Villavicencio v Lukban

The annals of juridical history fail to reveal a case quite as

remarkable as the one which this application for habeas corpus
submits for decision. While hardly to be expected to be met
with in this modern epoch of triumphant democracy, yet, after
all, the cause presents no great difficulty if there is kept in the
forefront of our minds the basic principles of popular
government, and if we give expression to the paramount
purpose for which the courts, as an independent power of such
a government, were constituted. The primary question is
Shall the judiciary permit a government of the men instead of a
government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these
proceedings, but which might prove profitable reading for other
departments of the government, the facts are these: The
Mayor of the city of Manila, Justo Lukban, for the best of all
reasons, to exterminate vice, ordered the segregated district
for women of ill repute, which had been permitted for a number
of years in the city of Manila, closed. Between October 16 and
October 25, 1918, the women were kept confined to their
houses in the district by the police. Presumably, during this
period, the city authorities quietly perfected arrangements with
the Bureau of Labor for sending the women to Davao,
Mindanao, as laborers; with some government office for the
use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about
midnight of October 25, the police, acting pursuant to orders
from the chief of police, Anton Hohmann and the Mayor of the
city of Manila, Justo Lukban, descended upon the houses,
hustled some 170 inmates into patrol wagons, and placed
them aboard the steamers that awaited their arrival. The
women were given no opportunity to collect their belongings,
and apparently were under the impression that they were being
taken to a police station for an investigation. They had no
knowledge that they were destined for a life in Mindanao. They
had not been asked if they wished to depart from that region
and had neither directly nor indirectly given their consent to the
deportation. The involuntary guests were received on board
the steamers by a representative of the Bureau of Labor and a
detachment of Constabulary soldiers. The two steamers with
their unwilling passengers sailed for Davao during the night of
October 25.
The vessels reached their destination at Davao on October 29.
The women were landed and receipted for as laborers by
Francisco Sales, provincial governor of Davao, and by
Feliciano Yigo and Rafael Castillo. The governor and the
hacendero Yigo, who appear as parties in the case, had no
previous notification that the women were prostitutes who had
been expelled from the city of Manila. The further happenings
to these women and the serious charges growing out of
alleged ill-treatment are of public interest, but are not essential
to the disposition of this case. Suffice it to say, generally, that
some of the women married, others assumed more or less
clandestine relations with men, others went to work in different
capacities, others assumed a life unknown and disappeared,
and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor
and the Negros were putting in to Davao, the attorney for the
relatives and friends of a considerable number of the
deportees presented an application for habeas corpus to a
member of the Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include all of the
women who were sent away from Manila to Davao and, as the
same questions concerned them all, the application will be
considered as including them. The application set forth the
salient facts, which need not be repeated, and alleged that the
women were illegally restrained of their liberty by Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, and by certain unknown parties.
The writ was made returnable before the full court. The city
fiscal appeared for the respondents, Lukban and Hohmann,
admitted certain facts relative to sequestration and deportation,
and prayed that the writ should not be granted because the
petitioners were not proper parties, because the action should
have been begun in the Court of First Instance for Davao,
Department of Mindanao and Sulu, because the respondents

did not have any of the women under their custody or control,
and because their jurisdiction did not extend beyond the
boundaries of the city of Manila. According to an exhibit
attached to the answer of the fiscal, the 170 women were
destined to be laborers, at good salaries, on the haciendas of
Yigo and Governor Sales. In open court, the fiscal admitted,
in answer to question of a member of the court, that these
women had been sent out of Manila without their consent. The
court awarded the writ, in an order of November 4, that
directed Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Francisco Sales,
governor of the province of Davao, and Feliciano Yigo, an
hacendero of Davao, to bring before the court the persons
therein named, alleged to be deprived of their liberty, on
December 2, 1918.
Before the date mentioned, seven of the women had returned
to Manila at their own expense. On motion of counsel for
petitioners, their testimony was taken before the clerk of the
Supreme Court sitting as commissioners. On the day named in
the order, December 2nd, 1918, none of the persons in whose
behalf the writ was issued were produced in court by the
respondents. It has been shown that three of those who had
been able to come back to Manila through their own efforts,
were notified by the police and the secret service to appear
before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when
pleading to the original petition copied a telegram from the
Mayor of the city of Manila to the provincial governor of Davao
and the answer thereto, and telegrams that had passed
between the Director of Labor and the attorney for that Bureau
then in Davao, and offered certain affidavits showing that the
women were contained with their life in Mindanao and did not
wish to return to Manila. Respondents Sales answered alleging
that it was not possible to fulfill the order of the Supreme Court
because the women had never been under his control,
because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers.
Respondent Yigo answered alleging that he did not have any
of the women under his control and that therefore it was
impossible for him to obey the mandate. The court, after due
deliberation, on December 10, 1918, promulgated a second
order, which related that the respondents had not complied
with the original order to the satisfaction of the court nor
explained their failure to do so, and therefore directed that
those of the women not in Manila be brought before the court
by respondents Lukban, Hohmann, Sales, and Yigo on
January 13, 1919, unless the women should, in written
statements voluntarily made before the judge of first instance
of Davao or the clerk of that court, renounce the right, or
unless the respondents should demonstrate some other legal
motives that made compliance impossible. It was further stated
that the question of whether the respondents were in contempt
of court would later be decided and the reasons for the order
announced in the final decision.
Before January 13, 1919, further testimony including that of a
number of the women, of certain detectives and policemen,
and of the provincial governor of Davao, was taken before the
clerk of the Supreme Court sitting as commissioner and the
clerk of the Court of First Instance of Davao acting in the same
capacity. On January 13, 1919, the respondents technically
presented before the Court the women who had returned to the
city through their own efforts and eight others who had been
brought to Manila by the respondents. Attorneys for the
respondents, by their returns, once again recounted the facts
and further endeavored to account for all of the persons
involved in the habeas corpus. In substance, it was stated that
the respondents, through their representatives and agents, had
succeeded in bringing from Davao with their consent eight
women; that eighty-one women were found in Davao who, on
notice that if they desired they could return to Manila,
transportation fee, renounced the right through sworn
statements; that fifty-nine had already returned to Manila by
other means, and that despite all efforts to find them twenty-six
could not be located. Both counsel for petitioners and the city
fiscal were permitted to submit memoranda. The first formally
asked the court to find Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila,
Jose Rodriguez and Fernando Ordax, members of the police

force of the city of Manila, Feliciano Yigo, an hacendero of

Davao, Modesto Joaquin, the attorney for the Bureau of Labor,
and Anacleto Diaz, fiscal of the city of Manila, in contempt of
court. The city fiscal requested that the replica al memorandum
de los recurridos, (reply to respondents' memorandum) dated
January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for
granting the writ of habeas corpus in the final decision. We will
now proceed to do so.
One fact, and one fact only, need be recalled these one
hundred and seventy women were isolated from society, and
then at night, without their consent and without any opportunity
to consult with friends or to defend their rights, were forcibly
hustled on board steamers for transportation to regions
unknown. Despite the feeble attempt to prove that the women
left voluntarily and gladly, that such was not the case is shown
by the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of
the law chose the shades of night to cloak their secret and
stealthy acts. Indeed, this is a fact impossible to refute and
practically admitted by the respondents.
With this situation, a court would next expect to resolve the
question By authority of what law did the Mayor and the
Chief of Police presume to act in deporting by duress these
persons from Manila to another distant locality within the
Philippine Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in
conformity with an Act of congress. The Governor-General can
order the eviction of undesirable aliens after a hearing from the
Islands. Act No. 519 of the Philippine Commission and section
733 of the Revised Ordinances of the city of Manila provide for
the conviction and punishment by a court of justice of any
person who is a common prostitute. Act No. 899 authorizes the
return of any citizen of the United States, who may have been
convicted of vagrancy, to the homeland. New York and other
States have statutes providing for the commitment to the
House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities
compel vaccination, or establish a quarantine, or place a
leprous person in the Culion leper colony, it is done pursuant to
some law or order. But one can search in vain for any law,
order, or regulation, which even hints at the right of the Mayor
of the city of Manila or the chief of police of that city to force
citizens of the Philippine Islands and these women despite
their being in a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the same
constitutional guaranties as are other citizens to change
their domicile from Manila to another locality. On the contrary,
Philippine penal law specifically punishes any public officer
who, not being expressly authorized by law or regulation,
compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of
domicile is deemed so important as to be found in the Bill of
Rights of the Constitution. Under the American constitutional
system, liberty of abode is a principle so deeply imbedded in
jurisprudence and considered so elementary in nature as not
even to require a constitutional sanction. Even the GovernorGeneral of the Philippine Islands, even the President of the
United States, who has often been said to exercise more
power than any king or potentate, has no such arbitrary
prerogative, either inherent or express. Much less, therefore,
has the executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at
their mere behest or even for the most praiseworthy of
motives, render the liberty of the citizen so insecure, then the
presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If
these officials can take to themselves such power, then any
other official can do the same. And if any official can exercise
the power, then all persons would have just as much right to do
so. And if a prostitute could be sent against her wishes and
under no law from one locality to another within the country,
then officialdom can hold the same club over the head of any
citizen.

Law defines power. Centuries ago Magna Charta decreed that

"No freeman shall be taken, or imprisoned, or be disseized
of his freehold, or liberties, or free customs, or be outlawed, or
exiled, or any other wise destroyed; nor will we pass upon him
nor condemn him, but by lawful judgment of his peers or by the
law of the land. We will sell to no man, we will not deny or
defer to any man either justice or right." (Magna Charta, 9
Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official,
no matter how high, is above the law. The courts are the forum
which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering
the opinion of the Supreme Court of the United States, "is the
only supreme power in our system of government, and every
man who by accepting office participates in its functions is only
the more strongly bound to submit to that supremacy, and to
observe the limitations which it imposes upon the exercise of
the authority which it gives." (U.S. vs. Lee [1882], 106 U.S.,
196, 220.) "The very idea," said Justice Matthews of the same
high tribunal in another case, "that one man may be compelled
to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another,
seems to be intolerable in any country where freedom prevails,
as being the essence of slavery itself." (Yick Wo vs. Hopkins
[1886], 118 U.S., 356, 370.) All this explains the motive in
issuing the writ of habeas corpus, and makes clear why we
said in the very beginning that the primary question was
whether the courts should permit a government of men or a
government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official
oppression? The remedies of the citizen are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the
aggrieved party may recoup money damages. It may still rest
with the parties in interest to pursue such an action, but it was
never intended effectively and promptly to meet any such
situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in
force in these Islands provides:
Any public officer not thereunto authorized by law or by
regulations of a general character in force in the Philippines
who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of
the judgment of a court, shall be punished by a fine of not less
than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or
by regulation of a general character in force in the Philippines
who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not
less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the
proper prosecuting officers find that any public officer has
violated this provision of law, these prosecutors will institute
and press a criminal prosecution just as vigorously as they
have defended the same official in this action. Nevertheless,
that the act may be a crime and that the persons guilty thereof
can be proceeded against, is no bar to the instant proceedings.
To quote the words of Judge Cooley in a case which will later
be referred to "It would be a monstrous anomaly in the law if
to an application by one unlawfully confined, ta be restored to
his liberty, it could be a sufficient answer that the confinement
was a crime, and therefore might be continued indefinitely until
the guilty party was tried and punished therefor by the slow
process of criminal procedure." (In the matter of Jackson
[1867], 15 Mich., 416, 434.) The writ of habeas corpus was
devised and exists as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom. Any further rights of the
parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents
have raised three specific objections to its issuance in this

instance. The fiscal has argued (l) that there is a defect in

parties petitioners, (2) that the Supreme Court should not a
assume jurisdiction, and (3) that the person in question are not
restrained of their liberty by respondents. It was finally
suggested that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city limits and
that perforce they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel.
The petitioners were relatives and friends of the deportees.
The way the expulsion was conducted by the city officials
made it impossible for the women to sign a petition for habeas
corpus. It was consequently proper for the writ to be submitted
by persons in their behalf. (Code of Criminal Procedure, sec.
78; Code of Civil Procedure, sec. 527.) The law, in its zealous
regard for personal liberty, even makes it the duty of a court or
judge to grant a writ of habeas corpus if there is evidence that
within the court's jurisdiction a person is unjustly imprisoned or
restrained of his liberty, though no application be made
therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had
standing in court.
The fiscal next contended that the writ should have been asked
for in the Court of First Instance of Davao or should have been
made returnable before that court. It is a general rule of good
practice that, to avoid unnecessary expense and
inconvenience, petitions for habeas corpus should be
presented to the nearest judge of the court of first instance. But
this is not a hard and fast rule. The writ of habeas corpus may
be granted by the Supreme Court or any judge thereof
enforcible anywhere in the Philippine Islands. (Code of
Criminal Procedure, sec. 79; Code of Civil Procedure, sec.
526.) Whether the writ shall be made returnable before the
Supreme Court or before an inferior court rests in the
discretion of the Supreme Court and is dependent on the
particular circumstances. In this instance it was not shown that
the Court of First Instance of Davao was in session, or that the
women had any means by which to advance their plea before
that court. On the other hand, it was shown that the petitioners
with their attorneys, and the two original respondents with their
attorney, were in Manila; it was shown that the case involved
parties situated in different parts of the Islands; it was shown
that the women might still be imprisoned or restrained of their
liberty; and it was shown that if the writ was to accomplish its
purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior
court to consider the application and then to grant the writ
would have amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more
difficult to meet. When the writ was prayed for, says counsel,
the parties in whose behalf it was asked were under no
restraint; the women, it is claimed, were free in Davao, and the
jurisdiction of the mayor and the chief of police did not extend
beyond the city limits. At first blush, this is a tenable position.
On closer examination, acceptance of such dictum is found to
be perversive of the first principles of the writ of habeas
corpus.
A prime specification of an application for a writ of habeas
corpus is restraint of liberty. The essential object and purpose
of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. The
forcible taking of these women from Manila by officials of that
city, who handed them over to other parties, who deposited
them in a distant region, deprived these women of freedom of
locomotion just as effectively as if they had been imprisoned.
Placed in Davao without either money or personal belongings,
they were prevented from exercising the liberty of going when
and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to
Manila and released or until they freely and truly waived his
right.
Consider for a moment what an agreement with such a
defense would mean. The chief executive of any municipality in
the Philippines could forcibly and illegally take a private citizen
and place him beyond the boundaries of the municipality, and

then, when called upon to defend his official action, could

calmly fold his hands and claim that the person was under no
restraint and that he, the official, had no jurisdiction over this
other municipality. We believe the true principle should be that,
if the respondent is within the jurisdiction of the court and has it
in his power to obey the order of the court and thus to undo the
wrong that he has inflicted, he should be compelled to do so.
Even if the party to whom the writ is addressed has illegally
parted with the custody of a person before the application for
the writ is no reason why the writ should not issue. If the mayor
and the chief of police, acting under no authority of law, could
deport these women from the city of Manila to Davao, the
same officials must necessarily have the same means to return
them from Davao to Manila. The respondents, within the reach
of process, may not be permitted to restrain a fellow citizen of
her liberty by forcing her to change her domicile and to avow
the act with impunity in the courts, while the person who has
lost her birthright of liberty has no effective recourse. The great
writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been
presented to the courts for decision. Nevertheless, strange as
it may seem, a close examination of the authorities fails to
reveal any analogous case. Certain decisions of respectable
courts are however very persuasive in nature.
A question came before the Supreme Court of the State of
Michigan at an early date as to whether or not a writ of habeas
corpus would issue from the Supreme Court to a person within
the jurisdiction of the State to bring into the State a minor child
under guardianship in the State, who has been and continues
to be detained in another State. The membership of the
Michigan Supreme Court at this time was notable. It was
composed of Martin, chief justice, and Cooley, Campbell, and
Christiancy, justices. On the question presented the court was
equally divided. Campbell, J., with whom concurred Martin, C.
J., held that the writ should be quashed. Cooley, J., one of the
most distinguished American judges and law-writers, with
whom concurred Christiancy, J., held that the writ should issue.
Since the opinion of Justice Campbell was predicated to a
large extent on his conception of the English decisions, and
since, as will hereafter appear, the English courts have taken a
contrary view, only the following eloquent passages from the
opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this
court to issue the present writ on the petition which was laid
before us. . . .
It would be strange indeed if, at this late day, after the
eulogiums of six centuries and a half have been expended
upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could
declare in his speech on the petition of right that "Magna
Charta was such a fellow that he will have no sovereign," and
after the extension of its benefits and securities by the petition
of right, bill of rights and habeas corpus acts, it should now be
discovered that evasion of that great clause for the protection
of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is
important that it be determined without delay, that the
legislature may apply the proper remedy, as I can not doubt
they would, on the subject being brought to their notice. . . .
The second proposition that the statutory provisions are
confined to the case of imprisonment within the state seems
to me to be based upon a misconception as to the source of
our jurisdiction. It was never the case in England that the court
of king's bench derived its jurisdiction to issue and enforce this
writ from the statute. Statutes were not passed to give the
right, but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of
procedure upon this writ is, that it is directed to and served
upon, not the person confined, but his jailor. It does not reach
the former except through the latter. The officer or person who
serves it does not unbar the prison doors, and set the prisoner
free, but the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is spent upon
the respondent, and if he fails to obey it, the means to be

resorted to for the purposes of compulsion are fine and

imprisonment. This is the ordinary mode of affording relief, and
if any other means are resorted to, they are only auxiliary to
those which are usual. The place of confinement is, therefore,
not important to the relief, if the guilty party is within reach of
process, so that by the power of the court he can be compelled
to release his grasp. The difficulty of affording redress is not
increased by the confinement being beyond the limits of the
state, except as greater distance may affect it. The important
question is, where the power of control exercised? And I am
aware of no other remedy. (In the matter of Jackson [1867], 15
Mich., 416.)
The opinion of Judge Cooley has since been accepted as
authoritative by other courts. (Rivers vs. Mitchell [1881], 57
Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the
subject. Thus, a child had been taken out of English by the
respondent. A writ of habeas corpus was issued by the
Queen's Bench Division upon the application of the mother and
her husband directing the defendant to produce the child. The
judge at chambers gave defendant until a certain date to
produce the child, but he did not do so. His return stated that
the child before the issuance of the writ had been handed over
by him to another; that it was no longer in his custody or
control, and that it was impossible for him to obey the writ. He
was found in contempt of court. On appeal, the court, through
Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued
on January 22. That writ commanded the defendant to have
the body of the child before a judge in chambers at the Royal
Courts of Justice immediately after the receipt of the writ,
together with the cause of her being taken and detained. That
is a command to bring the child before the judge and must be
obeyed, unless some lawful reason can be shown to excuse
the nonproduction of the child. If it could be shown that by
reason of his having lawfully parted with the possession of the
child before the issuing of the writ, the defendant had no longer
power to produce the child, that might be an answer; but in the
absence of any lawful reason he is bound to produce the child,
and, if he does not, he is in contempt of the Court for not
obeying the writ without lawful excuse. Many efforts have been
made in argument to shift the question of contempt to some
anterior period for the purpose of showing that what was done
at some time prior to the writ cannot be a contempt. But the
question is not as to what was done before the issue of the
writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in
obedience to its commands. (The Queen vs. Bernardo [1889],
23 Q. B. D., 305. See also to the same effect the Irish case of
In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen
vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A
habeas corpus was directed to the defendant to have before
the circuit court of the District of Columbia three colored
persons, with the cause of their detention. Davis, in his return
to the writ, stated on oath that he had purchased the negroes
as slaves in the city of Washington; that, as he believed, they
were removed beyond the District of Columbia before the
service of the writ of habeas corpus, and that they were then
beyond his control and out of his custody. The evidence tended
to show that Davis had removed the negroes because he
suspected they would apply for a writ of habeas corpus. The
court held the return to be evasive and insufficient, and that
Davis was bound to produce the negroes, and Davis being
present in court, and refusing to produce them, ordered that he
be committed to the custody of the marshall until he should
produce the negroes, or be otherwise discharged in due
course of law. The court afterwards ordered that Davis be
released upon the production of two of the negroes, for one of
the negroes had run away and been lodged in jail in Maryland.
Davis produced the two negroes on the last day of the term.
(United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas.
No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624;
Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of

