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REYES VS COURT OF APPEALS............................................................................................................................. 2

MARCOS VS MANGLAPUS, OCTOBER 1989......................................................................................................... 14
SILVERIO VS COURT OF APPEALS....................................................................................................................... 17
KWONG VS PCGG................................................................................................................................................... 21
MANOTOC VS COURT OF APPEALS..................................................................................................................... 27
VILLAVICENCIO VS LUKBAN.................................................................................................................................. 31
ROAN VS GONZALES............................................................................................................................................. 39
SALONGA VS HERMOSO........................................................................................................................................ 43






- versus - CARPIO,





Respondents. PERALTA,



ABAD, and



December 3, 2009




For resolution is the petition for review under Rule 45 of the Rules of Court, assailing the February 4, 2008
Decision[1] of the Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed the petition for the issuance of the
writ of amparo under A.M. No. 07-9-12-SC, as amended. It also assails the CAs Resolution dated March 25, 2008,
denying petitioners motion for reconsideration of the aforesaid February 4, 2008 Decision.

The undisputed facts as found by the CA are as follows:

Petitioner was among those arrested in the Manila Peninsula Hotel siege on November 30,
2007. In the morning of November 30, 2007, petitioner together with fifty (50) others, were brought
to Camp Crame to await inquest proceedings. In the evening of the same day, the Department of
Justice (DOJ) Panel of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz and
Aristotle M. Reyes, conducted inquest proceedings to ascertain whether or not there was probable
cause to hold petitioner and the others for trial on charges of Rebellion and/or Inciting to Rebellion.

On December 1, 2007, upon the request of the Department of Interior and Local
Government (DILG), respondent DOJ Secretary Raul Gonzales issued Hold Departure Order
(HDO) No. 45 ordering respondent Commissioner of Immigration to include in the Hold Departure
List of the Bureau of Immigration and Deportation (BID) the name of petitioner and 49 others
relative to the aforementioned case in the interest of national security and public safety.

On December 2, 2007, after finding probable cause against petitioner and 36 others for the
crime of Rebellion under Article 134 of the Revised Penal Code, the DOJ Panel of Prosecutors filed
an Information docketed as I.S. No. 2007-1045 before the Regional Trial Court, Branch 150 of
Makati City.

On December 7, 2007, petitioner filed a Motion for Judicial Determination of Probable

Cause and Release of the Accused Fr. Reyes Upon Recognizance asserting that the DOJ panel
failed to produce any evidence indicating his specific participation in the crime charged; and that
under the Constitution, the determination of probable cause must be made personally by a judge.

On December 13, 2007, the RTC issued an Order dismissing the charge for Rebellion
against petitioner and 17 others for lack of probable cause. The trial court ratiocinated that the
evidence submitted by the DOJ Panel of Investigating Prosecutors failed to show that petitioner
and the other accused-civilians conspired and confederated with the accused-soldiers in taking
arms against the government; that petitioner and other accused-civilians were arrested because
they ignored the call of the police despite the deadline given to them to come out from the 2 ndFloor
of the Hotel and submit themselves to the police authorities; that mere presence at the scene of the
crime and expressing ones sentiments on electoral and political reforms did not make them
conspirators absent concrete evidence that the accused-civilians knew beforehand the intent of the
accused-soldiers to commit rebellion; and that the cooperation which the law penalizes must be
one that is knowingly and intentionally rendered.

On December 18, 2007, petitioners counsel Atty. Francisco L. Chavez wrote the DOJ
Secretary requesting the lifting of HDO No. 45 in view of the dismissal of Criminal Case No. 07-

On even date, Secretary Gonzales replied to petitioners letter stating that the DOJ could
not act on petitioners request until Atty. Chavezs right to represent petitioner is settled in view of
the fact that a certain Atty. J. V. Bautista representing himself as counsel of petitioner had also
written a letter to the DOJ.

On January 3, 2008, petitioner filed the instant petition claiming that despite the dismissal
of the rebellion case against petitioner, HDO No. 45 still subsists; that on December 19, 2007,
petitioner was held by BID officials at the NAIA as his name is included in the Hold Departure List;
that had it not been for the timely intervention of petitioners counsel, petitioner would not have
been able to take his scheduled flight to Hong Kong; that on December 26, 2007, petitioner was
able to fly back to the Philippines from Hong Kong but every time petitioner would present himself
at the NAIA for his flights abroad, he stands to be detained and interrogated by BID officers
because of the continued inclusion of his name in the Hold Departure List; and that the Secretary of
Justice has not acted on his request for the lifting of HDO No. 45. Petitioner further maintained that
immediate recourse to the Supreme Court for the availment of the writ is exigent as the continued
restraint on petitioners right to travel is illegal.

On January 24, 2008, respondents represented by the Office of the Solicitor General
(OSG) filed the Return of the Writ raising the following affirmative defenses: 1) that the Secretary of
Justice is authorized to issue Hold Departure Orders under the DOJ Circulars No. 17, Series of
1998[2] and No. 18 Series of 2007[3] pursuant to his mandate under the Administrative Code of 1987
as ahead of the principal law agency of the government; 2) that HDO No. 45 dated December 1,
2007 was issued by the Sec. Gonzales in the course of the preliminary investigation of the case
against herein petitioner upon the request of the DILG; 3) that the lifting of HDO No. 45 is
premature in view of public respondents pending Motion for Reconsideration dated January 3,
2008 filed by the respondents of the Order dated December 13, 2007 of the RTC dismissing
Criminal Case No. 07-3126 for Rebellion for lack of probable cause; 4) that petitioner failed to
exhaust administrative remedies by filing a motion to lift HDO No. 45 before the DOJ; and 5) that
the constitutionality of Circulars No. 17 and 18 can not be attacked collaterally in
an amparoproceeding.

During the hearing on January 25, 2008 at 10:00 a.m. at the Paras Hall of the Court of
Appeals, counsels for both parties appeared. Petitioners counsel Atty. Francisco Chavez
manifested that petitioner is currently in Hong Kong; that every time petitioner would leave and
return to the country, the immigration officers at the NAIA detain and interrogate him for several
minutes because of the existing HDO; that the power of the DOJ Secretary to issue HDO has no
legal basis; and that petitioner did not file a motion to lift the HDO before the RTC nor the DOJ
because to do so would be tantamount to recognizing the power of the DOJ Secretary to issue

For respondents part, the Office of the Solicitor-General (OSG) maintained that the
Secretary of the DOJs power to issue HDO springs from its mandate under the Administrative
Code to investigate and prosecute offenders as the principal law agency of the government; that in
its ten-year existence, the constitutionality of DOJ Circular No. 17 has not been challenged except

now; and that on January 3, 2008, the DOJ Panel of Investigating Prosecutors had filed a Motion
for Reconsideration of the Order of Dismissal of the trial court.

On February 1, 2008, petitioner filed a Manifestation attaching thereto a copy of the Order
dated January 31, 2008 of the trial court denying respondent DOJs Motion for Reconsideration for
utter lack of merit. The trial court also observed that the said Motion should be dismissed outright
for being filed out of time. [4]

The petition for a writ of amparo is anchored on the ground that respondents violated petitioners
constitutional right to travel. Petitioner argues that the DOJ Secretary has no power to issue a Hold Departure
Order (HDO) and the subject HDO No. 45 has no legal basis since Criminal Case No. 07-3126 has already been

On February 4, 2008, the CA rendered the assailed Decision dismissing the petition and denying the
privilege of the writ of amparo.

Petitioners Motion for Reconsideration [5] thereon was also denied in the assailed Resolution [6] dated March
25, 2008.

Hence, the present petition which is based on the following grounds:












Petitioner maintains that the writ of amparo does not only exclusively apply to situations of extrajudicial
killings and enforced disappearances but encompasses the whole gamut of liberties protected by the
Constitution. Petitioner argues that [liberty] includes the right to exist and the right to be free from arbitrary
personal restraint or servitude and includes the right of the citizens to be free to use his faculties in all lawful
ways. Part of the right to liberty guaranteed by the Constitution is the right of a person to travel.

In their Comment,[8] both respondents Secretary Gonzalez and Commissioner Libanan argue that: 1) HDO
No. 45 was validly issued by the Secretary of Justice in accordance with Department of Justice Circular No. 17,
Series of 1998,[9] and Circular No. 18, Series of 2007,[10] which were issued pursuant to said Secretarys mandate
under the Administrative Code of 1987, as head of the principal law agency of the government, to investigate the
commission of crimes, prosecute offenders, and provide immigration regulatory services; and; 2) the issue of the
constitutionality of the DOJ Secretarys authority to issue hold departure orders under DOJ Circulars Nos. 17 and
18 is not within the ambit of a writ of amparo.

The case hinges on the issue as to whether or not petitioners right to liberty has been violated or
threatened with violation by the issuance of the subject HDO, which would entitle him to the privilege of the writ
of amparo.

The petition must fail.

