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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 78742 July 14, 1989

ASSOCIATION OF SMALL LANDOWNERS IN THE PHILIPPINES, INC., JUANITO D. GOMEZ, GERARDO B.

ALARCIO, FELIPE A. GUICO, JR., BERNARDO M. ALMONTE, CANUTO RAMIR B. CABRITO, ISIDRO T. GUICO,
FELISA I. LLAMIDO, FAUSTO J. SALVA, REYNALDO G. ESTRADA, FELISA C. BAUTISTA, ESMENIA J. CABE,
TEODORO B. MADRIAGA, AUREA J. PRESTOSA, EMERENCIANA J. ISLA, FELICISIMA C. ARRESTO,
CONSUELO M. MORALES, BENJAMIN R. SEGISMUNDO, CIRILA A. JOSE & NAPOLEON S. FERRER,
petitioners,

vs.

HONORABLE SECRETARY OF AGRARIAN REFORM, respondent.

G.R. No. 79310 July 14, 1989

ARSENIO AL. ACUNA, NEWTON JISON, VICTORINO FERRARIS, DENNIS JEREZA, HERMINIGILDO GUSTILO,
PAULINO D. TOLENTINO and PLANTERS' COMMITTEE, INC., Victorias Mill District, Victorias, Negros
Occidental, petitioners,

vs.

JOKER ARROYO, PHILIP E. JUICO and PRESIDENTIAL AGRARIAN REFORM COUNCIL, respondents.

G.R. No. 79744 July 14, 1989

INOCENTES PABICO, petitioner,

vs.

HON. PHILIP E. JUICO, SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, HON. JOKER ARROYO,
EXECUTIVE SECRETARY OF THE OFFICE OF THE PRESIDENT, and Messrs. SALVADOR TALENTO, JAIME
ABOGADO, CONRADO AVANCENA and ROBERTO TAAY, respondents.

G.R. No. 79777 July 14, 1989

NICOLAS S. MANAAY and AGUSTIN HERMANO, JR., petitioners,

vs.

HON. PHILIP ELLA JUICO, as Secretary of Agrarian Reform, and LAND BANK OF THE PHILIPPINES,
respondents.

CRUZ, J.:

In ancient mythology, Antaeus was a terrible giant who blocked and challenged Hercules for his life on
his way to Mycenae after performing his eleventh labor. The two wrestled mightily and Hercules flung his
adversary to the ground thinking him dead, but Antaeus rose even stronger to resume their struggle.
This happened several times to Hercules' increasing amazement. Finally, as they continued grappling, it
dawned on Hercules that Antaeus was the son of Gaea and could never die as long as any part of his
body was touching his Mother Earth. Thus forewarned, Hercules then held Antaeus up in the air, beyond
the reach of the sustaining soil, and crushed him to death.

Mother Earth. The sustaining soil. The giver of life, without whose invigorating touch even the powerful
Antaeus weakened and died.

The cases before us are not as fanciful as the foregoing tale. But they also tell of the elemental forces of
life and death, of men and women who, like Antaeus need the sustaining strength of the precious earth
to stay alive.

"Land for the Landless" is a slogan that underscores the acute imbalance in the distribution of this
precious resource among our people. But it is more than a slogan. Through the brooding centuries, it has
become a battle-cry dramatizing the increasingly urgent demand of the dispossessed among us for a plot
of earth as their place in the sun.

Recognizing this need, the Constitution in 1935 mandated the policy of social justice to "insure the well-
being and economic security of all the people," 1 especially the less privileged. In 1973, the new
Constitution affirmed this goal adding specifically that "the State shall regulate the acquisition,
ownership, use, enjoyment and disposition of private property and equitably diffuse property ownership
and profits." 2 Significantly, there was also the specific injunction to "formulate and implement an
agrarian reform program aimed at emancipating the tenant from the bondage of the soil." 3

The Constitution of 1987 was not to be outdone. Besides echoing these sentiments, it also adopted one
whole and separate Article XIII on Social Justice and Human Rights, containing grandiose but
undoubtedly sincere provisions for the uplift of the common people. These include a call in the following
words for the adoption by the State of an agrarian reform program:

SEC. 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers
and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the
case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall
encourage and undertake the just distribution of all agricultural lands, subject to such priorities and
reasonable retention limits as the Congress may prescribe, taking into account ecological,
developmental, or equity considerations and subject to the payment of just compensation. In
determining retention limits, the State shall respect the right of small landowners. The State shall further
provide incentives for voluntary land-sharing.

Earlier, in fact, R.A. No. 3844, otherwise known as the Agricultural Land Reform Code, had already been
enacted by the Congress of the Philippines on August 8, 1963, in line with the above-stated principles.
This was substantially superseded almost a decade later by P.D. No. 27, which was promulgated on
October 21, 1972, along with martial law, to provide for the compulsory acquisition of private lands for
distribution among tenant-farmers and to specify maximum retention limits for landowners.

The people power revolution of 1986 did not change and indeed even energized the thrust for agrarian
reform. Thus, on July 17, 1987, President Corazon C. Aquino issued E.O. No. 228, declaring full land
ownership in favor of the beneficiaries of P.D. No. 27 and providing for the valuation of still unvalued
lands covered by the decree as well as the manner of their payment. This was followed on July 22, 1987
by Presidential Proclamation No. 131, instituting a comprehensive agrarian reform program (CARP), and
E.O. No. 229, providing the mechanics for its implementation.

Subsequently, with its formal organization, the revived Congress of the Philippines took over legislative
power from the President and started its own deliberations, including extensive public hearings, on the
improvement of the interests of farmers. The result, after almost a year of spirited debate, was the
enactment of R.A. No. 6657, otherwise known as the Comprehensive Agrarian Reform Law of 1988,
which President Aquino signed on June 10, 1988. This law, while considerably changing the earlier
mentioned enactments, nevertheless gives them suppletory effect insofar as they are not inconsistent
with its provisions. 4

The above-captioned cases have been consolidated because they involve common legal questions,
including serious challenges to the constitutionality of the several measures mentioned above. They will
be the subject of one common discussion and resolution, The different antecedents of each case will
require separate treatment, however, and will first be explained hereunder.

G.R. No. 79777

Squarely raised in this petition is the constitutionality of P.D. No. 27, E.O. Nos. 228 and 229, and R.A. No.
6657.
The subjects of this petition are a 9-hectare riceland worked by four tenants and owned by petitioner
Nicolas Manaay and his wife and a 5-hectare riceland worked by four tenants and owned by petitioner
Augustin Hermano, Jr. The tenants were declared full owners of these lands by E.O. No. 228 as qualified
farmers under P.D. No. 27.

The petitioners are questioning P.D. No. 27 and E.O. Nos. 228 and 229 on grounds inter alia of separation
of powers, due process, equal protection and the constitutional limitation that no private property shall
be taken for public use without just compensation.

They contend that President Aquino usurped legislative power when she promulgated E.O. No. 228. The
said measure is invalid also for violation of Article XIII, Section 4, of the Constitution, for failure to
provide for retention limits for small landowners. Moreover, it does not conform to Article VI, Section
25(4) and the other requisites of a valid appropriation.

In connection with the determination of just compensation, the petitioners argue that the same may be
made only by a court of justice and not by the President of the Philippines. They invoke the recent cases
of EPZA v. Dulay 5 and Manotok v. National Food Authority. 6 Moreover, the just compensation
contemplated by the Bill of Rights is payable in money or in cash and not in the form of bonds or other
things of value.

In considering the rentals as advance payment on the land, the executive order also deprives the
petitioners of their property rights as protected by due process. The equal protection clause is also
violated because the order places the burden of solving the agrarian problems on the owners only of
agricultural lands. No similar obligation is imposed on the owners of other properties.