the defense offered by the respondents constituted a legitimate
bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent
complied with the two orders of the Supreme Court awarding
the writ of habeas corpus, and if it be found that they did not,
whether the contempt should be punished or be taken as
purged.
The first order, it will be recalled, directed Justo Lukban, Anton
Hohmann, Francisco Sales, and Feliciano Yigo to present the
persons named in the writ before the court on December 2,
1918. The order was dated November 4, 1918. The
respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses,
the Mayor of the city of Manila waited until the 21st of
November before sending a telegram to the provincial
governor of Davao. According to the response of the attorney
for the Bureau of Labor to the telegram of his chief, there were
then in Davao women who desired to return to Manila, but who
should not be permitted to do so because of having contracted
debts. The half-hearted effort naturally resulted in none of the
parties in question being brought before the court on the day
named.
For the respondents to have fulfilled the court's order, three
optional courses were open: (1) They could have produced the
bodies of the persons according to the command of the writ; or
(2) they could have shown by affidavit that on account of
sickness or infirmity those persons could not safely be brought
before the court; or (3) they could have presented affidavits to
show that the parties in question or their attorney waived the
right to be present. (Code of Criminal Procedure, sec. 87.)
They did not produce the bodies of the persons in whose
behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the
right to be present by those interested. Instead a few
stereotyped affidavits purporting to show that the women were
contended with their life in Davao, some of which have since
been repudiated by the signers, were appended to the return.
That through ordinary diligence a considerable number of the
women, at least sixty, could have been brought back to Manila
is demonstrated to be found in the municipality of Davao, and
that about this number either returned at their own expense or
were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made,
would have been warranted summarily in finding the
respondents guilty of contempt of court, and in sending them to
jail until they obeyed the order. Their excuses for the nonproduction of the persons were far from sufficient. The,
authorities cited herein pertaining to somewhat similar facts all
tend to indicate with what exactitude a habeas corpus writ
must be fulfilled. For example, in Gossage's case, supra, the
Magistrate in referring to an earlier decision of the Court, said:
"We thought that, having brought about that state of things by
his own illegal act, he must take the consequences; and we
said that he was bound to use every effort to get the child
back; that he must do much more than write letters for the
purpose; that he must advertise in America, and even if
necessary himself go after the child, and do everything that
mortal man could do in the matter; and that the court would
only accept clear proof of an absolute impossibility by way of
excuse." In other words, the return did not show that every
possible effort to produce the women was made by the
respondents. That the court forebore at this time to take drastic
action was because it did not wish to see presented to the
public gaze the spectacle of a clash between executive officials
and the judiciary, and because it desired to give the
respondents another chance to demonstrate their good faith
and to mitigate their wrong.
In response to the second order of the court, the respondents
appear to have become more zealous and to have shown a
better spirit. Agents were dispatched to Mindanao, placards
were posted, the constabulary and the municipal police joined
in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and
counter-charges in such a bitterly contested case are to be

expected, and while a critical reading of the record might

reveal a failure of literal fulfillment with our mandate, we come
to conclude that there is a substantial compliance with it. Our
finding to this effect may be influenced somewhat by our
sincere desire to see this unhappy incident finally closed. If any
wrong is now being perpetrated in Davao, it should receive an
executive investigation. If any particular individual is still
restrained of her liberty, it can be made the object of separate
habeas corpus proceedings.
Since the writ has already been granted, and since we find a
substantial compliance with it, nothing further in this connection
remains to be done.
The attorney for the petitioners asks that we find in contempt of
court Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Jose Rodriguez,
and Fernando Ordax, members of the police force of the city of
Manila, Modesto Joaquin, the attorney for the Bureau of Labor,
Feliciano Yigo, an hacendero of Davao, and Anacleto Diaz,
Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised
on the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in order
to retain that respect without which the administration of justice
must falter or fail. Nevertheless when one is commanded to
produce a certain person and does not do so, and does not
offer a valid excuse, a court must, to vindicate its authority,
adjudge the respondent to be guilty of contempt, and must
order him either imprisoned or fined. An officer's failure to
produce the body of a person in obedience to a writ of habeas
corpus when he has power to do so, is a contempt committed
in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156;
In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial
regard for human imperfections, we cannot say that any of the
respondents, with the possible exception of the first named,
has flatly disobeyed the court by acting in opposition to its
authority. Respondents Hohmann, Rodriguez, Ordax, and
Joaquin only followed the orders of their chiefs, and while,
under the law of public officers, this does not exonerate them
entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yigo appears to have been drawn into the
case through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem to
have done no more than to fulfill his duty as the legal
representative of the city government. Finding him innocent of
any disrespect to the court, his counter-motion to strike from
the record the memorandum of attorney for the petitioners,
which brings him into this undesirable position, must be
granted. When all is said and done, as far as this record
discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish the
same, who made arrangements for the steamers and the
constabulary, who conducted the negotiations with the Bureau
of Labor, and who later, as the head of the city government,
had it within his power to facilitate the return of the unfortunate
women to Manila, was Justo Lukban, the Mayor of the city of
Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the
writ of habeas corpus issued by the court was only tardily and
reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of
the Code of Civil Procedure, which relates to the penalty for
disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much
as P400 each, which would reach to many thousands of pesos,
and in addition to deal with him as for a contempt. Some
members of the court are inclined to this stern view. It would
also be possible to find that since respondent Lukban did
comply substantially with the second order of the court, he has
purged his contempt of the first order. Some members of the
court are inclined to this merciful view. Between the two
extremes appears to lie the correct finding. The failure of
respondent Lukban to obey the first mandate of the court
tended to belittle and embarrass the administration of justice to
such an extent that his later activity may be considered only as

extenuating his conduct. A nominal fine will at once command

such respect without being unduly oppressive such an
amount is P100.
In resume as before stated, no further action on the writ of
habeas corpus is necessary. The respondents Hohmann,
Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to
be in contempt of court. Respondent Lukban is found in
contempt of court and shall pay into the office of the clerk of
the Supreme Court within five days the sum of one hundred
pesos (P100). The motion of the fiscal of the city of Manila to
strike from the record the Replica al Memorandum de los
Recurridos of January 25, 1919, is granted. Costs shall be
taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not
be permitted to express the hope that this decision may serve
to bulwark the fortifications of an orderly government of laws
and to protect individual liberty from illegal encroachment.

In re Gonzales
Before Us is a Petition for Review under Rule 45 of the Rules
of Court assailing the Decision[1] of the Court of Appeals in
CA-G.R. SP No. 90546 which dismissed the Petition for
Habeas Corpus filed by petitioner Roberto Rafael Pulido
(Pulido) in behalf of Cezari Gonzales and Julius Mesa, and
imposed on petitioner the penalty of censure, and its
Resolution[2] dated 6 January 2006 denying his motion for
reconsideration.
The facts are not disputed.
At around one oclock in the morning of 27 July 2003, three
hundred twenty-one (321) junior officers and enlisted
personnel of the Armed Forces of the Philippines (AFP)
entered and took over the premises of the Oakwood Premiere
Luxury Apartments (Oakwood) located at the Glorietta
Complex, Ayala Avenue, Makati City. They disarmed the
security guards of said establishment and planted explosives in
its immediate surroundings.
The soldiers publicly announced that they went to Oakwood to
air their grievances against the administration of President
Gloria Macapagal Arroyo (President Arroyo). They declared
their withdrawal of support from the Commander-in-Chief of the
AFP President Arroyo and demanded her resignation and that
of the members of her cabinet and top officers of both the AFP
and the Philippine National Police (PNP).
At about one oclock in the afternoon, President Arroyo issued
Proclamation No. 427 declaring the country to be under a state
of rebellion. Consequently, she issued General Order No. 4
directing the AFP and the PNP to carry out all reasonable
measures, giving due regard to constitutional rights, to
suppress and quell the rebellion.
After a series of negotiations between the soldiers and the
government negotiators, the former agreed to return to
barracks, thus ending the occupation of Oakwood.
Among those involved in the occupation of Oakwood were
Cezari Gonzales and Julius Mesa, both enlisted personnel of
the Philippine Navy. It is in their behalf that the Petition for
Habeas Corpus was filed before the Court of Appeals.
On 2 August 2003, then AFP Chief of Staff Narciso L. Abaya
issued a directive[3] to all Major Service Commanders and to
the Chief of the Intelligence Service of the Armed Forces of the
Philippines (ISAFP) regarding the Custody of Military
Personnel Involved in the 27 July 2003 Mutiny. On the strength
thereof, Gonzales and Mesa were taken into custody by their
Service Commander.
Gonzales and Mesa were not charged before a court martial
with violation of the Articles of War. They were, however,
among the soldiers charged before Branch 61 of the Regional
Trial Court (RTC) of Makati City, with the crime of Coup Detat
as defined under Article 134-A of the Revised Penal Code.

Said case entitled, People v. Capt. Milo D. Maestrecampo, et

al. was docketed as Criminal Case No. 03-2784. On 18
November 2003, a Commitment Order was issued by the RTC
committing custody of the persons of Gonzales and Mesa to
the Commanding Officer of Fort San Felipe Naval Base, Cavite
City.[4]
On 8 December 2003, Gonzales and Mesa were discharged[5]
from military service.
On 16 December 2003, per order of the RTC, Criminal Case
No. 03-2784 was consolidated with Criminal Case No. 03-2678
entitled, People v. Ramon B. Cardenas pending before Branch
148 of the RTC of Makati City, on the ground that the cases are
founded on the same facts and/or formed part of a series of
offenses of similar character.[6]
In a Manifestation and Motion dated 3 March 2004,
Commodore Normando Naval, Commander of Naval Base
Cavite, asked the Makati RTC, Branch 148, to relieve him of
his duty as custodian of Gonzales and Mesa and that the latter
be transferred to the Makati City Jail.[7] In an Order dated 29
April 2004, the RTC relieved him of his duty but ordered the
transfer of Gonzales and Mesa from the Naval Base Cavite in
Sangley Point, Cavite City, to the Philippine Marine Brigade
Headquarters, Philippine Marine, Fort Bonifacio, Taguig, Metro
Manila, under the custody of the Commander of the Marine
Brigade of the Philippine Marines, Fort Bonifacio, Taguig,
Metro Manila.[8]
In an Order dated 8 July 2004, the RTC resolved the petitions
for bail filed by the accused-soldiers. It admitted Gonzales and
Mesa, and twenty-five other co-accused to bail pegging the
amount thereof at P100,000.00 each.[9]
On 19 July 2004, both Gonzales and Mesa posted bail.[10] On
20 July 2004, the RTC issued orders directing the
Commanding Officer of Philippine Marine Corps, Fort
Bonifacio, Makati City, to release Gonzales and Mesa from his
custody.[11] Despite said orders and their service to the
marines, Gonzales and Mesa were not released.
On 21 July 2004, the People of the Philippines moved for
partial reconsideration[12] of the order granting bail. Prior to
the resolution of said motion, Jovencito R. Zuo, Chief State
Prosecutor, advised Brig. Gen. Manuel F. Llena, Judge
Advocate General, to defer action on the provisional release of
Gonzales and Mesa until the Motion for Reconsideration shall
have been resolved and attained finality.[13] On 26 October
2004, the RTC denied the motion for partial reconsideration.
With the denial of the Motion for Partial Reconsideration, the
People filed with the Court of Appeals on 4 February 2005 a
special civil action for certiorari under Rule 65 of the Rules of
Court with urgent prayer for Temporary Restraining Order
(TRO) and/or Writ of Preliminary Injunction, asking for the
nullification and setting aside of the orders dated 8 July 2004
and 26 October 2004 of Judge Oscar B. Pimentel for having
been issued without jurisdiction and/or grave abuse of
discretion amounting to lack or excess of jurisdiction. The
Petition for Certiorari was raffled to the Seventh Division and
was docketed as CA-G.R. SP No. 88440 entitled, People of the
Philippines v. Hon. Oscar B. Pimentel, Presiding Judge of the
Regional Trial Court of Makati City, Branch 148. The Court of
Appeals (Seventh Division) did not issue a TRO and/or
preliminary injunction.
Since Gonzales and Mesa continued to be in detention, a
Petition for Habeas Corpus[14] was filed by petitioner Pulido
on their behalf on 22 July 2005. The case was docketed as
CA-G.R. SP No. 90546 and raffled to the Third Division. In
support thereof, it was argued that since Gonzales and Mesa
are no longer subject to Military Law as they had been
discharged from the service on 8 December 2003, and since
they are not charged before a court martial, the military
authorities have no jurisdiction to detain them, and there is no
legal ground to detain them further because a court order for
their release had already been issued.
On 10 August 2005, the Court of Appeals (3rd Division) issued
a Writ of Habeas Corpus directing respondents Gen. Efren

Abu, Chief of Staff of the Armed Forces of the Philippines, and

all persons acting in his stead and under his authority, and
Gen. Ernesto de Leon, Flag Officer in Command of the
Philippine Navy, and all persons acting in his stead and under
his authority, to produce the bodies of Gonzales and Mesa
before the Court and to appear and show the cause and
validity of their detention.[15]
On 18 August 2005, a return of the Writ of Habeas Corpus was
made.[16] Respondents prayed that the Petition for Habeas
Corpus be dismissed primarily on two grounds: (1) the
continued detention of Gonzales and Mesa is justified because
of the pendency of the Petition for Certiorari questioning the
order dated 8 July 2004 of the RTC granting bail to Gonzales
and Mesa before the 7th Division of the Court of Appeals,
docketed as CA-G.R. SP No. 88440; and (2) petitioner is guilty
of forum shopping because of his failure to state in the petition
that the order granting bail has been elevated to the Court of
Appeals and pending before its 7th Division.
On 9 September 2005, the Court of Appeals (7th Division)
rendered its decision in CA-G.R. SP No. 88440 dismissing the
petition that questioned the propriety of the granting of bail to
Gonzales, Mesa, and twenty-five of their co-accused.[17]
On 12 September 2005, the Court of Appeals (3rd Division)
dismissed the Petition for Habeas Corpus for violation of
Section 5, Rule 7 of the Rules of Court. It ratiocinated:
A reading of the parties submissions reveals a threshold issue
the charge of forum shopping and the related falsity in the
certification supporting the petition. We must initially resolve
these issues because a finding that the petitioner violated
Section 5, Rule 7 of the Rules of Court can lead to the outright
dismissal of the present petition. x x x
The records show that the present petition contained the
following certificate of non-forum shopping:
I, ROBERTO RAFAEL PULIDO, with office address at Unit
1601, 16th Floor 139 Corporate Center Valero Street, Makati
City, after having been duly sworn in accordance with law, do
hereby state that:
1.

I am the petitioner in the above-captioned case;

2.
I have read the Petition and caused it to be
prepared. All the contents thereof are true to my own personal
knowledge and the record;
3.
I have not heretofore commenced any action or
proceeding involving the same issues, in the Supreme Court,
the Court of Appeals, or any other tribunal or agency and to the
best of my knowledge, no action or proceeding is pending in
the Supreme Court, the Court of Appeals, or any other tribunal
or agency; except for the related cases of Eugene Gonzales et
al. vs. Gen. Narciso Abaya, et al., G.R. No. 164007 and
Humabono Adaza et al., vs. Gen. Pedro Cabuay et al., G.R.
No. 160792, both awaiting the resolution of the Supreme
Court.
5.
(sic, should be 4) If I should learn of any similar
action or proceeding filed or is pending in the Supreme Court,
the Court of Appeals, or any other tribunal or agency, I
undertake to report such fact within five (5) days therefrom to
this Court.
The present petition and its accompanying certification likewise
show that the petitioner never mentioned the pendency before
the Seventh Division of this Court of the certiorari case, SP
88440, for the annulment of the lower courts order granting the
soldiers-accuseds petition for bail, when this same lower court
order is cited as basis for the immediate release of Gonzales
and Mesa in the present petition. All that the certification
mentioned were the related cases pending before the
Honorable Supreme Court. Neither did the petitioner comply
with his undertaking under his certification to inform this Court
within five (5) days of the pendency of any similar action or
proceeding filed or is pending in the Supreme Court, the Court
of Appeals, or any other tribunal or agency, as in fact the
certiorari case was already pending with this Court when the

present petition was filed. The certiorari case was only brought
to our attention after the respondents filed their Return of the
Writ.
To be sure, the petitioner, who is also the counsel for the
accused Gonzales and Mesa in the criminal case before
Branch 148 RTC Makati City and who represents Gonzales
and Mesa as private respondents in CA-G.R. SP No. 88440,
cannot feign ignorance of the pendency of the certiorari case.
Why he deliberately kept the pendency of the certiorari case
hidden from us, has not been sufficiently explained. We have
no doubt, however, that his deliberate act of withholding
information on a material fact directly required to be disclosed
by the Rules of Court cannot but have legal consequences.
The primary basis of the present petition is the bail granted to
and posted by Gonzales and Mesa. This is very clear from the
petitioners argument that The continued detention of the
enlisted personnel constitutes violation of the lawful orders of
the civilian court. He cited in support of this argument the grant
and the posting of the bail, and the issuance of the release
orders by the lower court. He did not disclose, however, what
subsequently happened to the order granting bail. He
deliberately omitted in his narration the fact that the People
moved to reconsider this order. Thus, he gave the impression
that the order granting bail immediately became enforceable
and that Gonzales and Mesas continued detention is illegal
because their constitutional rights to bail, which have received
judicial imprimatur, were continuously being violated by the
respondents.
The petitioner next omitted the fact that after the denial of its
motion for reconsideration of the order granting bail, the
People filed the certiorari case before this Court, seeking to
annul the lower courts order. While we are aware of the rule
that the mere pendency of a petition for certiorari will not
prevent the implementation of the assailed order unless the
court where the petition was filed issues either a temporary
restraining order or a writ or preliminary injunction the filing of a
petition for habeas corpus while the order granting bail is being
questioned on a petition for certiorari raises issues beyond the
immediate execution of the lower courts bail and release
orders. They raise questions on the propriety of filing the
habeas corpus petition to seek the release of persons under
detention, at the same time that a petition regarding their
continued detention and release are pending. Apparently, the
petitioner wanted to avoid these questions, prompting him to
actively conceal the subsequent motion for reconsideration of
the bail order and the petition for certiorari directly questioning
this same order. In short, the petitioner conveniently omitted in
his narration of facts the material factual antecedents
detrimental to his cause; he chose to narrate only the factual
antecedents favorable to his cause.
That the present petition has direct and intimate links with the
certiorari case is beyond doubt as they involve two sides of the
same coin. The certiorari case filed by the People seeks to
prevent the release of Gonzales and Mesa by annulling the
lower courts grant of bail. The present petition, on the other
hand, was filed in behalf of Gonzales and Mesa to secure their
immediate release because the order granting bail is already
executory. In effect, the petitioner seeks to implement through
a petition for habeas corpus the provisional release from
detention that the lower court has ordered. The question this
immediately raises is: can this be done through a petition for
habeas corpus when the validity of the grant of bail and the
release under bail are live questions before another Division of
this Court?
We believe and so hold that his cannot and should not be done
as this is precisely the reason why the rule against forum
shopping has been put in place. The remedies sought being
two sides of the same coin (i.e., the release of Gonzales and
Mesa), they cannot be secured through separately-filed cases
where issues of jurisdiction may arise and whose rulings may
conflict with one another. To be sure, we clearly heard the
petitioner say that there can be no conflict because the
effectiveness of our ruling in this petition will depend on the
nature and tenor of the ruling in the certiorari case; there is no
basis for a release on habeas corpus if this same Court will

