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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
[G.R. No. L-61388. April 20, 1983.]
IN THE MATTER OF THE PETITION FOR THE ISSUANCE OF THE
WRIT OF HABEAS CORPUS FOR DR. AURORA PARONG,
NORBERTO
PORTUGUESE,
SABINO
PADILLA,
FRANCIS
DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA,
ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG,
LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR.,
JUANITO GRANADA and TOM VASQUEZ. JOSEFINA GARCIAPADILLA, petitioner, vs. MINISTER JUAN PONCE ENRILE, GEN.
FABIAN C. VER, GEN. FIDEL V. RAMOS, and LT. COL. MIGUEL
CORONEL, respondents.
Lorenzo M. Taada, Jose W. Diokno, Joker P. Arroyo, Efren M. Mercado
and Alexander A. Padilla for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; WHEN LAWFUL
WITHOUT A JUDICIAL WARRANT; A CASE OF; ARREST OF THE ACCUSED IN
FLAGRANTE DELICTO; CASE AT BAR. Where prior to the arrest of the nine
(9) of the fourteen (14) detainees, the latter were under surveillance as they
were then identified as members of the Communist Party of the Philippines
(CCP) engaging in subversive activities and using the house of detainee Dra.
Aurora Parong in Bayombong, Nueva Viscaya, as their headquarters and when
caught in flagrante delicto, the nine (9) detainees mentioned scampered

towards different directions leaving on top of their conference table numerous


subversive documents, periodicals, pamphlets, books, correspondence,
stationaries, and other papers, (code-named YORK), including one (1) .38 cal.
revolver with eight (8) live bullets, nineteen (19) rounds of ammunition of M16
armalite, CPP/NPA funds, assorted medicines packed and ready for
distribution, there is no doubt that circumstances attendant in the arrest of
the herein detainees fall under a situation where arrest is lawful even without a
judicial warrant as specifically provided for under Section 6 (a), Rule 113 of the
Rules of Court and allowed under existing jurisprudence.
2. ID; ID.; ID.; ID.; ID.; ARREST FOR CONTINUING OFFENSES. The crimes
of insurrection, or rebellion, subversion, conspiracy or proposal to commit such
crimes, and other crimes and offenses committed in the furtherance on the
occasion thereof, or incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature of continuing offenses
which set them apart from the common offenses, aside from their essentially
involving a massive conspiracy of nationwide magnitude. Clearly then, the
arrest of the detainees without a judicial warrant was well within the bounds of
the law and existing jurisprudence in our jurisdiction.
3. ID.; ID.; ID.; ID.; ID.; ARREST OF PERSONS COMMITTING OVERT ACTS OF
VIOLENCE AGAINST GOVERNMENT FORCES. The absence of judicial
warrant is no legal impediment to arresting or capturing persons committing
over acts of violence against government forces, or any other milder acts but
equally in pursuance of the rebellious movement. The arrest or capture is thus
impelled by the exigencies of the situation that involves the very survival of
society and its government and duly constituted authorities.
4. ID.; ID.; ID.; ARREST OF PERSONS INVOLVED IN REBELLION; USUAL
PROCEDURE IN PROSECUTION OF OFFENSES; NOT REQUIRED. The
arrest of persons involved in the rebellion whether as its fighting armned
elements, or for committing non-violent acts but in furtherance of the rebellion,
is more an act of capturing them in the course of an armed conflict, to quell
the rebellion, than for the purpose of immediately prosecuting them in court
for a statutory offense. The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which requires the determination by a
judge of the existence of probable cause before the issuance of a judicial
warrant of arrest and the granting of bail if the offense is bailable.

5. CONSTITUTIONAL
LAW;
EXECUTIVE
POWER;
ISSUANCE
OF
PRESIDENTIAL COMMITMENT ORDER; MERELY PREVENTIVE AND NOT
SUBJECT TO JUDICIAL INQUIRY. The arrest and detention of persons
ordered by the President through the issuance of Presidential Commitment
Order (PCO) is merely preventive. "When it comes to a decision by the head of
the State upon a matter involving its life, the ordinary rights of individuals
must yield to what he deems the necessities of the moment. Public danger
warrants the substitution of executive process for judicial process." (Mover vs.
Peabody, 212 U.S. 78, citing Keely vs. Sanders, 99 U.S. 441, 446, 25 L. Ed.
327, 328) What should be underscored is that if the greater violation against
life itself such as killing, will not be the subject of judicial inquiry, as it cannot
be raised as transgressing against the due process clause that protects life,
liberty and property, lesser violations against liberty such as arrest and
detention, may not be insisted upon as reviewable by the courts.
6. ID.; ID.; SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS; LEGAL BASIS FOR THE ISSUANCE OF PRESIDENTIAL
COMMITMENT ORDER TO VALIDATE ARREST WITHOUT WARRANT AND
CONTINUED DETENTION THEREUNDER. The function of the PCO is to
validate, on constitutional ground, the detention of a person for any of the
offenses covered by Proclamation No. 2045 which continues in force the
suspension of the privilege of the writ of habeas corpus, if the arrest has been
made initially without any warrant. Its legal effect is to render the writ
unavailing as a means of judicially inquiring into the legality of the detention in
view of the suspension of the privilege of the writ. The grant of the power to
suspend the said privilege provides the basis for continuing with perfect legality
the detention as long as the invasion or rebellion has not been repelled or
quelled, and the need therefor in the interest of public safety continues.
7. ID.; ID.; ID.; SIGNIFICANCE OF CONFERNMENT OF POWER UPON THE
PRESIDENT AS COMMANDER-IN-CHIEF; NOT SUBJECT OF JUDICIAL
INQUIRY AS TO LEGALITY UNDER THE BILL OF RIGHTS. The significance
of the confernment of this power, constitutionality upon the President as
Commander-in-Chief, is that the exercise thereof is not subject of judicial
inquiry, with a view to determining its legality in the light of the bill of rights
guarantee to individual freedom. This must be so because the suspension of
the privilege is a military measure the necessity of which the President alone
may determine as an incident of his grave responsibility as the Commander-inChief of the Armed Forces, of protecting not only public safety but the very life
of the State, the government and duly constituted authorities.

8. ID.; ID.; ID.; CONTINGENCIES UNDER THE CONSTITUTION THAT JUSTIFY


NON-INTERFERENCE. It should be clear beyond doubt in the case of
"invasion" along which "rebellion" or "insurrection" is mentioned by the
Constitution, is a contingency which does not present a legal question on
whether there is a violation of the right to personal liberty when any member of
the invading force is captured and detained. The existence of warlike conditions
as are created by invasion, rebellion or insurrection, the direst of all
emergencies that can possibly confront a nation, argues, beyond dispute,
against subjecting his actions in this regard to judicial inquiry or interference
from whatever source.
9. ID.; ID.; ID.; APPLICATION ON SPECIFIC INDIVIDUALS; WITHIN THE
EXCLUSIVE AND SOUND JUDGMENT OF THE PRESIDENT. To be effective,
the occasion for the application of the suspension of the privilege of the writ of
habeas corpus on specific individuals should be left to the exclusive and sound
judgment of the President, at least while the exigencies of invasion, rebellion or
insurrection persist, and the public safety requires it, a matter, likewise, which
should be left for the sole determination of the President as Commander-inChief of the Nation's armed forces. The need for a unified command in such
contingencies is imperative-even axiomatic as a basic military concept in the
art of warfare.
10. ID.; ID.; ID.; FUNCTION OF THE COURT AS INTERPRETED IN THE
LANSANG CASE. "The function of the Court is merely to check--not to
supplant--the Executive, or to ascertain merely whether he has gone beyond
the constitutional limits of his jurisdiction, not to exercise the power vested in
him or to determine wisdom of his act." (Lansang vs. Garcia, 42 SCRA 488).
11. ID.; ID.; ID.; ID.; GRANT OF RIGHT TO BAIL; EFFECT. If, the
constitutional right to ball is granted, through the procedure laid down under
Rule 114 of the Rules of Court, what inevitably results is the supplanting of the
decision of the President to detain pursuant to Proclamation No. 2045, of
persons who come under its coverage.
12. ID.; ID.; ID.; "PREVENTIVE DETENTION"; FACTORS THAT DETERMINE ITS
LEGALITY. The specific mention in the Constitution of rebellion and
insurrection along with invasion and imminent danger thereof, shows that the
terms "rebellion and insurrection" are used therein in the sense of a state or
condition of the Nation, not in the concept of a statutory offense. What,
therefore, should determine the legality of imposing what is commonly referred

to as "preventive detention" resulting from the suspension of the privilege of


habeas corpus, is the necessity of its adoption as a measure to suppress or
quell the rebellion, or beat off an invasion. The necessity of such measure as a
means of defense for national survival quite clearly transcends in importance
and urgency the claim of those detained to the right to bail to obtain their
freedom. To hold otherwise would defeat the purpose of the constitutional grant
of the power to suspend the privilege of the writ of habeas corpus on the
occasions expressly mentioned in the charter.
13. ID.; ID.; ID.; COVERAGE UNDER PROCLAMATION NO. 2045;
JUSTIFICATION. Proclamation No. 2045 mentions not only rebellion or
insurrection as coming within the suspension of the privilege of the writ of
habeas corpus, but also other offenses, including subversion which is not
mentioned in the Constitution, committed by reason or on the occasion of the
rebellion, or in connection therewith, or in the furtherance thereof. The
constitutional guarantee of individual freedom is intact in all its plenitude and
sanctity, save only a few, in relation to the entire population, as the
Constitution itself permits in case of overwhelming and imperious necessity.

14. ID.; ID.; ID.; DELIBERATELY VESTED ON THE PRESIDENT. Worthy of


profound notice and keen appreciation is the fact that the authority to suspend
the privilege of the writ of habeas corpus has been deliberately vested on the
President as the Commander-in-Chief of the armed forces, together with the
related power to call out the armed forces to suppress lawless violence and
impose martial law. (Section 9, Article VII, Constitution). The choice could not
have been more wise and sound, for no other official may, with equal capability
and fitness, be entrusted with the grave responsibility that goes with the grant
of the authority.
15. ID.; ID.; ID.; CARRIES WITH IT THE SUSPENSION OF THE RIGHT TO
BAIL. The suspension of the privilege of the writ of habeas corpus must,
indeed, carry with it the suspension of the right to bail, if the government's
campaign to suppress the rebellion is to be enhanced and rendered effective. If
the right to bail may be demanded during the continuance of the rebellion, and
those arrested, captured and detained in the course thereof will be released,
they would, without the least doubt, rejoin their comrades in the field thereby
jeoparding the success of government efforts to bring to an end the invasion,
rebellion or insurrection. The recent case of Buscayno vs. Military Commission

(109 SCRA 273), decided after Proclamation No. 2045 was issued, which in
terms clear and categorical, held that the constitutional right to bail is
unavailing when the privilege of the writ of habeas corpus is suspended with
respect to certain crimes as enumerated or described in above-mentioned
Proclamation.
16. ID.; ID.; ID.; AVAILABILITY OF THE WRIT OF HABEAS CORPUS IN
INDIVIDUAL CASES AFTER SUSPENSION, NOT INTENDED IN THE LANSANG
CASE. In Lansang vs. Garcia (42 SCRA 488), the Court went no further than
to pronounce the suspension of the writ of the privilege of habeas corpus on
August 21, 1971, valid and constitutional, on a finding that there was no
arbitrariness attendant to the suspension. It never intended to suggest that for
every individual case of arrest and detention, the writ of habeas corpus is
available, even after the suspension of this privilege, to question the legality of
the arrest and detention on ground of arbitrariness.
17. ID.; ID.; ID.; FINDING OF PROBABLE CAUSE NOT IMMEDIATELY
REVIEWABLE BY THE SUPREME COURT ON CLAIM OF ARBITRARINESS.
When a person is charged in court for an ordinary offense, the law does not
authorize the filing of a petition for habeas corpus based on the ground that
there is absolutely no evidence to hold him for trial, which, in effect constitutes
an allegation of arbitrariness in the filing of the case against him. The law had
afforded him adequate safeguards against arbitrariness, such as the
requirement of determining the existence of a probable cause by the judge
before the issuance of the warrant of arrest. The finding of such probable cause
may not be immediately brought for review by this Court in a habeas corpus
proceeding, on the claim of arbitrariness. The matter is to be decided on the
basis of evidence, and this Court is not the proper forum for the review sought,
not being a trial of facts. Moreover, arbitrariness, while so easy to allege, is
hard to prove, in the face of the formidable obstacle built up by the
presumption of regularity in the performance of official duty.
18. ID.; ID.; ID.; ISSUANCE OF PRESIDENTIAL COMMITMENT ORDER;
LETTER OF INSTRUCTION NO. 1211; MERE GUIDELINES FOR THE ARREST
AND
DETENTION
OF
PERSONS
COVERED
BY
PRESIDENTIAL
PROCLAMATION NO. 2045. LOI 1211, by its very nature, and clearly by its
language, is a mere directive of the President as Commander-in-Chief of the
Armed Forces of the Philippines to his subordinates or implementing officers
for the ultimate objective of providing guidelines in the arrest and detention of
the persons covered by Presidential Proclamation No. 2045.

19. ID.; ID.; ID.; ID.; ID.; PURPOSE. The purpose is "to insure protection to
individual liberties without sacrifying the requirements of public order and
safety and the effectiveness of the campaign against those seeking the forcible
overthrow of the government and duly constituted authorities."
20. ID.; ID.; ID.; ID.; ID.; DOES NOT LIMIT OR CURTAIL THE POWER OF THE
PRESIDENT IN FAVOR OF THE JUDICIARY. LOI 1211 does not, in any
mane, limit the authority of the President to cause the arrest and detention of
persons engaged in, or charged with the crimes or offenses mentioned in said
Proclamation in that he (President) would subject himself to the superior
authority of the judge, who under normal judicial processes in the prosecution
of the common offenses, is the one authorized to issue a judicial warrant after
a preliminary investigation is conducted with a finding of probable cause. In
the event that the judge believes no warrant shall issue, the President, under
Presidential Proclamation No. 2045 and Letter of Instruction No. 1211, is not
bound by such finding, as explicitly provided in paragraph 2 of LOI 1211. VOL.
206 p. 398.
21. ID.; ID.; ID.; ID.; ID.; DOES NOT FORM PART OF THE LAW OF THE LAND.
To form part of the law of the land, the decree, order or LOI must be issued
by the President in the exercise of his extraordinary power of legislation as
contemplated in Section 6 of the 1976 amendments to the Constitution,
whenever in his judgment. there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasan Pambansa or the regular
National Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action. There can be no
pretense, much less a showing, that these conditions prompted the President to
issue LOI 1211.
22. ID.; ID.; ID.; ID.; CONSTITUTES A FINDING THAT THE CONDITIONS
PRESCRIBED IN LETTER, OF INSTRUCTION NO. 1211 HAVE BEEN MET.
The issuance of the PCO by the President necessarily constitutes a finding that
the conditions he has prescribed in LOI 1211 for the issuance of the PCO have
been met, and intends that the detention would be pursuant to the executive
process incident to the government campaign against the rebels, subversives
and dissidents waging a rebellion or insurrection.
23. ID.; ID.; ID.; RULING IN LANSANG CASE COMPARED WITH RULING OF
BARCELON VS, BAKER AND MONTENEGRO VS. CASTAEDA. in Barcelon
vs. Baker (5 Phil. 87, a 1905 decision, and Montenegro vs. Castaeda (91 Phil.