The petitioners also maintain that in declaring the beneficiaries under P.D. No. 27 to be the owners of
the lands occupied by them, E.O. No. 228 ignored judicial prerogatives and so violated due process.
Worse, the measure would not solve the agrarian problem because even the small farmers are deprived
of their lands and the retention rights guaranteed by the Constitution.

In his Comment, the Solicitor General stresses that P.D. No. 27 has already been upheld in the earlier
cases of Chavez v. Zobel, 7 Gonzales v. Estrella, 8 and Association of Rice and Corn Producers of the
Philippines, Inc. v. The National Land Reform Council. 9 The determination of just compensation by the
executive authorities conformably to the formula prescribed under the questioned order is at best initial
or preliminary only. It does not foreclose judicial intervention whenever sought or warranted. At any
rate, the challenge to the order is premature because no valuation of their property has as yet been
made by the Department of Agrarian Reform. The petitioners are also not proper parties because the
lands owned by them do not exceed the maximum retention limit of 7 hectares.

Replying, the petitioners insist they are proper parties because P.D. No. 27 does not provide for retention
limits on tenanted lands and that in any event their petition is a class suit brought in behalf of
landowners with landholdings below 24 hectares. They maintain that the determination of just
compensation by the administrative authorities is a final ascertainment. As for the cases invoked by the
public respondent, the constitutionality of P.D. No. 27 was merely assumed in Chavez, while what was
decided in Gonzales was the validity of the imposition of martial law.

In the amended petition dated November 22, 1588, it is contended that P.D. No. 27, E.O. Nos. 228 and
229 (except Sections 20 and 21) have been impliedly repealed by R.A. No. 6657. Nevertheless, this
statute should itself also be declared unconstitutional because it suffers from substantially the same
infirmities as the earlier measures.

A petition for intervention was filed with leave of court on June 1, 1988 by Vicente Cruz, owner of a 1.
83- hectare land, who complained that the DAR was insisting on the implementation of P.D. No. 27 and
E.O. No. 228 despite a compromise agreement he had reached with his tenant on the payment of
rentals. In a subsequent motion dated April 10, 1989, he adopted the allegations in the basic amended
petition that the above- mentioned enactments have been impliedly repealed by R.A. No. 6657.

G.R. No. 79310

The petitioners herein are landowners and sugar planters in the Victorias Mill District, Victorias, Negros
Occidental. Co-petitioner Planters' Committee, Inc. is an organization composed of 1,400 planter-
members. This petition seeks to prohibit the implementation of Proc. No. 131 and E.O. No. 229.

The petitioners claim that the power to provide for a Comprehensive Agrarian Reform Program as
decreed by the Constitution belongs to Congress and not the President. Although they agree that the
President could exercise legislative power until the Congress was convened, she could do so only to
enact emergency measures during the transition period. At that, even assuming that the interim
legislative power of the President was properly exercised, Proc. No. 131 and E.O. No. 229 would still have
to be annulled for violating the constitutional provisions on just compensation, due process, and equal
protection.

They also argue that under Section 2 of Proc. No. 131 which provides:

Agrarian Reform Fund.-There is hereby created a special fund, to be known as the Agrarian Reform Fund,
an initial amount of FIFTY BILLION PESOS (P50,000,000,000.00) to cover the estimated cost of the
Comprehensive Agrarian Reform Program from 1987 to 1992 which shall be sourced from the receipts of
the sale of the assets of the Asset Privatization Trust and Receipts of sale of ill-gotten wealth received
through the Presidential Commission on Good Government and such other sources as government may
deem appropriate. The amounts collected and accruing to this special fund shall be considered
automatically appropriated for the purpose authorized in this Proclamation the amount appropriated is
in futuro, not in esse. The money needed to cover the cost of the contemplated expropriation has yet to
be raised and cannot be appropriated at this time.

Furthermore, they contend that taking must be simultaneous with payment of just compensation as it is
traditionally understood, i.e., with money and in full, but no such payment is contemplated in Section 5
of the E.O. No. 229. On the contrary, Section 6, thereof provides that the Land Bank of the Philippines
"shall compensate the landowner in an amount to be established by the government, which shall be
based on the owner's declaration of current fair market value as provided in Section 4 hereof, but
subject to certain controls to be defined and promulgated by the Presidential Agrarian Reform Council."
This compensation may not be paid fully in money but in any of several modes that may consist of part
cash and part bond, with interest, maturing periodically, or direct payment in cash or bond as may be
mutually agreed upon by the beneficiary and the landowner or as may be prescribed or approved by the
PARC.

The petitioners also argue that in the issuance of the two measures, no effort was made to make a
careful study of the sugar planters' situation. There is no tenancy problem in the sugar areas that can
justify the application of the CARP to them. To the extent that the sugar planters have been lumped in
the same legislation with other farmers, although they are a separate group with problems exclusively
their own, their right to equal protection has been violated.
A motion for intervention was filed on August 27,1987 by the National Federation of Sugarcane Planters
(NASP) which claims a membership of at least 20,000 individual sugar planters all over the country. On
September 10, 1987, another motion for intervention was filed, this time by Manuel Barcelona, et al.,
representing coconut and riceland owners. Both motions were granted by the Court.

NASP alleges that President Aquino had no authority to fund the Agrarian Reform Program and that, in
any event, the appropriation is invalid because of uncertainty in the amount appropriated. Section 2 of
Proc. No. 131 and Sections 20 and 21 of E.O. No. 229 provide for an initial appropriation of fifty billion
pesos and thus specifies the minimum rather than the maximum authorized amount. This is not allowed.
Furthermore, the stated initial amount has not been certified to by the National Treasurer as actually
available.

Two additional arguments are made by Barcelona, to wit, the failure to establish by clear and convincing
evidence the necessity for the exercise of the powers of eminent domain, and the violation of the
fundamental right to own property.

The petitioners also decry the penalty for non-registration of the lands, which is the expropriation of the
said land for an amount equal to the government assessor's valuation of the land for tax purposes. On
the other hand, if the landowner declares his own valuation he is unjustly required to immediately pay
the corresponding taxes on the land, in violation of the uniformity rule.

In his consolidated Comment, the Solicitor General first invokes the presumption of constitutionality in
favor of Proc. No. 131 and E.O. No. 229. He also justifies the necessity for the expropriation as explained
in the "whereas" clauses of the Proclamation and submits that, contrary to the petitioner's contention, a
pilot project to determine the feasibility of CARP and a general survey on the people's opinion thereon
are not indispensable prerequisites to its promulgation.

On the alleged violation of the equal protection clause, the sugar planters have failed to show that they
belong to a different class and should be differently treated. The Comment also suggests the possibility
of Congress first distributing public agricultural lands and scheduling the expropriation of private
agricultural lands later. From this viewpoint, the petition for prohibition would be premature.

The public respondent also points out that the constitutional prohibition is against the payment of public
money without the corresponding appropriation. There is no rule that only money already in existence
can be the subject of an appropriation law. Finally, the earmarking of fifty billion pesos as Agrarian
Reform Fund, although denominated as an initial amount, is actually the maximum sum appropriated.
The word "initial" simply means that additional amounts may be appropriated later when necessary.

On April 11, 1988, Prudencio Serrano, a coconut planter, filed a petition on his own behalf, assailing the
constitutionality of E.O. No. 229. In addition to the arguments already raised, Serrano contends that the
measure is unconstitutional because:

(1) Only public lands should be included in the CARP;

(2) E.O. No. 229 embraces more than one subject which is not expressed in the title;

(3) The power of the President to legislate was terminated on July 2, 1987; and

(4) The appropriation of a P50 billion special fund from the National Treasury did not originate from the
House of Representatives.