rule in the certiorari case that the grant of bail is improper. For
this very same reason, we should not entertain the present
petition as the matter before us is already before another coequal body whose ruling will be finally determinative of the
issue of Gonzales and Mesas release. The Decision of the
Seventh Division of this Court, heretofore footnoted, ordering
the release on bail of Gonzales and Mesa drives home this
point.
To be strictly accurate, the issues of detention and immediate
release that are now before the two Divisions of this Court are
likewise properly within the jurisdiction of the lower court who
has original jurisdiction over the criminal case and who has
issued the order granting bail in the exercise of this jurisdiction.
If indeed there is a question relating to the immediate release
of Gonzales and Mesa pursuant to the lower courts order
pending the determination of the certiorari issues, such
question should be brought before the lower court as the
tribunal that has ordered the release, or before the Seventh
Division of this Court in the exercise of its supervisory powers
over the lower court. The Decision recently promulgated by the
Seventh Division of this Court ordering the release on bail of
the soldiers-accused effectively demonstrates this point.
The inter-relationships among the criminal case below, the
certiorari case and the present petition, as well as among the
courts where these cases are pending, show beyond doubt
that the petitioner committed forum shopping in the strict sense
of that term i.e., the attempt by a party, after an adverse
opinion in one forum, to seek a favorable opinion in another
forum other that through an appeal or certiorari. The adverse
aspect for the petitioner, while not an opinion, is no less
adverse as he has failed to secure the release of Gonzales
and Mesa before the lower court and before this Court in the
certiorari case (as of the time of the filing of the present
petition); thus, he came to us in the present petition. That the
Seventh Division of this Court has ordered the release on bail
of the soldiers-accused, thus rendering the present petition
moot and academic after the finality of the 7th Division
Decision, plainly demonstrates this legal reality.[18]
The Court further imposed on petitioner the penalty of censure
for the aforesaid violation. The dispositive portion of the
decision reads:
WHEREFORE, premises considered, we hereby DISMISS the
petition for violation of and pursuant to Section 5 Rule 7 of the
Rules of Court. The petitioner, Atty. Roberto Rafael Pulido, is
hereby CENSURED for these violations. Let a copy of this
Decision be furnished the Honorable Supreme Court, to be
attached to the petitioners record as a member of the Bar, as a
RECORD OF CENSURE that may be referred to and
considered in any future similar act.[19]
On 5 September 2005, petitioner filed a Motion for
Reconsideration[20] which the Court of Appeals (Special
Former Third Division) denied in its resolution[21] dated 6
January 2006.
Petitioner is now before us raising the following issues:
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN DISMISSING THE PETITION FOR
HABEAS CORPUS ON THE GROUND OF FORUM
SHOPPING.
A. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN NOT CONSIDERING THE NATURE OF
THE ACTION AND LIMITED ITSELF TO THE ISSUE OF
FORUM SHOPPING.
B. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN IMPOSING UPON PETITIONER THE
PENALTY OF CENSURE.
C. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN NOT PASSING UPON THE EXISTENCE
OR ABSENCE OF VALID GROUNDS TO DETAIN JULIUS
MESA AND CEZARI GONZALES.

Petitioner prays that the assailed decision and resolution of the

Court of Appeals be reversed and set aside, and an order be
issued ordering respondents to immediately release Gonzales
and Mesa. He further prays that the censure against him be
also reversed and set aside.
Before respondents could comment on the petition, petitioner
filed, with leave of court, a Motion to Withdraw the Prayer for
the Immediate Release of Julius Mesa and Cezari Gonzales.
[22] Petitioner informed the Court that the Commanding
General of the Philippine Marines had ordered the release of
Gonzales and Mesa and surrendered their persons to the RTC
of Makati City, Branch 148. Thus, Mesa and Gonzales are now
enjoying temporary liberty by virtue of the release orders dated
20 July 2004 issued by the RTC. Petitioner asks that the
prayer for the immediate release of Gonzales and Mesa be
dismissed but asks that the other prayers in the petition be
granted.
In its comment, the Solicitor General stressed that the habeas
corpus petition has been rendered moot and academic by
reason of the release of Mesa and Gonzales from detention
and, in the absence of an actual case or controversy, it is
impractical to consider and resolve issues involving the validity
or legality of their detention, including the alleged refusal of the
Court of Appeals to resolve said issues.
When the release of the persons in whose behalf the
application for a Writ of Habeas Corpus was filed is effected,
the Petition for the issuance of the writ becomes moot and
academic.[23] With the release of both Mesa and Gonzales,
the Petition for Habeas Corpus has, indeed, been rendered
moot. Courts of justice constituted to pass upon substantial
rights will not consider questions where no actual interests are
involved. Thus, the well-settled rule that courts will not
determine a moot question. Where the issues have become
moot and academic, there ceases to be any justiciable
controversy, thus rendering the resolution of the same of no
practical value.[24] This Court will therefore abstain from
expressing its opinion in a case where no legal relief is needed
or called for.[25]
The only remaining issues to be resolved are: (1) Is petitioner
guilty of forum shopping? (2) Should petitioner be penalized
when he failed to inform the 3rd Division of the Court of
Appeals of the pendency of the Petition for Certiorari filed by
respondents before the 7th Division of the same court which
asked for the annulment of the RTCs order granting Gonzales
and Mesas petition for bail?
To support his contention that there was no forum shopping,
petitioner asserts that the issues in the petitions for certiorari
and habeas corpus are not similar/identical. As to his nondisclosure of respondents filing of the motion for
reconsideration and the Petition for Certiorari, petitioner claims
that the same has no legal relevance to the Petition for Habeas
Corpus because at the time he filed said petition, the order
granting bail subsisted and has not been reversed or modified;
and no TRO or injunction has been issued that would affect the
efficacy or validity of the order granting the bail and the order
directing the release of Mesa and Gonzales.
For filing a Petition for Habeas Corpus despite the pendency of
the Petition for Certiorari that questioned the validity of the
order granting bail, which order is precisely the very basis of
the Petition for Habeas Corpus, petitioner is guilty of forum
shopping.
It has been held that forum shopping is the act of a party
against whom an adverse judgment has been rendered in one
forum, of seeking another (and possibly favorable) opinion in
another forum (other than by appeal or the special civil action
of certiorari), or the institution of two or more actions or
proceedings grounded on the same cause on the supposition
that one or the other court would make a favorable disposition.
Thus, it has been held that there is forum shopping (1) when,
as a result of an adverse decision in one forum, a party seeks
a favorable decision (other than by appeal or certiorari) in

another; OR (2) if, after he has filed a petition before the

Supreme Court, a party files a motion before the Court of
Appeals, since in such a case, he deliberately splits appeals in
the hope that even in one case in which a particular allowable
remedy sought for is dismissed, another case (offering a
similar remedy) would still be open; OR (3) where a party
attempts to obtain a preliminary injunction in another court after
failing to obtain the same from the original court.[26]
The Court has laid down the yardstick to determine whether a
party violated the rule against forum shopping, as where the
elements of litis pendentia are present or where a final
judgment in one case will amount to res judicata in the other.
Stated differently, there must be between the two cases: (a)
identity of parties; (b) identity of rights asserted and reliefs
prayed for, the relief being founded on the same facts; and (c)
the identity of the two preceding particulars is such that any
judgment rendered in the other action will, regardless of which
party is successful, amount to res judicata in the action under
consideration.[27]
As lucidly explained by the Court of Appeals, the ultimate relief
sought by petitioner in both the certiorari and habeas corpus
cases is the release of Gonzales and Mesa. Petitioner should
not have filed the Petition for Habeas Corpus because the
relief he is seeking therein is the same relief he is asking for in
the certiorari case. Moreover, the main issue in both cases
boils down to whether Gonzales and Mesa should be released
on bail. Because of the presence of the elements of litis
pendentia -- parties, reliefs and issue are substantially the
same/similar in the two cases; and any decision in the
certiorari case will be binding on the habeas corpus case
petitioner is thus guilty of forum shopping.
For his failure to inform the Court of Appeals of the pendency
of the certiorari case, petitioner clearly violated his obligation to
disclose within five days the pendency of the same or a similar
action or claim as mandated in Section 5(c), Rule 7[28] of the
Rules of Court.
WHEREFORE, premises considered, the Decision of the Court
of Appeals in CA-G.R. SP No. 90546 dated 12 September
2005 is AFFIRMED. Costs against the petitioner.
SO ORDERED.

Veluz v Villanueva
This is a petition for review1 of the resolutions2 dated February
2, 2005 and September 2, 2005 of the Court of Appeals3 in
CA-G.R. SP No. 88180 denying the petition for habeas corpus
of Eufemia E. Rodriguez, filed by petitioner Edgardo Veluz, as
well as his motion for reconsideration, respectively.
Eufemia E. Rodriguez was a 94-year old widow, allegedly
suffering from a poor state of mental health and deteriorating
cognitive abilities.4 She was living with petitioner, her nephew,
since 2000. He acted as her guardian.
In the morning of January 11, 2005, respondents Luisa R.
Villanueva and Teresita R. Pabello took Eufemia from petitioner
Veluz house. He made repeated demands for the return of
Eufemia but these proved futile. Claiming that respondents
were restraining Eufemia of her liberty, he filed a petition for
habeas corpus5 in the Court of Appeals on January 13, 2005.
The Court of Appeals ruled that petitioner failed to present any
convincing proof that respondents (the legally adopted children
of Eufemia) were unlawfully restraining their mother of her
liberty. He also failed to establish his legal right to the custody
of Eufemia as he was not her legal guardian. Thus, in a
resolution dated February 2, 2005,6 the Court of Appeals
denied his petition.
Petitioner moved for reconsideration but it was also denied.7
Hence, this petition.
Petitioner claims that, in determining whether or not a writ of
habeas corpus should issue, a court should limit itself to

determining whether or not a person is unlawfully being

deprived of liberty. There is no need to consider legal custody
or custodial rights. The writ of habeas corpus is available not
only if the rightful custody of a person is being withheld from
the person entitled thereto but also if the person who
disappears or is illegally being detained is of legal age and is
not under guardianship. Thus, a writ of habeas corpus can
cover persons who are not under the legal custody of another.
According to petitioner, as long as it is alleged that a person is
being illegally deprived of liberty, the writ of habeas corpus
may issue so that his physical body may be brought before the
court that will determine whether or not there is in fact an
unlawful deprivation of liberty.

restraint as distinguished from voluntary, and to relieve a

person therefrom if such restraint is illegal. Any restraint which
will preclude freedom of action is sufficient."13 (emphasis
supplied)

In their comment, respondents state that they are the legally

adopted daughters of Eufemia and her deceased spouse,
Maximo Rodriguez. Prior to their adoption, respondent Luisa
was Eufemias half-sister8 while respondent Teresita was
Eufemias niece and petitioners sister.9

While habeas corpus is a writ of right, it will not issue as a

matter of course or as a mere perfunctory operation on the
filing of the petition.17 Judicial discretion is called for in its
issuance and it must be clear to the judge to whom the petition
is presented that, prima facie, the petitioner is entitled to the
writ.18 It is only if the court is satisfied that a person is being
unlawfully restrained of his liberty will the petition for habeas
corpus be granted.19 If the respondents are not detaining or
restraining the applicant or the person in whose behalf the
petition is filed, the petition should be dismissed.20

Respondents point out that it was petitioner and his family who
were staying with Eufemia, not the other way around as
petitioner claimed. Eufemia paid for the rent of the house, the
utilities and other household needs.
Sometime in the 1980s, petitioner was appointed as the
"encargado" or administrator of the properties of Eufemia as
well as those left by the deceased Maximo. As such, he took
charge of collecting payments from tenants and transacted
business with third persons for and in behalf of Eufemia and
the respondents who were the only compulsory heirs of the
late Maximo.
In the latter part of 2002, Eufemia and the respondents
demanded an inventory and return of the properties entrusted
to petitioner. These demands were unheeded. Hence, Eufemia
and the respondents were compelled to file a complaint for
estafa against petitioner in the Regional Trial Court of Quezon
City. Consequently, and by reason of their mothers
deteriorating health, respondents decided to take custody of
Eufemia on January 11, 2005. The latter willingly went with
them. In view of all this, petitioner failed to prove either his right
to the custody of Eufemia or the illegality of respondents
action.
We rule for the respondents.
The writ of habeas corpus extends to all cases of illegal
confinement or detention by which any person is deprived of
his liberty or by which the rightful custody of a person is being
withheld from the one entitled thereto.10 It is issued when one
is either deprived of liberty or is wrongfully being prevented
from exercising legal custody over another person.11 Thus, it
contemplates two instances: (1) deprivation of a persons
liberty either through illegal confinement or through detention
and (2) withholding of the custody of any person from someone
entitled to such custody.
In this case, the issue is not whether the custody of Eufemia is
being rightfully withheld from petitioner but whether Eufemia is
being restrained of her liberty. Significantly, although petitioner
admits that he did not have legal custody of Eufemia, he
nonetheless insists that respondents themselves have no right
to her custody. Thus, for him, the issue of legal custody is
irrelevant. What is important is Eufemias personal freedom.
Fundamentally, in order to justify the grant of the writ of habeas
corpus, the restraint of liberty must be in the nature of an illegal
and involuntary deprivation of freedom of action.12
In general, the purpose of the writ of habeas corpus is to
determine whether or not a particular person is legally held. A
prime specification of an application for a writ of habeas
corpus, in fact, is an actual and effective, and not merely
nominal or moral, illegal restraint of liberty. "The writ of habeas
corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the
best and only sufficient defense of personal freedom. A prime
specification of an application for a writ of habeas corpus is
restraint of liberty. The essential object and purpose of the writ
of habeas corpus is to inquire into all manner of involuntary

In passing upon a petition for habeas corpus, a court or judge

must first inquire into whether the petitioner is being restrained
of his liberty.14 If he is not, the writ will be refused. Inquiry into
the cause of detention will proceed only where such restraint
exists.15 If the alleged cause is thereafter found to be unlawful,
then the writ should be granted and the petitioner
discharged.16 Needless to state, if otherwise, again the writ
will be refused.

In this case, the Court of Appeals made an inquiry into whether

Eufemia was being restrained of her liberty. It found that she
was not:
There is no proof that Eufemia is being detained and restrained
of her liberty by respondents. Nothing on record reveals that
she was forcibly taken by respondents. On the contrary,
respondents, being Eufemias adopted children, are taking
care of her.21 (emphasis supplied)
The Court finds no cogent or compelling reason to disturb this
finding.22
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.

Fletcher v Director of Bureau

Petitioner Martin Gibbs Fletcher seeks his release from prison
in this petition for the issuance of the writ of habeas corpus. He
claims that his prison sentence of 12 to 17 years was
commuted by then President Fidel V. Ramos to nine to 12
years. Since he had already served 14 years, three months
and 12 days, including his good conduct allowance, his
continued imprisonment is illegal.[1]
In its return to the writ, the Office of the Solicitor General
(OSG) posited that the petition should be denied for failure to
comply with Section 3, Rule 102 of the Rules of Court. In
particular, the petition was neither signed nor verified by
petitioner or a person on his behalf or by his purported
counsel. Moreover, it was not accompanied by a copy of the
cause of petitioners detention or commitment order.
The OSG further opposed the issuance of the writ on the
following grounds: petitioners prison sentence was never
commuted by then President Ramos; he had not been granted
the status of a colonist; there were other pending cases
against him warranting his continued detention[2] and he was
put under custody by virtue of a judicial process or a valid
judgment.
We disagree with the OSG insofar as it argues that the petition
should be dismissed for failure to comply with Section 3, Rule
102 of the Rules of Court. Strict compliance with the technical
requirements for a habeas corpus petition as provided in the
Rules of Court may be dispensed with where the allegations in
the application are sufficient to make out a case for habeas
corpus. In Angeles v. Director of New Bilibid Prison,[3] we held
that the formalities required for petitions for habeas corpus
shall be construed liberally. The petition for the writ is required

to be verified but the defect in form is not fatal.[4] Indeed, in the

landmark case of Villavicencio v. Lukban,[5] this Court declared
that it is the duty of a court to issue the writ if there is evidence
that a person is unjustly restrained of his liberty within its
jurisdiction even if there is no application therefor. So long as
this Court sits, technicality cannot trump liberty. Therefore, a
petition which is deficient in form, such as petitioners petitionletter in this case, may be entertained so long as its allegations
sufficiently make out a case for habeas corpus.[6]
The ultimate purpose of the writ of habeas corpus is to relieve
a person from unlawful restraint.[7] The writ exists as a speedy
and effectual remedy to relieve persons from unlawful restraint
and as an effective defense of personal freedom.[8]
Where the restraint of liberty is allegedly authored by the State,
the very entity tasked to ensure the liberty of all persons
(citizens and aliens alike) within its jurisdiction, courts must be
vigilant in extending the habeas corpus remedy to one who
invokes it. To strictly restrict the great writ of liberty to
technicalities not only defeats the spirit that animates the writ
but also waters down the precious right that the writ seeks to
protect, the right to liberty. To dilute the remedy that guarantees
protection to the right is to negate the right itself. Thus, the
Court will not unduly confine the writ of habeas corpus in the
prison walls of technicality. Otherwise, it will betray its
constitutional mandate to promulgate rules concerning the
protection and enforcement of constitutional rights.[9]
Nonetheless, we agree with the OSG that petitioner is not
entitled to the issuance of the writ.
The writ of habeas corpus extends to all cases of illegal
confinement or detention by which any person is deprived of
his liberty.[10] However, Section 4, Rule 102 of the Rules of
Court provides:
Sec. 4. When writ not allowed or discharge authorized. If it
appears that the person to be restrained of his liberty is in the
custody of an officer under process issued by a court or judge;
or by virtue of a judgment or order of a court of record, and that
court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if
the jurisdiction appears after the writ is allowed, the person
shall not be discharged by reason of any informality or defect
in the process, judgment, or order. Nor shall anything in this
rule be held to authorize the discharge of a person charged
with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment.
(emphasis supplied)
Plainly stated, the writ obtains immediate relief for those who
have been illegally confined or imprisoned without sufficient
cause. The writ, however, should not be issued when the
custody over the person is by virtue of a judicial process or a
valid judgment.[11]
It is undisputed that petitioner was convicted of estafa in
Criminal Case No. 95-995.[12] On June 24, 1996, he was
sentenced to imprisonment of 12 years of prision mayor as
minimum to 17 years and four months of reclusion temporal as
maximum, with payment of actual damages of P102,235.56.
[13]
Based on petitioners prison records,[14] he began serving his
sentence on July 24, 1997. He claims that after having served
good conduct time allowance for 14 years, three months and
12 days,[15] he should now be released from prison.
We disagree.
A convict may be released on parole after serving the minimum
period of his sentence. However, the pendency of another
criminal case is a ground for the disqualification of such convict
from being released on parole.[16] Unfortunately, petitioner is
again on trial in Criminal Case No. 94-6988 for estafa.[17] The
case was filed as early as 1996 but he was arraigned only on
October 6, 2008. He pleaded not guilty to the charge against
him. Pre-trial was set on January 26, 2009.[18] Clearly, he is
disqualified from being released on parole and consequently
must serve out the entirety of his sentence.