Section 1 of the Rule on the Writ of Amparo provides:

SECTION 1. Petition. The petition for a writ of amparo is a remedy available to any
person whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

The Court, in Secretary of National Defense et al. v. Manalo et al.,[11] made a categorical pronouncement
that the Amparo Rule in its present form is confined to these two instances of extralegal killings and enforced
disappearances, or to threats thereof, thus:

x x x As the Amparo Rule was intended to address the intractable problem of extralegal killings
and enforced disappearances, its coverage, in its present form, is confined to these two instances
or to threats thereof. Extralegal killings are killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings. On the other hand, enforced disappearances
are attended by the following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the deprivation of liberty which places such persons
outside the protection of law.[12]

In Tapuz v. Del Rosario,[13] the Court laid down the basic principle regarding the rule on the writ of
amparo as follows:

To start off with the basics, the writ of amparo was originally conceived as a response to
the extraordinary rise in the number of killings and enforced disappearances, and to the perceived
lack of available and effective remedies to address these extraordinary concerns. It is intended to
address violations of or threats to the rights to life, liberty or security, as an extraordinary
and independent remedy beyond those available under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or
commercial. Neither is it a writ that we shall issue on amorphous and uncertain
grounds. Consequently, the Rule on the Writ of Amparo in line with the extraordinary character of
the writ and the reasonable certainty that its issuance demands requires that every petition for
the issuance of the writ must be supported by justifying allegations of fact, to wit:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible

for the threat, act or omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent, and
how such threat or violation is committed with the attendant circumstances detailed
in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal

circumstances, and addresses of the investigating authority or individuals, as well
as the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the
fate or whereabouts of the aggrieved party and the identity of the person
responsible for the threat, act or omission; and

(f) The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs. [14]

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of
the ultimate facts determinable from the supporting affidavits that detail the circumstances of how
and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved
party was or is being committed. (Emphasis supplied)

Here, petitioner invokes this extraordinary remedy of the writ of amparo for the protection of his right to
travel. He insists that he is entitled to the protection covered by the Rule on the Writ of Amparo because the HDO is
a continuing actual restraint on his right to travel. The Court is thus called upon to rule whether or not the right to
travel is covered by the Rule on the Writ of Amparo.

The rights that fall within the protective mantle of the Writ of Amparo under Section 1 of the Rules thereon
are the following: (1) right to life; (2) right to liberty; and (3) right to security.

In Secretary of National Defense et al. v. Manalo et al.,[15] the Court explained the concept of right to life in
this wise:

While the right to life under Article III, Section 1 guarantees essentially the right to be alive-
upon which the enjoyment of all other rights is preconditioned - the right to security of person is a
guarantee of the secure quality of this life, viz: The life to which each person has a right is not a
life lived in fear that his person and property may be unreasonably violated by a powerful
ruler. Rather, it is a life lived with the assurance that the government he established and consented
to, will protect the security of his person and property. The ideal of security in life and property
pervades the whole history of man. It touches every aspect of mans existence. In a broad sense,
the right to security of person emanates in a persons legal and uninterrupted enjoyment of his life,
his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to
enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those
things which are necessary to the enjoyment of life according to the nature, temperament, and
lawful desires of the individual.[16]

The right to liberty, on the other hand, was defined in the City of Manila, et al. v. Hon. Laguio, Jr., [17] in this

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include the
right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be
dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to
embrace the right of man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common welfare. x x x

Secretary of National Defense et al. v. Manalo et al.[18] thoroughly expounded on the import of the right to
security, thus:

A closer look at the right to security of person would yield various permutations of the
exercise of this right.

First, the right to security of person is freedom from fear. In its whereas clauses,
the Universal Declaration of Human Rights (UDHR) enunciates that a world in which human
beings shall enjoy freedom of speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people. (emphasis supplied) Some scholars
postulate that freedom from fear is not only an aspirational principle, but essentially an individual
international human right. It is the right to security of person as the word security itself means
freedom from fear. Article 3 of the UDHR provides, viz:

Everyone has the right to life, liberty and security of person.


The Philippines is a signatory to both the UDHR and the ICCPR.

In the context of Section 1 of the Amparo Rule, freedom from fear is the right and
any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of
mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can
range from being baseless to well-founded as people react differently. The degree of fear can vary
from one person to another with the variation of the prolificacy of their imagination, strength of
character or past experience with the stimulus. Thus, in the amparo context, it is more correct to
say that the right to security is actually the freedom from threat. Viewed in this light, the
threatened with violation Clause in the latter part of Section 1 of the Amparo Rule is a form of
violation of the right to security mentioned in the earlier part of the provision.

Second, the right to security of person is a guarantee of bodily and psychological

integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general
rule, ones body cannot be searched or invaded without a search warrant. Physical injuries inflicted
in the context of extralegal killings and enforced disappearances constitute more than a search or
invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical
intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in

criminal law, physical injuries constitute a crime against persons because they are an affront to the
bodily integrity or security of a person.


Third, the right to security of person is a guarantee of protection of ones rights by

the government. In the context of the writ of amparo, this right is built into the guarantees of
the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to
security of person (as freedom from threat and guarantee of bodily and psychological integrity)
under Article III, Section 2. The right to security of person in this third sense is a corollary of the
policy that the State guarantees full respect for human rights under Article II, Section 11 of the
1987 Constitution. As the government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if
government does not afford protection to these rights especially when they are under
threat. Protection includes conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or enforced disappearances (or
threats thereof) and/or their families, and bringing offenders to the bar of justice. x x x (emphasis
supplied) [19]

The right to travel refers to the right to move from one place to another. [20] As we have stated
in Marcos v. Sandiganbayan,[21] xxx a persons right to travel is subject to the usual constraints imposed by the very
necessity of safeguarding the system of justice. In such cases, whether the accused should be permitted to leave
the jurisdiction for humanitarian reasons is a matter of the courts sound discretion. [22]

Here, the restriction on petitioners right to travel as a consequence of the pendency of the criminal case
filed against him was not unlawful. Petitioner has also failed to establish that his right to travel was impaired in the
manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which
there exists no readily available legal recourse or remedy.

In Canlas et al. v. Napico Homeowners Association I XIII, Inc. et al.,[23] this Court ruled that:

This new remedy of writ of amparo which is made available by this Court is intended for the
protection of the highest possible rights of any person, which is his or her right to life, liberty and
security. The Court will not spare any time or effort on its part in order to give priority to petitions of
this nature. However, the Court will also not waste its precious time and effort on matters not
covered by the writ.

We find the direct recourse to this Court inappropriate, considering the provision of Section 22 of the Rule
on the Writ of Amparo which reads:

Section 22. Effect of Filing of a Criminal Action. When a criminal action has been
commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be
available by motion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs available under
the writ of amparo.

Pursuant to the aforementioned Section 22, petitioner should have filed with the RTC-Makati a motion to lift
HDO No. 45 in Criminal Case No. 07-3126. Petitioner, however, did not file in the RTC-Makati a motion to lift the
DOJs HDO, as his co-accused did in the same criminal case. Petitioner argues that it was not the RTC-Makati but
the DOJ that issued the said HDO, and that it is his intention not to limit his remedy to the lifting of the HDO but also
to question before this Court the constitutionality of the power of the DOJ Secretary to issue an HDO. [24] We quote
with approval the CAs ruling on this matter:

The said provision [Section 22] is an affirmation by the Supreme Court of its
pronouncement in Crespo v. Mogul[25] that once a complaint or information is filed in court, any
disposition of the case such as its dismissal or its continuation rests on the sound discretion of the
court. Despite the denial of respondents MR of the dismissal of the case against petitioner, the
trial court has not lost control over Criminal Case No. 07-3126 which is still pending before it. By
virtue of its residual power, the court a quo retains the authority to entertain incidents in the instant
case to the exclusion of even this Court. The relief petitioner seeks which is the lifting of the HDO
was and is available by motion in the criminal case. (Sec. 22, Rule on the Writ of amparo, supra).[26]

Even in civil cases pending before the trial courts, the Court has no authority to separately and directly
intervene through the writ of amparo, as elucidated in Tapuz v. Del Rosario,[27] thus:

Where, as in this case, there is an ongoing civil process dealing directly with the
possessory dispute and the reported acts of violence and harassment, we see no point in
separately and directly intervening through a writ of amparo in the absence of any clear prima
facie showing that the right to life, liberty or securitythe personal concern that the writ is intended

to protectis immediately in danger or threatened, or that the danger or threat is continuing. We
see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion
in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-
existence of the writ with a separately filed criminal case.

Additionally, petitioner is seeking the extraordinary writ of amparo due to his apprehension that the DOJ
may deny his motion to lift the HDO.[28] Petitioners apprehension is at best merely speculative. Thus, he has failed
to show any clear threat to his right to liberty actionable through a petition for a writ of amparo. The absence of an
actual controversy also renders it unnecessary for us on this occasion to pass upon the constitutionality of DOJ
Circular No. 17, Series of 1998 (Prescribing Rules and Regulations Governing the Issuance of Hold Departure
Orders); and Circular No. 18, Series of 2007 (Prescribing Rules and Regulations Governing the Issuance and
Implementation of Watchlist Orders and for Other Purposes).

WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA dated February 4, 2008 in CA-
G.R. No. 00011 is hereby AFFIRMED.


Republic of the Philippines


G.R. No. 88211 October 27, 1989

ESTRELLA, petitioners,
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of
Staff, respectively, respondents.



In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the petition, after
finding that the President did not act arbitrarily or with grave abuse of discretion in determining that the return of
former President Marcos and his family at the present time and under present circumstances pose a threat to
national interest and welfare and in prohibiting their return to the Philippines. On September 28, 1989, former
President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:

In the interest of the safety of those who will take the death of Mr. Marcos in widely and
passionately conflicting ways, and for the tranquility of the state and order of society, the remains of
Ferdinand E. Marcos will not be allowed to be brought to our country until such time as the
government, be it under this administration or the succeeding one, shall otherwise decide. [Motion
for Reconsideration, p. 1; Rollo, p, 443.]

On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major arguments:

1. to bar former President Marcos and his family from returning to the Philippines is to deny them not only the
inherent right of citizens to return to their country of birth but also the protection of the Constitution and all of the
rights guaranteed to Filipinos under the Constitution;

2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it arbitrarily; and

3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners prayed that the
Court reconsider its decision, order respondents to issue the necessary travel documents to enable Mrs. Imelda R.
Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to

return to the Philippines, and enjoin respondents from implementing President Aquino's decision to bar the return of
the remains of Mr. Marcos, and the other petitioners, to the Philippines.