882, 1952), the President's decision to suspend the privilege of the writ of
habeas corpus is "final and conclusive upon the courts, and all other persons."
This well-settled ruling was diluted in the Lansang case which declared that
the "function of the Court is merely to check-not to supplant the Executive,
or ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction not to exercise the power vested in him to determine the wisdom of
his act." Judicial interference was thus held as permissible, and the test as laid
down therein is not whether the President acted correctly but whether he acted
arbitrarily.
24. ID.; ID.; ID.; ID.; NEED FOR REVERSION TO THE RULINGS OF
BARCELON VS. BAKER AND MONTENEGRO vs. CASTAEDA, SHOWN. The
ruling in the Lansang case would seem to be pure semanticism if the Supreme
Court would consider that with particular reference to the nature of the actions
the President would take on the occasion of the grave emergency he has to deal
with, which, as clearly indicated in Section 9, Art, VII of the Constitution
partakes of military measures, the judicial can, with becoming modesty, ill
afford to assume the authority to check or reverse or supplant the presidential
actions. On these occasions, the President takes absolute command, for the
very life of the Nation and its government, which, incidentally, includes the
courts, is in grave peril, In his separate opinion in the Lansang case, then
Justice Fernando, now our owned Chief Justice, went along with the
proposition that the decision of the Executive in the exercise of his power to
suspend the privilege of the writ of habeas corpus is not alone, and in his own
language, is "ordinarily beyond the ken of the Courts." Amendment No. 6 of the
1973 Constitution, affords further reason for the re-examination of the
Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro
vs, Castaeda.
25. ID.; ID.; ID.; "POLITICAL QUESTION"; CONCEPT. The Founding Fathers
must have felt that in the particular situations at hand, the Executive and the
Judiciary should maintain a mutually deferential attitude. This is the very
essence of the doctrine of "political question," as determining the justiciability
of a case. The wisdom of this concept remains well-recognized in advanced
constitutional systems. To erase it from our own system as seems to be what
was done in the Lansang case, may neither be proper nor prudent. A good
example could be given in the exercise of the presidential power of pardon
which is beyond judicial review specially under the new Constitution where the
condition that it may be granted only after final conviction has been done away
with.

26. ID.; ID.; ID.; "MILITARY POWER" OF THE PRESIDENT IS INTENDED AS A


LIMITATION TO THE RIGHT TO LIBERTY. The Constitution is the law
"equally in war and in peace," as Chief Justice Fernando cited in his brilliant
separate opinion in the same Lansang case. Precisely, it is the Constitution
that gives the President specific "military power" in times of warlike conditions
as exist on the occasion of invasion, insurrection or rebellion. Boot power and
right are constitutionally granted, with the difference that the guarantee of the
right to liberty is for personal benefit, while the grant of the presidential power
is for public safety. Which of the two enjoys primacy over the other is all too
obvious. For the power is intended as a limitation of the right, in much the
same way as individual freedom yields to the exercise of the police power of the
State in the interest of general welfare. The difference again is that the power
comes into being during extreme emergencies the exercise of which, for
complete effectiveness for the purpose it was granted should not permit
interference, while individual freedom is obviously for full enjoyment in time of
peace, but in time of war or grave peril to the nation, should be limited or
restricted. In a true sense then, our Constitution is for both peacetime and in
time of war; it is not that in time of war the Constitution is silenced.

27. ID.; ID.; IN TIME OF WAR OR SIMILAR EMERGENCIES; PROVISIONS OF


THE CONSTITUTION THAT JUSTIFIES LIMITATION OF INDIVIDUAL RIGHTS.
The Founding Fathers, with admirable foresight and vision, inserted
provisions therein that comes into play and application in time of war or
similar emergencies. So it is that, as proclaimed by the Constitution, the
defense of the State is a prime duty of government. Compulsory military
service may be imposed, certainly a mandate that derogates on the right to
personal liberty. It, therefore. becomes self-evident that the duty of the
judiciary to protect individual rights must yield to the power of the Executive to
protect the State, for if the State perishes, the Constitution with the Bill of
Rights that guarantees the right to personal liberty perishes with it.
28. ID.; ID.; ID.; PRESIDENTIAL DETERMINATION OF EXISTENCE OF
EMERGENCIES AND EXERCISE OF THE POWER TO SUSPEND THE WRIT OF
HABEAS CORPUS; BEYOND JUDICIAL REVIEW. In times of war or national
emergency, the legislature may surrender a part of its power of legislation to
the President, (Section 15, Article VIII, 1973 Constitution). Would it not be as
proper and wholly acceptable to lay down the principle that during such crises,
the judiciary should be less jealous of its power and more trusting of the

Executive in the exercise of its emergency powers in recognition of the same


necessity? Verily, the existence of the emergencies should be left to President's
sole and unfettered determination. His exercise of the power to suspend the
privilege of the writ of habeas corpus on the occasion thereof, should also be
beyond judicial review. Arbitrariness, as a ground for judicial inquiry of
presidential acts and decisions, sounds good in theory but impractical and
unrealistic, considering how well-nigh impossible it is for the courts to
contradict the finding of the President on the existence of the emergency that
gives occasion for the exercise of the power to suspend the privilege of the writ.
For the Court to insist on reviewing Presidential action on the ground of
arbitrariness may only result in a violent collision of two jealous powers with
tragic consequences, by all means to be avoided, in favor of adhering to the
more desirable and long-tested doctrine of "political question" in reference to
the power of judicial review. (Taada, et al. vs. Cuenco, et al., 103 Phil. 1051).
29. ID.; ID.; ID.; POWER OF SUSPENSION OF THE WRIT OF HABEAS CORPUS
INCLUDES POWER TO DEFER PROSECUTION OF OFFENSES UNDER
PROCLAMATION NO. 2045 AND TO WITHHOLD THE RIGHT TO BAIL. In
times of war and similar emergency as expressly provided in the Constitution,
the President may suspend the privilege of the writ of habeas corpus, which
has the effect of allowing the Executive to defer the prosecution of any of the
offenses covered by Proclamation No. 2045, including, as a necessary
consequence, the withholding for the duration of the suspension of the
privilege, of the right to bail.
30. ID.; ID.; ID.; ISSUANCE OF A PRESIDENTIAL COMMITMENT ORDER; AN
EXCLUSIVE PREROGATIVE OF THE PRESIDENT; NOT SUBJECT TO
JUDICIAL REVIEW UNDER THE DOCTRINE OF "POLITICAL QUESTION";
CASE AT BAR. Under LOI 1211, a Presidential Commitment Order, the
issuance of which is the exclusive prerogative of the President under the
Constitution, may not be declared void by the courts, under the doctrine of
"political question" as has been applied in the Baker and Castaeda cases, on
any ground, let alone its supposed violation of the provision of LOI 1211, thus
diluting, if not abandoning, the doctrine of the Lansang case. The supreme
mandate received by the President from the people and his oath to do justice to
every man should be sufficient guarantee, without need of judicial overseeing,
against commission by him of an act of arbitrariness in the discharge
particularly of those duties imposed upon him for the protection of public
safety which in itself includes the protection of life, liberty and property. This
Court is not possessed with the attribute of infallibility that when it reviews the

acts of the President in the exercise of his exclusive power, for possible fault of
arbitrariness, it would not itself go so far as to commit the self-same fault.
Hence, in the case at bar, the issuance of the Presidential Commitment Order
against herein petitioners, their continued detention is rendered valid and legal,
and their right to be released even after the filing of charges against them in
court, to depend on the President, who may order the release of a detainee or
his being placed under house arrest, as he has done in meritorious cases.
FERNANDO, C.J., concurring:
1. CONSTITUTIONAL LAW; JUDICIARY; POWER OF JUDICIAL REVIEW;
COURTS TO INQUIRE INTO COMPLAINTS FOR DEPRIVATION OF LIBERTY.
An inquiry into the validity of executive or legislative acts has been fitly
characterized as both awesome and delicate. Nonetheless, for the judiciary,
there is no choice. This is so especially where the writ of habeas corpus has
been invoked. It is then incumbent on a court to pass on the legality of the
detention. As I had occasion to state in my scoarate opinion in Aquino, Jr. v.
Enrile: (L-35546, September 17, 1974, 39 SCRA 183) "This Court has to act
then. The liberty enshrined in the Constitution, for the protection of which
habeas corpus is the appropriate remedy, imposes that obligation. Its task is
clear. It must be performed. That is a trust to which it cannot be recreant.
Whenever the grievance complained of is deprivation of liberty, it is its
responsibility to inquire into the matter and to render the decision appropriate
under the circumstances. Precisely, a habeas corpus petition calls for that
response."
2. ID.; RIGHT TO LIBERTY; WRIT OF HABEAS CORPUS; THE PRINCIPAL
SAFEGUARD TO PERSONAL LIBERTY. It cannot be overemphasized that the
writ of habeas corpus, as a constitutional right, is, for eminent commentators,
protean in scope. A reference to the opinion of the Court in Gumaben v.
Director of Bureau of Prisons, (L-30026, January 30, 1971, 37 SCRA 420), may
not be amiss. Thus: "The writ imposes on judges the grave responsibility of
ascertaining whether there is any legal justification for a deprivation of physical
freedom. Unless there be such a showing, the confinement must thereby
cease." It continues: "Rightly then could Chafee refer to the writ as 'the most
important human rights provision' in the fundamental law. Nor is such praise
unique. Cooley spoke of it as `one of the principal safeguards to personal
liberty.' For Willoughby, it is `the greatest of the safeguards erected by the civil
law against arbitrary and illegal imprisonment by whomsoever detention may
be exercised or ordered.' Burdick echoed a similar sentiment, referring to it as

`one of the most important bulwarks of liberty.' Fraenkel made it unanimous,


for to him, `without it much else would he of no avail,' thereby the rule of law is
assured. A full awareness of the potentialities of the writ of habeas corpus in
the defense of liberty coupled with its limitations may be detected in the
opinions of former Chief Justices Arellano, Avancea, Abad Santos, Paras,
Bengson and (Chief Justice Concepcion). It fell to Justice Malcolm's lot,
however to emphasize quite a few times the breadth of its amplitude and of its
reach."
3. ID.; ID.; ID.; PREVENTIVE DETENTION BY PRESIDENTIAL COMMITMENT
ORDER (PCO) WHEN PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS
SUSPENDED, RECOGNIZED. It is the ruling of this Court that an issuance
of a presidential commitment order imparts validity to a detention and the right
to be released of the person detained even after the filing of charges being
dependent on the President who may order such release or his being placed
under house arrest. The Chief Justice yields a qualified concurrence. The
power of preventive detention where the privilege of the writ of habeas corpus is
suspended has been recognized. Cf. Lansang v. Garcia, L-33964, December 11,
1971, 42 SCRA 448; Barcelon v. Baker. 5 Phil. 87 (1905); Montenegro v.
Castaeda, 91 Phil. 882 (1952)
4. ID.; ID.; ID.; ID.; LEGALITY OF DETENTION CAN BE INQUIRED INTO.
While preventive detention is a proper measure to cope with the danger arising
from the insurrection or rebellion, it may continue for such length of time as to
make it pursitive in character. If such were the case, I am not prepared to yield
concurrence to the view that this Court is devoid of the power in a habeas
corpus proceeding to inquire into the legality of the detention. As to when such
a stage is reached cannot be set forth with precision. The test would be an
appraisal of the environmental facts of each case. This is not to deny that the
presumption must be in favor not only of the good faith characterizing the
presidential action but of the absence of any arbitrary taint in so ordering
preventive detention. It is out of excess of caution and due to the belief that
habeas corpus as a writ of liberty should not be unnecessarily curtailed that I
feel compelled to qualify my concurrence in that respect.
5. ID.; ID.; ID.; ID.; RIGHT TO BAIL CAN BE INVOKED NOT- WITHSTANDING
SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS.
Once a case is filed, the party detained may avail himself of the right to bail. If
there be such a petition, the court has jurisdiction to grant or to deny bail in
accordance with the constitutional provisions (According to Article IV, Sec. 18

of the Constitution: "All persons, except those charged with capital offenses
when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties. Excessive bail shall not be required.") Inasmuch as the
return to the writ filed by the Solicitor General states that a warrant of arrest
against detainee Dra. Aurora Parong was issued on August 4, 1982, by the
Municipal Court of Bayombong, for illegal possession of firearm and
ammunition, then clearly, she has a right to invoke such right, notwithstanding
the suspension of the privilege of the writ. So I did argue as counsel in
Hernandez v. Montesa, 90 Phil. 172 (1951), where a majority of this Court with
one vote lacking to make their conclusion doctrinal agreed with such
submission. There was adherence to such a view in my separate opinions in
Lansang, (L-7185, 42 SCRA 448), and in Buscayno v. Enrile, (L-7185, January
15, 1981, 102 SCRA 7), I do so again and to that extent dissent.

6. ID.; ID.; ID.; OVERRULING OF DOCTRINE IN LANSANG V. GARCIA,


UNNECESSARY. The opinion of the Court, however, did not stop at
dismissing the petition on the ground that the issuance of a presidential
commitment order validates the preventive detention of petitioners. It went
further by reexamining the unanimous ruling in Lansang to the effect that the
suspension of the privilege of the writ of habeas corpus raises a judicial rather
than a political question and holding that it no longer authoritative. With due
respect, I can not agree to such a conclusion. In the first place, there was no
need to go that far. For me, at least, the rationale that this Court must accord
deference to a presidential commitment order suffices for the decision of this
case. Nor would I limit my dissent on that ground alone. It is for me, and again
I say this with due respect, deplorable and unjustifiable for this Court to turn
its back on a doctrine that has elicited praise and commendation from eminent
scholars and jurists here and abroad.
7. ID.; ID.; ID.; SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS SHOULD REMAIN A JUDICIAL QUESTION. The learned,
comprehensive and unanimous Lansang opinion penned by Chief Justice
Concepcion concurred in by all the Justices, to my mind, explains with lucidity
and force why the question is judicial rather than political. Thus: "Indeed, the
grant of power to suspend the privilege is neither absolute nor unqualified. The
authority conferred by the Constitution, both under the Bill of Rights and
under the Executive Department, is limited and conditional. The precept in the
Bill of Rights establishes a general rule, as well as an exception thereto. What

is more, it postulates the former in the negative, evidently to stress its


importance, by providing that 'the 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.' Far 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." (42 SCRA 448, 473-474.)
8. ID.; ID.; ID.; ID.; TO REVERT TO THE PRINCIPLE ANNOUNCED IN
BARCELON V. BAKER AND MONTENEGRO V. CASTAEDA IS UNFORTUNATE.
It is clear that the competence of this Court to pass upon the validity of the
suspension of the privilege of the writ is confined within limits that preclude
the assumption of power that rightfully belongs to the Executive. There would
then be, to my mind, no sufficient justification to retreat from a position that
assures judicial participation on a matter of momentous consequence.
Moreover, to the extent that such a move has had the benefit of judicial
appraisal, and thereafter approval, to that extent there may be less valid
opposition and hopefully greater understanding of why such a step had to be
taken. With Lansang overruled, the doctrine that the suspension of the
privilege of the writ announced in Barcelon v. Baker, 5 Phil. 87, and
Montenegro vs. Castaeda, 91 Phil. 882(1952), will be revived. This for me is
unfortunate. The Montenegro decision, as I had occasion to state "owed its
existence to the compulsion exerted by Barcelon v. Baker, a 1905 decision. This
Court was partly misled by an undue reliance in the latter case on what it
considered to be authoritative pronouncements from such illustrious American
jurists as Marshall, Story and Taney. That is to misread what was said by
them. This is most evident in the case of Chief Justice Marshall, whose epochal
Marbury v. Madison was cited. Why that was so is difficult to understand. For

it speaks to the contrary. It was by virtue of this decision that the function of
judicial review owes its original notwithstanding the absence of any explicit
provision in the American Constitution empowering the courts to do so.
9. ID.; JUDICIARY; COURTS TO CONSIDER ENVIRONMENTAL FACTS AND
CONTEMPORARY PROBLEMS IN MAKING ITS OPINIONS. An opinion of a
court, especially this Tribunal, should not ignore the environmental facts which
gave rise to a litigation where the issues arise from problems inseparable from
national security. There is, in addition, the need to take into consideration the
pressure of contemporary events. For as has so often been stressed, judicial
process does not take place in a social void. The questions before the Court are
to be viewed with full awareness of the consequences attendant to the decision
reached. As so tersely expressed by Justice Tuason in Araneta v. Dinglasan, 84
Phil. 368 (1949). "We test a rule by its results." More often than not especially
during times of stress, it is inescapable that efforts be made to reconcile timetested principles to contemporary problems. The judiciary is called upon to do
its part.
TEEHANKEE, J., dissenting:
1. CONSTITUTIONAL LAW; RIGHT TO LIBERTY; SUSPENSION OF THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS; NO NECESSITY FOR THE
RE-EXAMINATION AND OVERRULING OF LANSANG V. GARCIA. Justice
Teehankee submits that the resolution of the issues in this case does not call
for the all-encompassing ruling in the main opinion with its sweeping scope
that would reexamine and overturn the benchmark ruling in Lansang. The
limited suspension of the privilege of the writ of habeas corpus in the two
instances provided under Presidential Proclamation No. 2045 has not been
challenged in this case. Lansang recognizes the greatest deference and respect
that is due the President's determination for the necessity of suspending the
privilege of the writ of habeas corpus. But Lansang sets at the same time the
constitutional confines and limits of the President's power to suspend the
privilege of the writ and enunciates the constitutional test, not of the
correctness of the President's decision, but that the President's decision to
suspend the privilege not suffer from the constitutional infumity of
arbitrariness.
2. ID.; ID.; ID.; RIGHT TO BAIL MAY BE INVOKED NOTWITHSTANDING THE
DURATION THEREOF. Justice Teehankee submits, that notwithstanding the
suspension of the privilege of the writ of habeas corpus and the issuance on