We note the issuance of a warrant for petitioners arrest on

March 8, 1996, the date he was first set for arraignment in
Criminal Case No. 94-6988. Pursuant to Section 4, Rule 102 of
the Rules of Court, the writ cannot be issued and petitioner
cannot be discharged since he has been charged with another
criminal offense.[19] His continued detention is without doubt
warranted under the circumstances.
Petitioner asserts that his sentence in Criminal Case No. 95995 was commuted by then President Ramos. However, he
presented no proof of such commutation. Other than
indorsements by the Chief Justice,[20] Public Attorneys
Office[21] and Undersecretary of the Department of Justice,
[22] no document purporting to be the commutation of his
sentence by then President Ramos was attached in his petition
and in his subsequent missives to this Court. His barren claim
of commutation therefore deserves scant consideration, lest
we be accused of usurping the Presidents sole prerogative to
commute petitioners sentence in Criminal Case No. 95-995.
[23]
Having established that petitioners continued imprisonment is
by virtue of a valid judgment and court process, we see no
need to discuss petitioners other arguments.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.

Ampatuan v Macaraig
Before this Court is a Petition for Certiorari under Rule 65[1] of
the Rules of Court assailing the Order dated 25 April 2008 of
the Regional Trial Court (RTC) of Manila, Branch 37, in Special
Proceeding No. 08-119132 which denied the petition for
Habeas Corpus filed by herein Petitioner Nurhida Juhuri
Ampatuan in behalf of her husband Police Officer 1 Basser B.
Ampatuan[2] (PO1 Ampatuan).
Petitioner alleged in her petition that her husband PO1
Ampatuan was assigned at Sultan Kudarat Municipal Police
Station. On 14 April 2008, he was asked by his Chief of Police
to report to the Provincial Director of Shariff Kabunsuan,
Superintendent Esmael Pua Ali (Supt. Ali). The latter brought
PO1 Ampatuan to Superintendent Piang Adam, Provincial
Director of the Philippine National Police (PNP) Maguindanao.
PO1 Ampatuan was directed to stay at the Police Provincial
Office of Maguindanao without being informed of the cause of
his restraint. The next day, 15 April 2008, PO1 Ampatuan was
brought to the General Santos City Airport and was made to
board a Philippine Airlines plane bound for Manila. Upon
landing at the Manila Domestic Airport, PO1 Ampatuan was
turned over to policemen of Manila and brought to Manila
Mayor Alfredo Lim by Police Director Geary Barias and
General Roberto Rosales. A press briefing was then conducted
where it was announced that PO1 Ampatuan was arrested for
the killing of two Commission on Elections (COMELEC)
Officials. He was then detained at the Police Jail in United
Nations Avenue, Manila. Thereafter, PO1 Ampatuan was
brought to inquest Prosecutor Renato Gonzaga of the Office of
the City Prosecutor of Manila due to the alleged murder of Atty.
Alioden D. Dalaig, head of the Law Department of the
COMELEC. On 20 April 2008, PO1 Ampatuan was turned-over
to the Regional Headquarters Support Group in Camp Bagong
Diwa, Taguig City.[3]
Petitioner continues that on 21 April 2008, Chief Inquest
Prosecutor Nelson Salva ordered the release for further
investigation of PO1 Ampatuan.[4] The Order was approved by
the City Prosecutor of Manila. But Police Senior
Superintendent Co Yee Co, Jr., and Police Chief Inspector
Agapito Quimson refused to release PO1 Ampatuan.
This prompted Petitioner to file the petition for writ of habeas
corpus in the RTC of Manila, Branch 37.[5]
Private respondents had another version of the antecedent
facts. They narrated that at around 7:08 oclock in the evening
of 10 November 2007, a sixty-four-year-old man, later

identified as Atty. Alioden D. Dalaig, Head of the COMELEC

Legal Department, was killed at the corner of M. H. Del Pilar
and Pedro Gil Streets, Ermita, Manila. Investigation conducted
by the Manila Police District (MPD) Homicide Section yielded
the identity of the male perpetrator as PO1 Ampatuan.
Consequently, PO1 Ampatuan was commanded to the MPD
District Director for proper disposition. Likewise, inquest
proceedings were conducted by the Manila Prosecutors Office.

BY COMMAND OF POLICE DIRECTOR GENERAL RAZON:

[10]

On 18 April 2008, Police Senior Superintendent Atty. Clarence

V. Guinto, rendered his Pre-Charge Evaluation Report against
PO1 Ampatuan, finding probable cause to charge PO1
Ampatuan with Grave Misconduct (Murder) and recommending
that said PO1 Ampatuan be subjected to summary hearing.

Armed with the 21 April 2008 recommendation of the Manila

Citys Prosecution Office, petitioner, who is the wife of PO1
Ampatuan, filed a Petition for the Issuance of a Writ of Habeas
Corpus before the RTC of Manila on 22 April 2008. The petition
was docketed as Special Proceeding No. 08-119132 and was
raffled to Branch 37.

On even date, a charge sheet for Grave Misconduct was

executed against PO1 Ampatuan, the accusatory portion of
which reads:
CHARGE SHEET
THE UNDERSIGNED NOMINAL COMPLAINANT hereby
charges above-named respondent of the administrative
offense of Grave Misconduct (murder) pursuant to Section 52
of R.A. 8551[6] in relation to NAPOLCOM Memorandum
Circular 93-024, committed as follows:
That on or about 7:08 in the evening of November 10, 2007, in
M.H. Del Pilar and Pedro Gil St., Ermita, Manila, above-named
respondent while being an active member of the PNP and
within the jurisdiction of this office, armed with a cal .45 pistol,
with intent to kill, did then and there willfully, unlawfully and
feloniously, shot Atty. Alioden D. Dalaig, Jr., COMELEC official
on the different parts of his body, thereby inflicting upon the
latter mortal gunshot wounds which directly cause (sic) his
death.
Acts contrary to the existing PNP Laws rules and Regulations.
[7]
Also, through a Memorandum dated 18 April 2008, Police
Director General Avelino I. Razon, Jr. directed the Regional
Director of the National Capital Regional Police Office
(NCRPO) to place PO1 Ampatuan under restrictive custody,
thus:
1.
Reference: Memo from that Office dated
April 15, 2008 re Arrest of PO1 Busser Ampatuan, suspect in
the killing of Atty. Alioden Dalaig and Atty. Wynee Asdala, both
COMELEC Legal Officers.
2.
This pertains to the power of the Chief,
PNP embodied in Section 52 of RA 8551, to place police
personnel under restrictive custody during the pendency of a
grave administrative case filed against him or even after the
filing of a criminal complaint, grave in nature, against such
police personnel.
3.
In this connection, you are hereby directed
to place PO1 Busser Ampatuan, suspect in the killing of Atty.
Alioden Dalaig and Atty. Wynee Asdala, both COMELEC Legal
Officers, under your restrictive custody.
4.

For strict compliance.[8]

On 19 April 2008, through a Memorandum Request dated 18

April 2008, respondent Police Director Geary L. Barias
requested for the creation of the Summary Hearing Board to
hear the case of PO1 Ampatuan.[9]
On 20 April 2008, Special Order No. 921 was issued by Police
Director Edgardo E. Acua, placing PO1 Ampatuan under
restrictive custody of the Regional Director, NCRPO, effective
19 April 2008. Said Special Order No. 921, reads:
Restrictive Custody
PO1 Basser B. Ampatuan 128677, is placed under restrictive
custody of the Regional Director, NCRPO effective April 19,
2008. (Reference: Memorandum from CPNP dated 18 April
2008).

Meanwhile, on 21 April 2008, the City Prosecutor of Manila

recommended that the case against PO1 Ampatuan be set for
further investigation and that the latter be released from
custody unless he is being held for other charges/legal
grounds.[11]

On 24 April 2008, finding the petition to be sufficient in form

and substance, respondent Judge Virgilio V. Macaraig ordered
the issuance of a writ of habeas corpus commanding therein
respondents to produce the body of PO1 Ampatuan and
directing said respondents to show cause why they are
withholding or restraining the liberty of PO1 Ampatuan.[12]
On 25 April 2008, the RTC resolved the Petition in its Order
which reads:
Essentially, counsels for petitioner insists that PO1 Basser
Ampatuan is being illegally detained by the respondents
despite the order of release of Chief Inquest Prosecutor Nelson
Salva dated April 21, 2008. They further claim that as of April
23, 2008, no administrative case was filed against PO1
Ampatuan.
Respondents, while admitting that to date no criminal case was
filed against PO1 Ampatuan, assert that the latter is under
restrictive custody since he is facing an administrative case for
grave misconduct. They submitted to this Court the Pre-charge
Evaluation Report and Charge Sheet. Further, in support of
their position, respondents cited the case of SPO2 Manalo, et
al. v. Hon. Calderon, G.R. No. 178920 claiming that habeas
corpus will not lie for a PNP personnel under restrictive
custody. They claim that this is authorized under Section 52,
Par. 4 of R.A. 8551 authorizing the Chief of PNP to place the
PNP personnel under restrictive custody during the pendency
of administrative case for grave misconduct.
Petitioner countered that the administrative case filed against
PO1 Ampatuan was ante-dated to make it appear that there
was such a case filed before April 23, 2008.
The function of habeas corpus is to determine the legality of
ones detention, meaning, if there is sufficient cause for
deprivation or confinement and if there is none to discharge
him at once. For habeas corpus to issue, the restraint of liberty
must be in the nature of illegal and involuntary deprivation of
freedom which must be actual and effective, not nominal or
moral.
Granting arguendo that the administrative case was antedated, the Court cannot simply ignore the filing of an
administrative case filed against PO1 Ampatuan. It cannot be
denied that the PNP has its own administrative disciplinary
mechanism and as clearly pointed out by the respondents, the
Chief PNP is authorized to place PO1 Ampatuan under
restrictive custody pursuant to Section 52, Par. 4 of R.A. 8551.
The filing of the administrative case against PO1 Ampatuan is
a process done by the PNP and this Court has no authority to
order the release of the subject police officer.
Lastly, anent the contention of the petitioner that the letter
resignation of PO1 Ampatuan has rendered the administrative
case moot and academic, the same could not be accepted by
this Court. It must be stressed that the resignation has not
been acted (sic) by the appropriate police officials of the PNP,
and that the administrative case was filed while PO1 Ampatuan
is still in the active status of the PNP.
WHEREFORE, premises considered, the petition for habeas
corpus is hereby DISMISSED.[13]

Distressed, petitioner is now before this Court via a Petition for

Certiorari under Rule 65 of the Rules of Court to question the
validity of the RTC Order dated 25 April 2008. The issues are:
I.
THE RESPONDENT COURT GRAVELY
ABUSED ITS DISCRETION WHEN IT FAILED TO CONSIDER
THAT THE ARREST AND DETENTION OF PO1 BASSER B.
AMPATUAN WAS MADE WITHOUT ANY WARRANT AND
THEREFORE, ILLEGAL;
II.
THE RESPONDENT COURT GRAVELY ABUSED
ITS DISCRETION WHEN IT CONCEDED THE AUTHORITY
OF RESPONDENT AVELINO RAZON, JR. UNDER SEC. 52,
PAR. 4, R.A. 8551 TO PLACE AMPATUAN UNDER
RESTRICTIVE CUSTODY FOR ADMINISTRATIVE
PROCEEDINGS;
III.
THE RESPONDENT COURT GRAVELY ABUSED
ITS DISCRETION WHEN IT SHIRKED FROM ITS JUDICIAL
DUTY TO ORDER THE RELEASE OF PO1 AMPATUAN
FROM THE CUSTODY OF RESPONDENTS MAMANG
PULIS.[14]
Essentially, a writ of habeas corpus applies to all cases of
illegal confinement or detention by which any person is
deprived of his liberty.[15]
Rule 102 of the 1997 Rules of Court sets forth the procedure to
be followed in the issuance of the writ. The Rule provides:
RULE 102
HABEAS CORPUS
SECTION 1. To what habeas corpus extends. Except as
otherwise expressly provided by law, the writ of habeas corpus
shall extend to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person
entitled thereto.
SEC 2. Who may grant the writ. The writ of habeas corpus may
be granted by the Supreme Court, or any member thereof, on
any day and at any time, or by the Court of Appeals or any
member thereof in the instances authorized by law, and if so
granted it shall be enforceable anywhere in the Philippines,
and may be made returnable before the court or any member
thereof, or before a Court of First Instance, or any judge
thereof for hearing and decision on the merits. It may also be
granted by a Court of First Instance, or a judge thereof, on any
day and at any time, and returnable before himself,
enforceable only within his judicial district.
SEC. 4. When writ not allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty is
in the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall
not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor
shall anything in this rule be held to authorize the discharge of
a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful
judgment.
The objective of the writ is to determine whether the
confinement or detention is valid or lawful. If it is, the writ
cannot be issued. What is to be inquired into is the legality of a
person's detention as of, at the earliest, the filing of the
application for the writ of habeas corpus, for even if the
detention is at its inception illegal, it may, by reason of some
supervening events, such as the instances mentioned in
Section 4 of Rule 102, be no longer illegal at the time of the
filing of the application.[16]
Plainly stated, the writ obtains immediate relief for those who
have been illegally confined or imprisoned without sufficient
cause. The writ, however, should not be issued when the

custody over the person is by virtue of a judicial process or a

valid judgment.[17]
The most basic criterion for the issuance of the writ, therefore,
is that the individual seeking such relief is illegally deprived of
his freedom of movement or placed under some form of illegal
restraint. If an individuals liberty is restrained via some legal
process, the writ of habeas corpus is unavailing.[18]
Fundamentally, in order to justify the grant of the writ of habeas
corpus, the restraint of liberty must be in the nature of an illegal
and involuntary deprivation of freedom of action.[19]
In general, the purpose of the writ of habeas corpus is to
determine whether or not a particular person is legally held. A
prime specification of an application for a writ of habeas
corpus, in fact, is an actual and effective, and not merely
nominal or moral, illegal restraint of liberty. The writ of habeas
corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the
best and only sufficient defense of personal freedom. A prime
specification of an application for a writ of habeas corpus is
restraint of liberty. The essential object and purpose of the writ
of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal. Any restraint which
will preclude freedom of action is sufficient.[20]
In passing upon a petition for habeas corpus, a court or judge
must first inquire into whether the petitioner is being restrained
of his liberty. If he is not, the writ will be refused. Inquiry into
the cause of detention will proceed only where such restraint
exists. If the alleged cause is thereafter found to be unlawful,
then the writ should be granted and the petitioner discharged.
Needless to state, if otherwise, again the writ will be refused.
[21]
While habeas corpus is a writ of right, it will not issue as a
matter of course or as a mere perfunctory operation on the
filing of the petition. Judicial discretion is called for in its
issuance and it must be clear to the judge to whom the petition
is presented that, prima facie, the petitioner is entitled to the
writ. It is only if the court is satisfied that a person is being
unlawfully restrained of his liberty will the petition for habeas
corpus be granted. If the respondents are not detaining or
restraining the applicant or the person in whose behalf the
petition is filed, the petition should be dismissed.[22]
Petitioner contends that when PO1 Ampatuan was placed
under the custody of respondents on 20 April 2008, there was
yet no administrative case filed against him. When the release
order of Chief Inquest Prosecutor Nelson Salva was served
upon respondents on 21 April 2008, there was still no
administrative case filed against PO1 Ampatuan. She also
argues that the arrest on 14 April 2008 of PO1 Ampatuan in
Shariff Kabunsuan was illegal because there was no warrant of
arrest issued by any judicial authority against him.
On the other hand, respondents, in their Comment[23] filed by
the Office of the Solicitor General, argue that the trial court
correctly denied the subject petition. Respondents maintain
that while the Office of the City Prosecutor of Manila had
recommended that PO1 Ampatuan be released from custody,
said recommendation was made only insofar as the criminal
action for murder that was filed with the prosecution office is
concerned and is without prejudice to other legal grounds for
which he may be held under custody. In the instant case, PO1
Ampatuan is also facing administrative charges for Grave
Misconduct. They cited the case of Manalo v. Calderon,[24]
where this Court held that a petition for habeas corpus will be
given due course only if it shows that petitioner is being
detained or restrained of his liberty unlawfully, but a restrictive
custody and monitoring of movements or whereabouts of
police officers under investigation by their superiors is not a
form of illegal detention or restraint of liberty.[25]
The Solicitor General is correct.
In this case, PO1 Ampatuan has been placed under Restrictive
Custody. Republic Act No. 6975 (also known as the
Department of Interior and Local Government Act of 1990), as

amended by Republic Act No. 8551 (also known as the

Philippine National Police Reform and Reorganization Act of
1998), clearly provides that members of the police force are
subject to the administrative disciplinary machinery of the PNP.
Section 41(b) of the said law enumerates the disciplinary
actions, including restrictive custody that may be imposed by
duly designated supervisors and equivalent officers of the PNP
as a matter of internal discipline. The pertinent provision of
Republic Act No. 8551 reads:
Sec. 52 x x x.
4. The Chief of the PNP shall have the power to impose the
disciplinary punishment of dismissal from the service;
suspension or forfeiture of salary; or any combination thereof
for a period not exceeding one hundred eighty (180) days.
Provided, further, That the Chief of the PNP shall have the
authority to place police personnel under restrictive custody
during the pendency of a grave administrative case filed
against him or even after the filing of a criminal complaint,
grave in nature, against such police personnel. [Emphasis
ours].
Given that PO1 Ampatuan has been placed under restrictive
custody, such constitutes a valid argument for his continued
detention. This Court has held that a restrictive custody and
monitoring of movements or whereabouts of police officers
under investigation by their superiors is not a form of illegal
detention or restraint of liberty.[26]
Restrictive custody is, at best, nominal restraint which is
beyond the ambit of habeas corpus. It is neither actual nor
effective restraint that would call for the grant of the remedy
prayed for. It is a permissible precautionary measure to assure
the PNP authorities that the police officers concerned are
always accounted for.[27]

WHEREFORE, premises considered, the instant petition is

DISMISSED for lack of merit.
SO ORDERED.