Commenting on the motion for reconsideration, the Solicitor General argued that the motion for reconsideration is
moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that "the 'formal' rights being invoked by
the Marcoses under the label 'right to return', including the label 'return of Marcos' remains, is in reality or substance
a 'right' to destabilize the country, a 'right' to hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be denied for lack of merit.

We deny the motion for reconsideration.

1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants, petitioner
herein, to show that there are compelling reasons to reconsider the decision of the Court.

2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of the view that
no compelling reasons have been established by petitioners to warrant a reconsideration of the Court's decision.

The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the factual scenario
under which the Court's decision was rendered. The threats to the government, to which the return of the Marcoses
has been viewed to provide a catalytic effect, have not been shown to have ceased. On the contrary, instead of
erasing fears as to the destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the
basis for the decision to bar their return when she called President Aquino "illegal," claiming that it is Mr. Marcos,
not Mrs. Aquino, who is the "legal" President of the Philippines, and declared that the matter "should be brought to
all the courts of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]

3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power is vested, has
unstated residual powers which are implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific
power of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the
general grant of executive power.

That the President has powers other than those expressly stated in the Constitution is nothing new. This is
recognized under the U.S. Constitution from which we have patterned the distribution of governmental powers
among three (3) separate branches.

Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the
United States of America." In Alexander Hamilton's widely accepted view, this statement cannot be
read as mere shorthand for the specific executive authorizations that follow it in [sections] 2 and 3.
Hamilton stressed the difference between the sweeping language of article II, section 1, and the
conditional language of article I, [section] 1: "All legislative Powers herein granted shall be vested in
a Congress of the United States . . ." Hamilton submitted that "[t]he [article III enumeration [in
sections 2 and 31 ought therefore to be considered, as intended merely to specify the principal
articles implied in the definition of execution power; leaving the rest to flow from the general grant
of that power, interpreted in confomity with other parts of the Constitution...

In Myers v. United States, the Supreme Court accepted Hamilton's proposition, concluding that
the federal executive, unlike the Congress, could exercise power from sources not enumerated, so
long as not forbidden by the constitutional text: the executive power was given in general terms,
strengthened by specific terms where emphasis was regarded as appropriate, and was limited by
direct expressions where limitation was needed. . ." The language of Chief Justice Taft in Myers
makes clear that the constitutional concept of inherent power is not a synonym for power without
limit; rather, the concept suggests only that not all powers granted in the Constitution are
themselves exhausted by internal enumeration, so that, within a sphere properly regarded as one
of "executive' power, authority is implied unless there or elsewhere expressly limited. [TRIBE,

And neither can we subscribe to the view that a recognition of the President's implied or residual powers is
tantamount to setting the stage for another dictatorship. Despite petitioners' strained analogy, the residual powers
of the President under the Constitution should not be confused with the power of the President under the 1973
Constitution to legislate pursuant to Amendment No. 6 which provides:

Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a
threat or imminence thereof, or whenever the interim Batasang 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, he may, in order to meet the exigency, issue the necessary decrees,
orders, or letters of instruction, which shall form part of the law of the land,

There is no similarity between the residual powers of the President under the 1987 Constitution and the power of
the President under the 1973 Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an
express grant of power. It is not implied. Then, Amendment No. 6 refers to a grant to the President of thespecific
power of legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to
protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and
subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with
this bounden duty. In the absence of a clear showing that she had acted with arbitrariness or with grave abuse of
discretion in arriving at this decision, the Court will not enjoin the implementation of this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."

Republic of the Philippines


G.R. No. 94284 April 8, 1991

RICARDO C. SILVERIO, petitioner,

THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court of Cebu City,
Branch IX, and PEOPLE OF THE PHILIPPINES, respondents.

Quisumbing, Torres & Evangelista for petitioner.


This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the Decision of
respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon. Benigno C. Gaviola,
etc., et al.," dated 31 January 1990, as well as the Resolution of 29 June 1990 denying reconsideration, be set

On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised Securities Act in
Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time, he posted bail for his provisional

On 26 January 1988, or more than two (2) years after the filing of the Information, respondent People of the
Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a hold-departure Order against
accused-petitioner on the ground that he had gone abroad several times without the necessary Court approval
resulting in postponements of the arraignment and scheduled hearings.

Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the Department of
Foreign Affairs to cancel Petitioner's passport or to deny his application therefor, and the Commission on
Immigration to prevent Petitioner from leaving the country. This order was based primarily on the Trial Court's
finding that since the filing of the Information on 14 October 1985, "the accused has not yet been arraigned
because he has never appeared in Court on the dates scheduled for his arraignment and there is evidence to show
that accused Ricardo C. Silverio, Sr. has left the country and has gone abroad without the knowledge and
permission of this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28 July 1988.

Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990. Hence, this
Petition for Review filed on 30 July 1990.

After the respective pleadings required by the Court were filed, we resolved to give due course and to decide the
Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court committed grave
abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4 April and 28 July 1988, (1) on the
basis of facts allegedly patently erroneous, claiming that the scheduled arraignments could not be held because
there was a pending Motion to Quash the Information; and (2) finding that the right to travel can be impaired upon
lawful order of the Court, even on grounds other than the "interest of national security, public safety or public

We perceive no reversible error.

1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is apparent that it was
filed long after the filing of the Information in 1985 and only after several arraignments had already been scheduled
and cancelled due to Petitioner's non-appearance. In fact, said Motion to Quash was set for hearing only on 19
February 1988. Convincingly shown by the Trial Court and conformed to by respondent Appellate Court is the
concurrence of the following circumstances:

1. The records will show that the information was filed on October 14, 1985. Until this date (28 July
1988), the case had yet to be arraigned. Several scheduled arraignments were cancelled and
reset, mostly due to the failure of accused Silverio to appear. The reason for accused Silverio's
failure to appear had invariably been because he is abroad in the United States of America;

2. Since the information was filed, until this date, accused Silverio had never appeared in person
before the Court;

3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had been
issued against him all for the same reason failure to appear at scheduled arraignments.

In all candidness, the Court makes the observation that it has given accused Silverio more than
enough consideration. The limit had long been reached (Order, 28 July 1988, Crim. Case No. CBU-
6304, RTC, Cebu, p. 5; Rollo, p. 73).

Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not based on erroneous
facts, as Petitioner would want this Court to believe. To all appearances, the pendency of a Motion to Quash came
about only after several settings for arraignment had been scheduled and cancelled by reason of Petitioner's non-

2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding that the right to
travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of national security,
public safety or public health."

To start with, and this has not been controverted by Petitioner, the bail bond he had posted had been cancelled and
Warrants of Arrest had been issued against him by reason, in both instances, of his failure to appear at scheduled
arraignments. Warrants of Arrest having been issued against him for violation of the conditions of his bail bond, he
should be taken into custody. "Bail is the security given for the release of a person in custody of the law, furnished
by him or a bondsman, conditioned upon his appearance before any court when so required by the Court or the
Rules (1985 Rules on Criminal Procedure, as amended, Rule 114, Secs. 1 and 2).

The foregoing condition imposed upon an accused to make himself available at all times whenever the Court
requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. vs. Court of Appeals, et al.
No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges may be restrained by the Court from
leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So
it is also that "An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to
depart from the Philippines without prior permission of the Court where the case is pending ( ibid., Sec. 20 [2nd
par. ]).

Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the Courts to curtail
the liberty of abode within the limits prescribed by law, it restricts the allowable impairment of the right to travel only
on grounds of interest of national security, public safety or public health, as compared to the provisions on freedom
of movement in the 1935 and 1973 Constitutions.

Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision. Article III, Section
1(4) thereof reads:

The liberty of abode and of changing the same within the limits prescribed by law shall not be

The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus:

The liberty of abode and of travel shall not be impaired except upon lawful order of the court or
when necessary in the interest of national security, public safety, or public health (Article IV, Section

The 1987 Constitution has split the two freedoms into two distinct sentences and treats them differently, to wit:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not
be impaired except upon lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public health, as may be provided by law.

Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on the grounds
of "national security, public safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be
impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed
with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public
safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text
(The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the
1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there
was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested
party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).

Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of
the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When
by law jurisdiction is conferred on a Court or judicial officer, all auxillary writs, process and other means necessary
to carry it into effect may be employed by such Court or officer (Rule 135, Section 6, Rules of Court).

Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the effect that the
condition imposed upon an accused admitted to bail to make himself available at all times whenever the Court
requires his presence operates as a valid restriction on the right to travel no longer holds under the 1987
Constitution, is far from tenable. The nature and function of a bail bond has remained unchanged whether under the

1935, the 1973, or the 1987 Constitution. Besides, the Manotoc ruling on that point was but a re-affirmation of that
laid down long before in People v. Uy Tuising, 61 Phil. 404 (1935).

Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing to appear
before the Court when required. Warrants for his arrest have been issued. Those orders and processes would be
rendered nugatory if an accused were to be allowed to leave or to remain, at his pleasure, outside the territorial
confines of the country. Holding an accused in a criminal case within the reach of the Courts by preventing his
departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt
with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to
their best interest that criminal prosecutions should run their course and proceed to finality without undue delay,
with an accused holding himself amenable at all times to Court Orders and processes.

WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo C. Silverio.