G.R. No. 79744

The petitioner alleges that the then Secretary of Department of Agrarian Reform, in violation of due
process and the requirement for just compensation, placed his landholding under the coverage of
Operation Land Transfer. Certificates of Land Transfer were subsequently issued to the private
respondents, who then refused payment of lease rentals to him.

On September 3, 1986, the petitioner protested the erroneous inclusion of his small landholding under
Operation Land transfer and asked for the recall and cancellation of the Certificates of Land Transfer in
the name of the private respondents. He claims that on December 24, 1986, his petition was denied
without hearing. On February 17, 1987, he filed a motion for reconsideration, which had not been acted
upon when E.O. Nos. 228 and 229 were issued. These orders rendered his motion moot and academic
because they directly effected the transfer of his land to the private respondents.
The petitioner now argues that:

(1) E.O. Nos. 228 and 229 were invalidly issued by the President of the Philippines.

(2) The said executive orders are violative of the constitutional provision that no private property shall be
taken without due process or just compensation.

(3) The petitioner is denied the right of maximum retention provided for under the 1987 Constitution.

The petitioner contends that the issuance of E.0. Nos. 228 and 229 shortly before Congress convened is
anomalous and arbitrary, besides violating the doctrine of separation of powers. The legislative power
granted to the President under the Transitory Provisions refers only to emergency measures that may be
promulgated in the proper exercise of the police power.

The petitioner also invokes his rights not to be deprived of his property without due process of law and
to the retention of his small parcels of riceholding as guaranteed under Article XIII, Section 4 of the
Constitution. He likewise argues that, besides denying him just compensation for his land, the provisions
of E.O. No. 228 declaring that:

Lease rentals paid to the landowner by the farmer-beneficiary after October 21, 1972 shall be considered
as advance payment for the land.

is an unconstitutional taking of a vested property right. It is also his contention that the inclusion of even
small landowners in the program along with other landowners with lands consisting of seven hectares or
more is undemocratic.

In his Comment, the Solicitor General submits that the petition is premature because the motion for
reconsideration filed with the Minister of Agrarian Reform is still unresolved. As for the validity of the
issuance of E.O. Nos. 228 and 229, he argues that they were enacted pursuant to Section 6, Article XVIII
of the Transitory Provisions of the 1987 Constitution which reads:
The incumbent president shall continue to exercise legislative powers until the first Congress is
convened.

On the issue of just compensation, his position is that when P.D. No. 27 was promulgated on October 21.
1972, the tenant-farmer of agricultural land was deemed the owner of the land he was tilling. The
leasehold rentals paid after that date should therefore be considered amortization payments.

In his Reply to the public respondents, the petitioner maintains that the motion he filed was resolved on
December 14, 1987. An appeal to the Office of the President would be useless with the promulgation of
E.O. Nos. 228 and 229, which in effect sanctioned the validity of the public respondent's acts.

G.R. No. 78742

The petitioners in this case invoke the right of retention granted by P.D. No. 27 to owners of rice and corn
lands not exceeding seven hectares as long as they are cultivating or intend to cultivate the same. Their
respective lands do not exceed the statutory limit but are occupied by tenants who are actually
cultivating such lands.

According to P.D. No. 316, which was promulgated in implementation of P.D. No. 27:

No tenant-farmer in agricultural lands primarily devoted to rice and corn shall be ejected or removed
from his farmholding until such time as the respective rights of the tenant- farmers and the landowner
shall have been determined in accordance with the rules and regulations implementing P.D. No. 27.

The petitioners claim they cannot eject their tenants and so are unable to enjoy their right of retention
because the Department of Agrarian Reform has so far not issued the implementing rules required under
the above-quoted decree. They therefore ask the Court for a writ of mandamus to compel the
respondent to issue the said rules.

In his Comment, the public respondent argues that P.D. No. 27 has been amended by LOI 474 removing
any right of retention from persons who own other agricultural lands of more than 7 hectares in
aggregate area or lands used for residential, commercial, industrial or other purposes from which they
derive adequate income for their family. And even assuming that the petitioners do not fall under its
terms, the regulations implementing P.D. No. 27 have already been issued, to wit, the Memorandum
dated July 10, 1975 (Interim Guidelines on Retention by Small Landowners, with an accompanying
Retention Guide Table), Memorandum Circular No. 11 dated April 21, 1978, (Implementation Guidelines
of LOI No. 474), Memorandum Circular No. 18-81 dated December 29,1981 (Clarificatory Guidelines on
Coverage of P.D. No. 27 and Retention by Small Landowners), and DAR Administrative Order No. 1, series
of 1985 (Providing for a Cut-off Date for Landowners to Apply for Retention and/or to Protest the
Coverage of their Landholdings under Operation Land Transfer pursuant to P.D. No. 27). For failure to file
the corresponding applications for retention under these measures, the petitioners are now barred from
invoking this right.

The public respondent also stresses that the petitioners have prematurely initiated this case
notwithstanding the pendency of their appeal to the President of the Philippines. Moreover, the
issuance of the implementing rules, assuming this has not yet been done, involves the exercise of
discretion which cannot be controlled through the writ of mandamus. This is especially true if this
function is entrusted, as in this case, to a separate department of the government.

In their Reply, the petitioners insist that the above-cited measures are not applicable to them because
they do not own more than seven hectares of agricultural land. Moreover, assuming arguendo that the
rules were intended to cover them also, the said measures are nevertheless not in force because they
have not been published as required by law and the ruling of this Court in Tanada v. Tuvera.10 As for LOI
474, the same is ineffective for the additional reason that a mere letter of instruction could not have
repealed the presidential decree.

Although holding neither purse nor sword and so regarded as the weakest of the three departments of
the government, the judiciary is nonetheless vested with the power to annul the acts of either the
legislative or the executive or of both when not conformable to the fundamental law. This is the reason
for what some quarters call the doctrine of judicial supremacy. Even so, this power is not lightly assumed
or readily exercised. The doctrine of separation of powers imposes upon the courts a proper restraint,
born of the nature of their functions and of their respect for the other departments, in striking down the
acts of the legislative and the executive as unconstitutional. The policy, indeed, is a blend of courtesy and
caution. To doubt is to sustain. The theory is that before the act was done or the law was enacted,
earnest studies were made by Congress or the President, or both, to insure that the Constitution would
not be breached.

In addition, the Constitution itself lays down stringent conditions for a declaration of unconstitutionality,
requiring therefor the concurrence of a majority of the members of the Supreme Court who took part in
the deliberations and voted on the issue during their session en banc.11 And as established by judge
made doctrine, the Court will assume jurisdiction over a constitutional question only if it is shown that
the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an
actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the
constitutional question must have been opportunely raised by the proper party, and the resolution of
the question is unavoidably necessary to the decision of the case itself. 12

With particular regard to the requirement of proper party as applied in the cases before us, we hold that
the same is satisfied by the petitioners and intervenors because each of them has sustained or is in
danger of sustaining an immediate injury as a result of the acts or measures complained of. 13 And even
if, strictly speaking, they are not covered by the definition, it is still within the wide discretion of the
Court to waive the requirement and so remove the impediment to its addressing and resolving the
serious constitutional questions raised.

In the first Emergency Powers Cases, 14 ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino although they were invoking
only an indirect and general interest shared in common with the public. The Court dismissed the
objection that they were not proper parties and ruled that "the transcendental importance to the public
of these cases demands that they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure." We have since then applied this exception in many other cases. 15

The other above-mentioned requisites have also been met in the present petitions.

