment, but are by
way of precaution, to prevent the exercise of hostile power. So long as such
arrests are made in good faith and in the honest belief that they are needed in
order to head the insurrection off, the governor is the final judge and cannot be
subjected to an action after he is out of office, on the ground that he had not
reasonable ground for his belief." 27 The last paragraph of Justice Holmes
opinion was even more emphatic: "When it comes to a decision by the head of
the state upon a matter involving its life, the ordinary rights of individuals
must yield to what he deems the necessities of the moment. Public danger
warrants the substitution of executive process for judicial process. See Keely v.
Sanders, 99 U.S. 441, 446, 25 L. ed. 327, 328. This was admitted with regard
to killing men in the actual clash of arms; and we think it obvious, although it
was disputed, that the same is true of temporary detention to prevent
apprehended harm. As no one would deny that there was immunity for
ordering a company to fire upon a mob in insurrection, and that a state law
authorizing the governor to deprive citizens of life under such circumstances
was consistent with the 14th Amendment, we are of opinion that the same is
true of a law authorizing by implication that was done in this case." 28
Nonetheless, while preventive detention is a proper measure to cope with the
danger arising from the insurrection or rebellion, it may continue for such
length of time as to make it punitive in character. If such were the case, I am
not prepared to yield concurrence to the view that this Court is devoid of the
power in a habeas corpus proceeding to inquire into the legality of the
detention. As to when such a stage is reached cannot be set forth with
precision. The test would be an appraisal of the environmental facts of each
case. This is not to deny that the presumption must be in favor not only of the
good faith characterizing the presidential action but of the absence of any
arbitrary taint in so ordering preventive detention. It is out of excess of caution
and due to the belief that habeas corpus as a writ of liberty should not be
unnecessary curtailed that I feel compelled to qualify my concurrence in that
respect.
7. Nor is this all. Once a case is filed, the party detained may avail himself of
the right to bail. If there be such a petition, the court has jurisdiction to grant
or to deny bail in accordance with the constitutional provision. 29 Inasmuch as
the return to the writ filed by the Solicitor General states that a warrant of
arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by
the Municipal Court of Bayombong, for illegal possession of firearm and
ammunition, then clearly, she has a right to invoke such right, notwithstanding
the suspension of the privilege of the writ. So I did argue as counsel in
Hernandez v. Montesa, 30 where a majority of this Court with one vote lacking
to make their conclusion doctrinal agreed with such submission. There was
adherence to such a view in my separate opinions in Lansang 31 and in
Buscayno v. Enrile, 32 I do so again and to that extent dissent.
8. It may be worthwhile to touch briefly on the exercise of power of preventive
detention in other jurisdictions. The retired Lord President of the Federal Court
of Malaysia Tun Mohamed Suffian in his work on the Malaysian constitution,
spoke of the emergency powers of the executive, the Yang Dipertuan Agung in
this wise: "If the Yang Dipertuan Agung (acting on Cabinet advice) is satisfied
that a grave emergency exists whereby the security or economic life of the
Federation or any part thereof is threatened, article 150 empowers him to issue
a proclamation of emergency. He has done so thrice: first, to meet the
emergency caused by Indonesian confrontation, secondly, to meet the
emergency caused by the political crisis arising out of the position of the Chief
Minister of Sarawak and, thirdly, to meet the emergency caused as a result of
the violence that erupted on 13th May, 1969. (The 1948-1960 emergency was
proclaimed under pre-independence law, not under the constitution). If a
proclamation of emergency is issued when Parliament is not sitting, the Yang
Dipertuan Agung must summon Parliament as soon as may be practicable.