Republic of the Philippines


G.R. No. 79484 December 7, 1987

KANT KWONG and YIM KAM SHING, petitioners,



In this original action for Mandamus, petitioners pray that respondent Presidential Commission on Good
Government (PCGG, for short) be commanded to lift without delay the Hold-Orders issued against them by the said
entity for being in violation of their right to travel and for having been issued in grave abuse of authority since they
are in no way involved in ill-gotten wealth nor in transactions connected therewith.

Petitioners are foreign nationals who are the representatives of the Hongkong-Chinese investors who own 33% of
the shares of stock in two domestic garment corporations, namely, De Soleil Apparel Manufacturing Corporation
and American Inter-Fashion Manufacturing Corporation, which firms were ordered sequestered by the PCGG on 25
March 1986 on the thesis that the Marcoses, through nominees and dummies, appear to control 67 % of the firms'

On 13 February 1987 respondent Ramon A. Diaz, then Secretary of the PCGG, wrote the Minister of Public
Information advising the latter that petitioners had been included in the Hold-Order list of the PCGG (Annex "L"

On 12 March 1987 petitioners filed before the PCGG an Urgent Motion to Lift Hold-Order with the request that the
Motion be set for hearing on 16 March 1987 (Annex "M," Petition). The Motion, however, was not calendared for
hearing on said date. On 19 March 1987 the PCGG denied the Motion to Lift in an Order reading as follows:

An "Urgent Motion to Lift Hold Order" dated March 12, 1987 was filed by Kant Kwong and Yim Kam
Shing. These are the official representatives of the Hongkong investors in these two sequestered
corporations. Based on records/evidence in the possession of the Commission, all made known to
their principals, such as unexplained withholding of documents covering substantial past
shipments, deliberate delay in cashing letters of credit resulting in the lapse thereof, failure to remit
payments due for past shipments, their obvious and unmitigated campaign to obstruct the release
of funds needed for operations of the two garment firms, and orchestrated acts to discredit the
Officer-in-Charge of the garments firms and the Commission and to obstruct the smooth operations
of the garment firms, there is need for their presence in this country to resolve the above-
enumerated issues, in order that operations of the corporations are not obstructed, production will
not be delayed and corporate funds may be released. The Commission therefore denies the motion
for lack of merit.

March 19, 1987, Pasig, Metro Manila.






Hence, the present recourse predicated on the following grounds:

A. The Hold-Order issued against the petitioners is a gross and unlawful violation of their
constitutional right of travel and locomotion.

B. The Hold-Order against the petitioners is not authorized or sanctioned by Executive Orders Nos.
1, 2 and 14, nor by the Rules and Regulations of respondent PCGG.

C. The Hold-Order is an act of harrassment, motivated by ill-will and vindictiveness, and violates
the elementary rules of due process, fair play and human decency.

D. The Hold-Order has caused and is causing damages and sufferings to the petitioners and their

On 24 September 1987, acting upon an Urgent Motion filed by petitioner Yim Kam Shing, this Court lifted, effective
immediately, the Hold-Order issued against him for the purpose of allowing him to leave for Hongkong for urgent
medical treatment.

Executive Order No. 1, dated 28 February 1986, created the PCGG and tasked it principally with:

Section 2. ... (a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family relative, subordinates and close associates, whether located in the
Philippines or abroad, including the takeover or sequestration of all business enterprises and
entities owned or controlled by them during his administration, directly or through nominees, by
taking undue advantage of their public office and/or using their powers, authority, influence,
connections or relationship.

xxx xxx xxx

Section 3 of the same Executive Order empowers the PCGG:

(a) To conduct investigation as may be necessary in order to accomplish and carry out the purpose
of this order.

(b) To sequester or place or cause to be placed under its control or possession any building or
office wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto,
in order to prevent their destruction, concealment or disappearance which would frustrate or
hamper the investigation or otherwise prevent the Commission from accomplishing its task.

xxx xxx xxx

(d) To enjoin or restrain any actual or threatened commission of acts by any person or entity that
may render moot and academic, or frustrate, or otherwise make ineffectual the efforts of the
Commission to carry out its task under this order.

xxx xxx xxx

(h) To promulgate such rules and regulations as may be necessary to carry out the purposes of this

On 11 April 1986 the PCGG issued its Rules and Regulations, the pertinent section of which provides:

SECTION 2. Writ of sequestration freeze and hold orders. To enable the Commission to
accomplish its task of recovering ill-gotten wealth, it may issue writs of sequestration and freeze
and/or hold orders.

As defined in the same Rules and Regulations, a Hold-Order is:

D) ... an order to temporarily prevent a person from leaving the country where his departure will
prejudice, hamper or otherwise obstruct the task of the Commission in the enforcement of
Executive Orders Nos. I and 2, because such person is known or suspected to be involved in the
properties or transactions covered by said Executive Orders ...

In this case, the justification for the issuance of the Hold-Orders against petitioners has been summarized by the
Solicitor General, thus:

... Petitioners, instead of cooperating with respondent PCGG in its task of investigating and
recovering ill-gotten wealth of the former President, his immediate family, close relatives,
associates or cronies, frustrated and hampered the investigation or otherwise prevented the
Commission from accomplishing its task, by withholding documents covering substantial past
shipments, which hold the key to the question earlier posed: Where have all the dollars gone?
Have they gone a flying one by one to Switzerland?

Petitioners likewise deliberately delayed the cashing of letters of credit resulting in the lapse
thereof; failed to remit payments due for past shipments; obstructed the release of funds needed
for operations of the two garment firms, orchestrated acts to discredit the officer-in-charge of the
garment firms and respondent PCGG; and obstructed the smooth operations of the garment firms.

To state that all the above acts of petitioners, in one way or another, frustrated, hampered or
otherwise prevented respondent Commission from accomplishing its task under Executive Order
No. 1 is to state here a consumate understatement.

Hence, the issuance of the hold orders against the petitioners remain unassailable. 1

We find merit in the Petition. Petitioners' right to travel has, in fact, been impaired.

1. The validity of the Hold-Orders issued against petitioners on 13 February 1987 has already expired pursuant to
the Rules and Regulations of the PCGG, which specifically provide:

SECTION 1. ...

(D) ... A "hold-order" shall be valid only for a maximum period of six months, unless for good
reasons extended by the Commission en banc. "

The PCGG has not extended the life-span of the Hold-Orders in question nor has it advanced "good reasons" for
doing so.

2. The grounds f or the issuance of the Hold-Orders have become stale.

(a) The PCGG Order denying petitioners' Motion to Lift the Hold Orders against them states that "there is need for
their presence in this country to resolve the issues (listed hereinbelow), in order that operations of the corporations
are not obstructed, production will not be delayed and corporate funds may be released. " The enumerated issues

unexplained withholding of documents covering substantial past shipments,

deliberate delay in cashing letters of credit resulting in the lapse thereof,

failure to remit payments due for past shipments, their obvious and unmitigated campaign to
obstruct the release of funds needed for operations of the two garment firms,

orchestrated acts to discredit the Officer-in-Charge of the garments firms and the Commission and
to obstruct the smooth operations of the garment firms ... (Paragraphing supplied).

It strikes the Court, however, that although the business malpractices attributed to petitioners may have furnished
sufficient basis for the issuance of the Hold-Orders against them, subsequent developments have apparently
rendered them no longer controlling. Thus, as a result of the sequestration, the PCGG has already appointed an
Officer-in-Charge for the two firms, with full authority to operate and manage the same (Annex "B", Petitioner); it
has taken over the "management and operations of the sequestered corporations;" 2 it has "initiated changes in the
management and operations of the two corporations aimed at protecting not only the interest of the government but
also that of the workers;" 3 and since the take-over it has been able to accomplish the following:

a. Halted the losses in the operations of the two corporations as declared by the Hongkomg
investors during the last two years, by posting a modest profit thereby enabling the corporations to
pay the government some P 697,000.00 in taxes i.e. from American Inter-Fashion alone.

b. Discontinued the marketing agreement with Ringo Garments-Hongkong and organized a Manila-
based marketing and procurement office.

c. Firmed up new orders through the said local marketing office enough to sustain the full
production of the two companies up to the end of the year at prices 30-50% higher than the orders
previously coursed by the minority Hongkong investors through Ringo Garments, their own conduit
company in Hongkong.

d. Replaced the highly paid Hongkong-Chinese technicians with qualified, competent and
deserving Filipino technicians who were promoted from the ranks.

e. Upgraded the wages and benefits of the Filipino workers in the corporations.

f. Instituted cost-saving measures to preserve the assets and to make operations more profitable.

g. Partially collected from Ringo Garments-Hongkong the amount of US$350,000.00 or P7, million
representing the unpaid export bills due on past shipments. About $437,126.32 remains unpaid
despite the promise of Yim Kang Shing, representing the Hongkong investors to pay same. 4

It would appear, therefore, that with the changes made and the accomplishments achieved, operations of the
sequestered firms are no longer obstructed, production no longer delayed and funding is available.

Indeed, if petitioners have 11 obstructed the smooth operations" of the sequestered garment firms and "discredited
their Officer-in-Charge," might it not be preferable that they be out of the country to ensure the cessation of their
acts allegedly inimical to the operations of the sequestered garment firms?

(b) Another reason given for the issuance of the Hold-Orders is that petitioners had "frustrated and hampered the
investigation or otherwise prevented the Commission from accomplishing its task." The Court takes judicial notice
of the fact, however, that Civil Case No. 0002 entitled "Republic of the Philippines vs. Ferdinand E. Marcos, et als.,
has been filed by the PCGG before the Sandiganbayan on 16 July 1987. To all appearances, therefore, the
PCGG's investigative task relative to the sequestered garment firms and their involvement, if any, in ill-gotten
wealth or in any transactions connected therewith, has terminated. Another reason, therefore, for petitioners'
continued presence in the country has been virtually eliminated.