In must be stressed that despite the inhibitions pressing upon the Court when confronted with
constitutional issues like the ones now before it, it will not hesitate to declare a law or act invalid when it
is convinced that this must be done. In arriving at this conclusion, its only criterion will be the
Constitution as God and its conscience give it the light to probe its meaning and discover its purpose.
Personal motives and political considerations are irrelevancies that cannot influence its decision.
Blandishment is as ineffectual as intimidation.
For all the awesome power of the Congress and the Executive, the Court will not hesitate to "make the
hammer fall, and heavily," to use Justice Laurel's pithy language, where the acts of these departments, or
of any public official, betray the people's will as expressed in the Constitution.

It need only be added, to borrow again the words of Justice Laurel, that —

... when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the Legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them. This is in truth all that is involved in what
is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. 16

The cases before us categorically raise constitutional questions that this Court must categorically resolve.
And so we shall.

II

We proceed first to the examination of the preliminary issues before resolving the more serious
challenges to the constitutionality of the several measures involved in these petitions.

The promulgation of P.D. No. 27 by President Marcos in the exercise of his powers under martial law has
already been sustained in Gonzales v. Estrella and we find no reason to modify or reverse it on that issue.
As for the power of President Aquino to promulgate Proc. No. 131 and E.O. Nos. 228 and 229, the same
was authorized under Section 6 of the Transitory Provisions of the 1987 Constitution, quoted above.

The said measures were issued by President Aquino before July 27, 1987, when the Congress of the
Philippines was formally convened and took over legislative power from her. They are not "midnight"
enactments intended to pre-empt the legislature because E.O. No. 228 was issued on July 17, 1987, and
the other measures, i.e., Proc. No. 131 and E.O. No. 229, were both issued on July 22, 1987. Neither is it
correct to say that these measures ceased to be valid when she lost her legislative power for, like any
statute, they continue to be in force unless modified or repealed by subsequent law or declared invalid
by the courts. A statute does not ipso facto become inoperative simply because of the dissolution of the
legislature that enacted it. By the same token, President Aquino's loss of legislative power did not have
the effect of invalidating all the measures enacted by her when and as long as she possessed it.

Significantly, the Congress she is alleged to have undercut has not rejected but in fact substantially
affirmed the challenged measures and has specifically provided that they shall be suppletory to R.A. No.
6657 whenever not inconsistent with its provisions. 17 Indeed, some portions of the said measures, like
the creation of the P50 billion fund in Section 2 of Proc. No. 131, and Sections 20 and 21 of E.O. No. 229,
have been incorporated by reference in the CARP Law. 18

That fund, as earlier noted, is itself being questioned on the ground that it does not conform to the
requirements of a valid appropriation as specified in the Constitution. Clearly, however, Proc. No. 131 is
not an appropriation measure even if it does provide for the creation of said fund, for that is not its
principal purpose. An appropriation law is one the primary and specific purpose of which is to authorize
the release of public funds from the treasury. 19 The creation of the fund is only incidental to the main
objective of the proclamation, which is agrarian reform.

It should follow that the specific constitutional provisions invoked, to wit, Section 24 and Section 25(4) of
Article VI, are not applicable. With particular reference to Section 24, this obviously could not have been
complied with for the simple reason that the House of Representatives, which now has the exclusive
power to initiate appropriation measures, had not yet been convened when the proclamation was
issued. The legislative power was then solely vested in the President of the Philippines, who embodied,
as it were, both houses of Congress.

The argument of some of the petitioners that Proc. No. 131 and E.O. No. 229 should be invalidated
because they do not provide for retention limits as required by Article XIII, Section 4 of the Constitution
is no longer tenable. R.A. No. 6657 does provide for such limits now in Section 6 of the law, which in fact
is one of its most controversial provisions. This section declares:

Retention Limits. — Except as otherwise provided in this Act, no person may own or retain, directly or
indirectly, any public or private agricultural land, the size of which shall vary according to factors
governing a viable family-sized farm, such as commodity produced, terrain, infrastructure, and soil
fertility as determined by the Presidential Agrarian Reform Council (PARC) created hereunder, but in no
case shall retention by the landowner exceed five (5) hectares. Three (3) hectares may be awarded to
each child of the landowner, subject to the following qualifications: (1) that he is at least fifteen (15)
years of age; and (2) that he is actually tilling the land or directly managing the farm; Provided, That
landowners whose lands have been covered by Presidential Decree No. 27 shall be allowed to keep the
area originally retained by them thereunder, further, That original homestead grantees or direct
compulsory heirs who still own the original homestead at the time of the approval of this Act shall retain
the same areas as long as they continue to cultivate said homestead.

The argument that E.O. No. 229 violates the constitutional requirement that a bill shall have only one
subject, to be expressed in its title, deserves only short attention. It is settled that the title of the bill
does not have to be a catalogue of its contents and will suffice if the matters embodied in the text are
relevant to each other and may be inferred from the title. 20

The Court wryly observes that during the past dictatorship, every presidential issuance, by whatever
name it was called, had the force and effect of law because it came from President Marcos. Such are the
ways of despots. Hence, it is futile to argue, as the petitioners do in G.R. No. 79744, that LOI 474 could
not have repealed P.D. No. 27 because the former was only a letter of instruction. The important thing is
that it was issued by President Marcos, whose word was law during that time.

But for all their peremptoriness, these issuances from the President Marcos still had to comply with the
requirement for publication as this Court held in Tanada v. Tuvera. 21 Hence, unless published in the
Official Gazette in accordance with Article 2 of the Civil Code, they could not have any force and effect if
they were among those enactments successfully challenged in that case. LOI 474 was published, though,
in the Official Gazette dated November 29,1976.)

Finally, there is the contention of the public respondent in G.R. No. 78742 that the writ of mandamus
cannot issue to compel the performance of a discretionary act, especially by a specific department of the
government. That is true as a general proposition but is subject to one important qualification. Correctly
and categorically stated, the rule is that mandamus will lie to compel the discharge of the discretionary
duty itself but not to control the discretion to be exercised. In other words, mandamus can issue to
require action only but not specific action.

Whenever a duty is imposed upon a public official and an unnecessary and unreasonable delay in the
exercise of such duty occurs, if it is a clear duty imposed by law, the courts will intervene by the
extraordinary legal remedy of mandamus to compel action. If the duty is purely ministerial, the courts
will require specific action. If the duty is purely discretionary, the courts by mandamus will require action
only. For example, if an inferior court, public official, or board should, for an unreasonable length of time,
fail to decide a particular question to the great detriment of all parties concerned, or a court should
refuse to take jurisdiction of a cause when the law clearly gave it jurisdiction mandamus will issue, in the
first case to require a decision, and in the second to require that jurisdiction be taken of the cause. 22

And while it is true that as a rule the writ will not be proper as long as there is still a plain, speedy and
adequate remedy available from the administrative authorities, resort to the courts may still be
permitted if the issue raised is a question of law. 23

III

There are traditional distinctions between the police power and the power of eminent domain that
logically preclude the application of both powers at the same time on the same subject. In the case of
City of Baguio v. NAWASA, 24 for example, where a law required the transfer of all municipal waterworks
systems to the NAWASA in exchange for its assets of equivalent value, the Court held that the power
being exercised was eminent domain because the property involved was wholesome and intended for a
public use. Property condemned under the police power is noxious or intended for a noxious purpose,
such as a building on the verge of collapse, which should be demolished for the public safety, or obscene
materials, which should be destroyed in the interest of public morals. The confiscation of such property
is not compensable, unlike the taking of property under the power of expropriation, which requires the
payment of just compensation to the owner.