March 9, 1982 of Letter of Instruction No. 1211 that the Presidential


Commitment Order constitutes authority to keep the subject person under
detention "until ordered released by the President or his duly authorized
representative" (which is a mere internal instruction to certain agencies), the
higher and superior mandate of the Constitution guarantees the right to bail
and vests the courts with the jurisdiction and judicial power to grant ball
which may not be removed nor diminished nor abdicated. The Court cannot
but to hold, if it is to be true to the fundamental precept that "The Constitution
is a law for rulers and for people equally in war and in peace and covers with
the shield of its protection all classes of men at all times and under all
circumstances."
3. ID.; ID.; ID.; ID.; PRIVILEGE OF THE WRIT OF HABEAS CORPUS AND
RIGHT TO BAIL ARE SEPARATE AND CO-EQUAL. As stressed by then Chief
Justice Ricardo Paras, in the leading cases of Nava vs. Gatmaitan and
Hernandez vs. Montessa, jointly decided with Angeles vs. Abaya and reported
in 90 Phil. 172 (1951). "The right to bail, along with the right of an accused to
be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses in his behalf (Article III, Section I, Paragraph 17 of the
Constitution), tends to aid the accused to prove his innocence and obtain
acquittal. If it be contended that the suspension of the privilege of the writ of
habeas corpus includes the suspension of the distinct right to bail or to be
provisionally at liberty, it would a fortiori imply the suspension of all his other
rights (even the right to be tried by a court) that may win for him ultimate
acquittal and hence, absolute freedom. The latter result is not insisted upon for
being patently untenable." Then Chief Justice Paras stressed that ". . . The
privilege of the writ of habeas corpus and the right to bail guaranteed under
the Bill of Rights are separate and coequal. if the intention of the framers of the
Constitution was that the suspension of the privilege of the writ of habeas
corpus carries or implies the suspension of the right to bail, they would have
very easily provided that all persons shall before conviction be bailable by
sufficient sureties, except those charged with capital offenses when evidence of
guilt is strong and except when the privilege of the writ of habeas corpus is
suspended. As stated in the case of Ex Parte Milligan, 4 Wall, 2, 18 L. ed. 297,
the Constitution limited the suspension to only one great right, leaving the rest to
remain forever inviolable."

4. ID.; ID.; ID.; ID.; EXISTENCE OF DANGER POSED BY THE RELEASE OF


DEFENDANTS ON BAIL NOT SUFFICIENT JUSTIFICATION FOR COURTS TO
TAMPER WITH FUNDAMENTAL RIGHTS. The late Justice Pedro Tuason
emphasized that "To the plea that the security of the State would be
jeopardized by the release of the defendants on bail, the answer is that the
existence of danger is never a justification for courts to tamper with the
fundamental rights expressly granted by the Constitution. These rights are
immutable, inflexible, yielding to no pressure of convenience, expediency or the
so-called 'judicial statesmanship.' The Legislature itself cannot infringe them,
and no court conscious of its responsibilities and limitations would do so. If the
Bill of Rights are incompatible with stable government and a menace to the
Nation, let the Constitution be amended, or abolished. It is trite to say that,
while the Constitution stands, the courts of justice as the repository of civil
liberty are bound to protect and maintain undiluted individual rights."

5. ID.; ID.; ID.; ID.; BAIL TO BE GRANTED DESPITE THE ISSUANCE OF A


PRESIDENTIAL COMMITMENT ORDER; CASE AT BAR. The right to bail
cannot just be cancelled out summarily because of the issuance of a PCO. In
the case at bar, detainee Dr. Aurora Parong is charged in the municipal court
with the crime of illegal possession of firearm, which is a clearly bailable
offense. The charges filed against the other detainees are likewise for clearly
bailable offense. It is elementary that the right to bail in non-capital offenses
and even in capital offenses where evidence of guilt is not strong will be
generally granted and respected by the courts, "the natural tendency of the
courts (being) towards a fair and liberal appreciation," particularly taking into
consideration the record and standing of the person charged and the
unlikelihood of his fleeing the court's jurisdiction.
6. ID.; ID.; ID.; DUTY OF THE COURTS TO PROTECT CITIZENS AGAINST
DEPRIVATION OF THEIR CONSTITUTIONAL RIGHTS. The continuous flow
of petitions for habeas corpus filed with this Court should not be decried nor
discouraged. The Court stands as the guarantor of the constitutional and
human rights of all persons within its jurisdiction and must see to it that the
rights are respected and enforced. It is settled in this jurisdiction that once a
deprivation of a constitutional right is shown to exists, the court that rendered
the judgment or before whom the case is pending is ousted of jurisdiction and
habeas corpus is the appropriate remedy to assail the legality of the detention.
(Gumabon v. Director of Prisons, 37 SCRA 420, 427.) So accused persons

deprived of the constitutional right of speedy trial have been set free. (Conde vs.
Diaz, 45 Phil. 173). And likewise persons detained indefinitely without charges
so much so that the detention becomes punitive and not merely preventive in
character are entitled to regain their freedom. The spirit and letter of our
Constitution negates as contrary to the basic precepts of human rights and
freedom that a person be detained indefinitely without any charges.
7. ID.; ID.; ID.; ID.; CONCERN AND SECURITY OF THE NATION NOT
SUFFICIENT JUSTIFICATION FOR THE VIOLATION OF HUMAN DIGNITY AND
RIGHTS. As to the "self-evident" submittal of the main opinion that "the
duty of the judiciary to protect individual rights must yield to the power of the
Executive to protect the State, for if the State perishes, the Constitution, with
the Bill of Rights that guarantees the right to personal liberty, perishes with it,"
Justice Teehankee only recalls the exhortation of the Holy Father John Paul II
in his address to the Philippine nation on February 17, 1981, thus: "Even in
exceptional situations that may at times arise, one can never justify any
violation of the fundamental dignity of the human person or of the basic rights
that safeguard this dignity. Legitimate concern for the security of a nation, as
demanded by the common good, could lead to the temptation of subjugating to
the State the human being and his or her dignity and rights. Any apparent
conflict between the exigencies of security and of the citizens' basic rights must
be resolved according to the fundamental principle upheld always by the
church that social organization exists only for the service of man and for the
protection of his dignity, and that it cannot claim to serve the common good
when human rights are not safeguarded. People will have faith in the
safeguarding of their security and the promotion of their well-being only to the
extent that they feel truly involved, and supported in their very humanity."

DECISION

DE CASTRO, J p:
Petition for a writ of habeas corpus and mandamus seeking the following relief:
"WHEREFORE, petitioners pray this Honorable Court:
"1. To immediately issue a writ of habeas corpus directing
respondents to appear and produce the bodies of Dr. AURORA

PARONG, NORBERTO PORTUGUESE, SABINO PADILLA,


FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN
PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO
TANGUILIG,
LETTY
BALLOGAN,
BIENVENIDA
GARCIA,
EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM
VASQUEZ, forthwith before this Honorable Court and to make
due return of the writ therewith;
"2. To issue, in addition or in the alternative to the writ of habeas
corpus, a writ of mandamus compelling the respondents to
disclose the petitioners' present place of detention and to order
the respondents to allow counsel and relatives to visit and confer
with the petitioners;
"3. Pending the determination of the legality of their continued
detention, to forthwith release the detainees on bail upon such
terms and conditions as the Court may fix, and after hearing, to
order petitioners' immediate release; and
"4. To grant petitioners such other and further relief as may be
deemed just and equitable in the premises."
The records show that nine (9) of the fourteen (14) detainees herein were
arrested on July 6, 1982 at about 1:45 p.m. when three (3) teams of the
PC/INP of Bayombong, Nueva Viscaya led by Lt. Col. Coronel, 1st Lt. de
Guzman and 1st Lt. Baria, after securing a Search Warrant No. S-82 issued by
Judge Sofronio Sayo of the Court of First Instance of Nueva Viscaya conducted
a raid at the residence of Dra. Aurora Parong. Apprehended during the said
raid were Dra. Aurora Parong, Benjamin Pineda, Sabino Padilla, Francisco
Divinagracia, Zenaida Mallari, Letty Ballogan, Norberto Portuguese, and
Mariano Soriano who were then having a conference in the dining room of Dra.
Parong's residence which had been doing on since 10:00 a.m. of that same day.
The other four (4) detainees herein, namely: Imelda de los Santos, Eufronio
Ortiz, Jr., Juanito Granada, and Bienvenida Garcia, were arrested on the
following day, July 7, 1982 by the same PC teams.
On July 15, 1982, Tom Vasquez was arrested, and his Volkswagen car, bearing
Plate No. DAP 347, was seized by the PC authorities.

The herein fourteen (14) detainees (hereafter referred to sometimes as


petitioners) were all detained at the PC/INP Command Headquarters,
Bayombong, Nueva Vizcaya from July 6, 1982 until their transfer on the
morning of August 10, 1982 to an undisclosed place reportedly to Camp
Crame, Quezon City, to Echague, Isabela, and to Tuguegarao, Cagayan.
Hence, this petition for the writ of habeas corpus and mandamus filed by
Josefina Garcia-Padilla, mother of detained petitioner Sabino G. Padilla, Jr. on
August 13, 1982. The mandamus aspect of the instant petition has, however,
become moot and academic, and whereabouts of petitioners having already
become known to petitioner Josefina Garcia-Padilla.
It is alleged in the petition that the arrest of petitioners was patently unlawful
and illegal since it was effected without any warrant of arrest; that the PC/INP
raiding team which made the arrest were only armed with a search warrant
(No. 3-82) issued by Judge Sofronio G. Sayo of the Court of First Instance of
Nueva Viscaya, and nowhere in said warrant was authority given to make
arrests, much less detention; that the search warrant which authorized
respondents to seize "subversive documents, firearms of assorted calibers,
medicine and other subversive paraphernalia" in the house and clinic of Dra.
Aurora Parong was a roving and general warrant and is, therefore, illegal per se
because it does not state specifically the things that are to be seized (Stonehill
vs. Diokno, 20 SCRA 383); that no criminal charges have as of yet been filed
against any of the detainees; that the fourteen (14) detainees were initially held
at the PC/INP Command in Bayombong, Nueva Viscaya from July 6 up to
August 10, 1982, but were subsequently transferred by helicopter in the
morning of August 10, 1982 to a place or safehouse known only to
respondents; that there is no judgment, decree, decision or order from a court
of law which would validate the continued detention of the petitioner; that
while it is true that a purported telegram stating the issuance of a Presidential
Commitment Order (PCO) was shown to the detainees on or about July 11 and
12, 1982, but counsel and the detainees have not yet been given a copy of such
PCO, nor notified of its contents, raising a doubt whether such commitment
order has in fact been issued.
It is further alleged that respondents are denying the detainees their
constitutional right to counsel, averring that the detainees were allowed regular
visits by counsel and relatives during their period of detention from July 6 to
August 10, 1982 at the PC/INP Command in Bayombong, Nueva Viscaya;
however, when a certain Major Cristobal and Lt. Marcos (alleged to be from the

Camp Crame Intelligence Units) took full control of the investigation, counsels
were allowed to visit only on weekends; that when the detainees were
transferred on August 10, 1982 to a place known only to respondents, the
detainees' counsels and relatives were not notified, raising the apprehension
that petitioners' constitutional rights to silence, to counsel and against selfincrimination are being violated; that counsels have tried to locate if the
detainees were taken to Camp Crame or Camp Bago Bantay but to no avail;
that Major Forondo of the PC Command in Nueva Viscaya informed Mrs.
Josefina Padilla that the detainees were transferred to Tuguegarao, Cagayan,
others to Echague, Isabela; that there seems to be a deliberate and concerted
effort by respondents to conceal from counsel and relatives the detainees' place
of detention, raising the apprehension that respondents are using force,
violence, threat, intimidation and other means which vitiate free will to obtain
confession and statements from the detainees in violation of their
constitutional rights.
In the resolution of this Court en banc dated August 17, 1982, the writ of
habeas corpus was issued and respondents were required to make a return of
the writ. Hearing on the petition was set on August 26, 1982.
In the return to the writ filed on August 23, 1982, respondents, through the
Solicitor General, alleged, to wit:

"I. AS TO HABEAS CORPUS


"1. The detainees mentioned in the petition, with the exception of
Tom Vasquez who was temporarily released on July 17, 1982,
after his arrest on July 15, 1982, are all being detained by virtue
of a Presidential Commitment Order (PCO) issued on July 12,
1982, pursuant to LOI No. 1211 dated March 9, 1982, in relation
to Presidential Proclamation No. 2045 dated January 17, 1981.
The said PCO was issued by President Ferdinand E. Marcos for
violation of P.D. No. 885 . . ..
"2. The corresponding charges against the said detainees have
been filed in court and before the Acting Provincial Fiscal of
Nueva Viscaya where they are pleading. A warrant of arrest
against detainee Dra. Aurora Parong was issued on August 4,

1982, by the Municipal Court of Bayombong,


possession of firearm and ammunition . . .."

for

illegal

II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS


"3. The persons named in the above-mentioned Presidential
Commitment Order were arrested and are being detained for
offenses with respect to which under Proclamation No. 2045, the
privilege of the writ of habeas corpus continues to be suspended,
thus:
'NOW,
THEREFORE,
I,
FERDINAND
E.
MARCOS,
President/Prime Minister of the Philippines, by virtue of the
powers vested in me by the Constitution, do hereby revoke
Proclamation No. 1081 (Proclaiming a state of Martial Law in the
Philippines) and Proclamation No. 1104 (Declaring the
Continuation of Martial Law) and proclaim the termination of the
state of martial law throughout the Philippines; Provided, that
the call to the Armed Forces of the Philippines to prevent or
suppress lawless violence, insurrection, rebellion and subversion
shall continue to be in force and effect; and Provided that in the
two autonomous regions in Mindanao, upon the request of the
residents therein, the suspension of the privilege of the writ of
habeas corpus shall continue; and in all other places the
suspension of the privilege of the writ shall also continue with
respect to persons at present detained as well as others who may
hereafter be similarly detained for the crimes of insurrection or
rebellion, subversion conspiracy or proposals to commit such
crimes, and for all other crimes and offenses committed by them in
furtherance or on the occasion thereof, or incident thereto, or in
connection therewith." (Emphasis supplied)
The privilege of the writ of habeas corpus is unavailing as to them. Courts
cannot inquire into the validity and cause of their arrest and detention.
"4. The power of the President in an emergency, such as that
which necessitated the continued suspension of the privilege of
the writ of habeas corpus, to order the detention of persons
believed engaged in crimes related to national security is

recognized. (Aquino vs. Enrile, 59 SCRA 83; Luneta, et al. vs.