We likewise find that petitioners have been denied the rudiments of fair play. The Rules and Regulations of the
PCGG specifically provide:

SECTION 5. Who may contest. The person against whom a writ of sequestration or freeze or
hold order is directed may request the lifting thereof in writing, either personally or through counsel
within five (5) days from receipt of the writ or order, or in the case of a hold order, from date of
knowledge thereof. "

SECTION 6. Procedure for review of writ or order. After due hearing or motu propio for good
cause shown, the Commission may lift the writ or order unconditionally or subject to such
conditions as it may deem necessary, taking into consideration the evidence and the circumstances
of the case ...

And yet, the PCGG has not given petitioners any opportunity to contest the Hold-Orders issued against them. After
their issuance, no hearing had been set; a request for the same had been disregarded. Petitioners' Motion to Lift
the Hold-Orders was summarily denied. The "issues" spelled out against petitioners have remained unresolved
over a period of nine (9) months. The PCGG must thus be faulted for a disregard of the requirements of "fairness
and due process" expressly mandated by Executive Order No. 14, reading:

WHEREAS, the overriding considerations of national interest and national survival require that the
Presidential Commission on Good Government achieve its vital task efficiently and effectively, with
due regard to the requirements of fairness and due process (5th Whereas clause),

Under the environmental circumstances of the case, the Hold-Orders against petitioners preventing them "from
leaving the country cannot be prolonged indefinitely." The right to travel and to freedom of movement is a
fundamental right guaranteed by the 1987 Constitution 5 and the Universal Declaration of Human Rights to which
the Philippines is a signatory. 6 That right extends to all residents regardless of nationality. And "everyone has the
right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him
by the Constitution or by law. 7

While such right is not absolute but must yield to the State's inherent police power upon which the Hold-Orders
were premised, no "good reasons" have been advanced which could justify the continued enforcement of the Hold-

Petitioners are foreign nationals. Their 33% interest in the sequestered firms is recognized by the PCGG itself.
There is no showing that those interests appear prima facie to be ill-gotten wealth. No charges have been filed
against them before the Sandiganbayan. They face no criminal indictment nor have they been provisionally
released on bail that their right to travel might be restricted.

Although, as averred by respondents, the recognized rule is that, in the performance of an official duty or act
involving discretion, the corresponding official can only be directed by mandamus to act but not to act one way or
the other, "yet it is not accurate to say that the writ will never issue to control his discretion. There is an exception to
the rule if the case is otherwise proper, as in cases of gross abuse of discretion, manifest injustice, or palpable
excess of authority. 8

In this case, for reasons already stated, we find that the PCGG acted with gross abuse of discretion in maintaining
the Hold-Orders against petitioners for an indefinite length of time. By so doing it has arbitrarily excluded petitioners
from the enjoyment of a fundamental right the right to freedom of movement to which they are
entitled. 9 mandamus lies.

WHEREFORE, in the interest of the early and full restoration of petitioners' right to travel, the Court hereby LIFTS
the Hold-Orders issued by respondent Presidential Commission on Good Government against petitioners, effective
immediately, upon the condition that they shall hold themselves available if and whenever needed by said
Commission in the performance of its task.


Republic of the Philippines


G.R. No. L-62100 May 30, 1986

RICARDO L. MANOTOC, JR., petitioner,

Court of First Instance of Rizal, Pasig branches, THE PEOPLE OF THE PHILIPPINES, the SECURITIES &
EXCHANGE COMISSION, HON. EDMUNDO M. REYES, as Commissioner of Immigration, and the Chief of
the Aviation Security Command (AVSECOM), respondents.


The issue posed for resolution in this petition for review may be stated thus: Does a person facing a criminal
indictment and provisionally released on bail have an unrestricted right to travel?

Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular Management, Inc. and
the Manotoc Securities, Inc., a stock brokerage house. Having transferred the management of the latter into the
hands of professional men, he holds no officer-position in said business, but acts as president of the former

Following the "run" on stock brokerages caused by stock broker Santamaria's flight from this jurisdiction, petitioner,
who was then in the United States, came home, and together with his co-stockholders, filed a petition with the
Securities and Exchange Commission for the appointment of a management committee, not only for Manotoc
Securities, Inc., but likewise for Trans-Insular Management, Inc. The petition relative to the Manotoc Securities, Inc.,
docketed as SEC Case No. 001826, entitled, "In the Matter of the Appointment of a Management Committee for
Manotoc Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a management
committee was organized and appointed.

Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested the then
Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a memorandum to this
effect was issued by the Commissioner on February 4, 1980 to the Chief of the Immigration Regulation Division.

When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake, six of its
clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as president and vice-
president, respectively, of Manotoc Securities, Inc. In due course, corresponding criminal charges for estafa were
filed by the investigating fiscal before the then Court of First Instance of Rizal, docketed as Criminal Cases Nos.
45399 and 45400, assigned to respondent Judge Camilon, and Criminal Cases Nos. 45542 to 45545, raffled off to
Judge Pronove. In all cases, petitioner has been admitted to bail in the total amount of P105,000.00, with FGU
Instance Corporation as surety.

On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for permission to leave
the country," stating as ground therefor his desire to go to the United States, "relative to his business transactions
and opportunities." 1 The prosecution opposed said motion and after due hearing, both trial judges denied the same.
The order of Judge Camilon dated March 9, 1982, reads:

Accused Ricardo Manotoc Jr. desires to leave for the United States on the all embracing ground
that his trip is ... relative to his business transactions and opportunities.

The Court sees no urgency from this statement. No matter of any magnitude is discerned to
warrant judicial imprimatur on the proposed trip.

In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now or in the future
until these two (2) cases are terminated . 2

On the other hand, the order of Judge Pronove dated March 26, 1982, reads in part:

6.-Finally, there is also merit in the prosecution's contention that if the Court would allow the
accused to leave the Philippines the surety companies that filed the bail bonds in his behalf might
claim that they could no longer be held liable in their undertakings because it was the Court which
allowed the accused to go outside the territorial jurisdiction of the Philippine Court, should the
accused fail or decide not to return.

WHEREFORE, the motion of the accused is DENIED.

It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the recall or withdrawal of
the latter's memorandum dated February 4, 1980, but said request was also denied in a letter dated May 27, 1982.

Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals 4 seeking to annul the
orders dated March 9 and 26, 1982, of Judges Camilon and Pronove, respectively, as well as the communication-
request of the Securities and Exchange Commission, denying his leave to travel abroad. He likewise prayed for the
issuance of the appropriate writ commanding the Immigration Commissioner and the Chief of the Aviation Security
Command (AVSECOM) to clear him for departure.

On October 5, 1982, the appellate court rendered a decision 5 dismissing the petition for lack of merit.

Dissatisfied with the appellate court's ruling, petitioner filed the instant petition for review on certiorari. Pending
resolution of the petition to which we gave due course on April 14, 1983 6 petitioner filed on August 15, 1984 a
motion for leave to go abroad pendente lite. 7 In his motion, petitioner stated that his presence in Louisiana, U.S.A.
is needed in connection "with the obtention of foreign investment in Manotoc Securities, Inc." 8 He attached the
letter dated August 9, 1984 of the chief executive officer of the Exploration Company of Louisiana, Inc., Mr.
Marsden W. Miller 9 requesting his presence in the United States to "meet the people and companies who would be
involved in its investments." Petitioner, likewise manifested that on August 1, 1984, Criminal Cases Nos. 4933 to
4936 of the Regional Trial Court of Makati (formerly Nos. 45542-45545) had been dismissed as to him "on motion
of the prosecution on the ground that after verification of the records of the Securities and Exchange Commission ...
(he) was not in any way connected with the Manotoc Securities, Inc. as of the date of the commission of the
offenses imputed to him." 10 Criminal Cases Nos. 45399 and 45400 of the Regional Trial Court of Makati, however,
remained pending as Judge Camilon, when notified of the dismissal of the other cases against petitioner, instead of
dismissing the cases before him, ordered merely the informations amended so as to delete the allegation that
petitioner was president and to substitute that he was "controlling/majority stockholder,'' 11 of Manotoc Securities,
Inc. On September 20, 1984, the Court in a resolution en banc denied petitioner's motion for leave to go
abroad pendente lite. 12
Petitioner contends that having been admitted to bail as a matter of right, neither the courts which granted him bail
nor the Securities and Exchange Commission which has no jurisdiction over his liberty, could prevent him from
exercising his constitutional right to travel.

Petitioner's contention is untenable.

A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a necessary
consequence of the nature and function of a bail bond.

Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release of a person
who is in the custody of the law, that he will appear before any court in which his appearance may be required as
stipulated in the bail bond or recognizance.

Its object is to relieve the accused of imprisonment and the state of the burden of keeping him,
pending the trial, and at the same time, to put the accused as much under the power of the court as
if he were in custody of the proper officer, and to secure the appearance of the accused so as to
answer the call of the court and do what the law may require of him. 13

The condition imposed upon petitioner to make himself available at all times whenever the court requires his
presence operates as a valid restriction on his right to travel. As we have held in People vs. Uy Tuising, 61 Phil. 404

... the result of the obligation assumed by appellee (surety) to hold the accused amenable at all
times to the orders and processes of the lower court, was to prohibit said accused from leaving the
jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and
inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of
the Philippines they would have no binding force outside of said jurisdiction.

Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the
reach of the courts.