In the case of Pennsylvania Coal Co. v. Mahon, 25 Justice Holmes laid down the limits of the police power
in a famous aphorism: "The general rule at least is that while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking." The regulation that went "too far" was
a law prohibiting mining which might cause the subsidence of structures for human habitation
constructed on the land surface. This was resisted by a coal company which had earlier granted a deed
to the land over its mine but reserved all mining rights thereunder, with the grantee assuming all risks
and waiving any damage claim. The Court held the law could not be sustained without compensating the
grantor. Justice Brandeis filed a lone dissent in which he argued that there was a valid exercise of the
police power. He said:

Every restriction upon the use of property imposed in the exercise of the police power deprives the
owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in
property without making compensation. But restriction imposed to protect the public health, safety or
morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition
of a noxious use. The property so restricted remains in the possession of its owner. The state does not
appropriate it or make any use of it. The state merely prevents the owner from making a use which
interferes with paramount rights of the public. Whenever the use prohibited ceases to be noxious — as it
may because of further changes in local or social conditions — the restriction will have to be removed
and the owner will again be free to enjoy his property as heretofore.

Recent trends, however, would indicate not a polarization but a mingling of the police power and the
power of eminent domain, with the latter being used as an implement of the former like the power of
taxation. The employment of the taxing power to achieve a police purpose has long been accepted. 26
As for the power of expropriation, Prof. John J. Costonis of the University of Illinois College of Law
(referring to the earlier case of Euclid v. Ambler Realty Co., 272 US 365, which sustained a zoning law
under the police power) makes the following significant remarks:

Euclid, moreover, was decided in an era when judges located the Police and eminent domain powers on
different planets. Generally speaking, they viewed eminent domain as encompassing public acquisition
of private property for improvements that would be available for public use," literally construed. To the
police power, on the other hand, they assigned the less intrusive task of preventing harmful externalities
a point reflected in the Euclid opinion's reliance on an analogy to nuisance law to bolster its support of
zoning. So long as suppression of a privately authored harm bore a plausible relation to some legitimate
"public purpose," the pertinent measure need have afforded no compensation whatever. With the
progressive growth of government's involvement in land use, the distance between the two powers has
contracted considerably. Today government often employs eminent domain interchangeably with or as a
useful complement to the police power-- a trend expressly approved in the Supreme Court's 1954
decision in Berman v. Parker, which broadened the reach of eminent domain's "public use" test to match
that of the police power's standard of "public purpose." 27

The Berman case sustained a redevelopment project and the improvement of blighted areas in the
District of Columbia as a proper exercise of the police power. On the role of eminent domain in the
attainment of this purpose, Justice Douglas declared:

If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well
as sanitary, there is nothing in the Fifth Amendment that stands in the way.
Once the object is within the authority of Congress, the right to realize it through the exercise of eminent
domain is clear.

For the power of eminent domain is merely the means to the end. 28

In Penn Central Transportation Co. v. New York City, 29 decided by a 6-3 vote in 1978, the U.S Supreme
Court sustained the respondent's Landmarks Preservation Law under which the owners of the Grand
Central Terminal had not been allowed to construct a multi-story office building over the Terminal, which
had been designated a historic landmark. Preservation of the landmark was held to be a valid objective
of the police power. The problem, however, was that the owners of the Terminal would be deprived of
the right to use the airspace above it although other landowners in the area could do so over their
respective properties. While insisting that there was here no taking, the Court nonetheless recognized
certain compensatory rights accruing to Grand Central Terminal which it said would "undoubtedly
mitigate" the loss caused by the regulation. This "fair compensation," as he called it, was explained by
Prof. Costonis in this wise:

In return for retaining the Terminal site in its pristine landmark status, Penn Central was authorized to
transfer to neighboring properties the authorized but unused rights accruing to the site prior to the
Terminal's designation as a landmark — the rights which would have been exhausted by the 59-story
building that the city refused to countenance atop the Terminal. Prevailing bulk restrictions on
neighboring sites were proportionately relaxed, theoretically enabling Penn Central to recoup its losses
at the Terminal site by constructing or selling to others the right to construct larger, hence more
profitable buildings on the transferee sites. 30

The cases before us present no knotty complication insofar as the question of compensable taking is
concerned. To the extent that the measures under challenge merely prescribe retention limits for
landowners, there is an exercise of the police power for the regulation of private property in accordance
with the Constitution. But where, to carry out such regulation, it becomes necessary to deprive such
owners of whatever lands they may own in excess of the maximum area allowed, there is definitely a
taking under the power of eminent domain for which payment of just compensation is imperative. The
taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of
the title to and the physical possession of the said excess and all beneficial rights accruing to the owner
in favor of the farmer-beneficiary. This is definitely an exercise not of the police power but of the power
of eminent domain.
Whether as an exercise of the police power or of the power of eminent domain, the several measures
before us are challenged as violative of the due process and equal protection clauses.

The challenge to Proc. No. 131 and E.O. Nos. 228 and 299 on the ground that no retention limits are
prescribed has already been discussed and dismissed. It is noted that although they excited many bitter
exchanges during the deliberation of the CARP Law in Congress, the retention limits finally agreed upon
are, curiously enough, not being questioned in these petitions. We therefore do not discuss them here.
The Court will come to the other claimed violations of due process in connection with our examination
of the adequacy of just compensation as required under the power of expropriation.

The argument of the small farmers that they have been denied equal protection because of the absence
of retention limits has also become academic under Section 6 of R.A. No. 6657. Significantly, they too
have not questioned the area of such limits. There is also the complaint that they should not be made to
share the burden of agrarian reform, an objection also made by the sugar planters on the ground that
they belong to a particular class with particular interests of their own. However, no evidence has been
submitted to the Court that the requisites of a valid classification have been violated.

Classification has been defined as the grouping of persons or things similar to each other in certain
particulars and different from each other in these same particulars. 31 To be valid, it must conform to
the following requirements: (1) it must be based on substantial distinctions; (2) it must be germane to
the purposes of the law; (3) it must not be limited to existing conditions only; and (4) it must apply
equally to all the members of the class. 32 The Court finds that all these requisites have been met by the
measures here challenged as arbitrary and discriminatory.

Equal protection simply means that all persons or things similarly situated must be treated alike both as
to the rights conferred and the liabilities imposed. 33 The petitioners have not shown that they belong to
a different class and entitled to a different treatment. The argument that not only landowners but also
owners of other properties must be made to share the burden of implementing land reform must be
rejected. There is a substantial distinction between these two classes of owners that is clearly visible
except to those who will not see. There is no need to elaborate on this matter. In any event, the Congress
is allowed a wide leeway in providing for a valid classification. Its decision is accorded recognition and
respect by the courts of justice except only where its discretion is abused to the detriment of the Bill of
Rights.
It is worth remarking at this juncture that a statute may be sustained under the police power only if
there is a concurrence of the lawful subject and the lawful method. Put otherwise, the interests of the
public generally as distinguished from those of a particular class require the interference of the State
and, no less important, the means employed are reasonably necessary for the attainment of the purpose
sought to be achieved and not unduly oppressive upon individuals. 34 As the subject and purpose of
agrarian reform have been laid down by the Constitution itself, we may say that the first requirement has
been satisfied. What remains to be examined is the validity of the method employed to achieve the
constitutional goal.

One of the basic principles of the democratic system is that where the rights of the individual are
concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency
will not excuse constitutional shortcuts. There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the
bypassing of an individual's rights. It is no exaggeration to say that a, person invoking a right guaranteed
under Article III of the Constitution is a majority of one even as against the rest of the nation who would
deny him that right.