Until both Houses of Parliament are sitting, he may promulgate ordinances
having the force of law, if satisfied that immediate action is required." 33 By
virtue of such competence, preventive detention may be ordered. 36 He likewise
referred to England, citing Regulation 14B of the Defense of Realm Act
Regulations, 1914, during World War I and Regulation 18B of the Defense
Regulations during World War II which according to him led to the celebrated
case of Liversidge v. Anderson. 37 Then he turned to his own country: "In
India, because of unstable law and order situation, preventive detention has
been in vogue since its independence in 1947. After the commencement of the
Constitution, Parliament enacted the Preventive Detention Act, 1950, to lay
down a legal framework for preventive detention on certain grounds. The
present day law for the purpose is the Maintenance of Internal Security Act,
1971. A salient feature of the law of preventive detention in India has been to
confer a very broad discretion on the administrative authority to order
preventive detention of a person in certain circumstances." 38 He spoke of the
relevant constitutional provisions having a bearing on preventive detention: "A
law for preventive detention can be made by Parliament exclusively under entry
9, List 1, for reasons connected with 'defense', 'foreign affairs' or the 'security of
India.' Further, under entry 3, List 111, Parliament and the State Legislatures
can concurrently make a law for preventive detention for reasons connected
with the "security of a State', maintenance of public order,' or 'maintenance of
supplies and services essential to the community.' Parliament thus has a wide
legislative jurisdiction in the matter as it can enact a law of preventive
detention for reasons connected with all the six heads mentioned above. The
Preventive Detention Act, 1950, and now the Maintenance of Internal Security
Act, 1971, have been enacted by Parliament providing for preventive detention
for all these six heads." 39 For him the law of preventive detention in India "has
therefore been too much administrative-ridden and the scope of judicial review
has been very much limited." 40 He made a careful study of the cases on
preventive detention in India. As he pointed out, "the range and magnitude of
administrative control over the individual's personal liberty is very vast, and
the range of judicial control is very restrictive, as the basic question, whether a
person should be detained or not on the facts and circumstances of the case,
lies within the scope of administrative discretion and beyond judicial
review." 41 Nonetheless, the Supreme Court of India, as he stressed, "in the
interest or maintaining constitutionalism," has been able to take "a somewhat
broad view of its restricted powers, and has given whatever relief it can to the
detained persons." 42 For me that approach has much to recommend it. This is
not to deny that in the event there is a misapprehension as to the actual facts
that led to the preventive detention, the plea for remedial action should, in the
first instance, be addressed to the President. Very likely, there will be an
affirmative response. Even then, the assurance to a party feeling aggrieved that
there could still be resort to judicial review, even if utilized only in rare and
exceptional cases, may conduce to a deeper sense of loyalty to the existing
constitutional order on the part of the misguided or disaffected individuals.
Hence, to repeat, this qualified concurrence on my part.
9. The opinion of the Court, however, did not stop at dismissing the petition on
the ground that the issuance of a presidential commitment order validates the
preventive detention of petitioners. It went further by reexamining the
unanimous ruling in Lansang to the effect that the suspension of the privilege
of the writ of habeas corpus raises a judicial rather than a political question
and holding that it is no longer authoritative. With due respect, I cannot agree
to such a conclusion. In the first place, there was no need to go that far. For
me, at least, the rationale that this Court must accord deference to a
presidential commitment order suffices for the decision of this case. Nor would
I limit my dissent on that ground alone. It is for me, and again I say this with
due respect, deplorable and unjustifiable for this Court to turn its back on a
doctrine that has elicited praise and commendation from eminent scholars and
jurists here and abroad.
10. That is easily understandable. The learned, comprehension and unanimous
Lansang opinion penned by Chief Justice Concepcion concurred in by all the
Justices, 43 to my mind, explains with lucidity and force why the question is
judicial rather than political. Thus: "Indeed, the grant of power to suspend the
privilege is neither absolute nor unqualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the Executive
Department, is limited and conditional. The precept in the Bill of Rights
establishes a general rule, as well as an exception thereto. What is more, it
postulates the former in the negative, evidently to stress its importance, by
providing that '(t)he privilege of the writ of habeas corpus shall not be
suspended . . . .' It is only by way of exception that it permits the suspension of
the privilege 'in cases of invasion, insurrection, or rebellion'-or, under Art. VII
of the Constitution, 'imminent danger thereof'-'when the public safety requires
it, in any of which events the same may be suspended wherever during such
period the necessity for such suspension shall exist.' For from being full and
plenary, the authority to suspend the privilege of the writ is thus
circumscribed, confined and restricted, not only by the prescribed setting or
the conditions essential to its existence, but, also, as regards the time when
and the place where it may be exercised. These factors and the aforementioned
setting or conditions mark, establish and define the extent, the confines and
the limits of said power, beyond which it does not exist. And, like the
limitations and restrictions imposed by the Fundamental Law upon the
legislative department, adherence thereto and compliance therewith may,
within proper bounds, be inquired into by courts of justice. Otherwise, the
explicit constitutional provisions thereon would be meaningless. Surely, the
framers of our Constitution could not have intended to engage in such a
wasteful exercise in futility." 44 The then Chief Justice continued: "Much less
may the assumption be indulged in when we bear in mind that our political
system is essentially democratic and republican in character and that the
the privilege, but only if and when he acts within the sphere allotted to him by
the Basic Law, and the authority to determine whether or not he has so acted
is vested in the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme." 47 Further: "In the exercise of such authority, the
function of the Court is merely to check - not to supplant - the Executive, or to
ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom
of his act. To be sure, the power of the Court to determine the validity of the
contested proclamation is far from being identical to, or even comparable with,
its power over ordinary civil or criminal cases elevated thereto by ordinary
appeal from inferior courts, in which cases the appellate court has all of the
powers of the court of origin." 48 It is clear the competence of this Court to
pass upon the validity of the suspension of the privilege of the writ is confined
within limits that preclude the assumption of power that rightfully belongs to
the Executive. There would then be, to my mind, no sufficient justification to
retreat from a position that assures judicial participation on a matter of
momentous consequence. Moreover, to the extent that such a move has had
the benefit of judicial appraisal, and thereafter approval, to that extent there
may be less valid opposition and hopefully greater understanding of why such a
step had to be taken.