The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner
released thereunder, is to transfer the custody of the accused from the public officials who have
him in their charge to keepers of his own selection. Such custody has been regarded merely as a
continuation of the original imprisonment. The sureties become invested with full authority over the
person of the principal and have the right to prevent the principal from leaving the state. 14

If the sureties have the right to prevent the principal from leaving the state, more so then has the court from which
the sureties merely derive such right, and whose jurisdiction over the person of the principal remains unaffected
despite the grant of bail to the latter. In fact, this inherent right of the court is recognized by petitioner himself,
notwithstanding his allegation that he is at total liberty to leave the country, for he would not have filed the motion
for permission to leave the country in the first place, if it were otherwise.

To support his contention, petitioner places reliance upon the then Court of Appeals' ruling in People vs.
Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following passage:

... The law obliges the bondsmen to produce the person of the appellants at the pleasure of the
Court. ... The law does not limit such undertaking of the bondsmen as demandable only when the
appellants are in the territorial confines of the Philippines and not demandable if the appellants are
out of the country. Liberty, the most important consequence of bail, albeit provisional, is indivisible.

If granted at all, liberty operates as fully within as without the boundaries of the granting state. This
principle perhaps accounts for the absence of any law or jurisprudence expressly declaring that
liberty under bail does not transcend the territorial boundaries of the country.

The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The rather broad
and generalized statement suffers from a serious fallacy; for while there is, indeed, neither law nor jurisprudence
expressly declaring that liberty under bail does not transcend the territorial boundaries of the country, it is not for the
reason suggested by the appellate court.

Also, petitioner's case is not on all fours with the Shepherd case. In the latter case, the accused was able to show
the urgent necessity for her travel abroad, the duration thereof and the conforme of her sureties to the proposed
travel thereby satisfying the court that she would comply with the conditions of her bail bond. in contrast, petitioner
in this case has not satisfactorily shown any of the above. As aptly observed by the Solicitor General in his

A perusal of petitioner's 'Motion for Permission to Leave the Country' will show that it is solely
predicated on petitioner's wish to travel to the United States where he will, allegedly attend to some
business transactions and search for business opportunities. From the tenor and import of
petitioner's motion, no urgent or compelling reason can be discerned to justify the grant of judicial
imprimatur thereto. Petitioner has not sufficiently shown that there is absolute necessity for him to
travel abroad. Petitioner's motion bears no indication that the alleged business transactions could
not be undertaken by any other person in his behalf. Neither is there any hint that petitioner's
absence from the United States would absolutely preclude him from taking advantage of business
opportunities therein, nor is there any showing that petitioner's non-presence in the United States
would cause him irreparable damage or prejudice. 15

Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it. Petitioner
merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The court cannot allow
the accused to leave the country without the assent of the surety because in accepting a bail bond or recognizance,
the government impliedly agrees "that it will not take any proceedings with the principal that will increase the risks
of the sureties or affect their remedies against him. Under this rule, the surety on a bail bond or recognizance may
be discharged by a stipulation inconsistent with the conditions thereof, which is made without his assent. This result
has been reached as to a stipulation or agreement to postpone the trial until after the final disposition of other
cases, or to permit the principal to leave the state or country." 16 Thus, although the order of March 26, 1982 issued
by Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of the criminal cases
pending before said judge, We see the rationale behind said order.

As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel, the duration
thereof, as well as the consent of his surety to the proposed travel, We find no abuse of judicial discretion in their
having denied petitioner's motion for permission to leave the country, in much the same way, albeit with contrary
results, that We found no reversible error to have been committed by the appellate court in allowing Shepherd to
leave the country after it had satisfied itself that she would comply with the conditions of her bail bond.

The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV of the 1973
Constitution states:

The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety or public health.

To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as contemplated by
the above-quoted constitutional provision.
Finding the decision of the appellate court to be in accordance with law and jurisprudence, the Court finds that no
gainful purpose will be served in discussing the other issues raised by petitioner.

WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.


Republic of the Philippines


G.R. No. L-14639 March 25, 1919


JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.


The annals of juridical history fail to reveal a case quite as remarkable as the one which this application for habeas
corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant
democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic
principles of popular government, and if we give expression to the paramount purpose for which the courts, as an
independent power of such a government, were constituted. The primary question is Shall the judiciary permit a
government of the men instead of a government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for
other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the
best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been
permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the
women were kept confined to their houses in the district by the police. Presumably, during this period, the city
authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as
laborers; with some government office for the use of the coastguard cutters Corregidor and Negros, and with the
Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders
from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the
houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their
arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression
that they were being taken to a police station for an investigation. They had no knowledge that they were destined
for a life in Mindanao. They had not been asked if they wished to depart from that region and had neither directly
nor indirectly given their consent to the deportation. The involuntary guests were received on board the steamers by
a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their
unwilling passengers sailed for Davao during the night of October 25.

The vessels reached their destination at Davao on October 29. The women were landed and receipted for as
laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael Castillo. The
governor and the hacendero Yigo, who appear as parties in the case, had no previous notification that the women
were prostitutes who had been expelled from the city of Manila. The further happenings to these women and the
serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the disposition of
this case. Suffice it to say, generally, that some of the women married, others assumed more or less clandestine

relations with men, others went to work in different capacities, others assumed a life unknown and disappeared,
and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number of the deportees presented an application for habeas
corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the parties, was
made to include all of the women who were sent away from Manila to Davao and, as the same questions
concerned them all, the application will be considered as including them. The application set forth the salient facts,
which need not be repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties.
The writ was made returnable before the full court. The city fiscal appeared for the respondents, Lukban and
Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ should not be
granted because the petitioners were not proper parties, because the action should have been begun in the Court
of First Instance for Davao, Department of Mindanao and Sulu, because the respondents did not have any of the
women under their custody or control, and because their jurisdiction did not extend beyond the boundaries of the
city of Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be
laborers, at good salaries, on the haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in
answer to question of a member of the court, that these women had been sent out of Manila without their consent.
The court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of Davao, and
Feliciano Yigo, an hacendero of Davao, to bring before the court the persons therein named, alleged to be
deprived of their liberty, on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel
for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the
day named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were
produced in court by the respondents. It has been shown that three of those who had been able to come back to
Manila through their own efforts, were notified by the police and the secret service to appear before the court. The
fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the
answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau then
in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did
not wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the
Supreme Court because the women had never been under his control, because they were at liberty in the Province
of Davao, and because they had married or signed contracts as laborers. Respondent Yigo answered alleging that
he did not have any of the women under his control and that therefore it was impossible for him to obey the
mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order, which related that
the respondents had not complied with the original order to the satisfaction of the court nor explained their failure to
do so, and therefore directed that those of the women not in Manila be brought before the court by respondents
Lukban, Hohmann, Sales, and Yigo on January 13, 1919, unless the women should, in written statements
voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless
the respondents should demonstrate some other legal motives that made compliance impossible. It was further
stated that the question of whether the respondents were in contempt of court would later be decided and the
reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and
policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13,
1919, the respondents technically presented before the Court the women who had returned to the city through their
own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by
their returns, once again recounted the facts and further endeavored to account for all of the persons involved in
the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had
succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao
who, on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn
statements; that fifty-nine had already returned to Manila by other means, and that despite all efforts to find them
twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit
memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of
Manila, Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and
Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica al
memorandum de los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final
decision. We will now proceed to do so.

One fact, and one fact only, need be recalled these one hundred and seventy women were isolated from society,
and then at night, without their consent and without any opportunity to consult with friends or to defend their rights,
were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove
that the women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of
the police and the constabulary was deemed necessary and that these officers of the law chose the shades of night
to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the

With this situation, a court would next expect to resolve the question By authority of what law did the Mayor and
the Chief of Police presume to act in deporting by duress these persons from Manila to another distant locality
within the Philippine Islands? We turn to the statutes and we find

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-
General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine
Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and
punishment by a court of justice of any person who is a common prostitute. Act No. 899 authorizes the return of any
citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other
States have statutes providing for the commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a quarantine, or place
a leprous person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain for
any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of
that city to force citizens of the Philippine Islands and these women despite their being in a sense lepers of
society are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are
other citizens to change their domicile from Manila to another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any
person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill
of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply
imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction.
Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or
express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If
the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render
the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of
the Philippines have the same privilege. If these officials can take to themselves such power, then any other official
can do the same. And if any official can exercise the power, then all persons would have just as much right to do so.
And if a prostitute could be sent against her wishes and under no law from one locality to another within the country,
then officialdom can hold the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or imprisoned, or be
disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor
will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell
to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29;
1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which
functionate to safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller,
delivering the opinion of the Supreme Court of the United States, "is the only supreme power in our system of
government, and every man who by accepting office participates in its functions is only the more strongly bound to
submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it
gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal
in another case, "that one man may be compelled to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom
prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains
the motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that the primary
question was whether the courts should permit a government of men or a government of laws to be established in
the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may
still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to
meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in force in the
Philippines who shall banish any person to a place more than two hundred kilometers distant from his
domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three
hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general character in force
in the Philippines who shall compel any person to change his domicile or residence shall suffer the penalty
of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two
hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer
has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously
as they have defended the same official in this action. Nevertheless, that the act may be a crime and that the
persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge
Cooley in a case which will later be referred to "It would be a monstrous anomaly in the law if to an application
by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a
crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow
process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas
corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as
the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by
decision on the writ, whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance
in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court
should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by
respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila
only extends to the city limits and that perforce they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the
deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a
petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code
of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal
liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the
court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made
therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should
have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary
expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of
first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court
or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of
Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an
inferior court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this
instance it was not shown that the Court of First Instance of Davao was in session, or that the women had any
means by which to advance their plea before that court. On the other hand, it was shown that the petitioners with
their attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case
involved parties situated in different parts of the Islands; it was shown that the women might still be imprisoned or
restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken
cognizance of and decided immediately by the appellate court. The failure of the superior court to consider the
application and then to grant the writ would have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says
counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in
Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush,
this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first
principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of
action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to
other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as
effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were
prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly
waived his right.