Adonis v Tesoro
This is a Petition for the Issuance of the Writ of Habeas
Corpus1 under Rule 102 of the 1997 Rules of Court filed by
petitioner Alexander Adonis (Adonis), praying that the Court
directs respondent Superintendent Venancio Tesoro
(respondent), Director of the Davao Prisons and Penal Farm,
to have the body of the former brought before this Court and in
the alternative, praying for the application of the Supreme
Court Administrative Circular No. 08-2008,2 which imposes the
penalty of a fine instead of imprisonment in Criminal Case No.
48679-2001.3
Antecedent Facts
In Criminal Case No. 48679-2001, Adonis was convicted by the
Regional Trial Court of Davao City (RTC), Branch 17 for Libel,
filed against him by then Representative Prospero Nograles.
He was sentenced to an indeterminate sentence of five (5)
months and one (1) day of arresto mayor maximum, as
minimum penalty, to four (4) years, six (6) months and one (1)
day of prision correccional medium, as maximum penalty.4 He
began serving his sentence at the Davao Prisons and Penal
Farm on February 20, 2007.
A second libel case, docketed as Criminal Case No. 487192001 was likewise filed against Adonis by Jeanette L. Leuterio,
pending before the RTC of Davao City, Branch 14.6

Since the basis of PO1 Ampatuans restrictive custody is the

administrative case filed against him, his remedy is within such
administrative process.

On December 11, 2007, the Board of Pardons and Parole

(BPP) issued an order for the Discharge on Parole of seven (7)
inmates in various jails in the country, which included Adonis.
The said document was received by the City Parole and
Probation Office of Davao on May 2, 2008.7

We likewise note that PO1 Ampatuan has been under

restrictive custody since 19 April 2008. To date, the
administrative case against him should have already been
resolved and the issue of his restrictive custody should have
been rendered moot and academic, in accordance with Section
55 of Republic Act No. 8551, which provides:

Meanwhile, on January 25, 2008, this Court issued

Administrative Circular No. 08-2008, the subject of which is the
"Guidelines in the Observance of a Rule of Preference in the
Imposition of Penalties in Libel Cases."

SEC. 55. Section 47 of Republic Act No. 6975 is hereby

amended to read as follows:
Sec. 47. Preventive Suspension Pending Criminal Case. Upon
the filing of a complaint or information sufficient in form and
substance against a member of the PNP for grave felonies
where the penalty imposed by law is six (6) years and one (1)
day or more, the court shall immediately suspend the accused
from office for a period not exceeding ninety (90) days from
arraignment: Provided, however, That if it can be shown by
evidence that the accused is harassing the complainant and/or
witnesses, the court may order the preventive suspension of
the accused PNP member even if the charge is punishable by
a penalty lower than six (6) years and one (1) day: Provided,
further, That the preventive suspension shall not be more than
ninety (90) days except if the delay in the disposition of the
case is due to the fault, negligence or petitions of the
respondent: Provided, finally, That such preventive suspension
may be sooner lifted by the court in the exigency of the service
upon recommendation of the Chief, PNP. Such case shall be
subject to continuous trial and shall be terminated within ninety
(90) days from arraignment of the accused. (Emphasis
supplied.)
Having conceded that there is no grave abuse of discretion on
the part of the trial court, we have to dismiss the petition.
In sum, petitioner is unable to discharge the burden of showing
that she is entitled to the issuance of the writ prayed for in
behalf of her husband, PO1 Ampatuan. The petition fails to
show on its face that the latter is unlawfully deprived of his
liberty guaranteed and enshrined in the Constitution.

In view of these developments, Adonis, on April 18, 2008 filed

with the RTC Branch 17 a Motion to Reopen Case (With Leave
of Court),8 praying for his immediate release from detention
and for the modification of his sentence to payment of fine
pursuant to the said Circular.
On May 26, 2008, in Criminal Case No. 48719-2001 before the
RTC Branch 14, Adonis moved for his provisional release from
detention. The motion was granted by Presiding Judge George
Omelio in open court and he was allowed to post bail in the
amount of P5,000.9 Subsequently on even date and after
Adonis filed a cash bond and an undertaking,10 the trial court
issued an Order directing the Chief of Davao Penal Colony "to
release the accused Alexis Adonis unless he is being held for
some other crimes or offenses."11 On the same date, the said
order was served to the respondent,12 but the release of
Adonis was not effected.
On May 30, 2008, Adonis filed the instant petition for the
issuance of a writ of habeas corpus alleging that his liberty was
restrained by the respondent for no valid reason.13
The respondent consequently filed his Comment.14 Adonis
then filed on October 27, 2008 an Urgent Motion to Resolve15
and on November 7, 2008 a Manifestation and Motion,16
reiterating all his previous prayers.
On February 11, 2009, the Court received the letter from the
respondent, informing the Court that Adonis had been released
from confinement on December 23, 2008 after accepting the
conditions set forth in his parole and with the advise to report
to the City Parole and Probation Officer of Davao.17
The Courts Ruling

The petition is without merit.

The ultimate purpose of the writ of habeas corpus is to relieve
a person from unlawful restraint. The writ exists as a speedy
and effectual remedy to relieve persons from unlawful restraint
and as an effective defense of personal freedom. It is issued
only for the lone purpose of obtaining relief for those illegally
confined or imprisoned without sufficient legal basis. It is not
issued when the person is in custody because of a judicial
process or a valid judgment.18
Section 4, Rule 102 of the Revised Rules of Court provides
when a writ must not be allowed or discharge authorized, to
wit:
SEC. 4. When writ not allowed or discharge authorized. If it
appears that the person alleged to be restrained of his liberty is
in the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall
not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor
shall anything in this rule be held to authorize the discharge of
a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful
judgment.
In the instant case, Adonis was convicted for libel by the RTC
Branch 17, in Criminal Case No. 48679-2001.1wphi1 Since
his detention was by virtue of a final judgment, he is not
entitled to the Writ of Habeas Corpus. He was serving his
sentence when the BPP granted him parole, along with six (6)
others, on December 11, 2007.19 While it is true that a convict
may be released from prison on parole when he had served
the minimum period of his sentence; the pendency of another
criminal case, however, is a ground for the disqualification of
such convict from being released on parole.20 Notably, at the
time he was granted the parole, the second libel case was
pending before the RTC Branch 14.21 In fact, even when the
instant petition was filed, Criminal Case No. 48719-01 was still
pending. The issuance of the writ under such circumstance
was, therefore, proscribed. There was basis for the respondent
to deny his immediate release at that time.
Further, Adonis seeks the retroactive application of
Administrative Circular No. 08-2008, citing Fermin v. People,22
where the Court preferred the imposition of the fine rather than
imprisonment under the circumstances of the case.
Administrative Circular No. 08-2008, was issued on January
25, 2008 and provides the "guidelines in the observance of a
rule of preference in the imposition of penalties in libel cases."
The pertinent portions read as follows:
All courts and judges concerned should henceforth take note of
the foregoing rule of preference set by the Supreme Court on
the matter of the imposition of penalties for the crime of libel
bearing in mind the following principles:
1. This Administrative Circular does not remove imprisonment
as an alternative penalty for the crime libel under Article 355 of
the Revised Penal Code;
2. The Judges concerned may, in the exercise of sound
discretion, and taking into consideration the peculiar
circumstances of each case, determine whether the imposition
of a fame alone would best serve the interests of justice or
whether forbearing to impose imprisonment would depreciate
the seriousness of the offense, work violence on the social
order, or otherwise be contrary to the imperative of justice;
3. Should only a fine be imposed and the accused be unable to
pay the fine, there is no legal obstacle to the application of the
Revised Penal Code provision on subsidiary imprisonment.23
(Emphasis ours)
A clear reading of the Administration Circular No. 08-2008 and
considering the attendant circumstances of the case, the
benefits of the administrative circular can not be given
retroactive effect in Criminal Case No. 48679-2001. It is too

late in the day for Adonis to raise such argument considering

that Criminal Case No. 48679-2001 has already become final
and executory; and he had, in fact, already commenced
serving his sentence. Eventually, he was released from
confinement on December 23, 2008 after accepting the
conditions of the parole granted to him.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

Lamen v Director
Availing of our decision in People vs. Simon, 1 the petitioners
filed the instant petition to secure the release of Willy Bagawe
y Pagalla, who was earlier convicted of the violation of Section
4, Article II of R.A. No. 6425, 2 as amended, for selling and
delivering marijuana and sentenced to suffer the penalty of life
imprisonment and to pay a fine of P20,000.00. The prohibited
drugs involved consist of three matchboxes containing
marijuana flowering tops with a total weight of 3.5 grams, one
matchbox with a marijuana cigarette butt, and one brown paper
bag containing 10 grams of marijuana flowering tops. 3
In our decision of 7 April 1992, 4 we affirmed in toto the
aforesaid judgment of the trial court. 5 Our decision became
final on 11 May 1992. 6
Willy Bagawe y Pagalla is presently serving his sentence in the
New Bilibid Prisons in Muntinglupa, Metro Manila. He has been
under incarceration since his arrest on 14 April 1987.
The petitioners contend that since the gross quantity of the
marijuana involved in this case is only 13.6 grams, then in the
light of People vs. Simon, the maximum term imposed on
Bagawe should be reduced to two (2) years, four (4) months
and one (1) day of prision correccional; and since he has
already served more than six years, he should be released
from imprisonment.
In its comment, the Office of the Solicitor General agrees with
the petitioners that Simon should apply but disagrees with their
computation of the maximum penalty. It recommends that,
following the penalties imposed by us in Simon and in People
vs. Saycon, 7 the proper penalty should be six (6) months of
arresto mayor as minimum to six (6) years of prision
correccional as maximum, without fine.
Article 22 of the Revised Penal Code operates to benefit Willy
Bagawe since R.A. No. 7659, is favorable to him and since he
is not a habitual criminal.
Following Simon, the penalty which could have been imposed
on Willy Bagawe under R.A. No. 6425, as further amended by
R.A. No. 7659, would have been prision correccional and, after
applying the Indeterminate Sentence Law, he would have been
sentenced to an indeterminate penalty ranging from six (6)
months of arresto mayor, as minimum, to four (4) years and
two (2) months of prision correccional as maximum.
Since the decision in G.R. Nos. 88515-16 had long become
final and Willy Bagawe is in fact serving his sentence, we
cannot alter or modify the penalty therein imposed.
Nevertheless, the writ of habeas corpus comes to his rescue
since he has undergone imprisonment for a period more than
the maximum imprisonment which could have been properly
imposed on him taking into account the favorable statute, R.A.
No. 7659. In the 1932 case of Directo vs. Director of Prisons, 8
we ruled:
In view of the foregoing considerations we are of the opinion
and hold: (1) that Article 22 of the Revised Penal Code which
makes penal provisions retroactive so far as they favor the
accused, provided he is not a habitual criminal, does not
authorize a court whose sentence has become final and
executory to make a substantial amendment, and any
amendment made in such sentence, though it be to give effect
to a penal provision favorable to the accused, would be null
and void for lack of jurisdiction; and (2) that the only means of

giving retroactive effect to a penal provision favorable to the

accused when the trial judge has lost jurisdiction over the case,
is the writ of habeas corpus.
IN VIEW OF THE FOREGOING, the instant petition is
GRANTED and WILLY BAGAWE y PAGALLA, accusedappellant in G.R. Nos. 88515-16, is hereby ordered
RELEASED from detention, unless for any other lawful cause
his further confinement is warranted.
SO ORDERED.

Lansang v Garcia
In the evening of August 21, 1971, at about 9 p.m., while the
Liberal Party of the Philippines was holding a public meeting at
Plaza Miranda, Manila, for the presentation of its candidates in
the general elections scheduled for November 8, 1971, two (2)
hand grenades were thrown, one after the other, at the
platform where said candidates and other persons were. As a
consequence, eight (8) persons were killed and many more
injured, including practically all of the aforementioned
candidates, some of whom sustained extensive, as well as
serious, injuries which could have been fatal had it not been for
the timely medical assistance given to them.
On August 23, soon after noontime, the President of the
Philippines announced the issuance of Proclamation No. 889,
dated August 21, 1971, reading as follows:
WHEREAS, on the basis of carefully evaluated information, it
is definitely established that lawless elements in the country,
which are moved by common or similar ideological conviction,
design and goal and enjoying the active moral and material
support of a foreign power and being guided and directed by a
well trained, determined and ruthless group of men and taking
advantage of our constitutional liberties to promote and attain
their ends, have entered into a conspiracy and have in fact
joined and banded their forces together for the avowed
purpose of actually staging, undertaking and waging an armed
insurrection and rebellion in order to forcibly seize political
power in this country, overthrow the duly constituted
government, and supplant our existing political social,
economic and legal order with an entirely new one whose form
of government, whose system of laws, whose conception of
God and religion, whose notion of individual rights and family
relations, and whose political, social and economic precepts
are based on the Marxist-Leninist-Maoist teachings and
beliefs;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President

of the Philippines, by virtue of the powers vested upon me by
Article VII, Section 10, Paragraph (2) of the Constitution, do
hereby suspend the privilege of the writ of habeas corpus, for
the persons presently detained, as well as others who may be
hereafter similarly detained for the crimes of insurrection or
rebellion, and all other crimes and offenses committed by them
in furtherance or on the occasion thereof, or incident thereto, or
in connection therewith.
Presently, petitions for writ of habeas corpus were filed, in the
above-entitled cases, by the following persons, who, having
been arrested without a warrant therefor and then detained,
upon the authority of said proclamation, assail its validity, as
well as that of their detention, namely:
1.
TEDORO LANSANG, RODOLFO DEL ROSARIO and
BAYANI ALCALA, the petitioners in Case No. L-33964 filed
on August 24, 1971 who, on August 22, 1971, between 8
a.m. and 6 p.m., were "invited" by agents of the Philippine
Constabulary which is under the command of respondent
Brig. Gen. Eduardo M. Garcia to go and did go to the
headquarters of the Philippine Constabulary, at Camp Crame,
Quezon City, for interrogation, and thereafter, detained;
2.
ROGELIO V. ARIENDA, the petitioner in Case No. L33965 filed, also, on August 24, 1971 who was picked up
in his residence, at No. 55 Road, 3, Urduja Village, Quezon
City, by members of the Metrocom and then detained;
3.
Soon after the filing of the petition in Case No. L33965 or on August 28, 1971 the same was amended to
include VICENTE ILAO and JUAN CARANDANG, as
petitioners therein, although, apart from stating that these
additional petitioners are temporarily residing with the original
petitioner, Rogelio V. Arienda, the amended petition alleged
nothing whatsoever as regards the circumstances under which
said Vicente Ilao and Juan Carandang are said to be illegally
deprived of their liberty;
4.
LUZVIMINDO DAVID, petitioner in Case No. L-33973
filed on August 25, 1971 who was similarly arrested in his
residence, at No. 131-B Kamias Road, Quezon City, and
detained by the Constabulary;
5.
Felicidad G. Prudente, who filed the petition in Case
No. L-33982 on August 27, 1971 upon the ground that
her father, Dr. NEMESIO E. PRUDENTE, had, on August 22,
1971, at about 8 p.m., been apprehended by Constabulary
agents in his house, at St. Ignatius Village, Quezon City, and
then detained at the Camp Crame stockade, Quezon City;

WHEREAS, these lawless elements, acting in concert through

front organizations that are seemingly innocent and harmless,
have continuously and systematically strengthened and
broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our
peasantry, laborers, professionals, intellectuals, students, and
mass media personnel, and through such sustained and
careful recruitment and enlistment have succeeded in
infiltrating almost every segment of our society in their
ceaseless determination to erode and weaken the political,
social, economic and moral foundations of our existing
government and to influence many peasant, labor,
professional, intellectual, student and mass media
organizations to commit acts of violence and depredations
against our duly constituted authorities, against the members
of our law enforcement agencies, and worst of all, against the
peaceful members of our society;

6.
ANGELO DE LOS REYES, who was allowed on
August 30, 1971 to intervene as one of the petitioners in
Cases Nos. L-33964, L-33965 and L-33973, he having been
arrested by members of the Constabulary on August 22, 1971,
between 6:30 and 7:30 p.m., in his residence, at 86 Don
Manuel Street, Sta. Mesa Heights, Quezon City, and brought to
Camp Crame, Quezon City, where he is detained and
restrained of liberty;

WHEREAS, these lawless elements have created a state of

lawlessness and disorder affecting public safety and the
security of the State, the latest manifestation of which has
been the dastardly attack on the Liberal Party rally in Manila on
August 21, 1971, which has resulted in the death and serious
injury of scores of persons;

8.
TERESITO SISON, who was, also, allowed to
intervene as one of the petitioners in the same three (3) cases,
he having been arrested in his residence, at 318 Lakandula
St., Angeles City, on August 22, 1971, between 6 and 7 p.m.,
and taken to the PC offices at Sto. Domingo, Angeles City, then
to Camp Olivas, San Fernando, Pampanga, and eventually to
Camp Crame, Quezon City, where he is restrained and
deprived of liberty;

WHEREAS, public safety requires that immediate and effective

action be taken in order to maintain peace and order, secure
the safety of the people and preserve the authority of the State;

7.
VICTOR FELIPE, who was similarly allowed to
intervene as one of the petitioners in said three (3) cases, upon
the ground that, on August 23, 1971, at about 8 a.m., he was,
likewise, apprehended at Sta. Rosa, Laguna, by members of
the Philippine Constabulary and brought, first to the
Constabulary headquarters at Canlubang, Laguna, and, then,
to Camp Crame, Quezon City, where he is detained and
restrained of liberty;