Special Military Commission No. 1, et al., 102 SCRA 56).
"5. In the instant petition, petitioner Josefina Garcia-Padilla does
not appear to have been authorized by the thirteen (13) other
detainees to represent them in the case at bar."
Accordingly, the petition was duly heard on August 26, 1982. After hearing, the
Court issued the following resolution, to wit:
"G.R. No. 61388 (In the Matter of the Petition for the Insurance of
the Writ of Habeas Corpus of Dr. Aurora Parong, Norberto
Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los
Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito
Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr.,
Juanito Granada and Tom Vasquez; Josefina Garcia-Padilla vs.
Minister Juan Ponce Enrile, Gen. Fabian C. Ver, Gen. Fidel V.
Ramos and Lt. Col. Miguel Coronel.) The return of the writ of
habeas corpus and answer to the prayer for mandamus filed by
the Solicitor General for respondents in compliance with the
resolution of August 17, 1982 is NOTED.
"At the hearing of this case this morning, former Senator Jose W.
Diokno, Attorneys Alexander A. Padilla and Efren H. Mercado
appeared for petitioner. Solicitor General Estelito P. Mendoza and
Assistant Solicitor General Ramon A. Barcelona, appeared for the
respondents. All of the detainees, except Tom Vasquez, who was
temporarily released on July 17, 1982, were present in Court; Dr.
Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis
Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida
Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan,
Bienvenida Garcia, Eufronio Ortiz, Jr. and Juanito Granada.
Attorney Alexander A. Padilla argued for the petitioner. Solicitor
General Mendoza argued for the respondents. Former Senator
Diokno argued in the rebuttal. The Court Resolved to require the
Solicitor General to SUBMIT within five (5) days from date the
documents relevant to the issuance of the Presidential
Commitment Order. Thereafter, the case shall be considered
SUBMITTED for resolution."

As required, the Solicitor General submitted the documents relevant to the


issuance of the Presidential Commitment Order on August 27, 1982, after
which the Case was submitted for resolution.
The fundamental issue here, as in all petitioner for the writ of habeas corpus,
is whether or not petitioners' detention is legal. We have carefully gone over the
claims of the parties in their respective pleadings as well as in the oral
argument during the hearing on August 26, 1982, and We find that petitioners
have not been illegally deprived of their constitutional right to liberty, neither in
the manner of their arrest, nor by their continued detention, and that the
circumstances attendant in the herein case do not warrant their release on a
writ of habeas corpus.
1. At the time of the arrest of the nine (9) of the fourteen (14) detainees herein
on July 6, 1982, records reveal that they were then having conference in the
dining room of Dra. Parong's residence from 10:00 a.m. of that same day. Prior
thereto, at the fourteen (14) detainees were under surveillance as they were
then identified as members of the Communist Party of the Philippines (CPP)
engaging in subversive activities and using the house of detainee Dra. Aurora
Parong in Bayombong, Nueva Viscaya, as their headquarters. Caught in
flagrante delicto, the nine (9) detainees mentioned scampered towards different
directions leaving on top of their conference table numerous subversive
documents, periodicals, pamphlets, books, correspondence, stationaries, and
other papers, including a plan on how they would infiltrate the youth and
student sector (code-named YORK). Also found were one (1) .38 cal. revolver
with eight (8) live bullets, nineteen (19) rounds of ammunition for M16
armalite, eighteen thousand six hundred fifty pesos (P18,650.00) cash believed
to be CPP/NPA funds, assorted medicine packed and ready for distribution, as
sizeable quantity of printing paraphernalia, which were then seized. There is no
doubt that circumstances attendant in the arrest of the herein detainees fall
under a situation where arrest is lawful even without a judicial warrant as
specifically provided for under Section 6(a), Rule 113 of the Rules of Court and
allowed under existing jurisprudence on the matter. As provided therein, a
peace officer or a private person may, without a warrant, arrest a person when
the person to be arrested has committed or actually committing, or is about to
commit an offense in his presence.
From the facts as above narrated, the claim of the petitioners that they were
initially arrested illegally is, therefore, without basis in law and in fact. The
crimes of insurrection or rebellion, subversion, conspiracy or proposal to

commit such crimes, and other crimes and offenses committed in the
furtherance on the occasion thereof, or incident thereto, or in connection
therewith under Presidential Proclamation No. 2045, are all in the nature of
continuing offenses which set them apart from the common offenses, aside
from their essentially involving a massive conspiracy of nationwide magnitude.
Clearly then, the arrest of the herein detainees was well within the bounds of
the law and existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion,
is more an act of capturing them in the course of an armed conflict, to quell
the rebellion, than for the purpose of immediately prosecuting them in court
for a statutory offense. The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which requires the determination by a
judge of the existence of probable cause before the issuance of a judicial
warrant of arrest and the granting of bail if the offense is bailable. Obviously,
the absence of a judicial warrant is no legal impediment to arresting or
capturing persons committing overt acts of violence against government forces,
or any other milder acts but equally in pursuance of the rebellious movement.
The arrest or capture is thus impelled by the exigencies of the situation that
involves the very survival of society and its government and duly constituted
authorities. If killing and other acts of violence against the rebels find
justification in the exigencies of armed hostilities which is of the essence of
waging a rebellion or insurrection, most assuredly so in case of invasion,
merely seizing their persons and detaining them while any of these
contingencies continues cannot be less justified. In the language of Moyer vs.
Peabody, 1 cited with approval in Aquino, et al. vs. Ponce Enrile, 2 the
President "shall make the ordinary use of the soldiers to that end that he may
kill persons who resist, and, of course, that he may use the milder measure of
seizing the bodies of those whom he considers to stand in the way of restoring
peace. Such arrests are not necessarily for punishment, but are by way of
precaution, to prevent the exercise of hostile power."
Thus characterized, the arrest and detention of persons ordered by the
President through the issuance of Presidential Commitment Order (PCO) is
merely preventive. "When it comes to a decision by the head of the State upon a
matter involving its life, the ordinary rights of individuals must yield to what he
deems the necessities of the moment. Public danger warrants the substitution
of executive process for judicial process." 3 What should be underscored is that
if the greater violation against life itself such as killing, will not be the subject

of judicial inquiry, as it cannot be raised as transgressing against the due


process clause that protects life, liberty and property, lesser violations against
liberty, such as arrest and detention, may not be insisted upon as reviewable by
the courts.

3. Transcendentally important, therefore, is the question of whether the


issuance of a Presidential Commitment Order (PCO) has provided the legal
basis of the detention of herein detainees following their arrest for Proclamation
No. 2045 covered offenses. This question has to be set at rest promptly and
decisively, if We are to break a seemingly continuous flow of petitions for
habeas corpus, as what had been seen lately of such petitioners being filed in
this Court one after the other.
The function of the PCO is to validate, on constitutional ground, the detention
of a person for any of the offenses covered by Proclamation No. 2045 which
continues in force the suspension of the privilege of the writ of habeas corpus,
if the arrest has been made initially without any warrant, Its legal effect is to
render the writ unavailing as a means of judicially inquiring into the legality of
the detention in view of the suspension of the privilege of the writ. The grant of
the power to suspend the said privilege provides the basis for continuing with
perfect legality the detention as long as the invasion or rebellion has not been
repelled or quelled, and the need therefor in the interest of public safety
continues. LLphil
The significance of the conferment of this power, constitutionally upon the
President as Commander-in-Chief, is that the exercise thereof is not subject to
judicial inquiry, with a view to determining its legality in the light of the bill of
rights guarantee to individual freedom. This must be so because the
suspension of the privilege is a military measure the necessity of which the
President alone may determine as an incident of his grave responsibility as the
Commander-in-Chief of the Armed Forces, of protecting not only public safety
but the very life of the State, the government and duly constituted authorities.
This should be clear beyond doubt in the case of "invasion," along which
"rebellion" or "insurrection" is mentioned by the Constitution, which
contingency does not present a legal question on whether there is a violation of
the right to personal liberty when any member of the invading force is captured
and detained.

The presidential responsibility is one attended with all urgency when so grave a
peril to the life of the Nation besets the country in times of the aforementioned
contingencies. In the discharge of this awesome and sacred responsibility, the
President should be free from interference. The existence of warlike conditions
as are created by invasion, rebellion or insurrection, the direst of all
emergencies that can possibly confront a nation, argues, beyond dispute,
against subjecting his actions in this regard to judicial inquiry or interference
from whatever source. If freedom from judicial review is conceded in the
exercise of his peacetime powers as that of appointment and of granting
pardon, denominated as political powers of the President, it should
incontestably be more so with his wartime power, as it were, to adopt any
measure in dealing with situations calling for military action as in case of
invasion, rebellion or insurrection.
The suspension of the privilege of the writ of habeas corpus is one such
measure. To be effective, the occasion for its application on specific individuals
should be left to the exclusive and sound judgment of the President, at least
while the exigencies of invasion, rebellion or insurrection persist, and the
public safety requires it, a matter, likewise, which should be left for the sole
determination of the President as Commander-in-Chief of the Nation's armed
forces. The need for a unified command in such contingencies is imperative
even axiomatic as a basic military concept in the art of warfare.
4. From the clear language of the Lansang case, 4 "the function of Court is
merely to check not to supplant the Executive, or to ascertain merely
whether he has gone beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom of his act." If,
however, the constitutional right to bail is granted to the herein petitioners by
the court, through the procedure laid down under Rule 114 of the Rules of
court, what inevitably results is the supplanting of the decision of the
President to detain pursuant to Proclamation No. 2045, of persons who come
under its coverage.
The specific mention in the Constitution of rebellion and insurrection along
with invasion and imminent danger thereof, shows that the terms "rebellion
and insurrection" are used therein in the sense of a state or condition of the
Nation, not in the concept of a statutory offense. What, therefore, should
determine the legality of imposing what is commonly referred to as "preventive
detention" resulting from the suspension of the privilege of habeas corpus, is
the necessity of its adoption as a measure to suppress or quell the rebellion, or

beat off an invasion. The necessity for such measure as a means of defense for
national survival quite clearly transcends in importance and urgency the claim
of those detained to the right to bail to obtain their freedom. To hold otherwise
would defeat the purpose of the constitutional grant of the power to suspend
the privilege of the writ of habeas corpus on the occasions expressly mentioned
in the charter. For what indeed could the purpose be of suspending the
privilege of the writ of habeas corpus other than to restrict, at least for the
duration of the emergency of invasion or rebellion, the right to personal liberty,
dictated as it is, in the greater interest of public safety and national security.
So it is that Proclamation No. 2045 mentions not only rebellion or insurrection
as coming within the suspension of the privilege of the writ of habeas corpus,
but also other offenses, including subversion which is not mentioned in the
Constitution, committed by reason or on the occasion of the rebellion, or in
connection therewith, or in the furtherance thereof. There need be no alarm
over what libertarian jurists fear as violation of the constitutional right to
personal liberty when the President decrees the suspension of the privilege of
habeas corpus. Only those who give cause for it will be subject to restriction of
their liberty, as the necessity therefor arises in the interest of national defense
and survival. The constitutional guarantee of individual freedom is intact in all
its plenitude and sanctity, save only as the Constitution has envisioned the
need for its limitation, and only to a few, in relation to the entire population, as
the Constitution itself permits in case of overwhelming and imperious
necessity.
5. Worthy of profound notice and keen appreciation is the fact that the
authority to suspend the privilege of the writ of habeas corpus has been
deliberately vested on the President as the Commander-in-Chief of the armed
forces, together with the related power to call out the armed forces to suppress
lawless violence and impose martial law. 5 The choice could not have been
more wise and sound, for no other official may, with equal capability and
fitness, be entrusted with the grave responsibility that goes with the grant of
the authority. The legislature was considered in the alternative upon which to
lodge the power, or to share in its exercise, but the distilled wisdom of the
Constitutional Convention finally made its choice for the President alone.
As previously noted, "invasion" which is not a statutorily-defined offense and
"imminent danger thereof" as mentioned in the Constitution indicate that
"rebellion and insurrection" are also mentioned therein not in their concept as
statutorily-defined public crimes, but as a state or condition of extreme

emergency resulting from the existence of the aforesaid events. Now, if captured
enemies from the invading force may not be charged with any statutory offense
that would provide the occasion to demand the right to bail, it is obvious that
persons engaged in rebellion or insurrection may not claim the right to be
released on bail when similarly captured or arrested during the continuance of
the aforesaid contingency. They may not even claim the right to be charged
immediately in court, as they may rightfully do so, were they being charged
with an ordinary or common offense. This is so because according to legal
writers or publicists, the suspension of the privilege of the writ of habeas
corpus "has the sole effect of allowing the executive to defer the trials of
persons charged with certain offenses during the period of emergency." 6 This
clearly means denial of the right to be released on bail on being charged in
court with bailable offenses.
The suspension of the privilege of the writ of habeas corpus must, indeed,
carry with it the suspension of the right to bail, if the government's campaign
to suppress the rebellion is to be enhanced and rendered effective. If the right
to bail may be demanded during the continuance of the rebellion, and those
arrested, captured and detained in the course thereof will be released, they
would, without the least doubt, rejoin their comrades in the field thereby
jeopardizing the success of government efforts to bring to an end the invasion,
rebellion or insurrection.
Realistically, a person engaged in the rebellion does not, upon being arrested or
captured, cease to be as committed to the cause of the movement. Through a
grand conspiracy, as is of the essence of how rebellion is committed, involving a
great mass of confederates bound together by a common goal, he remains in a
state of continued participation in the criminal act or design. His heart still
beats with the same emotion for the success of the movement of which he
continues to be an ardent adherent and ally. It is simple logic then to hold that
there should be no legal compulsion for a captured rebel to be charged in court,
only to be released on bail, while he is, realistically and legally, still as much as
part and parcel of the movement, continuing as it is, as those still engaged in
carrying on actively to attain their goal of overthrowing the established regime.
Hence, it is easy to perceive how impressed with absolute verity is the opinion
expressed by two acknowledged authorities on Constitutional law in our
country, 7 which We quote:

". . . If the return to the writ shows that the person in custody
was apprehended and detained in areas where the privileges of
the writ have been suspended or for the crimes mentioned in the
executive proclamation, the court will suspend further
proceedings in the action."
Impeccable as it is, the opinion could not but find a resonant echo as it did in
the recent case of Buscayno vs. Military Commission; 8 decided after
Proclamation No. 2045 was issued, which in terms clear and categorical, held
that the constitutional right to bail is unavailing when the privilege of the writ
of habeas corpus is suspended with respect to certain crimes as enumerated or
described in the abovementioned Proclamation.
It is, likewise, all too well-known that when the rebel forces capture government
troopers or kidnap private individuals, they do not accord to them any of the
rights now being demanded by the herein petitioners, particularly to be set at
liberty upon the filing of bail. As a matter of common knowledge, captives of the
rebels or insurgents are not only not given the right to be released, but also
denied trial of any kind. In some instances, they may even be liquidated
unceremoniously. What is then sought by the suspension of the privilege of the
writ of habeas corpus is, among others, to put the government forces on equal
fighting terms with the rebels, by authorizing the detention of their own rebel
or dissident captives as the rebellion goes on. In this way, the advantage the
rebellion forces have over those of the government, as when they resort to
guerrilla tactics with sophisticated weapons, is, at least, minimized, thereby
enhancing the latter's chances of beating their enemy. It would, therefore, seem
to be ignoring realities in the name of misplaced magnanimity and compassion,
and for the sake of humanity, to grant the demand for respect of rights
supposedly guaranteed by the Constitution by those who themselves seek to
destroy that very same instrument, trampling over it already as they are still
waging war against the government. This stark actuality gives added force and
substance to the rationale of the suspension of the privilege of the writ of
habeas corpus in case of invasion, insurrection, rebellion, or imminent danger
thereof, when public safety requires it.
6. Invoking the Lansang case, 9 however, petitioners would ask this Court to
review the issuance of the PCO against them, intimating that arbitrariness
attended its issuance because, relying on the evidence supposedly available in
the hands of the military, they claim they are not guilty of rebellion. They also
contend that the provisions of LOI No. 1211 have not been complied with.