Consider for a moment what an agreement with such a defense would mean. The chief executive of any
municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries
of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim
that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We
believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his
power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do
so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the
application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under
no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily
have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not
be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with
impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great
writ of liberty may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange
as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of
respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ
ofhabeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into
the State a minor child under guardianship in the State, who has been and continues to be detained in another
State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief
justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided.
Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue.
Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions,
and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent
passages from the opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition
which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been
expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many
confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a
fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of
right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for
the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper
remedy, as I can not doubt they would, on the subject being brought to their notice. . . .

The second proposition that the statutory provisions are confined to the case of imprisonment within the
state seems to me to be based upon a misconception as to the source of our jurisdiction. It was never
the case in England that the court of king's bench derived its jurisdiction to issue and enforce this writ from
the statute. Statutes were not passed to give the right, but to compel the observance of rights which
existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to
and served upon, not the person confined, but his jailor. It does not reach the former except through the
latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the
court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent
upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion
are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted
to, they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to
the relief, if the guilty party is within reach of process, so that by the power of the court he can be
compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being
beyond the limits of the state, except as greater distance may affect it. The important question is, where the
power of control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich.,

The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881],
57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by
the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the
mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until
a certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the
writ had been handed over by him to another; that it was no longer in his custody or control, and that it was
impossible for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher,
M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the
defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice
immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a
command to bring the child before the judge and must be obeyed, unless some lawful reason can be
shown to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully
parted with the possession of the child before the issuing of the writ, the defendant had no longer power to
produce the child, that might be an answer; but in the absence of any lawful reason he is bound to produce
the child, and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse .
Many efforts have been made in argument to shift the question of contempt to some anterior period for the
purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the
question is not as to what was done before the issue of the writ. The question is whether there has been a
contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The
Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews,
12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to
have before the circuit court of the District of Columbia three colored persons, with the cause of their detention.
Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the writ
of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to show
that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The court
held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being
present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he
should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that
Davis be released upon the production of two of the negroes, for one of the negroes had run away and been lodged
in jail in Maryland. Davis produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5
Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd
ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted
a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the Supreme Court
awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or
be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yigo to
present the persons named in the writ before the court on December 2, 1918. The order was dated November 4,
1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the
record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of
his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do
so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have
produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit
that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could
have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code
of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was
granted; they did not show impossibility of performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to show that the women were
contended with their life in Davao, some of which have since been repudiated by the signers, were appended to the
return. That through ordinary diligence a considerable number of the women, at least sixty, could have been
brought back to Manila is demonstrated to be found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in finding the
respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for
the non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat
similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in
Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having
brought about that state of things by his own illegal act, he must take the consequences ; and we said that he was
bound to use every effort to get the child back; that he must do much more than write letters for the purpose; that
he must advertise in America, and even if necessary himself go after the child, and do everything that mortal man
could do in the matter; and that the court would only accept clear proof of an absolute impossibility by way of
excuse." In other words, the return did not show that every possible effort to produce the women was made by the
respondents. That the court forebore at this time to take drastic action was because it did not wish to see presented
to the public gaze the spectacle of a clash between executive officials and the judiciary, and because it desired to
give the respondents another chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous and to have
shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided.
While charges and counter-charges in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is
a substantial compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to see
this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive
investigation. If any particular individual is still restrained of her liberty, it can be made the object of
separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this
connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police

force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yigo, anhacendero of
Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the vindictive
principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which
the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person
and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce
the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed
in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that
any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in
opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their
chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a
powerful mitigating circumstance. The hacendero Yigo appears to have been drawn into the case through a
misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done
no more than to fulfill his duty as the legal representative of the city government. Finding him innocent of any
disrespect to the court, his counter-motion to strike from the record the memorandum of attorney for the petitioners,
which brings him into this undesirable position, must be granted. When all is said and done, as far as this record
discloses, the official who was primarily responsible for the unlawful deportation, who ordered the police to
accomplish the same, who made arrangements for the steamers and the constabulary, who conducted the
negotiations with the Bureau of Labor, and who later, as the head of the city government, had it within his power to
facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His
intention to suppress the social evil was commendable. His methods were unlawful. His regard for the writ
of habeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the
penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with him
as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to find that
since respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of
the first order. Some members of the court are inclined to this merciful view. Between the two extremes appears to
lie the correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and
embarrass the administration of justice to such an extent that his later activity may be considered only as
extenuating his conduct. A nominal fine will at once command such respect without being unduly
oppressive such an amount is P100.

In resume as before stated, no further action on the writ of habeas corpus is necessary. The respondents
Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of court. Respondent
Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days
the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record
the Replica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against
respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision
may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal

Republic of the Philippines


G.R. No. 71410 November 25, 1986

JOSEFINO S. ROAN, petitioner,



Once again we are asked to annul a search warrant on the ground that it violates the Constitution. As we can do no
less if we are to be true to the mandate of the fundamental law, we do annul.

One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own
house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their
fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This
was his humble cottage from which he could bar his sovereign lord and all the forces of the Crown.

That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably,
continues to dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to
enjoy this right after the ordeal of the past despotism. We must cherish and protect it all the more now because it is
like a prodigal son returning.

That right is guaranteed in the following provisions of Article IV of the 1973 Constitution:

SEC. 3. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be seized.

SEC. 4. (1) The privacy of communication and cor- respondence shag be inviolable except upon
lawful order of the court, or when public safety and order require otherwise.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

Invoking these provisions, the petitioner claims he was the victim of an illegal search and seizure conducted by the
military authorities. The articles seized from him are sought to be used as evidence in his prosecution for illegal
possession of firearms. He asks that their admission be temporarily restrained (which we have) 1 and thereafter
permanently enjoined.

The challenged search warrant was issued by the respondent judge on May 10, 1984. 2 The petitioner's house was
searched two days later but none of the articles listed in the warrant was discovered. 3 However, the officers
conducting the search found in the premises one Colt Magnum revolver and eighteen live bullets which they
confiscated. They are now the bases of the charge against the petitioner. 4

To be valid, a search warrant must be supported by probable cause to be determined by the judge or some other
authorized officer after examining the complainant and the witnesses he may produce. No less important, there
must be a specific description of the place to be searched and the things to be seized, to prevent arbitrary and
indiscriminate use of the warrant. 5

Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as referring to "such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the offense are in the place sought to be searched." As
held in a long line of decisions, the probable cause must refer to only one specific offense. 7

The inclusion of the requirement for the "examination under oath or affirmation of the complainant and the
witnesses he may produce" was a refinement proposed by Delegate Vicente J. Francisco in the1934 Constitutional
Convention. His purpose was the strengthening of the guaranty against unreasonable searches and seizures.
Although the condition did not appear in the corresponding provision of the federa Constitution of the United States
which served as our model it was then already embodied in the Code of Criminal Procedure. Nevertheless,
Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights of that body, readily accepted the
proposal and it was thereafter, following a brief debate, approved by the Convention. 8

Implementing this requirement, the Rules of Court provided in what was then Rule 126:

SEC. 4. Examination of the applicant. The municipal or city judge must, before issuing the
warrant, personally examine on oath or affirmation the complainant and any witnesses he may
produce and take their depositions in writing, and attach them to the record, in addition to any
affidavits presented to him.

The petitioner claims that no depositions were taken by the respondent judge in accordance with the above rule,
but this is not entirely true. As a matter of fact, depositions were taken of the complainant's two witnesses in
addition to the affidavit executed by them. 9 It is correct to say, however, that the complainant himself was not
subjected to a similar interrogation.

Commenting on this matter, the respondent judge declared:

The truth is that when PC Capt. Mauro P. Quinosa personally filed his application for a search
warrant on May 10, 1984, he appeared before me in the company of his two (2) witnesses, Esmael
Morada and Jesus Tohilida, both of whom likewise presented to me their respective affidavits taken
by Pat. Josue V. Lining, a police investigator assigned to the PC-INP command at Camp Col.
Maximo Abad. As the application was not yet subscribed and sworn to, I proceeded to examine
Captain Quillosa on the contents thereof to ascertain, among others, if he knew and understood the
same. Afterwards, he subscribed and swore to the same before me. 10

By his own account, an he did was question Captain Quillosa on the contents of his affidavit only "to ascertain,
among others, if he knew and understood the same," and only because "the application was not yet subscribed and
swom to." The suggestion is that he would not have asked any questions at all if the affidavit had already been
completed when it was submitted to him. In any case, he did not ask his own searching questions. He limited
himself to the contents of the affidavit. He did not take the applicant's deposition in writing and attach them to the
record, together with the affidavit presented to him.

As this Court held in Mata v. Bayona: 11

Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge
has to take depositions in writing of the complainant and the witnesses he niay produce and attach
them to the record. Such written deposition is necessary in order that the Judge may be able to
properly determine the existence or non-existence of the probable cause, to hold liable for perjury
the person giving it if it wifl be found later that his declarations are false.

We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to
conform with the essential requisites of taking the depositions in writing and attaching them to the
record, rendering the search warrant invalid.