That right covers the person's life, his liberty and his property under Section 1 of Article III of the
Constitution. With regard to his property, the owner enjoys the added protection of Section 9, which
reaffirms the familiar rule that private property shall not be taken for public use without just
compensation.

This brings us now to the power of eminent domain.

IV

Eminent domain is an inherent power of the State that enables it to forcibly acquire private lands
intended for public use upon payment of just compensation to the owner. Obviously, there is no need to
expropriate where the owner is willing to sell under terms also acceptable to the purchaser, in which
case an ordinary deed of sale may be agreed upon by the parties. 35 It is only where the owner is
unwilling to sell, or cannot accept the price or other conditions offered by the vendee, that the power of
eminent domain will come into play to assert the paramount authority of the State over the interests of
the property owner. Private rights must then yield to the irresistible demands of the public interest on
the time-honored justification, as in the case of the police power, that the welfare of the people is the
supreme law.

But for all its primacy and urgency, the power of expropriation is by no means absolute (as indeed no
power is absolute). The limitation is found in the constitutional injunction that "private property shall not
be taken for public use without just compensation" and in the abundant jurisprudence that has evolved
from the interpretation of this principle. Basically, the requirements for a proper exercise of the power
are: (1) public use and (2) just compensation.

Let us dispose first of the argument raised by the petitioners in G.R. No. 79310 that the State should first
distribute public agricultural lands in the pursuit of agrarian reform instead of immediately disturbing
property rights by forcibly acquiring private agricultural lands. Parenthetically, it is not correct to say that
only public agricultural lands may be covered by the CARP as the Constitution calls for "the just
distribution of all agricultural lands." In any event, the decision to redistribute private agricultural lands
in the manner prescribed by the CARP was made by the legislative and executive departments in the
exercise of their discretion. We are not justified in reviewing that discretion in the absence of a clear
showing that it has been abused.

A becoming courtesy admonishes us to respect the decisions of the political departments when they
decide what is known as the political question. As explained by Chief Justice Concepcion in the case of
Tañada v. Cuenco: 36

The term "political question" connotes what it means in ordinary parlance, namely, a question of policy.
It refers to "those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity; or in regard to which full discretionary authority has been delegated to the legislative
or executive branch of the government." It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.

It is true that the concept of the political question has been constricted with the enlargement of judicial
power, which now includes the authority of the courts "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." 37 Even so, this should not be construed as a license for us to
reverse the other departments simply because their views may not coincide with ours.
The legislature and the executive have been seen fit, in their wisdom, to include in the CARP the
redistribution of private landholdings (even as the distribution of public agricultural lands is first
provided for, while also continuing apace under the Public Land Act and other cognate laws). The Court
sees no justification to interpose its authority, which we may assert only if we believe that the political
decision is not unwise, but illegal. We do not find it to be so.

In U.S. v. Chandler-Dunbar Water Power Company,38 it was held:

Congress having determined, as it did by the Act of March 3,1909 that the entire St. Mary's river
between the American bank and the international line, as well as all of the upland north of the present
ship canal, throughout its entire length, was "necessary for the purpose of navigation of said waters, and
the waters connected therewith," that determination is conclusive in condemnation proceedings
instituted by the United States under that Act, and there is no room for judicial review of the judgment
of Congress ... .

As earlier observed, the requirement for public use has already been settled for us by the Constitution
itself No less than the 1987 Charter calls for agrarian reform, which is the reason why private agricultural
lands are to be taken from their owners, subject to the prescribed maximum retention limits. The
purposes specified in P.D. No. 27, Proc. No. 131 and R.A. No. 6657 are only an elaboration of the
constitutional injunction that the State adopt the necessary measures "to encourage and undertake the
just distribution of all agricultural lands to enable farmers who are landless to own directly or collectively
the lands they till." That public use, as pronounced by the fundamental law itself, must be binding on us.

The second requirement, i.e., the payment of just compensation, needs a longer and more thoughtful
examination.

Just compensation is defined as the full and fair equivalent of the property taken from its owner by the
expropriator. 39 It has been repeatedly stressed by this Court that the measure is not the taker's gain but
the owner's loss. 40 The word "just" is used to intensify the meaning of the word "compensation" to
convey the idea that the equivalent to be rendered for the property to be taken shall be real, substantial,
full, ample. 41

It bears repeating that the measures challenged in these petitions contemplate more than a mere
regulation of the use of private lands under the police power. We deal here with an actual taking of
private agricultural lands that has dispossessed the owners of their property and deprived them of all its
beneficial use and enjoyment, to entitle them to the just compensation mandated by the Constitution.

As held in Republic of the Philippines v. Castellvi, 42 there is compensable taking when the following
conditions concur: (1) the expropriator must enter a private property; (2) the entry must be for more
than a momentary period; (3) the entry must be under warrant or color of legal authority; (4) the
property must be devoted to public use or otherwise informally appropriated or injuriously affected; and
(5) the utilization of the property for public use must be in such a way as to oust the owner and deprive
him of beneficial enjoyment of the property. All these requisites are envisioned in the measures before
us.

Where the State itself is the expropriator, it is not necessary for it to make a deposit upon its taking
possession of the condemned property, as "the compensation is a public charge, the good faith of the
public is pledged for its payment, and all the resources of taxation may be employed in raising the
amount." 43 Nevertheless, Section 16(e) of the CARP Law provides that:

Upon receipt by the landowner of the corresponding payment or, in case of rejection or no response
from the landowner, upon the deposit with an accessible bank designated by the DAR of the
compensation in cash or in LBP bonds in accordance with this Act, the DAR shall take immediate
possession of the land and shall request the proper Register of Deeds to issue a Transfer Certificate of
Title (TCT) in the name of the Republic of the Philippines. The DAR shall thereafter proceed with the
redistribution of the land to the qualified beneficiaries.

Objection is raised, however, to the manner of fixing the just compensation, which it is claimed is
entrusted to the administrative authorities in violation of judicial prerogatives. Specific reference is made
to Section 16(d), which provides that in case of the rejection or disregard by the owner of the offer of the
government to buy his land-

... the DAR shall conduct summary administrative proceedings to determine the compensation for the
land by requiring the landowner, the LBP and other interested parties to submit evidence as to the just
compensation for the land, within fifteen (15) days from the receipt of the notice. After the expiration of
the above period, the matter is deemed submitted for decision. The DAR shall decide the case within
thirty (30) days after it is submitted for decision.
To be sure, the determination of just compensation is a function addressed to the courts of justice and
may not be usurped by any other branch or official of the government. EPZA v. Dulay 44 resolved a
challenge to several decrees promulgated by President Marcos providing that the just compensation for
property under expropriation should be either the assessment of the property by the government or the
sworn valuation thereof by the owner, whichever was lower. In declaring these decrees unconstitutional,
the Court held through Mr. Justice Hugo E. Gutierrez, Jr.:

The method of ascertaining just compensation under the aforecited decrees constitutes impermissible
encroachment on judicial prerogatives. It tends to render this Court inutile in a matter which under this
Constitution is reserved to it for final determination.

Thus, although in an expropriation proceeding the court technically would still have the power to
determine the just compensation for the property, following the applicable decrees, its task would be
relegated to simply stating the lower value of the property as declared either by the owner or the
assessor. As a necessary consequence, it would be useless for the court to appoint commissioners under
Rule 67 of the Rules of Court. Moreover, the need to satisfy the due process clause in the taking of
private property is seemingly fulfilled since it cannot be said that a judicial proceeding was not had
before the actual taking. However, the strict application of the decrees during the proceedings would be
nothing short of a mere formality or charade as the court has only to choose between the valuation of
the owner and that of the assessor, and its choice is always limited to the lower of the two. The court
cannot exercise its discretion or independence in determining what is just or fair. Even a grade school
pupil could substitute for the judge insofar as the determination of constitutional just compensation is
concerned.

xxx

In the present petition, we are once again confronted with the same question of whether the courts
under P.D. No. 1533, which contains the same provision on just compensation as its predecessor
decrees, still have the power and authority to determine just compensation, independent of what is
stated by the decree and to this effect, to appoint commissioners for such purpose.