9.
GERARDO TOMAS, alias Gerry Tomas, a 17-year old
second year college students of St. Louis University, Baguio

City, on whose behalf, Domingo E. de Lara in his capacity

as Chairman, Committee on Legal Assistance, Philippine Bar
Association filed on September 3, 1971, the petition in Case
No. L-34004, upon the ground that said Gerardo Tomas had,
on August 23, 1971, at about 6 a.m., been arrested by
Constabulary agents, while on his way to school in the City of
Baguio, then brought to the Constabulary premises therein at
Camp Holmes, and, thereafter, taken, on August 24, 1971, to
Camp Olivas, Pampanga, and thence, on August 25, 1971, to
the Constabulary headquarters at Camp Crame, Quezon City,
where he is detained;
10.
REYNALDO RIMANDO, petitioner in Case No. L34013 filed on September 7, 1971 a 19-year old student
of the U.P. College in Baguio city who, while allegedly on his
way home, at Lukban Road, Baguio, on August 23, 1971, at
about 1 a.m., was joined by three (3) men who brought him to
the Burnham Park, thence, to Camp Olivas at San Fernando,
Pampanga, and, thereafter, to Camp Crame, Quezon City,
where he is detained;
11.
Sgt. FILOMENO M. DE CASTRO and his wife, Mrs.
BARCELISA C. DE CASTRO, on whose behalf Carlos C.
Rabago as President of the Conference Delegates
Association of the Philippines (CONDA) filed the petition in
Case No. L-34039 on September 14, 1971 against Gen.
Eduardo M. Garcia, alleging that, on August 27, 1971, at about
3 p.m., Mrs. De Castro was arrested, while at Liamzon
Subdivision, Rosario, Pasig, Rizal, by agents of the
Constabulary, and taken to the PC headquarters at Camp
Crame, where, later, that same afternoon, her husband was
brought, also, by PC agents and both are detained;
12.
ANTOLIN ORETA, JR., who filed the petition in Case
No. L-34265 on October 26, 1971 against said Gen.
Garcia, as Chief of the Constabulary, and Col. Prospero
Olivas, Chief of the Central Intelligence Service (CIS),
Philippine Constabulary, alleging that, upon invitation from said
CIS, he went, on October 20, 1971, to Camp Aguinaldo,
Quezon City, to see Gen. Manuel Yan, Chief of Staff of the
Armed Forces of the Philippines, who referred petitioner to Col.
Laroya of the CIS; that the latter, in turn, referred him to CIS
Investigator Atty. Berlin Castillo and another CIS against,
whose name is unknown to the petitioner; and that, after being
interrogated by the two (2), petitioner was detained illegally;
and
13.
GARY OLIVAR, petitioner in Case No. L-34339
filed on November 10, 1971 who was apprehended, by
agents of the Constabulary, in the evening of November 8,
1941, in Quezon City, and then detained at Camp Crame, in
the same City.
Upon the filing of the aforementioned cases, the respondents
were forthwith required to answer the petitions therein, which
they did. The return and answer in L-33964 which was,
mutatis mutandis, reproduced substantially or by reference in
the other cases, except L-34265 alleges, inter alia, that the
petitioners had been apprehended and detained "on
reasonable belief" that they had "participated in the crime of
insurrection or rebellion;" that "their continued detention is
justified due to the suspension of the privilege of the writ of
habeas corpus pursuant to Proclamation No. 889 of the
President of the Philippines;" that there is "a state of
insurrection or rebellion" in this country, and that "public safety
and the security of the State required the suspension of the
privilege of the writ of habeas corpus," as "declared by the
President of the Philippines in Proclamation No. 889; that in
making said declaration, the "President of the Philippines acted
on relevant facts gathered thru the coordinated efforts of the
various intelligence agents of our government but (of) which
the Chief Executive could not at the moment give a full account
and disclosure without risking revelation of highly classified
state secrets vital to its safely and security"; that the
determination thus made by the President is "final and
conclusive upon the court and upon all other persons" and
"partake(s) of the nature of political question(s) which cannot
be the subject of judicial inquiry," pursuant to Barcelon v.
Baker, 5 Phil. 87, and Montenegro v. Castaeda, 91 Phil. 882;
that petitioners "are under detention pending investigation and

evaluation of culpabilities on the reasonable belief" that they

"have committed, and are still committing, individually or in
conspiracy with others, engaged in armed struggle, insurgency
and other subversive activities for the overthrow of the
Government; that petitioners cannot raise, in these
proceedings for habeas corpus, "the question of their guilt or
innocence"; that the "Chief of Constabulary had petitioners
taken into custody on the basis of the existence of evidence
sufficient to afford a reasonable ground to believe that
petitioners come within the coverage of persons to whom the
privilege of the writ of habeas corpus has been suspended";
that the "continuing detention of the petitioners as an urgent
bona fide precautionary and preventive measure demanded by
the necessities of public safety, public welfare and public
interest"; that the President of the Philippines has "undertaken
concrete and abundant steps to insure that the constitutional
rights and privileges of the petitioners as well as of the other
persons in current confinement pursuant to Proclamation 889
remain unimpaired and unhampered"; and that "opportunities
or occasions for abuses by peace officers in the
implementation of the proclamation have been greatly
minimized, if not completely curtailed, by various safeguards
contained in directives issued by proper authority."
These safeguards are set forth in:
1.
A letter of the President to the Secretary of National
Defense, dated August 21, 1971, directing, inter alia, in
connection with the arrest or detention of suspects pursuant to
Proclamation No. 889, that, except when caught in flagrante
delicto, no arrest shall be made without warrant authorized in
writing by the Secretary of National Defense; that such
authority shall not be granted unless, "on the basis of records
and other evidences," it appears satisfactorily, in accordance
with Rule 113, section 6(b), of the Rules of Court, that the
person to be arrested is probably guilty of the acts mentioned
in the proclamation; that, if such person will be charged with a
crime subject to an afflictive penalty under the Anti-Subversion
Act, the authorization for his arrest shall not be issued unless
supported by signed intelligence reports citing at least one
reliable witness to the same overt act; that no unnecessary or
unreasonable force shall be used in effecting arrests; and that
arrested persons shall not be subject to greater restraint than
is necessary for their detention;
2.
Communications of the Chief of the Constabulary,
dated August 23, 27, and 30, 1971, to all units of his command,
stating that the privilege of the writ is suspended for no other
persons than those specified in the proclamation; that the
same does not involve material law; that precautionary
measures should be taken to forestall violence that may be
precipitated by improper behavior of military personnel; that
authority to cause arrest under the proclamation will be
exercised only by the Metrocom, CMA, CIS, and "officers
occupying position in the provinces down to provincial
commanders"; that there shall be no indiscriminate or mass
arrests; that arrested persons shall not be harmed and shall be
accorded fair and humane treatment; and that members of the
detainee's immediate family shall be allowed to visit him twice
a week;
3.
A memorandum of the Department of National
Defense, dated September 2, 1971, directing the Chief of the
Constabulary to establish appropriate Complaints and Action
Bodies/Groups to prevent and/or check any abuses in
connection with the suspension of the privilege of the writ; and
4.
Executive Order No. 333, dated August 26, 1971,
creating a Presidential Administrative Assistance Committee to
hear complaints regarding abuses committed in connection
with the implementation of Proclamation No. 889.
Respondents in L-33965 further alleged that therein petitioners
Vicente Ilao and Juan Carandang had been released from
custody on August 31, 1971, "after it had been found that the
evidence against them was insufficient."
In L-34265, the "Answer and Return" filed by respondents
therein traversed some allegations of fact and conclusions of
law made in the petition therein and averred that Antolin Oreta,

Jr., the petitioner therein, had been and is detained "on the
basis of a reasonable ground to believe that he has committed
overt acts in furtherance of rebellion or insurrection against the
government" and, accordingly, "comes within the class of
persons as to whom the privilege of the writ of habeas corpus
has been suspended by Proclamation No. 889, as amended,"
the validity of which is not contested by him.
On August 30, 1971, the President issued Proclamation No.
889-A, amending Proclamation No. 889, so as to read as
follows:
WHEREAS, on the basis of carefully evaluated information, it
is definitely established that lawless elements in the country,
which are moved by common or similar ideological conviction,
design and goal and enjoying the active moral and material
support of a foreign power and being guided and directed by a
well-trained, determined and ruthless group of men and taking
advantage of our constitutional liberties to promote and attain
their ends, have entered into a conspiracy and have in fact
joined and banded their forces together for the avowed
purpose of [actually] staging, undertaking, [and] wagging and
are actually engaged in an armed insurrection and rebellion in
order to forcibly seize political power in this country, overthrow
the duly constituted government, and supplant our existing
political, social, economic and legal order with an entirely new
one whose form of government, whose system of laws, whose
conception of God and religion, whose notion of individual
rights and family relations, and whose political, social and
economic precepts are based on the Marxist-Leninist-Maoist
teaching and beliefs;
WHEREAS, these lawless elements, acting in concert through
front organizations that are seemingly innocent and harmless,
have continuously and systematically strengthened and
broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our
peasantly, laborers, professionals, intellectuals, students, and
mass media personnel, and through such sustained and
careful recruitment and enlistment have succeeded in
infiltrating almost every segment of our society in their
ceaseless determination to erode and weaken the political,
social, economic and moral foundations of our existing
government and influence many peasant, labor, professional,
intellectual, student and mass media organizations to commit
acts of violence and depredations against our duly constituted
authorities, against the members of our law enforcement
agencies, and worst of all, against the peaceful members of
our society;
WHEREAS, these lawless elements, by their acts of rebellion
and insurrection, have created a state of lawlessness and
disorder affecting public safety and security of the State, the
latest manifestation of which has been the dastardly attack on
the Liberal Party rally in Manila on August 21, 1971, which has
resulted in the death and serious injury of scores of persons;
WHEREAS, public safety requires that immediate and effective
action be taken in order to maintain peace and order, secure
the safety of the people and preserve the authority of the State;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers vested upon me by
Article VII, Section 10, Paragraph (2) of the Constitution, do
hereby suspend the privilege of the writ of habeas corpus for
the persons presently detained, as well as all others who may
be hereafter similarly detained for the crimes of insurrection or
rebellion [,] and [all] other [crimes and offenses] overt acts
committed by them in furtherance [or on the occasion]
thereof[,]. [or incident thereto, or in connection therewith.] 1
On September 1, 1971, Cases Nos. L-33964, L-33965, L33973 and L-33982 were jointly heard and then the parties
therein were allowed to file memoranda, which were submitted
from September 3 to September 9, 1971.
Soon thereafter, or on September 18, 1971, Proclamation No.
889 was further amended by Proclamation No. 889-B, lifting
the suspension of the privilege of the writ of habeas corpus in

the following provinces, sub-provinces and cities of the

Philippines.
The first major question that the Court had to consider was
whether it would adhere to the view taken in Barcelon v. Baker,
2 and reiterated in Montenegro v. Castaeda, 3 pursuant to
which, "the authority to decide whether the exigency has arisen
requiring suspension (of the privilege of the writ of habeas
corpus) belongs to the President and his 'decision is final and
conclusive' upon the courts and upon all other persons."
Indeed, had said question been decided in the affirmative the
main issue in all of these cases, except
L-34339, would have been settled, and, since the other issues
were relatively of minor importance, said cases could have
been readily disposed of. Upon mature deliberation, a majority
of the Members of the Court had, however, reached, although
tentatively, a consensus to the contrary, and decided that the
Court had authority to and should inquire into the existence of
the factual bases required by the Constitution for the
suspension of the privilege of the writ; but before proceeding to
do so, the Court deemed it necessary to hear the parties on
the nature and extent of the inquiry to be undertaken, none of
them having previously expressed their views thereof.
Accordingly, on October 5, 1971, the Court issued, in L-33964,
L-33965, L-33973 and L-33982, a resolution stating in part that
... a majority of the Court having tentatively arrived at a
consensus that it may inquire in order to satisfy itself of the
existence of the factual bases for the issuance of Presidential
Proclamations Nos. 889 and 889-A (suspending the privilege of
the writ of habeas corpus for all persons detained or to be
detained for the crimes of rebellion or insurrection throughout
the Philippines, which area has lately been reduced to some
eighteen provinces, two subprovinces and eighteen cities with
the partial lifting of the suspension of the privilege effected by
Presidential Proclamations Nos. 889-B, 889-C and 889-D) and
thus determine the constitutional sufficiency of such bases in
the light of the requirements of Article III, sec. 1, par. 14, and
Article VII, sec. 10, par. 2, of the Philippine Constitution; and
considering that the members of the Court are not agreed on
the precise scope and nature of the inquiry to be made in the
premises, even as all of them are agreed that the Presidential
findings are entitled to great respect, the Court RESOLVED
that these cases be set for rehearing on October 8, 1971 at
9:30 A.M.
On October 8, 1971, said four cases were, therefore, heard,
once again, but, this time jointly with cases Nos. L-34004, L34013, and L-34039, and the parties were then granted a
period to file memoranda, in amplification of their respective
oral arguments, which memoranda were submitted from
October 12 to October 21, 1971.
Respondents having expressed, during the oral arguments, on
September 1 and October 8, 1971, their willingness to impart
to the Court classified information relevant to these cases,
subject to appropriate security measures, the Court met at
closed doors, on October 28 and 29, 1971, and, in the
presence of three (3) attorneys for the petitioners, chosen by
the latter, namely, Senator Jose W. Diokno, Senator Salvador
H. Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor
General and two (2) members of his staff, was briefed, by Gen.
Manuel Yan, Chief of Staff of the Armed Forces of the
Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen.
Felizardo Tanabe, Col. Tagumpay Nanadiego, Judge Advocate
General, JAGS (GSC), and other ranking officers of said
Armed Forces, on said classified information, most of which
was contained in reports and other documents already
attached to the records. During the proceedings, the members
of the Court, and, occassionally, counsel for the petitioners,
propounded pertinent questions to said officers of the Armed
Forces. Both parties were then granted a period of time within
which to submit their respective observations, which were filed
on November 3, 1971, and complemented by some documents
attached to the records on November 6, 1971, and a summary,
submitted on November 15, 1971, of the aforesaid classified
information.

In the meantime, cases Nos. L-34265 (Oreta) and L-34339

(Olivar) had been filed and the parties therein were heard in
oral argument on November 4, and 16, 1971, respectively.
On November 15, 1971, the Solicitor General filed
manifestations motions stating that on November 13, 1971,
the following petitioners were:
(a)

released from custody:

(1) Teodosio Lansang

(2) Bayani Alcala
(3) Rogelio Arienda
(4) Nemesio Prudente
(5) Gerardo Tomas
(6) Reynaldo Rimando
(7) Filomeno M. de Castro
(8) Barcelisa de Castro
(9) Antolin Oreta, Jr.
(b)
charged, together with other persons named in the
criminal complaint filed therefor, with a violation of Republic Act
No. 1700 (Anti-Subversion Act), in the City Fiscal's Office of
Quezon City:
(1) Angelo de los Reyes
(2) Teresito Sison
(c)
accused, together with many others named in the
criminal complaint filed therefor, of a violation of section 4 of
Republic Act No. 1700 (Anti-Subversion Act), in the Court of
First Instance of Rizal:
(1) Rodolfo del Rosario
(2) Luzvimindo David
(3) Victor Felipe
and continue under detention pursuant to Proclamation No.
889, as amended, and praying that the petitions in G.R. Nos.
L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be
dismissed, without prejudice to the resolution of the remaining
cases. Copy of the criminal complaint filed, as above stated,
with the Court of First Instance of Rizal and docketed therein
as Criminal Case No. Q-1623 of said court which was
appended to said manifestations-motions of the respondent as
Annex 2 thereof shows that Gary Olivar, the petitioner in L34339, is one of the defendants in said case.
Required to comment on said manifestations-motions,
Luzvimindo David, petitioner in L-33973, in his comment dated
November 23, 1971, urged the Court to rule on the merits of
the petitions in all of these cases, particularly on the
constitutionality of Presidential Proclamation No. 889, as
amended, upon the ground that he is still detained and that the
main issue is one of public interest involving as it does the civil
liberties of the people. Angelo de los Reyes, one of the
petitioners in L-33964, L-33965 and L-33973, Nemesio E.
Prudente and Gerardo Tomas, for whose respective benefit the
petitions in L-33982 and L-34004 have been filed, maintained
that the issue in these cases is not moot, not even for the
detainees who have been released, for, as long as the privilege
of the writ remains suspended, they are in danger of being
arrested and detained again without just cause or valid reason.
In his reply, dated and filed on November 29, 1971, the
Solicitor General insisted that the release of the above-named
petitioners rendered their respective petitions moot and
academic.
I. Petitioners herein, except Antolin Oreta, Jr. in L-34265,
question the formal validity of the proclamation suspending the

privilege of the writ of habeas corpus. In this connection, it

should be noted that, as originally formulated, Proclamation
No. 889 was contested upon the ground that it did not comply
with the pertinent constitutional provisions, namely, paragraph
(14) of section 1, Article III of our Constitution, reading:
The privilege of the writ of habeas corpus shall not be
suspended except in cases of invasion, insurrection, or
rebellion, when the public safety requires it, in any way of
which events the same may be suspended wherever during
such period the necessity for such suspension shall exist.
and paragraph (2), section 10, Article VII of the same
instrument, which provides that:
The President shall be commander-in-chief of all armed forces
of the Philippines, and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion, insurrection, or rebellion. In case of
invasion, insurrection, or rebellion, or imminent danger thereof
when the public safety requires it, he may suspend the
privileges of the writ of habeas corpus, or place the Philippines
or any part thereof under martial law.
Regardless of whether or not the President may suspend the
privilege of the writ of habeas corpus in case of "imminent
danger" of invasion, insurrection or rebellion which is one of
the grounds stated in said paragraph (2), section 10 of Art. VII
of the Constitution, but not mentioned in paragraph (14),
section 1 of its Bill of Rights petitioners maintained that
Proclamation No. 889 did not declare the existence of actual
"invasion insurrection or rebellion or imminent danger thereof,"
and that, consequently, said Proclamation was invalid. This
contention was predicated upon the fact that, although the first
"whereas" in Proclamation No. 889 stated that "lawless
elements" had "entered into a conspiracy and have in fact
joined and banded their forces together for the avowed
purpose of actually staging, undertaking and waging an armed
insurrection and rebellion," the actuality so alleged refers to the
existence, not of an uprising that constitutes the essence of a
rebellion or insurrection, but of the conspiracy and the intent to
rise in arms.
Whatever may be the merit of this claim, the same has been
rendered moot and academic by Proclamation No. 889-A,
issued nine (9) days after the promulgation of the original
proclamation, or on August 30, 1971. Indeed, said
Proclamation No. 889-A amended, inter alia, the first "whereas"
of the original proclamation by postulating the said lawless
elements "have entered into a conspiracy and have in fact
joined and banded their forces together for the avowed
purpose of staging, undertaking, waging and are actually
engaged in an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly
constituted government, and supplant our existing political,
social, economic and legal order with an entirely new one ...."
Moreover, the third "whereas" in the original proclamation was,
likewise, amended by alleging therein that said lawless
elements, "by their acts of rebellion and insurrection," have
created a state of lawlessness and disorder affecting public
safety and the security of the State. In other words, apart from
adverting to the existence of actual conspiracy and of the intent
to rise in arms to overthrow the government, Proclamation No.
889-A asserts that the lawless elements "are actually engaged
in an armed insurrection and rebellion" to accomplish their
purpose.
It may not be amiss to note, at this juncture, that the very tenor
of the original proclamation and particularly, the circumstances
under which it had been issued, clearly suggest the intent to
aver that there was and is, actually, a state of rebellion in the
Philippines, although the language of said proclamation was
hardly a felicitous one, it having in effect, stressed the actuality
of the intent to rise in arms, rather than of the factual existence
of the rebellion itself. The pleadings, the oral arguments and
the memoranda of respondents herein have consistently and
abundantly emphasized to justify the suspension of the
privilege of the writ of habeas corpus the acts of violence
and subversion committed prior to August 21, 1971, by the
lawless elements above referred to, and the conditions