The respondent judge also declared that he "saw no need to have applicant Quillosa's deposition taken considering
that he was applying for a search warrant on the basis of the information provided by the aforenamed witnesses
whose depositions as aforementioned had already been taken by the undersigned." 12

In other words, the applicant was asking for the issuance of the search warrant on the basis of mere hearsay and
not of information personally known to him, as required by settled jurisprudence." 13 The rationale of the
requirement, of course, is to provide a ground for a prosecution for perjury in case the applicant's declarations are
found to be false. His application, standing alone, was insufficient to justify the issuance of the warrant sought. It
was therefore necessary for the witnesses themselves, by their own personal information, to establish the
apphcant's claims. 14

Even assuming then that it would have sufficed to take the depositions only of the witnesses and not of the
applicant himself, there is still the question of the sufficiency of their depositions.

It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the
claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the
affidavit but must make his own inquiry on the intent and justification of the application. 15

A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida, who both claimed to be
"intelligence informers," shows that they were in the main a mere restatement of their allegations in their affidavits,
except that they were made in the form of answers to the questions put to them by the respondent judge.
Significantly, the meaningful remark made by Tohilida that they were suspicious of the petitioner because he was a
follower of the opposition candidate in the forthcoming election (a "Lecarista") 16 did not excite the respondent
judge's own suspicions. This should have put him on guard as to the motivations of the witnesses and alerted him
to possible misrepresentations from them.

The respondent judge almost unquestioningly received the witnesses' statement that they saw eight men deliver
arms to the petitioner in his house on May 2, 1984. 17 This was supposedly done overtly, and Tohilida said he saw
everything through an open window of the house while he was near the gate. 18 He could even positively say that
six of the weapons were.45 caliber pistols and two were.38 caliber revolvers. 19

One may well wonder why it did not occur to the respondent judge to ask how the witness could be so certain even
as to the caliber of the guns, or how far he was from the window, or whether it was on the first floor or a second
floor, or why his presence was not noticed at all, or if the acts related were really done openly, in the full view of the
witnesses, considering that these acts were against the law. These would have been judicious questions but they
were injudiciously omitted. Instead, the declarations of the witnesses were readily accepted and the search warrant
sought was issued forthwith.

The above-discussed defects have rendered the search warrant invalid. Nonetheless, the Solicitor General argues
that whatever defect there was, was waived when the petitioner voluntarily submitted to the search and manifested
his conformity in writing. 20

We do not agree. What we see here is pressure exerted by the military authorities, who practically coerced the
petitioner to sign the supposed waiver as a guaranty against a possible challenge later to the validity of the search
they were conducting. Confronted with the armed presence of the military and the presumptive authority of a judicial
writ, the petitioner had no choice but to submit. This was not, as we held in a previous case, 21 the manifestation
merely of our traditional Filipino hospitality and respect for authority. Given the repressive atmosphere of the
Marcos regime, there was here, as we see it, an intimidation that the petitioner could not resist.

The respondents also argue that the Colt Magnum pistol and the eighteen have bullets seized from the petitioner
were illegal per se and therefore could have been taken by the military authorities even without a warrant.
Possession of the said articles, it is urged, was violative of P.D. 1866 and considered malum prohibitum. Hence, the
Wegal articles could be taken even without a warrant.

Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1) there
was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the
petitioner. In short, the military officers who entered the petitioner's premises had no right to be there and therefore
had no right either to seize the pistol and bullets.

It does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per
se.Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized
simply because they are prohibited. A search warrant is still necessary. If the rule were otherwise, then the military
authorities could have just entered the premises and looked for the guns reportedly kept by the petitioner without
bothering to first secure a search warrant. The fact that they did bother to do so indicates that they themselves
recognized the necessity of such a warrant for the seizure of the weapons the petitioner was suspected of

It is true that there are certain instances when a search may be validly made without warrant and articles may be
taken validly as a result of that search. For example, a warrantless search may be made incidental to a lawful
arrest, 22 as when the person being arrested is frished for weapons he may otherwise be able to use against the
arresting officer. Motor cars may be inspected at borders to prevent smuggling of aliens and contraband 23 and even
in the interior upon a showing of probable cause. 24 Vessels and aircraft are also traditionally removed from the
operation of the rule because of their mobility and their relative ease in fleeing the state's jurisdiction. 25 The
individual may knowingly agree to be searched or waive objections to an illegal search. 26 And it has also been held
that prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer comes
upon them inadvertently. 27

Clearly, though, the instant case does not come under any of the accepted exceptions. The respondents cannot
even claim that they stumbled upon the pistol and bullets for the fact is that these things were deliberately sought
and were not in plain view when they were taken. Hence, the rule having been violated and no exception being
applicable, the conclusion is that the petitioner's pistol and bullets were confiscated illegally and therefore are
protected by the exclusionary principle.

Stonehill v. Diokno established this rule which was later expressly affirmed in the 1973 Constitution. While
conceding that there may be occasions when the criminal might be allowed to go free because "the constable has
blundered," Chief Justice Concepcion observed that the exclusionary rule was nonetheless "the only practical
means of enforcing the constitutional injunction" against abuse. The decision cited Judge Learned Hand's
justification that "only in case the prosecution which itself controls the seizing officials, know that it cannot profit by
their wrong, will the wrong be repressed. "

The pistol and bullets cannot, of course, be used as evidence against the petitioner in the criminal action against
him for illegal possession of firearms. Pending resolution of that case, however, the said articles must remain
incustodia legis.

Finally, it is true that the petitioner should have, before coming to this Court, filed a motion for the quashal of the
search warrant by the respondent judge in accordance with the normal procedure. But as we said and did in
Burgos, "this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and
urgency of the constitutional issues raised. 28

WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10, 1984, is hereby declared null
and void and accordingly set aside. Our restraining order of August 6,1985, is made permanent. No costs.


Republic of the Philippines


G.R. No. L-53622 April 25, 1980

JOVITO R. SALONGA, petitioner,



This is not the first time petitioner Jovito R. Salonga came to this Tribunal by way of a mandamus proceeding to
compel the issuance to him of a certificate of eligibility to travel. In the first case, Salonga v. Madella, 1 the case
became moot and academic as the Office of the Solicitor General, in its answer to the petition, stated that the travel
eligibility certificate was not denied and, as a matter of fact, had been granted. Nonetheless, a brief separate
opinion was filed, concurring in the resolution, and worded thus: "Clearly this petition had assumed a moot and
academic character. Its dismissal is thus indicated. May I just add these few words as my response to the plea of
petitioner in his Manifestation and Reply dated October 28, 1978. This is how I would view the matter not only
where petitioner is concerned but in all other similar cases. Respondent Travel Processing Center should discharge
its injunction conformably to the mandate of the Universal Declaration of Human Rights on the right to travel. One of
the highlights of the keynote address of President Marcos in the Manila World Law Conference in celebration of the
World Peace Through Law Day on August 21, 1977 was the lifting of 'the ban on international travel.' There should
be fidelity to such a pronouncement. It is the experience of the undersigned in his lectures abroad the last few
years, in the United States as well as in Malaysia, Singapore and Australia, that respect accorded constitutional
rights under the present emergency regime had elicited the commendation of members of the bench, the bar, and
the academe in foreign lands. It is likewise worthy of notice that in his keynote address to the International Law
Association, President Marcos made reference to martial law being instituted in accordance with law and that the
Constitution had been applied in appropriate cases. As an agency of the executive branch, therefore, the Travel
Processing Center should ever be on its guard, lest the impression be created that such declarations amount, to
paraphrase Justice Jackson, to no more than munificent bequests in a pauper's will. Petitioner, to my mind, is
justified, the more so in the light of the Answer of Acting Solicitor General Vicente Mendoza, to an affirmative
response to his prayer in his Manifestation and Reply 'that under the circumstances mentioned in the Petition,
Petitioner is entitled to travel abroad, and that it is in recognition of this right that Respondents have issued his
Certificate of Eligibility to Travel, as mentioned in the Answer. 2

The present petition is likewise impressed with a moot and academic aspect. In the motion to dismiss of the
Solicitor General dated April 21, 1980, it was stated that the certificate of eligibility to travel had been granted
petitioner. A xeroxed copy was enclosed. A resolution for dismissal is, therefore, in order.

From the docket of this Court, it appears that other petitions of this character had been filed in the past, namely,
Santos v. The Special Committee on Travel Abroad, 3 Pimentel v. Travel Processing Center, 4 and Gonzales v.
Special Committee on Travel. 5 In the aforesaid cases, as in this and the earlier Salonga petition, there was no
occasion to pass on the merits of the controversy as the certificates of eligibility to travel were granted. The
necessity for any ruling was thus obviated. Nonetheless, in view of the likelihood that in the future this Court may be
faced again with a situation like the present which takes up its time and energy needlessly, it is desirable that
respondent Travel Processing Center should exercise the utmost care to avoid the impression that certain citizens
desirous of exercising their constitutional right to travel could be subjected to inconvenience or annoyance. In the
address of President and Prime Minister Ferdinand E. Marcos before the American Newspaper Publishers
Association last Tuesday April 22, 1980, emphasized anew the respect accorded constitutional rights The freedom
to travel is certainly one of the most cherished. He cited with approval the ringing affirmation of Willoughby, who, as
he noted was "partial to the claims of liberty." 6 Burdick 7 and Willis, 8 both of whom were equally convinced that
there be no erosion to human rights even in times of martial law, likewise received from President Marcos the
accolade of his approval. It would appear, therefore, that in case of doubt of the Officer-in-Charge of the Travel
Processing Center, the view of General Fabian Ver should immediately be sought. It goes without saying that the
petition for such certificate of eligibility to travel be filed at the earliest opportunity to facilitate the granting thereof
and preclude any disclaimer as to the person desiring to travel being in any way responsible for any delay.

WHEREFORE, the petition is dismissed for being moot and academic.