This time, we answer in the affirmative.

xxx
It is violative of due process to deny the owner the opportunity to prove that the valuation in the tax
documents is unfair or wrong. And it is repulsive to the basic concepts of justice and fairness to allow the
haphazard work of a minor bureaucrat or clerk to absolutely prevail over the judgment of a court
promulgated only after expert commissioners have actually viewed the property, after evidence and
arguments pro and con have been presented, and after all factors and considerations essential to a fair
and just determination have been judiciously evaluated.

A reading of the aforecited Section 16(d) will readily show that it does not suffer from the arbitrariness
that rendered the challenged decrees constitutionally objectionable. Although the proceedings are
described as summary, the landowner and other interested parties are nevertheless allowed an
opportunity to submit evidence on the real value of the property. But more importantly, the
determination of the just compensation by the DAR is not by any means final and conclusive upon the
landowner or any other interested party, for Section 16(f) clearly provides:

Any party who disagrees with the decision may bring the matter to the court of proper jurisdiction for
final determination of just compensation.

The determination made by the DAR is only preliminary unless accepted by all parties concerned.
Otherwise, the courts of justice will still have the right to review with finality the said determination in
the exercise of what is admittedly a judicial function.

The second and more serious objection to the provisions on just compensation is not as easily resolved.

This refers to Section 18 of the CARP Law providing in full as follows:

SEC. 18. Valuation and Mode of Compensation. — The LBP shall compensate the landowner in such
amount as may be agreed upon by the landowner and the DAR and the LBP, in accordance with the
criteria provided for in Sections 16 and 17, and other pertinent provisions hereof, or as may be finally
determined by the court, as the just compensation for the land.

The compensation shall be paid in one of the following modes, at the option of the landowner:
(1) Cash payment, under the following terms and conditions:

(a) For lands above fifty (50) hectares, insofar as the excess hectarage is concerned — Twenty-five
percent (25%) cash, the balance to be paid in government financial instruments negotiable at any time.

(b) For lands above twenty-four (24) hectares and up to fifty (50) hectares — Thirty percent (30%)
cash, the balance to be paid in government financial instruments negotiable at any time.

(c) For lands twenty-four (24) hectares and below — Thirty-five percent (35%) cash, the balance to
be paid in government financial instruments negotiable at any time.

(2) Shares of stock in government-owned or controlled corporations, LBP preferred shares, physical
assets or other qualified investments in accordance with guidelines set by the PARC;

(3) Tax credits which can be used against any tax liability;

(4) LBP bonds, which shall have the following features:

(a) Market interest rates aligned with 91-day treasury bill rates. Ten percent (10%) of the face value
of the bonds shall mature every year from the date of issuance until the tenth (10th) year: Provided,
That should the landowner choose to forego the cash portion, whether in full or in part, he shall be paid
correspondingly in LBP bonds;

(b) Transferability and negotiability. Such LBP bonds may be used by the landowner, his successors-
in- interest or his assigns, up to the amount of their face value, for any of the following:
(i) Acquisition of land or other real properties of the government, including assets under the Asset
Privatization Program and other assets foreclosed by government financial institutions in the same
province or region where the lands for which the bonds were paid are situated;

(ii) Acquisition of shares of stock of government-owned or controlled corporations or shares of stock

owned by the government in private corporations;

(iii) Substitution for surety or bail bonds for the provisional release of accused persons, or for
performance bonds;

(iv) Security for loans with any government financial institution, provided the proceeds of the loans
shall be invested in an economic enterprise, preferably in a small and medium- scale industry, in the
same province or region as the land for which the bonds are paid;

(v) Payment for various taxes and fees to government: Provided, That the use of these bonds for
these purposes will be limited to a certain percentage of the outstanding balance of the financial
instruments; Provided, further, That the PARC shall determine the percentages mentioned above;

(vi) Payment for tuition fees of the immediate family of the original bondholder in government
universities, colleges, trade schools, and other institutions;

(vii) Payment for fees of the immediate family of the original bondholder in government hospitals;
and

(viii) Such other uses as the PARC may from time to time allow.

The contention of the petitioners in G.R. No. 79777 is that the above provision is unconstitutional insofar
as it requires the owners of the expropriated properties to accept just compensation therefor in less
than money, which is the only medium of payment allowed. In support of this contention, they cite
jurisprudence holding that:
The fundamental rule in expropriation matters is that the owner of the property expropriated is entitled
to a just compensation, which should be neither more nor less, whenever it is possible to make the
assessment, than the money equivalent of said property. Just compensation has always been understood
to be the just and complete equivalent of the loss which the owner of the thing expropriated has to
suffer by reason of the expropriation . 45 (Emphasis supplied.)

In J.M. Tuazon Co. v. Land Tenure Administration, 46 this Court held:

It is well-settled that just compensation means the equivalent for the value of the property at the time of
its taking. Anything beyond that is more, and anything short of that is less, than just compensation. It
means a fair and full equivalent for the loss sustained, which is the measure of the indemnity, not
whatever gain would accrue to the expropriating entity. The market value of the land taken is the just
compensation to which the owner of condemned property is entitled, the market value being that sum
of money which a person desirous, but not compelled to buy, and an owner, willing, but not compelled
to sell, would agree on as a price to be given and received for such property. (Emphasis supplied.)

In the United States, where much of our jurisprudence on the subject has been derived, the weight of
authority is also to the effect that just compensation for property expropriated is payable only in money
and not otherwise. Thus —

The medium of payment of compensation is ready money or cash. The condemnor cannot compel the
owner to accept anything but money, nor can the owner compel or require the condemnor to pay him
on any other basis than the value of the property in money at the time and in the manner prescribed by
the Constitution and the statutes. When the power of eminent domain is resorted to, there must be a
standard medium of payment, binding upon both parties, and the law has fixed that standard as money
in cash. 47 (Emphasis supplied.)

Part cash and deferred payments are not and cannot, in the nature of things, be regarded as a reliable
and constant standard of compensation. 48

"Just compensation" for property taken by condemnation means a fair equivalent in money, which must
be paid at least within a reasonable time after the taking, and it is not within the power of the
Legislature to substitute for such payment future obligations, bonds, or other valuable advantage. 49
(Emphasis supplied.)
It cannot be denied from these cases that the traditional medium for the payment of just compensation
is money and no other. And so, conformably, has just compensation been paid in the past solely in that
medium. However, we do not deal here with the traditional excercise of the power of eminent domain.
This is not an ordinary expropriation where only a specific property of relatively limited area is sought to
be taken by the State from its owner for a specific and perhaps local purpose.

What we deal with here is a revolutionary kind of expropriation.

The expropriation before us affects all private agricultural lands whenever found and of whatever kind as
long as they are in excess of the maximum retention limits allowed their owners. This kind of
expropriation is intended for the benefit not only of a particular community or of a small segment of the
population but of the entire Filipino nation, from all levels of our society, from the impoverished farmer
to the land-glutted owner. Its purpose does not cover only the whole territory of this country but goes
beyond in time to the foreseeable future, which it hopes to secure and edify with the vision and the
sacrifice of the present generation of Filipinos. Generations yet to come are as involved in this program
as we are today, although hopefully only as beneficiaries of a richer and more fulfilling life we will
guarantee to them tomorrow through our thoughtfulness today. And, finally, let it not be forgotten that
it is no less than the Constitution itself that has ordained this revolution in the farms, calling for "a just
distribution" among the farmers of lands that have heretofore been the prison of their dreams but can
now become the key at least to their deliverance.