13. With Lansang overruled, the doctrine that the suspension of the privilege of
the writ announced in Barcelon v. Baker 49 and Montenegro v. Castaeda 50
will be revived. This for me is unfortunate. The Montenegro decision, as I had
occasion to state "owed its existence to the compulsion exerted by Barcelon v.
Baker, a 1905 decision. This Court was partly misled by an undue reliance in
the latter case on what it considered to be authoritative pronouncements from
such illustrious American jurists as Marshall, Story, and Taney. That is to
misread what was said by them. This is most evident in the case of Chief
Justice Marshall, whose epochal Marbury v. Madison was cited. Why that was
so is difficult to understand. For it speaks to the contrary. It was by virtue of
this decision that the function of judicial review owes its origin notwithstanding
the absence of any explicit provision in the American Constitution empowering
the courts to do so. Thus: '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. 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." 51 The opinion went on to
say: "Nor is the excerpt from Justice Story, speaking for the United States
Supreme Court, in Martin v. Mott, as made clear in the opinion of the Chief
Justice, an authority directly in point. There, a militiaman had been convicted
of failing to respond to a call, made under the Act of 1795, to serve during the
War of 1812. His property was taken to satisfy the judgment. He brought an
action of replevin. The American Constitution empowers its Congress 'to
provide for calling forth the Militia' in certain cases, and Congress did provide
that in those cases the President should have authority to make the call. All
that Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American
President to decide whether the exigency has arisen. In stating that such power
was exclusive and thus had a conclusive effect, he relied on the language
employed, impressed with such a character. The constitutional provision on the
suspension of the privilege of the writ is, as shown, anything but that. Chief
Justice Taney, in Luther v. Borden, likewise had to deal with a situation
involving the calling out of the militia. As a matter of fact, an eminent
commentator speaking of the two above decisions had this apt observation:
'The common element in these opinions would seem to be a genuine judicial
reluctance to speak in a situation where the voice of the Court, even if heard,
could not have any effect. More than this, both Story and Taney seem to share
the suspicion, unusual in them, that under a popular form of government
there are certain questions that the political branches must be trusted to
answer with finality.' What was said next is even more pertinent. Thus: 'It
would be dangerous and misleading to push the principles of these cases too
far, especially the doctrine of "political questions" as implied in Luther v.
Borden. Given the opportunity to afford a grievously injured citizen relief from
a palpably unwarranted use of presidential or military power, especially when
the question at issue falls in the penumbra between the "political" and the
"justiciable", the Court will act as if it had never heard of this doctrine and its
underlying assumption that there are some powers against which the judiciary
simply cannot be expected to act as the last time of defense.' It would thus
seem evident that support for the hitherto prevailing Montenegro ruling was
rather frail. Happily, with our decision, it is no longer capable of the mischief to
which it does lend itself of an undue diminution of judicial power to the
prejudice of constitutional rights." 52
14. An opinion of a court, especially this Tribunal, should not ignore the
environmental facts which gave rise to a litigation where the issues arise from
problems inseparable from national security. There is, in addition, the need to
take into consideration the pressure of contemporary events. For as has so
often been stressed, judicial process does not take place in a social void. The
questions before the Court are to be viewed with full awareness of the
consequences attendant to the decision reached. As so tersely expressed by
Justice Tuason in Araneta v. Dinglasan: 53 "We test a rule by its
results." 54 More often than not especially during times of stress, it is
inescapable that efforts be made to reconcile time-tested principles to
contemporary problems. The judiciary is called upon to do its part. There is
wisdom in these words of Justice Tuason from the same opinion: "The truth is
that under our concept of constitutional government, in times of extreme perils
more than in normal circumstances, 'The various branches, executive,
legislative, and judicial,' given the ability to act, are called upon 'to perform the
duties and discharge the responsibilities committed to them
respectively.'" 55 To repeat, I accord the fullest respect to the mode and manner
in which my brethren performed their duty and discharged their responsibility
in passing upon the transcendental question raised in this petition. With the
basic premise of robust concern for individual rights to which I have been
committed, however, I have no choice except to vote the way I did, even if for
those whose opinions I value conformity with the hitherto unquestioned
verities may at times prove to be less than adequate to meet the exigencies of
the turbulent present.