The Lansang case went no further than to pronounce the suspension of the
writ of the privilege of habeas corpus on August 21, 1971, valid and
constitutional, on a finding that there was no arbitrariness attendant to the
suspension. It never intended to suggest that for every individual case of arrest
and detention, the writ of habeas corpus is available, even after the suspension
of this privilege, to question the legality of the arrest and detention on ground
of arbitrariness. When a person is charged in court for an ordinary offense, the
law does not authorize the filing of a petition for habeas corpus based on the
ground that there is absolutely no evidence to hold him for trial, which, in
effect, constitutes an allegation of arbitrariness in the filing of the case against
him. The law has afforded him adequate safeguards against arbitrariness, such
as the requirement of determining the existence of a probable cause by the
judge before the issuance of the warrant of arrest. The finding of such probable
cause may not be immediately brought for review by this Court in a habeas
corpus proceeding, on the claim of arbitrariness. The matter is to be decided on
the basis of the evidence, and this Court is not the proper forum for the review
sought, not being a trial of facts. If such a procedure were allowed, it would be
easy to delay and obstruct the prosecution of am offense by a resort to a
petition for habeas corpus based on arbitrariness, which most accused, if not
all, would be most inclined, specially when they are out on bail. The petition
now before Us is exactly one of this kind. If granted, the effect is to transfer the
jurisdiction of the trial courts in criminal cases to this Court, which is simply
inconceivable. Moreover, arbitrariness, while so easy to allege, is hard to prove,
in the face of the formidable obstacle built up by the presumption of regularity
in the performance of official duty. Unexhilaratingly, this is the revealing
experience of this Court in the Lansang case, where it doubtlessly realized how
hardly possible it is to adduce evidence or proof upon which to show the
President having acted with arbitrariness.
7. The last question relates to the legality of the Presidential Commitment
Order (PCO) issued by the President on July 12, 1982, tested by the conformity
of its issuance to the procedure laid down under LOI 1211, petitioners insisting
that the LOI limits the authority of the President to cause the arrest and
detention of persons engaged in or charged with, the crimes mentioned in
Proclamation No. 2045. They contend that the procedure prescribed in the LOI
not having been observed, the PC issued thereunder did not validate the initial
illegal arrest of the herein petitioners as well as their continued detention.
It must be noted that LOI No. 1211, which provides the guidelines in the arrest
and detention of persons engaged in, or charged with, the crimes mentioned in

Proclamation No. 2045, contemplates of three situations when an arrest can be


made, to wit:
"1. The arrest and detention effected by virtue of a warrant issued
by a judge;
"2. The arrest and detention effected by a military commander or
the head of a law enforcement agency after it is determined that
the person or persons to be arrested would probably escape or
commit further acts which would endanger public order and
safety. After the arrest, however, the case shall be immediately
referred to the city or provincial fiscal, or to the municipal, city,
circuit, or district judge for preliminary examination or
investigation who, if the evidence warrants, shall file the
corresponding charges and, thereafter, secure a warrant of arrest;
"3. The military commander or the head of the law enforcement
agency may apply to the President thru the Minister of National
Defense, for a Presidential Commitment Order under the
following circumstances:
(a) When resort to judicial process is not possible or expedient
without endangering public order and safety; or
(b) When the release on bail of the person or persons already
under arrest by virtue of a judicial warrant would endanger said
public order and safety."
Petitioners appear to place entire reliance on paragraphs 1 and 2 of LOI No.
1211, ignoring paragraph 3 of LOI No. 1211, which provides:
"3. The above notwithstanding, the military commander or the
head of the law enforcement agency may apply to the President
thru the Minister of National Defense, for a Presidential
Commitment Order covering the person or persons believed to be
participants in the commission of the crimes referred to in
paragraph 1 under the following circumstances:
(a) When resort to judicial process is not possible or expedient
without endangering public order and safety; or

(b) When the release on bail of the person or persons already


under arrest by virtue of a judicial warrant would endanger said
public order and safety."
The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged
necessity of judicial warrant before a person may be arrested and detained is
not well-founded. Neither is the contention that paragraph 3 of LOI 1211
applies only when judicial process is not possible. This is a narrow and
constricted interpretation of LOI 1211 when viewed in its entirety. Even in
instances when a resort to judicial process is possible, where, in the judgment
of the President, a resort thereto would not be expedient because it would
endanger the public order or safety, a PCO is justified. So, too, when release on
bail in the ordinary judicial process will invite the same danger. cdphil
By its very nature, and clearly by its language, LOI 1211 is a mere directive of
the President as Commander-in-Chief of the Armed Forces of the Philippines to
his subordinates or implementing officers for the ultimate objective of providing
guidelines in the arrest and detention of the persons covered by Presidential
Proclamation No. 2045. The purpose is "to insure protection to individual
liberties without sacrificing the requirements of public order and safety and the
effectiveness of the campaign against those seeking the forcible overthrow of the
government and duly constituted authorities." LOI 1211 does not, in any
manner, limit the authority of the President to cause the arrest and detention
of persons engaged in, or charged with the crimes or offenses mentioned in
said Proclamation in that he (President) would subject himself to the superior
authority of the judge who, under normal judicial processes in the prosecution
of the common offenses, is the one authorized to issue a judicial warrant after
a preliminary investigation is conducted with a finding of probable cause.
Those who would read such an intention on the part of the President in issuing
LOI 1211 seems to do so in their view that LOI forms part of the law of the land
under the 1976 amendment of the Constitution. 10 They would then contend
that a PCO issued not in compliance with the provisions of the LOI would be an
illegality and of no effect.
To form part of the law of the land, the decree, order or LOI must be issued by
the President in the exercise of his extraordinary power of legislation as
contemplated in Section 6 of the 1976 amendments to the Constitution,
whenever in his judgment, there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasan Pambansa or the regular
National Assembly fails or is unable to act adequately on any matter for any

reason that in his judgment requires immediate action. There can be no


pretense, much less a showing, that these conditions prompted the President to
issue LOI 1211. Verily, not all LOI issued by the President should be dignified
into forming part of the law of the land.
In the event then that the judge believes no warrant shall issue, the President,
under Presidential Proclamation No. 2045 and Letter of Instruction No. 1211, is
not bound by such finding, as explicitly provided in paragraph 2 of LOI 1211.
That the President avails of the facilities of the judicial machinery, as is the
clear intent of LOI 1211, to aid him in exercising his power to restrain personal
liberty, as dictated by the necessities and exigencies of the emergency, does not
indicate any intention on his part to renounce or to allow even mere
curtailment of his power such that the judicial process will thereupon take its
normal course, under which the detainees or accused would then be entitled to
demand their right of due process, particularly in relation to their personal
liberty. 11 The issuance of the PCO by the President necessarily constitutes a
finding that the conditions he has prescribed in LOI 1211 for the issuance of
that PCO have been met, and intends that the detention would be pursuant to
the executive process incident to the government campaign against the rebels,
subversives and dissidents waging a rebellion or insurrection. The ruling in the
Nava vs. Gatmaitan case, as above intimated, must have shown him that to
prosecute the offense through the judicial process of forthwith instead of
deferring it, would neither be wise nor expedient if he were to deal effectively
with the grave emergency at hand.
What has been said above shows the need of reexamining the Lansang case
with a view to reverting to the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905
decision, and Montenegro vs. Castaeda, 91 Phil. 882 (1952), that the
President's decision to suspend the privilege of the writ of habeas corpus is
"final and conclusive upon the courts, and all other persons." This well-settled
ruling was diluted in the Lansang case which declared that the "function of the
Court is merely to check not to supplant - the Executive, or ascertain merely
whether he has gone beyond the constitutional limits of his jurisdiction not to
exercise the power vested in him or to determine the wisdom of his act."
Judicial interference was thus held as permissible, and the test as laid down
therein is not whether the President acted correctly but whether he acted
arbitrarily. This would seem to be pure semanticism, if We consider that with
particular reference to the nature of the actions the President would take on
the occasion of the grave emergency he has to deal with, which, as clearly
indicated in Section 9, Art. VII of the Constitution partakes of military

measures, the judiciary can, with becoming modesty, ill afford to assume the
authority to check or reverse or supplant the presidential actions. On these
occasions, the President takes absolute command, for the very life of the Nation
and its government, which, incidentally, includes the courts, is in grave peril.
In so doing, the President is answerable only to his conscience, the people and
to God. For their part, in giving him the supreme mandate as their President,
the people can only trust and pray that, giving him their own loyalty with
utmost patriotism, the President will not fail them.
In his separate opinion in the Lansang case, then Justice Fernando, now our
learned Chief Justice, went along with the proposition that the decision of the
Executive in the exercise of his power to suspend the privilege of the writ of
habeas corpus is his alone, and in his own language, is "ordinarily beyond the
ken of the Courts." This is so, as the Founding Fathers must have felt that in
the particular situations at hand, the Executive and the Judiciary should
maintain a mutually deferential attitude. This is the very essence of the
doctrine of "political question," as determining the justiciability of a case. The
wisdom of this concept remains well-recognized in advanced constitutional
systems. To erase it from our own system as seems to be what was done in the
Lansang case, may neither be proper nor prudent. A good example could be
given in the exercise of the presidential power of pardon which is beyond
judicial review, specially under the new Constitution where the condition that it
may be granted only after final conviction has been done away with.
True, the Constitution is the law "equally in war and in peace," 12 as Chief
Justice Fernando cited in his brilliant separate opinion in the same Lansang
case. Precisely, it is the Constitution that gives the President specific "military
power" in times of warlike conditions as exist on the occasion of invasion,
insurrection or rebellion. Both power and right are constitutionally granted,
with the difference that the guarantee of the right to liberty is for personal
benefit, while the grant of the presidential power is for public safety. Which of
the two enjoys primacy over the other is all too obvious. For the power is
intended as a limitation of the right, in much the same way as individual
freedom yields to the exercise of the police power of the State in the interest of
general welfare. The difference again is that the power comes into being during
extreme emergencies the exercise of which, for complete effectiveness for the
purpose it was granted should not permit interference, while individual
freedom is obviously for full enjoyment in time of peace, but in time of war or
grave peril to the nation, should be limited or restricted. In a true sense then,
our Constitution is for both peacetime and in time of war; it is not that in time

of war the Constitution is silenced. The Founding Fathers, with admirable


foresight and vision, inserted provisions therein that come into play and
application in time of war or similar emergencies. So it is that, as proclaimed
by the Constitution, the defense of the State is a prime duty of government.
Compulsory military service may be imposed, certainly a mandate that
derogates on the right to personal liberty. It, therefore, becomes self-evident
that the duty of the judiciary to protect individual rights must yield to the
power of the Executive to protect the State, for if the State perishes, the
Constitution, with the Bill of Rights that guarantees the right to personal
liberty, perishes with it.
In times of war or national emergency, the legislature may surrender a part of
its power of legislation to the President. 13 Would it not be as proper and
wholly acceptable to lay down the principle that during such crises, the
judiciary should be less jealous of its power and more trusting of the Executive
in the exercise of its emergency powers in recognition of the same necessity?
Verily, the existence of the emergencies should be left to President's sole and
unfettered determination. His exercise of the power to suspend the privilege of
the writ of habeas corpus on the occasion thereof, should also be beyond
judicial review. Arbitrariness, as a ground for judicial inquiry of presidential
acts and decisions, sounds good in theory but impractical and unrealistic,
considering how well-nigh impossible it is for the courts to contradict the
finding of the President on the existence of the emergency that gives occasion
for the exercise of the power to suspend the privilege of the writ. For the Court
to insist on reviewing Presidential action on the ground of arbitrariness may
only result in a violent collision of two jealous powers with tragic consequences,
by all means to be avoided, in favor of adhering to the more desirable and longtested doctrine of "political question" in reference to the power of judicial
review. 14
Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further
reason for the reexamination of the Lansang doctrine and reversion to that of
Barcelon vs. Baker and Montenegro vs. Castaeda. LibLex
Accordingly, We hold that in times of war and similar emergency as expressly
provided in the Constitution, the President may suspend the privilege of the
writ of habeas corpus, which has the effect of allowing the Executive to defer
the prosecution of any of the offenses covered by Proclamation No. 2045,
including, as a necessary consequence, the withholding for the duration of the
suspension of the privilege, of the right to bail. The power could have been

vested in Congress, instead of the President, as it was so vested in the United


States for which reason, when President Lincoln himself exercised the power in
1861, Chief Justice Taney of the U.S. Supreme Court expressed the opinion
that Congress alone possessed this power under the Constitution. 15
Incidentally, it seems unimaginable that the judiciary could subject the
suspension, if decreed through congressional action, to the same inquiry as
our Supreme Court did with the act of the President, in the Lansang case, to
determine if the Congress acted with arbitrariness.
We further hold that under LOI 1211, a Presidential Commitment Order, the
issuance of which is the exclusive prerogative of the President under the
Constitution, may not be declared void by the courts, under the doctrine of
"political question," as has been applied in the Baker and Castaeda cases, on
any ground, let alone its supposed violation of the provision of LOI 1211, thus
diluting, if not abandoning, the doctrine of the Lansang case. The supreme
mandate received by the President from the people and his oath to do justice to
every man should be sufficient guarantee, without need of judicial overseeing,
against commission by him of an act of arbitrariness in the discharge
particularly of those duties imposed upon him for the protection of public
safety which in itself includes the protection of life, liberty and property. This
Court is not possessed with the attribute of infallibility that when it reviews the
acts of the President in the exercise of his exclusive power, for possible fault of
arbitrariness, it would not itself go so far as to commit the self-same fault.
Finally, We hold that upon the issuance of the Presidential Commitment Order
against herein petitioners, their continued detention is rendered valid and legal,
and their right to be released even after the filing of charges against them in
court, to depend on the President, who may order the release of a detainee or
his being placed under house arrest, as he has done in meritorious cases.