obtaining at the time of the issuance of the original

proclamation. In short, We hold that Proclamation No. 889-A
has superseded the original proclamation and that the flaws
attributed thereto are purely formal in nature.
II. Let us now consider the substantive validity of the
proclamation, as amended. Pursuant to the above-quoted
provisions of the Constitution, two (2) conditions must concur
for the valid exercise of the authority to suspend the privilege
to the writ, to wit: (a) there must be "invasion, insurrection, or
rebellion" or pursuant to paragraph (2), section 10 of Art. VII
of the Constitution "imminent danger thereof," and (b)
"public safety" must require the suspension of the privilege.
The Presidential Proclamation under consideration declares
that there has been and there is actually a state of rebellion
and that 4 "public safety requires that immediate and effective
action be taken in order to maintain peace and order, secure
the safety of the people and preserve the authority of the
State."
Are these findings conclusive upon the Court? Respondents
maintain that they are, upon the authority of Barcelon v. Baker
5 and Montenegro v. Castaeda. 6 Upon the other hand,
petitioners press the negative view and urge a reexamination
of the position taken in said two (2) cases, as well as a reversal
thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by
two (2) factors, namely: (a) it relied heavily upon Martin v. Mott
7 involving the U.S. President's power to call out the militia,
which he being the commander-in-chief of all the armed
forces may be exercised to suppress or prevent any lawless
violence, even without invasion, insurrection or rebellion, or
imminent danger thereof, and is, accordingly, much broader
than his authority to suspend the privilege of the writ of habeas
corpus, jeopardizing as the latter does individual liberty; and
(b) the privilege had been suspended by the American
Governor-General, whose act, as representative of the
Sovereign, affecting the freedom of its subjects, can hardly be
equated with that of the President of the Philippines dealing
with the freedom of the Filipino people, in whom sovereignty
resides, and from whom all government authority emanates.
The pertinent ruling in the Montenegro case was based mainly
upon the Barcelon case, and hence, cannot have more weight
than the same. Moreover, in the Barcelon case, the Court held
that it could go into the question: "Did the Governor-General"
acting under the authority vested in him by the Congress of
the United States, to suspend the privilege of the writ of
habeas corpus under certain conditions "act in conformance
with such authority?" In other words, it did determine whether
or not the Chief Executive had acted in accordance with law.
Similarly, in the Montenegro case, the Court held that petitioner
therein had "failed to overcome the presumption of correctness
which the judiciary accords to acts of the Executive ...." In
short, the Court considered the question whether or not there
really was are rebellion, as stated in the proclamation therein
contested.
Incidentally, even the American jurisprudence is neither explicit
nor clear on the point under consideration. Although some
cases 8 purport to deny the judicial power to "review" the
findings made in the proclamations assailed in said cases, the
tenor of the opinions therein given, considered as a whole,
strongly suggests the court's conviction that the conditions
essential for the validity of said proclamations or orders were,
in fact, present therein, just as the opposite view taken in other
cases 9 had a backdrop permeated or characterized by the
belief that said conditions were absent. Hence, the dictum of
Chief Justice Taney to the effect that "(e)very case must
depend on its own circumstances." 10 One of the important, if
not dominant, factors, in connection therewith, was intimated in
Sterling v. Constantin, 11 in which the Supreme Court of the
United States, speaking through Chief Justice Hughes,
declared that:
.... When there is a substantial showing that the exertion of
state power has overridden private rights secured by that
Constitution, the subject is necessarily one for judicial inquiry in
an appropriate proceeding directed against the individuals

charged with the transgression. To such a case the Federal

judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority
appropriate to its exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority
of the Court" had "tentatively arrived at a consensus that it may
inquire in order to satisfy itself of the existence of the factual
bases for the issuance of Presidential Proclamations Nos. 889
and 889-A ... and thus determine the constitutional sufficiency
of such bases in the light of the requirements of Article III, sec.
1, par. 14, and Article VII, sec. 10, par 2, of the Philippine
Constitution...." Upon further deliberation, the members of the
Court are now unanimous in the conviction that it has the
authority to inquire into the existence of said factual bases in
order to determine the constitutional sufficiency thereof.
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." 13
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.
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 suspension of the privilege
affects the most fundamental element of that system, namely,
individual freedom. Indeed, such freedom includes and
connotes, as well as demands, the right of every single
member of our citizenry to freely discuss and dissent from, as
well as criticize and denounce, the views, the policies and the
practices of the government and the party in power that he
deems unwise, improper or inimical to the commonwealth,
regardless of whether his own opinion is objectively correct or
not. The untrammelled enjoyment and exercise of such right
which, under certain conditions, may be a civic duty of the
highest order is vital to the democratic system and essential
to its successful operation and wholesome growth and
development.
Manifestly, however, the liberty guaranteed and protected by
our Basic Law is one enjoyed and exercised, not in derogation
thereof, but consistently therewith, and, hence, within the
framework of the social order established by the Constitution
and the context of the Rule of Law. Accordingly, when
individual freedom is used to destroy that social order, by
means of force and violence, in defiance of the Rule of Law
such as by rising publicly and taking arms against the
government to overthrow the same, thereby committing the
crime of rebellion there emerges a circumstance that may
warrant a limited withdrawal of the aforementioned guarantee
or protection, by suspending the privilege of the writ of habeas
corpus, when public safety requires it. Although we must be
forewarned against mistaking mere dissent no matter how
emphatic or intemperate it may be for dissidence amounting

to rebellion or insurrection, the Court cannot hesitate, much

less refuse when the existence of such rebellion or
insurrection has been fairly established or cannot reasonably
be denied to uphold the finding of the Executive thereon,
without, in effect, encroaching upon a power vested in him by
the Supreme Law of the land and depriving him, to this extent,
of such power, and, therefore, without violating the Constitution
and jeopardizing the very Rule of Law the Court is called upon
to epitomize.
As heretofore adverted to, for the valid suspension of the
privilege of the writ: (a) there must be "invasion, insurrection or
rebellion" or pursuant to paragraph (2), section 10 of Art. VII
of the Constitution "imminent danger thereof"; and (b) public
safety must require the aforementioned suspension. The
President declared in Proclamation No. 889, as amended, that
both conditions are present.
As regards the first condition, our jurisprudence 14 attests
abundantly to the Communist activities in the Philippines,
especially in Manila, from the late twenties to the early thirties,
then aimed principally at incitement to sedition or rebellion, as
the immediate objective. Upon the establishment of the
Commonwealth of the Philippines, the movement seemed to
have waned notably; but, the outbreak of World War II in the
Pacific and the miseries, the devastation and havoc, and the
proliferation of unlicensed firearms concomitant with the
military occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a resurgence of the
Communist threat, with such vigor as to be able to organize
and operate in Central Luzon an army called
HUKBALAHAP, during the occupation, and renamed Hukbong
Mapagpalaya ng Bayan (HMP) after liberation which
clashed several times with the armed forces of the Republic.
This prompted then President Quirino to issue Proclamation
No. 210, dated October 22, 1950, suspending the privilege of
the writ of habeas corpus, the validity of which was upheld in
Montenegro v. Castaeda. 15 Days before the promulgation of
said Proclamation, or on October 18, 1950, members of the
Communist Politburo in the Philippines were apprehended in
Manila. Subsequently accused and convicted of the crime of
rebellion, they served their respective sentences. 16
The fifties saw a comparative lull in Communist activities,
insofar as peace and order were concerned. Still, on June 20,
1957, Rep. Act No. 1700, otherwise known as the AntiSubversion Act, was approved, upon the ground stated in
the very preamble of said statute that.
... the Communist Party of the Philippines, although
purportedly a political party, is in fact an organized conspiracy
to overthrow the Government of the Republic of the
Philippines, not only by force and violence but also by deceit,
subversion and other illegal means, for the purpose of
establishing in the Philippines a totalitarian regime subject to
alien domination and control;
... the continued existence and activities of the Communist
Party of the Philippines constitutes a clear, present and grave
danger to the security of the Philippines; 17 and
... in the face of the organized, systematic and persistent
subversion, national in scope but international in direction,
posed by the Communist Party of the Philippines and its
activities, there is urgent need for special legislation to cope
with this continuing menace to the freedom and security of the
country....
In the language of the Report on Central Luzon, submitted, on
September 4, 1971, by the Senate Ad Hoc Committee of
Seven copy of which Report was filed in these cases by the
petitioners herein
The years following 1963 saw the successive emergence in
the country of several mass organizations, notably the Lapiang
Manggagawa (now the Socialist Party of the Philippines)
among the workers; the Malayang Samahan ng mga
Magsasaka (MASAKA) among the peasantry; the Kabataang
Makabayan (KM) among the youth/students; and the
Movement for the Advancement of Nationalism (MAN) among

the intellectuals/professionals. The PKP has exerted all-out

effort to infiltrate, influence and utilize these organizations in
promoting its radical brand of nationalism. 18
Meanwhile, the Communist leaders in the Philippines had been
split into two (2) groups, one of which composed mainly of
young radicals, constituting the Maoist faction reorganized
the Communist Party of the Philippines early in 1969 and
established a New People's Army. This faction adheres to the
Maoist concept of the "Protracted People's War" or "War of
National Liberation." Its "Programme for a People's Democratic
Revolution" states, inter alia:
The Communist Party of the Philippines is determined to
implement its general programme for a people's democratic
revolution. All Filipino communists are ready to sacrifice their
lives for the worthy cause of achieving the new type of
democracy, of building a new Philippines that is genuinely and
completely independent, democratic, united, just and
prosperous ...
The central task of any revolutionary movement is to seize
political power. The Communist Party of the Philippines
assumes this task at a time that both the international and
national situations are favorable of asking the road of armed
revolution ... 19
In the year 1969, the NPA had according to the records of
the Department of National Defense conducted raids,
resorted to kidnappings and taken part in other violent
incidents numbering over 230, in which it inflicted 404
casualties, and, in turn, suffered 243 losses. In 1970, its
records of violent incidents was about the same, but the NPA
casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists,
whether they belong to the traditional group or to the Maoist
faction, believe that force and violence are indispensable to the
attainment of their main and ultimate objective, and act in
accordance with such belief, although they may disagree on
the means to be used at a given time and in a particular place;
and (b) there is a New People's Army, other, of course, that the
arm forces of the Republic and antagonistic thereto. Such New
People's Army is per se proof of the existence of a rebellion,
especially considering that its establishment was announced
publicly by the reorganized CPP. Such announcement is in the
nature of a public challenge to the duly constituted authorities
and may be likened to a declaration of war, sufficient to
establish a war status or a condition of belligerency, even
before the actual commencement of hostilities.
We entertain, therefore, no doubts about the existence of a
sizeable group of men who have publicly risen in arms to
overthrow the government and have thus been and still are
engaged in rebellion against the Government of the
Philippines.
In fact, the thrust of petitioners' argument is that the New
People's Army proper is too small, compared with the size of
the armed forces of the Government, that the Communist
rebellion or insurrection cannot so endanger public safety as to
require the suspension of the privilege of the writ of habeas
corpus. This argument does not negate, however, the
existence of a rebellion, which, from the constitutional and
statutory viewpoint, need not be widespread or attain the
magnitude of a civil war. This is apparent from the very
provision of the Revised Penal Code defining the crime of
rebellion, 20 which may be limited in its scope to "any part" of
the Philippines, and, also, from paragraph (14) of section 1,
Article III of the Constitution, authorizing the suspension of the
privilege of the writ "wherever" in case of rebellion "the
necessity for such suspension shall exist." In fact, the case of
Barcelon v. Baker referred to a proclamation suspending the
privilege in the provinces of Cavite and Batangas only. The
case of In re Boyle 21 involved a valid proclamation
suspending the privilege in a smaller area a country of the
state of Idaho.
The magnitude of the rebellion has a bearing on the second
condition essential to the validity of the suspension of the

privilege namely, that the suspension be required by public

safety. Before delving, however, into the factual bases of the
presidential findings thereon, let us consider the precise nature
of the Court's function in passing upon the validity of
Proclamation No. 889, as amended.
Article VII of the Constitution vests in the Executive the power
to suspend the privilege of the writ of habeas corpus under
specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is
supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more,
it goes hand in hand with the system of checks and balances,
under which the Executive is supreme, as regards the
suspension of 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.
In the exercise of such authority, the function of the Court is
merely to check not to supplant 22 the Executive, or to
ascertain merely whether he had 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.
Under the principle of separation of powers and the system of
checks and balances, the judicial authority to review decisions
of administrative bodies or agencies is much more limited, as
regards findings of fact made in said decisions. Under the
English law, the reviewing court determines only whether there
is some evidentiary basis for the contested administrative
findings; no quantitative examination of the supporting
evidence is undertaken. The administrative findings can be
interfered with only if there is no evidence whatsoever in
support thereof, and said finding is, accordingly, arbitrary,
capricious and obviously unauthorized. This view has been
adopted by some American courts. It has, likewise, been
adhered to in a number of Philippine cases. Other cases, in
both jurisdictions, have applied the "substantial evidence" rule,
which has been construed to mean "more than a mere scintilla"
or "relevant evidence as a reasonable mind might accept as
adequate to support a conclusion," 23 even if other minds
equally reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of
administrative determinations involving the exercise of quasijudicial functions calling for or entailing the reception of
evidence. It does not and cannot be applied, in its aforesaid
form, in testing the validity of an act of Congress or of the
Executive, such as the suspension of the privilege of the writ of
habeas corpus, for, as a general rule, neither body takes
evidence in the sense in which the term is used in judicial
proceedings before enacting a legislation or suspending the
writ. Referring to the test of the validity of a statute, the
Supreme Court of the United States, speaking through Mr.
Justice Roberts, expressed, in the leading case of Nebbia v.
New York, 24 the view that:
... If the laws passed are seen to have a reasonable relation to
a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied,
and judicial determination to that effect renders a court functus
officio ... With the wisdom of the policy adopted, with the
adequacy or practically of the law enacted to forward it, the
courts are both incompetent and unauthorized to deal ...
Relying upon this view, it is urged by the Solicitor General

... that judicial inquiry into the basis of the questioned

proclamation can go no further than to satisfy the Court not
that the President's decision is correct and that public safety
was endanger by the rebellion and justified the suspension of
the writ, but that in suspending the writ, the President did not
act arbitrarily.
No cogent reason has been submitted to warrant the rejection
of such test. Indeed, the co-equality of coordinate branches of
the Government, under our constitutional system, seems to
demand that the test of the validity of acts of Congress and of
those of the Executive be, mutatis mutandis, fundamentally the
same. Hence, counsel for petitioner Rogelio Arienda admits
that the proper standard is not correctness, but arbitrariness.
Did public safety require the suspension of the privilege of the
writ of habeas corpus decreed in Proclamation No. 889, as
amended? Petitioners submit a negative answer upon the
ground: (a) that there is no rebellion; (b) that, prior to and at the
time of the suspension of the privilege, the Government was
functioning normally, as were the courts; (c) that no untoward
incident, confirmatory of an alleged July-August Plan, has
actually taken place after August 21, 1971; (d) that the
President's alleged apprehension, because of said plan, is
non-existent and unjustified; and (e) that the Communist forces
in the Philippines are too small and weak to jeopardize public
safety to such extent as to require the suspension of the
privilege of the writ of habeas corpus.
As above indicated, however, the existence of a rebellion is
obvious, so much so that counsel for several petitioners herein
have admitted it.
With respect to the normal operation of government, including
courts, prior to and at the time of the suspension of the
privilege, suffice it to say that, if the conditions were such that
courts of justice no longer functioned, a suspension of the
privilege would have been unnecessary, there being no courts
to issue the writ of habeas corpus. Indeed, petitioners'
reference to the normal operation of courts as a factor
indicative of the illegality of the contested act of the Executive
stems, perhaps, from the fact that this circumstance was
adverted to in some American cases to justify the invalidation
therein decreed of said act of the Executive. Said cases
involved, however, the conviction by military courts of members
of the civilian population charged with common crimes. It was
manifestly, illegal for military courts to assume jurisdiction over
civilians so charged, when civil courts were functioning
normally.
Then, too, the alleged absence of any untoward incident after
August 21, 1971, does not necessarily bear out petitioners'
view. What is more, it may have been due precisely to the
suspension of the privilege. To be sure, one of its logical effects
is to compel those connected with the insurrection or rebellion
to go into hiding. In fact, most of them could not be located by
the authorities, after August 21, 1971.
The alleged July-August Plan to terrorize Manila is branded as
incredible, upon the theory that, according to Professor Egbal
Ahman of Cornell University, "guerrilla use of terror ... is
sociological and psychologically selective," and that the
indiscriminate resort to terrorism is bound to boomerang, for it
tends to alienate the people's symphaty and to deprive the
dissidents of much needed mass support. The fact, however, is
that the violence used is some demonstrations held in Manila
in 1970 and 1971 tended to terrorize the bulk of its inhabitants.
It would have been highly imprudent, therefore, for the
Executive to discard the possibility of a resort to terrorism, on a
much bigger scale, under the July-August Plan.
We will now address our attention to petitioners' theory to the
effect that the New People's Army of the Communist Party of
the Philippines is too small to pose a danger to public safety of
such magnitude as to require the suspension of the privilege of
the writ of habeas corpus. The flaw in petitioners' stand
becomes apparent when we consider that it assumes that the
Armed Forces of the Philippines have no other task than to
fight the New People's Army, and that the latter is the only

threat and a minor one to our security. Such assumption

is manifestly erroneous.
The records before Us show that, on or before August 21,
1971, the Executive had information and reports
subsequently confirmed, in many respects, by the
abovementioned Report of the Senate Ad-Hoc Committee of
Seven 25 to the effect that the Communist Party of the
Philippines does not merely adhere to Lenin's idea of a swift
armed uprising; that it has, also, adopted Ho Chi Minh's
terrorist tactics and resorted to the assassination of
uncooperative local official; that, in line with this policy, the
insurgents have killed 5 mayors, 20 barrio captains and 3
chiefs of police; that there were fourteen (14) meaningful
bombing incidents in the Greater Manila Area in 1970; that the
Constitutional Convention Hall was bombed on June 12, 1971;
that, soon after the Plaza Miranda incident, the NAWASA main
pipe, at the Quezon City-San Juan boundary, was bombed;
that this was followed closely by the bombing of the Manila City
Hall, the COMELEC building, the Congress Building and the
MERALCO substation at Cubao, Quezon City; and that the
respective residences of Senator Jose J. Roy and
Congressman Eduardo Cojuangco were, likewise, bombed, as
were the MERALCO main office premises, along Ortigas
Avenue, and the Doctor's Pharmaceuticals, Inc. Building, in
Caloocan City.
Petitioners, similarly, fail to take into account that as per
said information and reports the reorganized Communist
Party of the Philippines has, moreover, adopted Mao's concept
of protracted people's war, aimed at the paralyzation of the will
to resist of the government, of the political, economic and
intellectual leadership, and of the people themselves; that
conformably to such concept, the Party has placed special
emphasis upon a most extensive and intensive program of
subversion by the establishment of front organizations in urban
centers, the organization of armed city partisans and the
infiltration in student groups, labor unions, and farmer and
professional groups; that the CPP has managed to infiltrate or
establish and control nine (9) major labor organizations; that it
has exploited the youth movement and succeeded in making
Communist fronts of eleven (11) major student or youth
organizations; that there are, accordingly, about thirty (30)
mass organizations actively advancing the CPP interests,
among which are the Malayang Samahan ng Magsasaka
(MASAKA), the Kabataang Makabayan (KM), the Movement
for the Advancement of Nationalism (MAN), the Samahang
Demokratiko ng Kabataan (SDK), the Samahang Molave (SM)
and the Malayang Pagkakaisa ng Kabataang Pilipino(MPKP);
that, as of August, 1971, the KM had two hundred forty-five
(245) operational chapters throughout the Philippines, of which
seventy-three (73) were in the Greater Manila Area, sixty (60)
in Northern Luzon, forty-nine (49) in Central Luzon, forty-two
(42) in the Visayas and twenty-one (21) in Mindanao and Sulu;
that in 1970, the Party had recorded two hundred fifty-eight
(258) major demonstrations, of which about thirty-three (33)
ended in violence, resulting in fifteen (15) killed and over five
hundred (500) injured; that most of these actions were
organized, coordinated or led by the aforementioned front
organizations; that the violent demonstrations were generally
instigated by a small, but well-trained group of armed agitators;
that the number of demonstrations heretofore staged in 1971
has already exceeded those of 1970; and that twenty-four (24)
of these demonstrations were violent, and resulted in the death
of fifteen (15) persons and the injury of many more.
Subsequent events as reported have also proven that
petitioners' counsel have underestimated the threat to public
safety posed by the New People's Army. Indeed, it appears
that, since August 21, 1971, it had in Northern Luzon six (6)
encounters and staged one (1) raid, in consequence of which
seven (7) soldiers lost their lives and two (2)others were
wounded, whereas the insurgents suffered five (5) casualties;
that on August 26, 1971, a well-armed group of NPA, trained
by defector Lt. Victor Corpus, attacked the very command port
of TF LAWIN in Isabela, destroying two (2) helicopters and one
(1) plane, and wounding one (1) soldier; that the NPA had in
Central Luzon a total of four (4) encounters, with two (2) killed
and three (3) wounded on the side of the Government, one (1)
BSDU killed and three (3) NPA casualties; that in an encounter