TEEHANKEE, J., dissenting:
I am constrained to dissent from the all-encompassing scope of the main
opinion of Mr. Justice de Castro which would overturn the landmark doctrine
of Lansang vs. Garcia 1 which upheld the Supreme Court's authority to inquire
into the existence of factual bases for the President's suspension of the
privilege of the writ of habeas corpus in order to determine the constitutional
sufficiency thereof and would revert to the retrogressive and colonial era ruling
of Barcelon vs. Baker 2 and Montenegro vs. Castaeda 3 that the President's
decision to so suspend the privilege of the writ "is final and conclusive upon
the courts and all other persons," and would further deny the right to bail even
after the filing of charges in court to persons detained under Presidential
Commitment Orders.
This case, as in other like cases, focuses on the grievances that persons
detained or charged for the crimes of insurrection, rebellion, subversion,
conspiracy or proposal to commit such crimes, invariably bring to this Court.
They complain, as petitioners do here, of being arrested without any warrant of
arrest; of being informed of purported telegrams concerning the issuance of a
Presidential Commitment Order (PCO) authorizing their arrest and detention,
but that they are not given a copy of such PCO nor notified of its contents,
raising doubts whether such PCO has in fact been issued; of being kept in
isolation or transferred to so-called "safehouses" and being denied of their
constitutional right to counsel and to silence; of prolonged detention without
charges; "of a seeming deliberate and concerted effort by respondents to
conceal from counsel and relatives the detainees' place of detention, raising the
apprehension that respondents are using force, violence, threat, intimidation
and other means which vitiate free will to obtain confessions and statements
from the detainees in violation of their constitutional rights;" and of their
counsel and families undergoing great difficulties in locating or having access
to them (main opinion at p. 3).
The State through the Solicitor General on the other hand invariably denies all
such charges and submits affidavits of the arresting officers and detention
custodian that detainees are afforded decent and humane treatment, further
countering that such claims are merely calculated to arouse sympathy and as
propaganda against the Government and its institutions.
In many such cases, however, the Court in issuing the writ of habeas corpus
requiring respondents to make a return of the writ includes a resolution, in
recognition of the detainees' constitutional rights, "to allow counsel for
petitioners to visit and confer with the detainee(s) in an atmosphere of
confidentiality consistent with reasonable security measures which
respondents may impose," 4 In other cases where respondents military officials
have allegedly denied having in their custody the person(s) detained, the Court
has issued its resolution "on the assumption that the detained person is in the
custody of respondents, that there be due observance and respect of his right
to counsel and other constitutional rights by respondents." 5
Respondents' return through the Solicitor General in the case at bar states that
the detainees are all detained by virtue of a Presidential Commitment Order
issued on July 12, 1982 (several days after their arrest without warrant on
July 6 and 7, 1982) and that corresponding charges against the detainees were
filed in court and before the Acting Provincial Fiscal of Nueva Viscaya where
they are pending. As to the detainee Dr. Aurora Parong, the return further
states that a warrant of arrest was issued against her on August 4, 1982 by the
Municipal Court of Bayombong for illegal possession of a firearm and
ammunition. As in all other returns in similar cases, the Solicitor General
asserts "that the privilege of the writ of habeas corpus is unavailing as to them.
Courts cannot inquire into the validity and cause of their arrest and detention"
by virtue of the continued suspension, under Presidential Proclamation No.
2045 (which proclaimed the termination of martial law in the Philippines), of the
privilege of the writ of habeas corpus in the two autonomous regions in
Mindanao and in all other places with respect to persons detained for
suspected involvement in crimes related to national security.