WHEREFORE, the instant petition should be, as it is hereby dismissed.


SO ORDERED.
Guerrero, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Makasiar, J., concurs in the result and in overruling the Lansang case.
Aquino, J., is on leave.

Concepcion, Jr. and Melencio-Herrera, JJ., concur in the result.


Abad Santos, J., concurs in the result and in overruling Lansang. I reserve my
right on the question of bail.
Separate Opinions
FERNANDO, C.J., concurring:
It does not admit of doubt that the question posed in this petition for the writ
of habeas corpus, and in other similar petitions for that matter, is impressed
with significance that calls for the highest degree of care and circumspection.
The result arrived at by the Court is that once a presidential commitment order
is issued, the detention is rendered valid and legal, the right to be released of
the person detained even after the filing of charges being dependent on the
President "who may order the release of a detainee or his being placed under
house arrest, as he has done in meritorious cases." 1 The exhaustive opinion of
the Court penned by Justice de Castro likewise reexamines the Lansang
doctrine 2 which ruled that the suspension of the privilege of the writ of
habeas corpus raises a judicial rather than a political question and reverts to
the principle announced in the earlier cases of Barcelon v. Baker 3 and
Montenegro v. Castaeda, 4 both of which held that the question raised is
political in character.
I concur in the ruling that while as a general rule preventive detention is an
obstacle to judicial inquiry, this Court is empowered where compelling reasons
exist to inquire into the matter. Moreover, the judiciary once a case has been
filed has jurisdiction to act on a petition for bail. I dissent insofar as the
decision overrules Lansang v. Garcia. LexLib
1. Petitioners in their application for the writ of liberty assert an infringement
of a right that finds shelter in the fundamental law. This Court, both in normal
times and under emergency conditions, is not susceptible to the accusation
that it has not accorded the most careful study to a plea of such character.
Petitioners were heard and their cases decided. In addition to Lansang, People
v. Ferrer, 5 Aquino Jr. v. Ponce Enrile 6 and Aquino Jr. v. Military Commission
No. 2 7 may be cited. This Tribunal then has not been insensible to its duty to
render fealty to the applicable mandates of the Constitution. That is to be true
to the primordial concept first announced in the landmark decision of Marbury
v. Madison, 8 the opinion being rendered by the illustrious Chief Justice

Marshall, enunciating the principle of judicial review. Our Constitution is quite


clear on the matter. So it was held in Angara v. Electoral Tribunal, 9 the first
case of transcendental importance under the 1935 Charter. It is quite manifest
that judicial review is not only a power but a duty. 10
2. Thus the judiciary can be appealed to and in appropriate cases, annul
executive or legislative acts. For as so often stressed, "the Constitution is not
only law, but a higher law, to which other law must bow." 11 Professor Black
went on to state: "Here, I think, we are laboring the obvious. The superior
status of the Constitution is clearer even than its standing as law. But if it is of
superior status, and if it is law, then it is law of a superior status. Again, the
important thing is not whether some flaw could be found in the logic by which
this was established. The logic of human institutions is a logic of probability.
The important thing is that this concept of the superior status of the
Constitution as law very early became and has since continued to be a
standard part of the way in which the American lawyer and judge and citizen
look at their government." 12 This is not to deny the possibility of judicial
interference with policy formulation, better left to the political branches. It is an
entirely different matter of course where the question is one of liberty.
3. An inquiry into the validity of executive or legislative act has been fitly
characterized as both awesome and delicate. Nonetheless, for the judiciary,
there is no choice. To repeat, it is a duty to be performed. This is so especially
where the writ of habeas corpus has been invoked. It is then incumbent on a
court to pass on the legality of the detention. As I had occasion to state in my
separate opinion in Aquino Jr. vs. Enrile: 13 "This Court has to act then. The
liberty enshrined in the Constitution, for the protection of which habeas corpus
is the appropriate remedy, imposes that obligation. Its task is clear. It must be
performed. That is a trust to which it cannot be recreant. Whenever the
grievance complained of is deprivation of liberty, it is its responsibility to
inquire into the matter and to render the decision appropriate under the
circumstances. Precisely, a habeas corpus petition calls for that response." 14
It cannot be overemphasized that the writ of habeas corpus, as a constitutional
right, it, for eminent commentators, protean in scope. A reference to the
opinion of the Court in Gumabon v. Director of Bureau of Prisons 15 may not
be amiss. Thus: "The writ imposes on judges the grave responsibility of
ascertaining whether there is any legal justification for a deprivation of physical
freedom. Unless there be such a showing, the confinement must thereby
cease." 16 It continues: "Rightly then could Chafee refer to the writ as 'The
most important human rights provision' in the fundamental law. Nor is such

praise unique. Cooley spoke of it as 'One of the principal safeguards to personal


liberty.' For Willoughby, it is 'the greatest of the safeguards erected by the civil
law against arbitrary and illegal imprisonment by whomsoever detention may
be exercised or ordered.' Burdick echoed a similar sentiment, referring to it as
'One of the most important bulwarks of liberty.' Fraenkel made it unanimous,
for to him, 'without it much else would be of no avail.' Thereby the rule of law is
assured. A full awareness of the potentialities of the writ of habeas corpus in
the defense of liberty coupled with its limitations may be detected in the
opinions of former Chief Justices Arellano, Avancea, Abad Santos, Paras,
Bengzon and [Chief Justice Concepcion]. It fell to Justice Malcolm's lot,
however to emphasize quite a few times the breadth of its amplitude and of its
reach." 17
4. So it is in the United States. As so well put by Justice Brennan in Fay v.
Noia: 18 "We do well to bear in mind the extraordinary prestige of the Great
Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: 'the
most celebrated writ in English Law,' 3 Blackstone Commentaries 129. It is 'a
writ antecedent to statute, and throwing its root deep into the genius of our
common law . . . . It is perhaps the most important writ known to the
constitutional law of England, affording as it does a swift and imperative
remedy in all cases of illegal restraint and confinement. It is of immemorial
antiquity, an instance of its use occurring in the thirty-third year of Edward I.'
Secretary of State for Home Affairs v. O'Brien [1923] AC 603, 609 (HL).
Received into our own law in the colonial period, given explicit recognition in
the Federal Constitution, Art. I, Sec. 9, cl. 2, incorporated in the first grant of
federal court jurisdiction, Act of September 24, 1978, c 20, sec. 14, 1 Stat 81,
82, habeas corpus was earlier confirmed by Chief Justice John Marshall to be
a 'Great constitutional privilege.' Ex parte Bollman and Swartout (US) 4 Cranch
75, 95, 2L ed 554, 561. Only two Terms ago this Court had occasion to reaffirm
the high place of the writ in our jurisprudence: 'We repeat what has been so
truly said of the federal writ: "there is no higher duty than to maintain it
unimpaired," Bowen v. Johnston, 306 US 19, 26, 83 L ed 455, 461, 59 S Ct 442
(1939), and unsuspended, save only in the cases specified in our Constitution.'
Smith v. Bennett, 365 US 708, 713, 61 ed 2d 39, 43, 81 s Ct. 895." 19
5. To repeat, it is the ruling of this Court that an issuance of a presidential
commitment order imparts validity to a detention the right to be released of the
person detained even after the filing of charges being dependent on the
President who may order such release or his being placed under house arrest.
As I mentioned at the outset, I yield a qualified concurrence. The power of

preventive detention where the privilege of the writ of habeas corpus is


suspended has been recognized. 20 The lifting of martial law unfortunately has
not been followed by a restoration of peace and order in certain sections of the
country. In the proclamation lifting martial law, the last paragraph of the
whereas clause spoke of the awareness of the government and the Filipino
people of public safety continuing "to require a degree of capability to deal
adequately with elements who persist in endeavoring to overthrow the
government by violent means and exploiting every opportunity to disrupt [its]
peaceful and productive" efforts. 21 Accordingly, in terminating the state of
martial law throughout the Philippines, it was provided: "that the call to the
Armed Forces of the Philippines to prevent or suppress lawless violence,
insurrection, rebellion and subversion shall continue to be in force and effect;
and Provided that in the two autonomous regions in Mindanao, upon the
request of the residents therein, the suspension of the privileges of the writ of
habeas corpus shall continue; and in all other places the suspension of the
privilege of the writ shall also continue with respect to persons at present
detained as well as others who may hereafter be similarly detained for the
crimes of insurrection or rebellion, subversion; conspiracy or proposal to
commit such crimes and for all other crimes and offenses committed by them
in furtherance or on the occasion thereof, or incident thereto, or in connection
therewith; . . ." 22 That is the basis for the preventive detention of petitioners in
this case.

6. The President as commander-in-chief may call out the armed forces to


prevent or suppress lawless violence, invasion, insurrection, or rebellion and in
case of invasion, insurrection, or rebellion, or imminent danger thereof, when
the public safety requires it, "may suspend the privilege of the writ of habeas
corpus, or place the Philippines or any part thereof under martial law." 23
There are thus three alternatives which may be availed to meet a grave public
danger to the security of the state. As pointed out by Chief Justice Concepcion
in Lansang, prior to the suspension of the privilege of the writ in 1971, the
armed forces had been called out, but such a move "proved inadequate to
attain the desired result. Of the two (2) other alternatives, the suspension of
the privilege is the least harsh." 24 Even if only the first alternative were
resorted to, the executive could still exercise the power of preventive detention.
Moyer v. Peabody 25 decided by the American Supreme Court, the opinion
being penned by Justice Holmes, may be cited. According to the statement of
the facts of that case, "it appeared that the governor had declared a county to

be in a state of insurrection, had called out troops to put down the trouble, and
had ordered that the plaintiff should be arrested as a leader of the outbreak,
and should be detained until he could be discharged with safety, and that then
he should be delivered to the civil authorities, to be dealt with according to
law." 26 On those facts the American Supreme Court held that preventive
detention was allowable, the test of its validity being one of good faith. The state
governor then could "make the ordinary use of the soldiers to that end; that he
may kill persons who resist, and, of course, that he may use the milder
measure of seizing the bodies of those whom he considers to stand in the way
of restoring peace. Such arrests are not necessarily for punishment, but are by
way of precaution, to prevent the exercise of hostile power. So long as such
arrests are made in good faith and in the honest belief that they are needed in
order to head the insurrection off, the governor is the final judge and cannot be
subjected to an action after he is out of office, on the ground that he had not
reasonable ground for his belief." 27 The last paragraph of Justice Holmes
opinion was even more emphatic: "When it comes to a decision by the head of
the state upon a matter involving its life, the ordinary rights of individuals
must yield to what he deems the necessities of the moment. Public danger
warrants the substitution of executive process for judicial process. See Keely v.
Sanders, 99 U.S. 441, 446, 25 L. ed. 327, 328. This was admitted with regard
to killing men in the actual clash of arms; and we think it obvious, although it
was disputed, that the same is true of temporary detention to prevent
apprehended harm. As no one would deny that there was immunity for
ordering a company to fire upon a mob in insurrection, and that a state law
authorizing the governor to deprive citizens of life under such circumstances
was consistent with the 14th Amendment, we are of opinion that the same is
true of a law authorizing by implication that was done in this case." 28
Nonetheless, while preventive detention is a proper measure to cope with the
danger arising from the insurrection or rebellion, it may continue for such
length of time as to make it punitive in character. If such were the case, I am
not prepared to yield concurrence to the view that this Court is devoid of the
power in a habeas corpus proceeding to inquire into the legality of the
detention. As to when such a stage is reached cannot be set forth with
precision. The test would be an appraisal of the environmental facts of each
case. This is not to deny that the presumption must be in favor not only of the
good faith characterizing the presidential action but of the absence of any
arbitrary taint in so ordering preventive detention. It is out of excess of caution
and due to the belief that habeas corpus as a writ of liberty should not be
unnecessary curtailed that I feel compelled to qualify my concurrence in that
respect.

7. Nor is this all. Once a case is filed, the party detained may avail himself of
the right to bail. If there be such a petition, the court has jurisdiction to grant
or to deny bail in accordance with the constitutional provision. 29 Inasmuch as
the return to the writ filed by the Solicitor General states that a warrant of
arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by
the Municipal Court of Bayombong, for illegal possession of firearm and
ammunition, then clearly, she has a right to invoke such right, notwithstanding
the suspension of the privilege of the writ. So I did argue as counsel in
Hernandez v. Montesa, 30 where a majority of this Court with one vote lacking
to make their conclusion doctrinal agreed with such submission. There was
adherence to such a view in my separate opinions in Lansang 31 and in
Buscayno v. Enrile, 32 I do so again and to that extent dissent.
8. It may be worthwhile to touch briefly on the exercise of power of preventive
detention in other jurisdictions. The retired Lord President of the Federal Court
of Malaysia Tun Mohamed Suffian in his work on the Malaysian constitution,
spoke of the emergency powers of the executive, the Yang Dipertuan Agung in
this wise: "If the Yang Dipertuan Agung (acting on Cabinet advice) is satisfied
that a grave emergency exists whereby the security or economic life of the
Federation or any part thereof is threatened, article 150 empowers him to issue
a proclamation of emergency. He has done so thrice: first, to meet the
emergency caused by Indonesian confrontation, secondly, to meet the
emergency caused by the political crisis arising out of the position of the Chief
Minister of Sarawak and, thirdly, to meet the emergency caused as a result of
the violence that erupted on 13th May, 1969. (The 1948-1960 emergency was
proclaimed under pre-independence law, not under the constitution). If a
proclamation of emergency is issued when Parliament is not sitting, the Yang
Dipertuan Agung must summon Parliament as soon as may be practicable.
Until both Houses of Parliament are sitting, he may promulgate ordinances
having the force of law, if satisfied that immediate action is required." 33 By
virtue of such competence, preventive detention may be ordered. 36 He likewise
referred to England, citing Regulation 14B of the Defense of Realm Act
Regulations, 1914, during World War I and Regulation 18B of the Defense
Regulations during World War II which according to him led to the celebrated
case of Liversidge v. Anderson. 37 Then he turned to his own country: "In
India, because of unstable law and order situation, preventive detention has
been in vogue since its independence in 1947. After the commencement of the
Constitution, Parliament enacted the Preventive Detention Act, 1950, to lay
down a legal framework for preventive detention on certain grounds. The
present day law for the purpose is the Maintenance of Internal Security Act,

1971. A salient feature of the law of preventive detention in India has been to
confer a very broad discretion on the administrative authority to order
preventive detention of a person in certain circumstances." 38 He spoke of the
relevant constitutional provisions having a bearing on preventive detention: "A
law for preventive detention can be made by Parliament exclusively under entry
9, List 1, for reasons connected with 'defense', 'foreign affairs' or the 'security of
India.' Further, under entry 3, List 111, Parliament and the State Legislatures
can concurrently make a law for preventive detention for reasons connected
with the "security of a State', maintenance of public order,' or 'maintenance of
supplies and services essential to the community.' Parliament thus has a wide
legislative jurisdiction in the matter as it can enact a law of preventive
detention for reasons connected with all the six heads mentioned above. The
Preventive Detention Act, 1950, and now the Maintenance of Internal Security
Act, 1971, have been enacted by Parliament providing for preventive detention
for all these six heads." 39 For him the law of preventive detention in India "has
therefore been too much administrative-ridden and the scope of judicial review
has been very much limited." 40 He made a careful study of the cases on
preventive detention in India. As he pointed out, "the range and magnitude of
administrative control over the individual's personal liberty is very vast, and
the range of judicial control is very restrictive, as the basic question, whether a
person should be detained or not on the facts and circumstances of the case,
lies within the scope of administrative discretion and beyond judicial
review." 41 Nonetheless, the Supreme Court of India, as he stressed, "in the
interest or maintaining constitutionalism," has been able to take "a somewhat
broad view of its restricted powers, and has given whatever relief it can to the
detained persons." 42 For me that approach has much to recommend it. This is
not to deny that in the event there is a misapprehension as to the actual facts
that led to the preventive detention, the plea for remedial action should, in the
first instance, be addressed to the President. Very likely, there will be an
affirmative response. Even then, the assurance to a party feeling aggrieved that
there could still be resort to judicial review, even if utilized only in rare and
exceptional cases, may conduce to a deeper sense of loyalty to the existing
constitutional order on the part of the misguided or disaffected individuals.
Hence, to repeat, this qualified concurrence on my part.