at Botolan, Zambales, one (1) KM-SDK leader, an unidentified

dissident, and Commander Panchito, leader of the dissident
group were killed; that on August 26, 1971, there was an
encounter in the barrio of San Pedro. Iriga City, Camarines
Sur, between the PC and the NPA, in which a PC and two (2)
KM members were killed; that the current disturbances in
Cotabato and the Lanao provinces have been rendered more
complex by the involvement of the CPP/NPA, for, in mid-1971,
a KM group, headed by Jovencio Esparagoza, contacted the
Higa-onan tribes, in their settlement in Magsaysay, Misamis
Oriental, and offered them books, pamphlets and brochures of
Mao Tse Tung, as well as conducted teach-ins in the
reservation; that Esparagoza an operation of the PC in said
reservation; and that there are now two (2) NPA cadres in
Mindanao.
It should, also, be noted that adherents of the CPP and its front
organizations are, according to intelligence findings, definitely
capable of preparing powerful explosives out of locally
available materials; that the bomb used in the Constitutional
Convention Hall was a "clay-more" mine, a powerful explosive
device used by the U.S. Army, believed to have been one of
many pilfered from the Subic Naval Base a few days before;
that the President had received intelligence information to the
effect that there was a July-August Plan involving a wave of
assassinations, kidnappings, terrorism and mass destruction of
property and that an extraordinary occurence would signal the
beginning of said event; that the rather serious condition of
peace and order in Mindanao, particularly in Cotabato and
Lanao, demanded the presence therein of forces sufficient to
cope with the situation; that a sizeable part of our armed forces
discharge other functions; and that the expansion of the CPP
activities from Central Luzon to other parts of the country,
particularly Manila and its suburbs, the Cagayan Valley, Ifugao,
Zambales, Laguna, Quezon and Bicol Region, required that
the rest of our armed forces be spread thin over a wide area.
Considering that the President was in possession of the above
data except those related to events that happened after
August 21, 1971 when the Plaza Miranda bombing took
place, the Court is not prepared to hold that the Executive had
acted arbitrarily or gravely abused his discretion when he then
concluded that public safety and national security required the
suspension of the privilege of the writ, particularly if the NPA
were to strike simultaneously with violent demonstrations
staged by the two hundred forty-five (245) KM chapters, all
over the Philippines, with the assistance and cooperation of the
dozens of CPP front organizations, and the bombing or water
mains and conduits, as well as electric power plants and
installations a possibility which, no matter how remote, he
was bound to forestall, and a danger he was under obligation
to anticipate and arrest.
He had consulted his advisers and sought their views. He had
reason to feel that the situation was critical as, indeed, it
was and demanded immediate action. This he took
believing in good faith that public safety required it. And, in the
light of the circumstances adverted to above, he had
substantial grounds to entertain such belief.
Petitioners insist that, nevertheless, the President had no
authority to suspend the privilege in the entire Philippines,
even if he may have been justified in doing so in some
provinces or cities thereof. At the time of the issuance of
Proclamation No. 889, he could not be reasonably certain,
however, about the placed to be excluded from the operation of
the proclamation. He needed some time to find out how it
worked, and as he did so, he caused the suspension to be
gradually lifted, first, on September 18, 1971, in twenty-seven
(27) provinces, three (3) sub-provinces and twenty six (26)
cities; then, on September 25, 1971, in order fourteen (14)
provinces and thirteen (13) cities; and, still later, on October 4,
1971, in seven (7) additional provinces and four (4) cities, or a
total of forty-eight (48) provinces, three (3) sub-provinces and
forth-three (43) cities, within a period of forty-five (45) days
from August 21, 1971.
Neither should We overlook the significance of another fact.
The President could have declared a general suspension of
the privilege. Instead, Proclamation No. 889 limited the

suspension to persons detained "for crimes of insurrection or

rebellion, and all other crimes and offenses committed by them
in furtherance or on the occasion thereof, or incident thereto, or
in connection therewith." Even this was further limited by
Proclamation No. 889-A, which withdrew from the coverage of
the suspension persons detained for other crimes and offenses
committed "on the occasion" of the insurrection or rebellion, or
"incident thereto, in or connection therewith." In fact, the
petitioners in L-33964, L-33982 and L-34004 concede that the
President had acted in good faith.
In case of invasion, insurrection or rebellion or imminent
danger thereof, the President has, under the Constitution,
three (3) courses of action open to him, namely: (a) to call out
the armed forces; (b) to suspend the privilege of the writ of
habeas corpus; and (c) to place the Philippines or any part
thereof under martial law. He had, already, called out the
armed forces, which measure, however, proved inadequate to
attain the desired result. Of the two (2)other alternatives, the
suspension of the privilege is the least harsh.
In view of the foregoing, it does not appear that the President
has acted arbitrary in issuing Proclamation No. 889, as
amended, nor that the same is unconstitutional.
III. The next question for determination is whether petitioners
herein are covered by said Proclamation, as amended. In other
words, do petitioners herein belong to the class of persons as
to whom privilege of the writ of habeas corpus has been
suspended?
In this connection, it appears that Bayani Alcala, one of the
petitioners in L-33964, Gerardo Tomas, petitioner in L-34004,
and Reynaldo Rimando, petitioner in L-34013, were, on
November 13, 1971, released "permanently" meaning,
perhaps, without any intention to prosecute them upon the
ground that, although there was reasonable ground to believe
that they had committed an offense related to subversion, the
evidence against them is insufficient to warrant their
prosecution; that Teodosio Lansang, one of the petitioners in L33964, Rogelio Arienda, petitioner in L-33965, Nemesio
Prudente, petitioner in L-33982, Filomeno de Castro and
Barcelisa C. de Castro, for whose benefit the petition in L34039 was filed, and Antolin Oreta, Jr., petitioner in L-34265,
were, on said date, "temporarily released"; that Rodolfo del
Rosario, one of the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and
L-33973, as well as Luzvimindo David, petitioner in L-33973,
and Gary Olivar, petitioner in L-34339, are still under detention
and, hence, deprived of their liberty, they together with over
forty (40) other persons, who are at large having been
accused, in the Court of First Instance of Rizal, of a violation of
section 4 of Republic Act No. 1700 (Anti-Subversion Act); and
that Angelo delos Reyes and Teresito Sison, intervenors in said
L-33964, L-33965 and
L-33973, are, likewise, still detained and have been charged
together with over fifteen (15) other persons, who are, also, at
large with another violation of said Act, in a criminal
complaint filed with the City Fiscal's Office of Quezon City.
With respect to Vicente Ilao and Juan Carandang petitioners
in L-33965 who were released as early as August 31, 1971,
as well as to petitioners Nemesio Prudente, Teodosio Lansang,
Rogelio Arienda, Antolin Oreta, Jr., Filomeno de Castro,
Barcelisa C. de Castro, Reynaldo Rimando, Gerardo Tomas
and Bayani Alcala, who were released on November 13, 1971,
and are no longer deprived of their liberty, their respective
petitions have, thereby, become moot and academic, as far as
their prayer for release is concerned, and should, accordingly,
be dismissed, despite the opposition thereto of counsel for
Nemesio Prudente and Gerardo Tomas who maintain that, as
long as the privilege of the writ remains suspended, these
petitioners might be arrested and detained again, without just
cause, and that, accordingly, the issue raised in their
respective petitions is not moot. In any event, the common
constitutional and legal issues raised in these cases have, in
fact, been decided in this joint decision.

Must we order the release of Rodolfo del Rosario, one of the

petitioners in L-33964, Angelo de los Reyes, Victor Felipe and
Teresito Sison, intervenors in L-33964, L-33965 and L-33973,
Luzvimindo David, petitioner in L-33973, and Gary Olivar,
petitioner in L-34339, who are still detained? The suspension
of the privilege of the writ was decreed by Proclamation No.
889, as amended, for persons detained "for the crimes of
insurrection or rebellion and other overt acts committed by
them in furtherance thereof."
The records shows that petitioners Luzvimindo David, Rodolfo
del Rosario, Victor Felipe, Angelo de los Reyes, Teresito Sison
and Gary Olivar are accused in Criminal Case No. Q-1623 of
the Court of First Instance of Rizal with a violation of the AntiSubversion Act and that the similar charge against petitioners
Angelo de los Reyes and Teresito Sison in a criminal
complaint, originally filed with the City Fiscal of Quezon City,
has, also, been filed with said court. Do the offenses so
charged constitute one of the crimes or overt acts mentioned in
Proclamation No. 889, as amended?
In the complaint in said Criminal Case No. 1623, it is alleged:
That in or about the year 1968 and for sometime prior thereto
and thereafter up to and including August 21, 1971, in the city
of Quezon, Philippines, and elsewhere in the Philippines,
within the jurisdiction of this Honorable Court, the abovenamed accused knowingly, wilfully and by overt acts became
officers and/or ranking leaders of the Communist Party of the
Philippines, a subversive association as defined by Republic
Act No. 1700, which is an organized conspiracy to overthrow
the government of the Republic of the Philippines by force,
violence, deceit, subversion and other illegal means, for the
purpose of establishing in the Philippines a communist
totalitarian regime subject to alien domination and control;
That all the above-named accused, as such officers and/or
ranking leaders of the Communist Party of the Philippines
conspiring, confederating and mutual helping one another, did
then and there knowingly, wilfully, and feloniously and by overt
acts committed subversive acts all intended to overthrow the
government of the Republic of the Philippines, as follows:
1.
By rising publicly and taking arms against the forces
of the government, engaging in war against the forces of the
government, destroying property or committing serious
violence, exacting contributions or diverting public lands or
property from the law purposes for which they have been
appropriated;
2.
By engaging by subversion thru expansion and
requirement activities not only of the Communist Party of the
Philippines but also of the united front organizations of the
Communist Party of the Philippines as the Kabataang
Makabayan (KM), Movement for the Democratic Philippines
(MDP), Samahang Demokratikong Kabataan (SDK), Students'
Alliance for National Democracy (STAND), MASAKA Olaliafaction, Student Cultural Association of the University of the
Philippines (SCAUP), KASAMA, Pagkakaisa ng Magbubukid
ng Pilipinas (PMP) and many others; thru agitation promoted
by rallies, demonstration and strikes some of them violent in
nature, intended to create social discontent, discredit those in
power and weaken the people's confidence in the government;
thru consistent propaganda by publications, writing, posters,
leaflets of similar means; speeches, teach-ins, messages,
lectures or other similar means; or thru the media as the TV,
radio or newspapers, all intended to promote the Communist
pattern of subversion;
3.
Thru urban guerilla warfare characterized by
assassinations, bombings, sabotage, kidnapping and arson,
intended to advertise the movement, build up its morale and
prestige, discredit and demoralize the authorities to use harsh
and repressive measures, demoralize the people and weaken
their confidence in the government and to weaken the will of
the government to resist.
That the following aggravating circumstances attended the
commission of the offense:

a.
That the offense was committed in contempt of and
with insult to the public authorities;

b.
That some of the overt acts were committed in the
Palace of the Chief Executive;
c.

That craft, fraud, or disguise was employed;

d.
men;

That the offense was committed with the aid of armed

e.
That the offense was committed with the aid of
persons under fifteen(15) years old.
Identical allegations are made in the complaint filed with the
City Fiscal of Quezon City, except that the second paragraph
thereof is slightly more elaborate than that of the complaint
filed with the CFI, although substantially the same. 26
In both complaints, the acts imputed to the defendants herein
constitute rebellion and subversion, of in the language of the
proclamation "other overt acts committed ... in furtherance"
of said rebellion, both of which are covered by the
proclamation suspending the privilege of the writ. It is clear,
therefore, that the crime for which the detained petitioners are
held and deprived of their liberty are among those for which the
privilege of the writ of habeas corpus has been suspended.
Up to this point, the Members of the Court are unanimous on
the legal principles enunciated.
After finding that Proclamation No. 889, as amended, is not
invalid and that petitioners Luzvimindo David, Victor Felipe,
Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and
Teresito Sison are detained for and actually accused of an
offense for which the privilege of the writ has been suspended
by said proclamation, our next step would have been the
following: The Court, or a commissioner designated by it,
would have received evidence on whether as stated in
respondents' "Answer and Return" said petitioners had been
apprehended and detained "on reasonable belief" that they
had "participated in the crime of insurrection or rebellion."
It is so happened, however, that on November 13, 1971 or
two (2) days before the proceedings relative to the briefing held
on October 28 and 29, 1971, had been completed by the filing
27 of the summary of the matters then taken up the
aforementioned criminal complaints were filed against said
petitioners. What is more, the preliminary examination and/or
investigation of the charges contained in said complaints has
already begun. The next question, therefore, is: Shall We now
order, in the cases at hand, the release of said petitioners
herein, despite the formal and substantial validity of the
proclamation suspending the privilege, despite the fact that
they are actually charged with offenses covered by said
proclamation and despite the aforementioned criminal
complaints against them and the preliminary examination
and/or investigations being conducted therein?
The Members of the Court, with the exception of Mr. Justice
Fernando, are of the opinion, and, so hold, that, instead of this
Court or its Commissioner taking the evidence adverted to
above, it is best to let said preliminary examination and/or
investigation to be completed, so that petitioners' released
could be ordered by the court of first instance, should it find
that there is no probable cause against them, or a warrant for
their arrest could be issued, should a probable cause be
established against them. Such course of action is more
favorable to the petitioners, inasmuch as the preliminary
examination or investigation requires a greater quantum of
proof than that needed to establish that the Executive had not
acted arbitrary in causing the petitioners to be apprehended
and detained upon the ground that they had participated in the
commission of the crime of insurrection or rebellion. And, it is
mainly for the reason that the Court has opted to allow the
Court of First Instance of Rizal to proceed with the
determination of the existence of probable cause, although
ordinarily the Court would have merely determined the
existence of the substantial evidence of petitioners' connection

with the crime of rebellion. Besides, the latter alternative would

require the reception of evidence by this Court and thus
duplicate the proceedings now taking place in the court of first
instance. What is more, since the evidence involved in the
same proceedings would be substantially the same and the
presentation of such evidence cannot be made simultaneously,
each proceeding would tend to delay the other.
Mr. Justice Fernando is of the opinion in line with the view of
Mr. Justice Tuason, in Nava v. Gatmaitan, 28 to the effect that
"... if and when formal complaint is presented, the court steps
in and the executive steps out. The detention ceases to be an
executive and becomes a judicial concern ..." that the filing
of the above-mentioned complaint against the six (6) detained
petitioners herein, has the effect of the Executive giving up his
authority to continue holding them pursuant to Proclamation
No. 889, as amended, even if he did not so intend, and to
place them fully under the authority of courts of justice, just like
any other person, who, as such, cannot be deprived of his
liberty without lawful warrant, which has not, as yet, been
issued against anyone of them, and that, accordingly, We
should order their immediate release. Despite the humanitarian
and libertarian spirit with which this view had been espoused,
the other Members of the Court are unable to accept it
because:
(a)
If the proclamation suspending the privilege of the writ
of habeas corpus is valid and We so hold it to be and the
detainee is covered by the proclamation, the filing of a
complaint or information against him does not affect the
suspension of said privilege, and, consequently, his release
may not be ordered by Us;
(b)
Inasmuch as the filing of a formal complaint or
information does not detract from the validity and efficacy of
the suspension of the privilege, it would be more reasonable to
construe the filing of said formal charges with the court of first
instance as an expression of the President's belief that there
are sufficient evidence to convict the petitioners so charged
and that hey should not be released, therefore, unless and until
said court after conducting the corresponding preliminary
examination and/or investigation shall find that the
prosecution has not established the existence of a probable
cause. Otherwise, the Executive would have released said
accused, as were the other petitioners herein;
(c)
From a long-range viewpoint, this interpretation of
the act of the President in having said formal charges filed
is, We believe, more beneficial to the detainees than that
favored by Mr. Justice Fernando. His view particularly the
theory that the detainees should be released immediately,
without bail, even before the completion of said preliminary
examination and/or investigation would tend to induce the
Executive to refrain from filing formal charges as long as it may
be possible. Manifestly, We should encourage the early filing of
said charges, so that courts of justice could assume jurisdiction
over the detainees and extend to them effective protection.
Although some of the petitioners in these cases pray that the
Court decide whether the constitutional right to bail is affected
by the suspension of the privilege of the writ of habeas corpus,
We do not deem it proper to pass upon such question, the
same not having been sufficiently discussed by the parties
herein. Besides, there is no point in settling said question with
respect to petitioners herein who have been released. Neither
is necessary to express our view thereon, as regards those still
detained, inasmuch as their release without bail might still be
decreed by the court of first instance, should it hold that there
is no probable cause against them. At any rate, should an
actual issue on the right to bail arise later, the same may be
brought up in appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1.
Declaring that the President did not act arbitrarily in
issuing Proclamation No. 889, as amended, and that,
accordingly, the same is not unconstitutional;
2.
Dismissing the petitions in L-33964, L-33965, L33982, L-34004, L-34013, L-34039 and L-34265, insofar as

petitioners Teodosio Lansang, Bayani Alcala, Rogelio Arienda,

Vicentellao, Juan Carandang, Nemesio E. Prudente, Gerardo
Tomas, Reynaldo Rimando, Filomeno M. de Castro, Barcelisa
C. de Castro and Antolin Oreta, Jr. are concerned;
3.
The Court of First Instance of Rizal is hereby directed
to act with utmost dispatch in conducting the preliminary
examination and/or investigation of the charges for violation of
the Anti-Subversion Act filed against herein petitioners
Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los
Reyes, Rodolfo del Rosario and Teresito Sison, and to issue
the corresponding warrants of arrest, if probable cause is

found to exist against them, or, otherwise, to order their

release; and
4.
Should there be undue delay, for any reason
whatsoever, either in the completion of the aforementioned
preliminary examination and/or investigation, or in the issuance
of the proper orders or resolution in connection therewith, the
parties may by motion seek in these proceedings the proper
relief.
5.
Without special pronouncement as to costs. It is so
ordered.