The main opinion confronts the question of whether the issuance of a
Presidential Commitment Order (PCO) has provided the legal basis of the
detention of herein detainees following their arrest for Proclamation No. 2045covered offenses," and remarks that "this question has to be set at rest
promptly and decisively, if we are to break a seemingly continuous flow of
petitions for habeas corpus, as what had been seen lately of such petitions
being filed in this Court one after the other."
I. I submit that the resolution of the issues in this case does not call for the allencompassing ruling in the main opinion with its sweeping scope that would
reexamine and overturn the benchmark ruling in Lansang. The limited
suspension of the privilege of the writ of habeas corpus in the two instances
provided under Presidential Proclamation No. 2045 hag not been challenged in
this case. So, what's the point of an advance declaration that all checks and
barriers are down? Lansang recognizes the greatest deference and respect that
is due the President's determination for the necessity of suspending the
privilege of the writ of habeas corpus. But Lansang sets at the same time the
constitutional confines and limits of the President's power to suspend the
privilege of the writ and enunciates the constitutional test, not of the
correctness of the President's decision, but that the President's decision to
suspend the privilege not suffer from the constitutional infirmity of
arbitrariness. 6 Thus, after laying the premise "that every case must depend on
its own circumstances," the Court therein thru then Chief Justice Roberto
Concepcion held that:
"Indeed, the grant of power to suspend the privilege is neither
absolute nor unqualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the
of the nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses in his behalf (Article III, Section 1,
Paragraph 17, of the Constitution), tends to aid the accused to prove his
innocence and obtain acquittal. If it be contended that the suspension of the
privilege of the writ of habeas corpus includes the suspension of the distinct
right to bail or to be provisionally at liberty, it would a fortiori imply the
suspension of all his other rights (even the right to be tried by a court) that may
win for him ultimate acquittal and, hence, absolute freedom. The latter result is
not insisted upon for being patently untenable."
Then Chief Justice Paras stressed that ". . . The privilege of the writ of habeas
corpus and the right to bail guaranteed under the Bill of Rights are separate
and co-equal. If the intention of the framers of the Constitution was that the
suspension of the privilege of the writ of habeas corpus carries or implies the
suspension of the right to bail, they would have very easily provided that all
persons shall before conviction be bailable by sufficient sureties, except those
charged with capital offenses when evidence of guilt is strong and except when
the privilege of the writ of habeas corpus is suspended. As stated in the case of
Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the Constitution limited the
suspension to only one great right, leaving the rest to remain forever inviolable."
5. It is noteworthy and supportive of the prevailing stand since 1951 that the
other great constitutional rights remain forever inviolable since the
Constitution limited the suspension to only one great right (of the privilege of
the writ of habeas corpus), that there has been no amendment of the
Constitution to curtail the right to bail in case of such suspension
notwithstanding the numerous constitutional amendments adopted after the
1973 Constitution.
6. The late Justice Pedro Tuason emphasized that "(T)o the plea that the
security of the State would be jeopardized by the release of the defendants on
bail, the answer is that the existence of danger is never a justification for
courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding to no pressure of
convenience, expediency or the so-called 'judicial statesmanship.' The
Legislature itself cannot infringe them, and no court conscious of its
responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the
Constitution be amended, or abolished. It is trite to say that, while the
Constitution stands, the courts of justice as the repository of civil liberty are
bound to protect and maintain undiluted individual rights."
7. And-former Chief Justice Cesar Bengzon then made the same forceful plea
echoed these days by men of goodwill that respect for constitutional and
human rights and adherence to the rule of law would help in the fight against
rebellion and movement for national reconciliation, thus: "And in my opinion,
one of the surest means to ease the uprising is a sincere demonstration of this
Government's adherence to the principles of the Constitution together with an
impartial application thereof to all citizens, whether dissidents or not. Let the
rebels have no reason to apprehend that their comrades now under custody are
being railroaded into Muntinglupa, without benefit of those fundamental
privileges which the experience of the ages has deemed essential for the
protection of all persons accused of crime before the tribunal of justice. Give
them the assurance that the judiciary, ever mindful of its sacred mission, win
not, thru faulty or misplaced devotion, uphold any doubtful claims of
governmental power in diminution of individual rights, but will always cling to
the principles uttered long ago by Chief Justice Marshall that when in doubt as
to the construction of the Constitution, 'The Courts will favor personal liberty.'"