9. The opinion of the Court, however, did not stop at dismissing the petition on
the ground that the issuance of a presidential commitment order validates the
preventive detention of petitioners. It went further by reexamining the

unanimous ruling in Lansang to the effect that the suspension of the privilege
of the writ of habeas corpus raises a judicial rather than a political question
and holding that it is no longer authoritative. With due respect, I cannot agree
to such a conclusion. In the first place, there was no need to go that far. For
me, at least, the rationale that this Court must accord deference to a
presidential commitment order suffices for the decision of this case. Nor would
I limit my dissent on that ground alone. It is for me, and again I say this with
due respect, deplorable and unjustifiable for this Court to turn its back on a
doctrine that has elicited praise and commendation from eminent scholars and
jurists here and abroad.
10. That is easily understandable. The learned, comprehension and unanimous
Lansang opinion penned by Chief Justice Concepcion concurred in by all the
Justices, 43 to my mind, explains with lucidity and force why the question is
judicial rather than political. Thus: "Indeed, the grant of power to suspend the
privilege is neither absolute nor unqualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the Executive
Department, is limited and conditional. The precept in the Bill of Rights
establishes a general rule, as well as an exception thereto. What is more, it
postulates the former in the negative, evidently to stress its importance, by
providing that '(t)he privilege of the writ of habeas corpus shall not be
suspended . . . .' It is only by way of exception that it permits the suspension of
the privilege 'in cases of invasion, insurrection, or rebellion'-or, under Art. VII
of the Constitution, 'imminent danger thereof'-'when the public safety requires
it, in any of which events the same may be suspended wherever during such
period the necessity for such suspension shall exist.' For from being full and
plenary, the authority to suspend the privilege of the writ is thus
circumscribed, confined and restricted, not only by the prescribed setting or
the conditions essential to its existence, but, also, as regards the time when
and the place where it may be exercised. These factors and the aforementioned
setting or conditions mark, establish and define the extent, the confines and
the limits of said power, beyond which it does not exist. And, like the
limitations and restrictions imposed by the Fundamental Law upon the
legislative department, adherence thereto and compliance therewith may,
within proper bounds, be inquired into by courts of justice. Otherwise, the
explicit constitutional provisions thereon would be meaningless. Surely, the
framers of our Constitution could not have intended to engage in such a
wasteful exercise in futility." 44 The then Chief Justice continued: "Much less
may the assumption be indulged in when we bear in mind that our political
system is essentially democratic and republican in character and that the

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 commonweal, 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." 45
11. One of the merits of the ponencia of Chief Justice Concepcion is that it is
infused with a sense of realism. These are his words: "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 Rules 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." 46
12. After which this Court, as set forth in the Lansang opinion, considered "the
precise nature" of its function: "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." 47 Further: "In the exercise of such authority, the
function of the Court is merely to check - not to supplant - the Executive, or to
ascertain merely whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom
of his act. To be sure, the power of the Court to determine the validity of the
contested proclamation is far from being identical to, or even comparable with,
its power over ordinary civil or criminal cases elevated thereto by ordinary
appeal from inferior courts, in which cases the appellate court has all of the
powers of the court of origin." 48 It is clear the competence of this Court to
pass upon the validity of the suspension of the privilege of the writ is confined
within limits that preclude the assumption of power that rightfully belongs to
the Executive. There would then be, to my mind, no sufficient justification to
retreat from a position that assures judicial participation on a matter of
momentous consequence. Moreover, to the extent that such a move has had
the benefit of judicial appraisal, and thereafter approval, to that extent there
may be less valid opposition and hopefully greater understanding of why such a
step had to be taken.
13. With Lansang overruled, the doctrine that the suspension of the privilege of
the writ announced in Barcelon v. Baker 49 and Montenegro v. Castaeda 50
will be revived. This for me is unfortunate. The Montenegro decision, as I had
occasion to state "owed its existence to the compulsion exerted by Barcelon v.
Baker, a 1905 decision. This Court was partly misled by an undue reliance in
the latter case on what it considered to be authoritative pronouncements from
such illustrious American jurists as Marshall, Story, and Taney. That is to
misread what was said by them. This is most evident in the case of Chief
Justice Marshall, whose epochal Marbury v. Madison was cited. Why that was
so is difficult to understand. For it speaks to the contrary. It was by virtue of
this decision that the function of judicial review owes its origin notwithstanding
the absence of any explicit provision in the American Constitution empowering
the courts to do so. Thus: 'It is emphatically the province and duty of the
judicial department to say what the law is. Those who apply the rule to
particular cases, must of necessity expound and interpret that rule. If two laws
conflict with each other, the courts must decide on the operation of each. So if
a law be in opposition to the constitution; if both the law and the constitution
apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably to the

constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty. If,
then, the courts are to regard the constitution, and the constitution is superior
to any ordinary act of the legislature, the constitution, and not such ordinary
act, must govern the case to which they both apply." 51 The opinion went on to
say: "Nor is the excerpt from Justice Story, speaking for the United States
Supreme Court, in Martin v. Mott, as made clear in the opinion of the Chief
Justice, an authority directly in point. There, a militiaman had been convicted
of failing to respond to a call, made under the Act of 1795, to serve during the
War of 1812. His property was taken to satisfy the judgment. He brought an
action of replevin. The American Constitution empowers its Congress 'to
provide for calling forth the Militia' in certain cases, and Congress did provide
that in those cases the President should have authority to make the call. All
that Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American
President to decide whether the exigency has arisen. In stating that such power
was exclusive and thus had a conclusive effect, he relied on the language
employed, impressed with such a character. The constitutional provision on the
suspension of the privilege of the writ is, as shown, anything but that. Chief
Justice Taney, in Luther v. Borden, likewise had to deal with a situation
involving the calling out of the militia. As a matter of fact, an eminent
commentator speaking of the two above decisions had this apt observation:
'The common element in these opinions would seem to be a genuine judicial
reluctance to speak in a situation where the voice of the Court, even if heard,
could not have any effect. More than this, both Story and Taney seem to share
the suspicion, unusual in them, that under a popular form of government
there are certain questions that the political branches must be trusted to
answer with finality.' What was said next is even more pertinent. Thus: 'It
would be dangerous and misleading to push the principles of these cases too
far, especially the doctrine of "political questions" as implied in Luther v.
Borden. Given the opportunity to afford a grievously injured citizen relief from
a palpably unwarranted use of presidential or military power, especially when
the question at issue falls in the penumbra between the "political" and the
"justiciable", the Court will act as if it had never heard of this doctrine and its
underlying assumption that there are some powers against which the judiciary
simply cannot be expected to act as the last time of defense.' It would thus
seem evident that support for the hitherto prevailing Montenegro ruling was
rather frail. Happily, with our decision, it is no longer capable of the mischief to
which it does lend itself of an undue diminution of judicial power to the
prejudice of constitutional rights." 52

14. An opinion of a court, especially this Tribunal, should not ignore the
environmental facts which gave rise to a litigation where the issues arise from
problems inseparable from national security. There is, in addition, the need to
take into consideration the pressure of contemporary events. For as has so
often been stressed, judicial process does not take place in a social void. The
questions before the Court are to be viewed with full awareness of the
consequences attendant to the decision reached. As so tersely expressed by
Justice Tuason in Araneta v. Dinglasan: 53 "We test a rule by its
results." 54 More often than not especially during times of stress, it is
inescapable that efforts be made to reconcile time-tested principles to
contemporary problems. The judiciary is called upon to do its part. There is
wisdom in these words of Justice Tuason from the same opinion: "The truth is
that under our concept of constitutional government, in times of extreme perils
more than in normal circumstances, 'The various branches, executive,
legislative, and judicial,' given the ability to act, are called upon 'to perform the
duties and discharge the responsibilities committed to them
respectively.'" 55 To repeat, I accord the fullest respect to the mode and manner
in which my brethren performed their duty and discharged their responsibility
in passing upon the transcendental question raised in this petition. With the
basic premise of robust concern for individual rights to which I have been
committed, however, I have no choice except to vote the way I did, even if for
those whose opinions I value conformity with the hitherto unquestioned
verities may at times prove to be less than adequate to meet the exigencies of
the turbulent present.
TEEHANKEE, J., dissenting:
I am constrained to dissent from the all-encompassing scope of the main
opinion of Mr. Justice de Castro which would overturn the landmark doctrine
of Lansang vs. Garcia 1 which upheld the Supreme Court's authority to inquire
into the existence of factual bases for the President's suspension of the
privilege of the writ of habeas corpus in order to determine the constitutional
sufficiency thereof and would revert to the retrogressive and colonial era ruling
of Barcelon vs. Baker 2 and Montenegro vs. Castaeda 3 that the President's
decision to so suspend the privilege of the writ "is final and conclusive upon
the courts and all other persons," and would further deny the right to bail even
after the filing of charges in court to persons detained under Presidential
Commitment Orders.

This case, as in other like cases, focuses on the grievances that persons
detained or charged for the crimes of insurrection, rebellion, subversion,
conspiracy or proposal to commit such crimes, invariably bring to this Court.
They complain, as petitioners do here, of being arrested without any warrant of
arrest; of being informed of purported telegrams concerning the issuance of a
Presidential Commitment Order (PCO) authorizing their arrest and detention,
but that they are not given a copy of such PCO nor notified of its contents,
raising doubts whether such PCO has in fact been issued; of being kept in
isolation or transferred to so-called "safehouses" and being denied of their
constitutional right to counsel and to silence; of prolonged detention without
charges; "of a seeming deliberate and concerted effort by respondents to
conceal from counsel and relatives the detainees' place of detention, raising the
apprehension that respondents are using force, violence, threat, intimidation
and other means which vitiate free will to obtain confessions and statements
from the detainees in violation of their constitutional rights;" and of their
counsel and families undergoing great difficulties in locating or having access
to them (main opinion at p. 3).
The State through the Solicitor General on the other hand invariably denies all
such charges and submits affidavits of the arresting officers and detention
custodian that detainees are afforded decent and humane treatment, further
countering that such claims are merely calculated to arouse sympathy and as
propaganda against the Government and its institutions.
In many such cases, however, the Court in issuing the writ of habeas corpus
requiring respondents to make a return of the writ includes a resolution, in
recognition of the detainees' constitutional rights, "to allow counsel for
petitioners to visit and confer with the detainee(s) in an atmosphere of
confidentiality consistent with reasonable security measures which
respondents may impose," 4 In other cases where respondents military officials
have allegedly denied having in their custody the person(s) detained, the Court
has issued its resolution "on the assumption that the detained person is in the
custody of respondents, that there be due observance and respect of his right
to counsel and other constitutional rights by respondents." 5
Respondents' return through the Solicitor General in the case at bar states that
the detainees are all detained by virtue of a Presidential Commitment Order
issued on July 12, 1982 (several days after their arrest without warrant on
July 6 and 7, 1982) and that corresponding charges against the detainees were
filed in court and before the Acting Provincial Fiscal of Nueva Viscaya where

they are pending. As to the detainee Dr. Aurora Parong, the return further
states that a warrant of arrest was issued against her on August 4, 1982 by the
Municipal Court of Bayombong for illegal possession of a firearm and
ammunition. As in all other returns in similar cases, the Solicitor General
asserts "that the privilege of the writ of habeas corpus is unavailing as to them.
Courts cannot inquire into the validity and cause of their arrest and detention"
by virtue of the continued suspension, under Presidential Proclamation No.
2045 (which proclaimed the termination of martial law in the Philippines), of the
privilege of the writ of habeas corpus in the two autonomous regions in
Mindanao and in all other places with respect to persons detained for
suspected involvement in crimes related to national security.
The main opinion confronts the question of whether the issuance of a
Presidential Commitment Order (PCO) has provided the legal basis of the
detention of herein detainees following their arrest for Proclamation No. 2045covered offenses," and remarks that "this question has to be set at rest
promptly and decisively, if we are to break a seemingly continuous flow of
petitions for habeas corpus, as what had been seen lately of such petitions
being filed in this Court one after the other."
I. I submit that the resolution of the issues in this case does not call for the allencompassing ruling in the main opinion with its sweeping scope that would
reexamine and overturn the benchmark ruling in Lansang. The limited
suspension of the privilege of the writ of habeas corpus in the two instances
provided under Presidential Proclamation No. 2045 hag not been challenged in
this case. So, what's the point of an advance declaration that all checks and
barriers are down? Lansang recognizes the greatest deference and respect that
is due the President's determination for the necessity of suspending the
privilege of the writ of habeas corpus. But Lansang sets at the same time the
constitutional confines and limits of the President's power to suspend the
privilege of the writ and enunciates the constitutional test, not of the
correctness of the President's decision, but that the President's decision to
suspend the privilege not suffer from the constitutional infirmity of
arbitrariness. 6 Thus, after laying the premise "that every case must depend on
its own circumstances," the Court therein thru then Chief Justice Roberto
Concepcion held that:
"Indeed, the grant of power to suspend the privilege is neither
absolute nor unqualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the

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.' Far 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 an 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 commonweal, 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 exercise, 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." 7
II. The crucial issue at bar is that adversely decided by the main opinion,
denying petitioners' motion that the Court order their release on bail, on the
ground that the suspension of the privilege of the writ of habeas corpus for any
of the offenses covered by Proclamation No. 2045 "includes, as a necessary
consequence, the withholding for the duration of the suspension of the
privilege of the right to bail" (main opinion, at page 16).
1. I submit that notwithstanding the suspension of the privilege of the writ of
habeas corpus and the issuance on March 9, 1982 of Letter of Instruction No.
1211 that the Presidential Commitment Order constitutes authority to keep the
subject person under detention "until ordered released by the President or his

duly authorized representative" (which is a mere internal instruction to certain


agencies), the higher and superior mandate of the Constitution guarantees the
right to bail and vests the courts with the jurisdiction and judicial power to
grant bail which may not be removed nor diminished nor abdicated. We cannot
but so hold, if we are to be true to the fundamental precept that "The
Constitution is a law for rulers and for people equally in war and in peace and
covers with the shield of its protection all classes of men at all times and under
all circumstances."
The argument that otherwise the purpose of the suspension of the privilege
would be defeated ignores the overwhelming capability of the State and its
military and police forces to keep suspects under surveillance and the courts'
imposition of reasonable conditions in grating bail, such as periodic reports to
the authorities concerned, and prohibiting their going to certain critical areas.
prcd
2. The most authoritative pronouncement in this regard is of course none other
than the President's himself. In all the metropolitan newspapers of April 20,
1983, the President is reported to have "said that Pimentel has been charged
with rebellion before the regional trial court of Cebu City and is therefore under
the jurisdiction of the civil court and not only under the jurisdiction of the
military by virtue of the PCO." In a telegram in reply to the appeal of Msgr.
Patrick Cronin, Archbishop of Cagayan de Oro and Misamis Oriental, for lifting
of the PCO on Mayor Aquilino Pimentel of Cagayan de Oro City, the President
said that "(T)he disposal of the body of the accused, as any lawyer will inform
you, is now within the powers of the regional trial court of Cebu City and not
within the powers of the President."
3. This is but in consonance with the majority holding in the leading 1951
cases of Nava vs. Gatmaitan and Hernandez vs. Montesa 8 (although it failed
one vote short of the required majority of six affirmative votes at the time) as
expounded by then Chief Justice Ricardo Paras and Associate Justice (later
Chief Justice) Cesar Bengzon and Associate Justices Pedro Tuason, Alex Reyes
and Fernando Jugo that after formal indictment in court by the filing against
them of an information charging rebellion with multiple murder, etc., accused
persons covered by the proclamation of suspension of the privilege of the writ
of habeas corpus are entitled to the right to bail.
4. As stressed by then Chief Justice Ricardo Paras, "(T)he right to bail, along
with the right of an accused to be heard by himself and counsel, to be informed

of the nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses in his behalf (Article III, Section 1,
Paragraph 17, of the Constitution), tends to aid the accused to prove his
innocence and obtain acquittal. If it be contended that the suspension of the
privilege of the writ of habeas corpus includes the suspension of the distinct
right to bail or to be provisionally at liberty, it would a fortiori imply the
suspension of all his other rights (even the right to be tried by a court) that may
win for him ultimate acquittal and, hence, absolute freedom. The latter result is
not insisted upon for being patently untenable."
Then Chief Justice Paras stressed that ". . . The privilege of the writ of habeas
corpus and the right to bail guaranteed under the Bill of Rights are separate
and co-equal. If the intention of the framers of the Constitution was that the
suspension of the privilege of the writ of habeas corpus carries or implies the
suspension of the right to bail, they would have very easily provided that all
persons shall before conviction be bailable by sufficient sureties, except those
charged with capital offenses when evidence of guilt is strong and except when
the privilege of the writ of habeas corpus is suspended. As stated in the case of
Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the Constitution limited the
suspension to only one great right, leaving the rest to remain forever inviolable."
5. It is noteworthy and supportive of the prevailing stand since 1951 that the
other great constitutional rights remain forever inviolable since the
Constitution limited the suspension to only one great right (of the privilege of
the writ of habeas corpus), that there has been no amendment of the
Constitution to curtail the right to bail in case of such suspension
notwithstanding the numerous constitutional amendments adopted after the
1973 Constitution.
6. The late Justice Pedro Tuason emphasized that "(T)o the plea that the
security of the State would be jeopardized by the release of the defendants on
bail, the answer is that the existence of danger is never a justification for
courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding to no pressure of
convenience, expediency or the so-called 'judicial statesmanship.' The
Legislature itself cannot infringe them, and no court conscious of its
responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the
Constitution be amended, or abolished. It is trite to say that, while the

Constitution stands, the courts of justice as the repository of civil liberty are
bound to protect and maintain undiluted individual rights."
7. And-former Chief Justice Cesar Bengzon then made the same forceful plea
echoed these days by men of goodwill that respect for constitutional and
human rights and adherence to the rule of law would help in the fight against
rebellion and movement for national reconciliation, thus: "And in my opinion,
one of the surest means to ease the uprising is a sincere demonstration of this
Government's adherence to the principles of the Constitution together with an
impartial application thereof to all citizens, whether dissidents or not. Let the
rebels have no reason to apprehend that their comrades now under custody are
being railroaded into Muntinglupa, without benefit of those fundamental
privileges which the experience of the ages has deemed essential for the
protection of all persons accused of crime before the tribunal of justice. Give
them the assurance that the judiciary, ever mindful of its sacred mission, win
not, thru faulty or misplaced devotion, uphold any doubtful claims of
governmental power in diminution of individual rights, but will always cling to
the principles uttered long ago by Chief Justice Marshall that when in doubt as
to the construction of the Constitution, 'The Courts will favor personal liberty.'"
8. The right to bail cannot just be cancelled out summarily because of the
issuance of a PCO. In the case at bar, detainee Dr. Aurora Parong is charged in
the municipal court with the crime of illegal possession of firearm, which is a
clearly bailable offense. The charges filed against the other detainees are
likewise for clearly bailable offenses. It is elementary that the right to bail in
non-capital offenses and even in capital offenses where evidence of guilt is not
strong will be generally granted and respected by the courts, "the natural
tendency of the courts (being) towards a fair and liberal appreciation,"
particularly taking into consideration the record and standing of the person
charged and the unlikelihood of his fleeing the court's jurisdiction.
As the Court held in the leading case of Montano vs. Ocampo, 9 wherein the
Supreme Court granted bail to Senator Montano who was charged with
multiple murders and frustrated murders: prcd
"Brushing aside the charge that the preliminary investigation of
this case by the aforesaid Judge was railroaded, the same having
been conducted at midnight, a few hours after the complaint was
filed, we are of the opinion that, upon the evidence adduced in
the application for bail in the lower court, as such evidence is

recited lengthily in the present petition and the answer thereto,


and extensively analyzed and discussed in the oral argument,
there is not such clear showing of guilt as would preclude all
reasonable probability of any other conclusion.

"Exclusion from bail in capital offenses being an exception to the


otherwise absolute right guaranteed by the constitution, the
natural tendency of the courts has been toward a fair and liberal
appreciation, rather than otherwise, of the evidence in the
determination of the degree of proof and presumption of guilt
necessary to warrant a deprivation of that right.
"Besides, to deny bail it is not enough that the evidence of guilt is
strong; it must also appear that in case of conviction the
defendant's criminal liability would probably call for a capital
punishment. No clear or conclusive showing before this Court
has been made.
"In the evaluation of the evidence the probability of flight is one
other important factor to be taken into account. The sole purpose
of confining accused in jail before conviction, it has been
observed, is to assure his presence at the trial. In other words, if
denial of bail is authorized in capital cases, it is only on the
theory that the proof being strong, the defendant would flee, if he
has the opportunity, rather than face the verdict of the jury.
Hence the exception to the fundamental right to be bailed should
be applied in direct ratio to the extent of the probability of
evasion of prosecution.
"The possibility of escape in this case, bearing in mind the
defendant's official and social standing and his other personal
circumstances, seems remote if not nil."
In the recent case of Sobremonte vs. Enrile, 10 the detainee was released
upon her filing of the recommended P1,000.00 bail bond for the offense of
possession of subversive literature with which she was charged and the
habeas corpus petition, like many others, although dismissed for having
thereby become moot, accomplished the purpose of securing the accused's
release from prolonged detention. The Court had occasion to decry therein

that "all the effort, energy and manhours expended by the parties and their
counsel, including this Court, . . . could have been avoided had the officers
of the AVSECOM and the ISAFP responded promptly to the inquiries of
petitioner instead of giving her the 'run-around' by referring her from one
office to another."
9. "The continuous flow of petitions for habeas corpus" filed with
this Court should not be decried nor discouraged. The Court
stands as the guarantor of the constitutional and human rights
of all persons within its jurisdiction and must see to it that the
rights are respected and enforced. It is settled in his jurisdiction
that once a deprivation of a constitutional right is shown to exist,
the court that rendered the judgment or before whom the case is
pending is ousted of jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of the detention. 11 So
accused persons deprived of the constitutional right of speedy
trial have been set free. 12 And likewise persons detained
indefinitely without charges so much so that the detention
becomes punitive and not merely preventive in character are
entitled to regain their freedom. The spirit and letter of our
Constitution negates as contrary to the basic precepts of human
rights and freedom that a person he detained indefinitely without
any charges.
III. The main opinion invokes "a time of war or grave peril to the nation" (at
page 16), oblivious of the President's lifting of martial law under Proclamation
No. 2045 on January 17, 1981 and the specific premises therein set forth that.
"WHEREAS, the Filipino people, having subdued threats to the
stability of government, public order and security, are aware that
the time has come to consolidate the gains attained by the nation
under a state of martial law by assuming their normal political
roles and shaping the national destiny within the framework of
civil government and popular democracy:
"WHEREAS, the experience gained by the nation under martial
law in subduing threats to the stability of the government, public
order and security, has enabled the Filipino people to rediscover
their confidence in their ability to command the resources of

national unity, patriotism, discipline and sense of common


destiny;
"WHEREAS, the government and the people are at the same time
also aware that the public safety continues to require a degree of
capability to deal adequately with elements who persist in
endeavoring to overthrow the government by violent means and
exploiting every opportunity to disrupt the peaceful and
productive labors of the government; . . ."
As to the "self-evident" submittal of the main opinion that "the duty of the
judiciary to protect individual rights must yield to the power of the Executive to
protect the State, for if the State perishes, the Constitution, with the Bill of
Rights that guarantees the right to personal liberty, perishes with it" (at page
16), I can only recall the exhortation of the Holy Father John Paul II in his
address to the Philippine nation on February 17, 1981, thus: "Even in
exceptional situations that may at times arise, one can never justify any
violation of the fundamental dignity of the human person or of the basic rights
that safeguard this dignity. Legitimate concern for the security of a nation, as
demanded by the common good, could lead to the temptation of subjugating to
the State the human being and his or her dignity and rights. Any apparent
conflict between the exigencies of security and of the citizens' basic rights must
be resolved according to the fundamental principle upheld always by the
Church that social organization exists only for the service of man and for the
protection of his dignity, and that it cannot claim to serve the common good
when human rights are not safeguard People will have faith in the safeguarding
of their security and the promotion of their well-being only to the extent that
they feel truly involved, and supported in their very humanity."
FOOTNOTES
1.212 U.S. 416, 417.
2.59 SCRA 183 (1974).
3.Moyer vs. Peabody, 212 U.S. 78, citing Keely vs. Sanders, 99 U.S. 441, 446,
25 L. Ed. 327, 328.
4.Lansang vs. Garcia, 42 SCRA 488.
5.Section 9, Article VII, Constitution.

6.Encyclopedia of the Social Sciences, Vol. VIII, p. 236, 1950 Ed.


7.Political Law of the Philippines by Senator Lorenzo Taada and Atty.
Francisco Carreon, Vol. II, p. 236.
8.109 SCRA 273.
9.Lansang vs. Garcia, supra.
10.Section 6, 1976 Amendment to the Constitution.
11. Nava vs. Gatmaitan, 90 Phil. 172.
**The ruling was non-doctrinal for lack of the necessary votes.
12.Ex parte Milligan, 4 Wallace 2 (1866).
13.Section 15, Article VIII, 1973 Constitution.
14.As explained in Taada, et al. vs. Cuenco, et al. (103 Phil. 1051), term
"political question" connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. It refers to those
questions, which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
Executive branch of the Government (16 C.J.S. 413).
15.Ex parte Merryman, Federal Case No. 9487 (1861).
FERNANDO, C.J., concurring:

1.Decision, 17.
2.L-33964, December 11, 1971, 42 SCRA 448.
3.5 Phil. 87 (1905).
4.91 Phil. 882 (1952).
5.L-32613, December 27, 1972. 48 SCRA 382.
6.L-35546, September 17, 1974, 59 SCRA 183.

7.L-37364, May 9, 1975, 63 SCRA 546.


8.1 Cranch 137 (1803).
9.63 Phil. 139 (1936).
10.Cf. In addition to Angara, there is likewise the case of Taada v. Cuenco,
103 Phil. 1051 (1957).
11.Black, The People and the Court, 8 (1960).
12.Ibid, 8-9.
13.L-35546, September 11, 1974, 59 SCRA 183.
14.Ibid, 286.
15.L-30026, January 30, 1971, 37 SCRA 420.
16.Ibid, 423.
17.Ibid, 423-424. The quotation from Chafee is found in The Most Important
Human Right in the Constitution, 32 Boston Univ. Law Rev. 143 (1947);
from Cooley in 2 Constitutional Limitations 709 (1927); from
Willoughby in 3 on the Constitution 1612 (1929); from Burdick in the
Law of the American Constitution 27 (1922); from Fraenkel in Our Civil
Liberties 6 (1944).
18.372 US 391 (1963).
19.Ibid, 399-400.
20.Cf. Lansang v. Garcia, L-33964, December 11, 1971, 42 SCRA 448:
Barcelon v. Baker, 5 Phil. 87 (1905): Montenegro v. Castaeda, 91 Phil.
882 (1952).
21.Proclamation No. 2045 (1981).
22.Ibid.
23.Article VII, Sec. 9 of the Constitution.

24.42 SCRA 448, 488.


25.212 US 78.
26.Ibid, 83.
27.Ibid, 84-85.
28.Ibid, 86.
29.According to Article IV, Sec. 18 of the Constitution: "All persons, except
those charged with capital offenses when evidence of guilt is strong,
shall before conviction, be bailable by sufficient sureties. Excessive bail
shall not be required."
30.90 Phil. 172 (1951). It is reported along with Nava v. Gatmaitan and
Angeles v. Abaya in a single resolution.
31.42 SCRA 448.
32.L-47185, January 16, 1981, 102 SCRA 7.
32.Suffian, (1976), An Introduction to the Constitution of Malaysia, 226.
33.Cf. Malaysia Soo Kua v. Public Prosecutor [1970] 1. Malaysian Law Journal
91; Karam Singh v. The Minister of Internal Affairs [1969] 2. Malaysian
Law Journal 129; Phong Chin Hock v. Public Prosecutor (1977) 1
Malaysian Law Journal 70. The above provision is likewise applicable to
Singapore. This decision from that jurisdiction may be cited: Lim Hock
Siew v. Minister of Interior and Defense [1918] 2 Malaysian Law Journal
219. There is likewise relevance to these articles: Hickling, The
Prerogative in Malaysia 17 Malaya Law Review 207 (1975) and
Jayakumar, Emergency Powers in Malaysia 18 Malaya Law Review 149
(1976).
35.Jain, Judicial Creativity and Preventive Detention in India, 262.
36.Ibid.
37.Ibid. Liversidge is reported in [1942] A.C. 206.
38.Ibid, 263.

39.Ibid, 263-264.
40.Ibid, 263.
41.Ibid, 303-304.
42.Ibid, 304.
43.I had a separate opinion, dissenting in part, but I concurred in the holding
that the question is judicial rather than political.
44.42 SCRA 448, 473-474.
45.Ibid, 474-475.
46.Ibid, 475.
47.Ibid, 479-480.
48.Ibid, 480.
49.5 Phil. 87.
50.91 Phil. 882 (1952).
51.42 SCRA 448, 505-506.
52.Ibid, 506-507.
53.84 Phil. 368 (1949).
54.Ibid, 376.
55.Ibid, 383.
TEEHANKEE, J., dissenting:
1.42 SCRA 448 (1971).
2.5 Phil. 87 (1905).
3.91 Phil. 882 (1952).

4.Resolution of July 30, 1982 in G.R. No. 61016 In re: Petition for Habeas
Corpus of Horacio R. Morales, Jr.
5.Resolution of April 4, 1983 in G.R. No. 63581 In re: Petition for Habeas
Corpus of Carl Gaspar.
6.42 SCRA at page 481.
7.Idem, at pages 473-475; emphasis copied.
8.Jointly decided with Angeles vs. Abaya and reported in 90 Phil. 172 (1951).
9.G.R. L-6352, Resolution of Jan. 29, 1953, 49 O.G. 1855; emphasis
supplied. See Villaseor vs. Abancio, 21 SCRA 321.
10.G.R. No. 60602, Sept. 30, 1982, per Escolin, J.
11.Gumabon v. Director of Prisons, 37 SCRA 420, 427.
12.Conde vs. Diaz, 45 Phil. 173.