8. The right to bail cannot just be cancelled out summarily because of the
issuance of a PCO. In the case at bar, detainee Dr. Aurora Parong is charged in
the municipal court with the crime of illegal possession of firearm, which is a
clearly bailable offense. The charges filed against the other detainees are
likewise for clearly bailable offenses. It is elementary that the right to bail in
non-capital offenses and even in capital offenses where evidence of guilt is not
strong will be generally granted and respected by the courts, "the natural
tendency of the courts (being) towards a fair and liberal appreciation,"
particularly taking into consideration the record and standing of the person
charged and the unlikelihood of his fleeing the court's jurisdiction.
As the Court held in the leading case of Montano vs. Ocampo, 9 wherein the
Supreme Court granted bail to Senator Montano who was charged with
multiple murders and frustrated murders: prcd
"Brushing aside the charge that the preliminary investigation of
this case by the aforesaid Judge was railroaded, the same having
been conducted at midnight, a few hours after the complaint was
filed, we are of the opinion that, upon the evidence adduced in
the application for bail in the lower court, as such evidence is
that "all the effort, energy and manhours expended by the parties and their
counsel, including this Court, . . . could have been avoided had the officers
of the AVSECOM and the ISAFP responded promptly to the inquiries of
petitioner instead of giving her the 'run-around' by referring her from one
office to another."
9. "The continuous flow of petitions for habeas corpus" filed with
this Court should not be decried nor discouraged. The Court
stands as the guarantor of the constitutional and human rights
of all persons within its jurisdiction and must see to it that the
rights are respected and enforced. It is settled in his jurisdiction
that once a deprivation of a constitutional right is shown to exist,
the court that rendered the judgment or before whom the case is
pending is ousted of jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of the detention. 11 So
accused persons deprived of the constitutional right of speedy
trial have been set free. 12 And likewise persons detained
indefinitely without charges so much so that the detention
becomes punitive and not merely preventive in character are
entitled to regain their freedom. The spirit and letter of our
Constitution negates as contrary to the basic precepts of human
rights and freedom that a person he detained indefinitely without
any charges.
III. The main opinion invokes "a time of war or grave peril to the nation" (at
page 16), oblivious of the President's lifting of martial law under Proclamation
No. 2045 on January 17, 1981 and the specific premises therein set forth that.
"WHEREAS, the Filipino people, having subdued threats to the
stability of government, public order and security, are aware that
the time has come to consolidate the gains attained by the nation
under a state of martial law by assuming their normal political
roles and shaping the national destiny within the framework of
civil government and popular democracy:
"WHEREAS, the experience gained by the nation under martial
law in subduing threats to the stability of the government, public
order and security, has enabled the Filipino people to rediscover
their confidence in their ability to command the resources of
1.Decision, 17.
2.L-33964, December 11, 1971, 42 SCRA 448.
3.5 Phil. 87 (1905).
4.91 Phil. 882 (1952).
5.L-32613, December 27, 1972. 48 SCRA 382.
6.L-35546, September 17, 1974, 59 SCRA 183.
39.Ibid, 263-264.
40.Ibid, 263.
41.Ibid, 303-304.
42.Ibid, 304.
43.I had a separate opinion, dissenting in part, but I concurred in the holding
that the question is judicial rather than political.
44.42 SCRA 448, 473-474.
45.Ibid, 474-475.
46.Ibid, 475.
47.Ibid, 479-480.
48.Ibid, 480.
49.5 Phil. 87.
50.91 Phil. 882 (1952).
51.42 SCRA 448, 505-506.
52.Ibid, 506-507.
53.84 Phil. 368 (1949).
54.Ibid, 376.
55.Ibid, 383.
TEEHANKEE, J., dissenting:
1.42 SCRA 448 (1971).
2.5 Phil. 87 (1905).
3.91 Phil. 882 (1952).
4.Resolution of July 30, 1982 in G.R. No. 61016 In re: Petition for Habeas
Corpus of Horacio R. Morales, Jr.
5.Resolution of April 4, 1983 in G.R. No. 63581 In re: Petition for Habeas
Corpus of Carl Gaspar.
6.42 SCRA at page 481.
7.Idem, at pages 473-475; emphasis copied.
8.Jointly decided with Angeles vs. Abaya and reported in 90 Phil. 172 (1951).
9.G.R. L-6352, Resolution of Jan. 29, 1953, 49 O.G. 1855; emphasis
supplied. See Villaseor vs. Abancio, 21 SCRA 321.
10.G.R. No. 60602, Sept. 30, 1982, per Escolin, J.
11.Gumabon v. Director of Prisons, 37 SCRA 420, 427.
12.Conde vs. Diaz, 45 Phil. 173.