Such a program will involve not mere millions of pesos. The cost will be tremendous. Considering the
vast areas of land subject to expropriation under the laws before us, we estimate that hundreds of
billions of pesos will be needed, far more indeed than the amount of P50 billion initially appropriated,
which is already staggering as it is by our present standards. Such amount is in fact not even fully
available at this time.

We assume that the framers of the Constitution were aware of this difficulty when they called for
agrarian reform as a top priority project of the government. It is a part of this assumption that when they
envisioned the expropriation that would be needed, they also intended that the just compensation
would have to be paid not in the orthodox way but a less conventional if more practical method. There
can be no doubt that they were aware of the financial limitations of the government and had no illusions
that there would be enough money to pay in cash and in full for the lands they wanted to be distributed
among the farmers. We may therefore assume that their intention was to allow such manner of payment
as is now provided for by the CARP Law, particularly the payment of the balance (if the owner cannot be
paid fully with money), or indeed of the entire amount of the just compensation, with other things of
value. We may also suppose that what they had in mind was a similar scheme of payment as that
prescribed in P.D. No. 27, which was the law in force at the time they deliberated on the new Charter and
with which they presumably agreed in principle.

The Court has not found in the records of the Constitutional Commission any categorical agreement
among the members regarding the meaning to be given the concept of just compensation as applied to
the comprehensive agrarian reform program being contemplated. There was the suggestion to "fine
tune" the requirement to suit the demands of the project even as it was also felt that they should "leave
it to Congress" to determine how payment should be made to the landowner and reimbursement
required from the farmer-beneficiaries. Such innovations as "progressive compensation" and "State-
subsidized compensation" were also proposed. In the end, however, no special definition of the just
compensation for the lands to be expropriated was reached by the Commission. 50

On the other hand, there is nothing in the records either that militates against the assumptions we are
making of the general sentiments and intention of the members on the content and manner of the
payment to be made to the landowner in the light of the magnitude of the expenditure and the
limitations of the expropriator.

With these assumptions, the Court hereby declares that the content and manner of the just
compensation provided for in the afore- quoted Section 18 of the CARP Law is not violative of the
Constitution. We do not mind admitting that a certain degree of pragmatism has influenced our decision
on this issue, but after all this Court is not a cloistered institution removed from the realities and
demands of society or oblivious to the need for its enhancement. The Court is as acutely anxious as the
rest of our people to see the goal of agrarian reform achieved at last after the frustrations and
deprivations of our peasant masses during all these disappointing decades. We are aware that
invalidation of the said section will result in the nullification of the entire program, killing the farmer's
hopes even as they approach realization and resurrecting the spectre of discontent and dissent in the
restless countryside. That is not in our view the intention of the Constitution, and that is not what we
shall decree today.

Accepting the theory that payment of the just compensation is not always required to be made fully in
money, we find further that the proportion of cash payment to the other things of value constituting the
total payment, as determined on the basis of the areas of the lands expropriated, is not unduly
oppressive upon the landowner. It is noted that the smaller the land, the bigger the payment in money,
primarily because the small landowner will be needing it more than the big landowners, who can afford
a bigger balance in bonds and other things of value. No less importantly, the government financial
instruments making up the balance of the payment are "negotiable at any time." The other modes,
which are likewise available to the landowner at his option, are also not unreasonable because payment
is made in shares of stock, LBP bonds, other properties or assets, tax credits, and other things of value
equivalent to the amount of just compensation.

Admittedly, the compensation contemplated in the law will cause the landowners, big and small, not a
little inconvenience. As already remarked, this cannot be avoided. Nevertheless, it is devoutly hoped that
these countrymen of ours, conscious as we know they are of the need for their forebearance and even
sacrifice, will not begrudge us their indispensable share in the attainment of the ideal of agrarian reform.
Otherwise, our pursuit of this elusive goal will be like the quest for the Holy Grail.

The complaint against the effects of non-registration of the land under E.O. No. 229 does not seem to be
viable any more as it appears that Section 4 of the said Order has been superseded by Section 14 of the
CARP Law. This repeats the requisites of registration as embodied in the earlier measure but does not
provide, as the latter did, that in case of failure or refusal to register the land, the valuation thereof shall
be that given by the provincial or city assessor for tax purposes. On the contrary, the CARP Law says that
the just compensation shall be ascertained on the basis of the factors mentioned in its Section 17 and in
the manner provided for in Section 16.

The last major challenge to CARP is that the landowner is divested of his property even before actual
payment to him in full of just compensation, in contravention of a well- accepted principle of eminent
domain.

The recognized rule, indeed, is that title to the property expropriated shall pass from the owner to the
expropriator only upon full payment of the just compensation. Jurisprudence on this settled principle is
consistent both here and in other democratic jurisdictions. Thus:

Title to property which is the subject of condemnation proceedings does not vest the condemnor until
the judgment fixing just compensation is entered and paid, but the condemnor's title relates back to the
date on which the petition under the Eminent Domain Act, or the commissioner's report under the Local
Improvement Act, is filed. 51
... although the right to appropriate and use land taken for a canal is complete at the time of entry, title
to the property taken remains in the owner until payment is actually made. 52 (Emphasis supplied.)

In Kennedy v. Indianapolis, 53 the US Supreme Court cited several cases holding that title to property
does not pass to the condemnor until just compensation had actually been made. In fact, the decisions
appear to be uniformly to this effect. As early as 1838, in Rubottom v. McLure, 54 it was held that "actual
payment to the owner of the condemned property was a condition precedent to the investment of the
title to the property in the State" albeit "not to the appropriation of it to public use." In Rexford v. Knight,
55 the Court of Appeals of New York said that the construction upon the statutes was that the fee did
not vest in the State until the payment of the compensation although the authority to enter upon and
appropriate the land was complete prior to the payment. Kennedy further said that "both on principle
and authority the rule is ... that the right to enter on and use the property is complete, as soon as the
property is actually appropriated under the authority of law for a public use, but that the title does not
pass from the owner without his consent, until just compensation has been made to him."

Our own Supreme Court has held in Visayan Refining Co. v. Camus and Paredes, 56 that:

If the laws which we have exhibited or cited in the preceding discussion are attentively examined it will
be apparent that the method of expropriation adopted in this jurisdiction is such as to afford absolute
reassurance that no piece of land can be finally and irrevocably taken from an unwilling owner until
compensation is paid ... . (Emphasis supplied.)

It is true that P.D. No. 27 expressly ordered the emancipation of tenant-farmer as October 21, 1972 and
declared that he shall "be deemed the owner" of a portion of land consisting of a family-sized farm
except that "no title to the land owned by him was to be actually issued to him unless and until he had
become a full-fledged member of a duly recognized farmers' cooperative." It was understood, however,
that full payment of the just compensation also had to be made first, conformably to the constitutional
requirement.

When E.O. No. 228, categorically stated in its Section 1 that:

All qualified farmer-beneficiaries are now deemed full owners as of October 21, 1972 of the land they
acquired by virtue of Presidential Decree No. 27. (Emphasis supplied.)
it was obviously referring to lands already validly acquired under the said decree, after proof of full-
fledged membership in the farmers' cooperatives and full payment of just compensation. Hence, it was
also perfectly proper for the Order to also provide in its Section 2 that the "lease rentals paid to the
landowner by the farmer- beneficiary after October 21, 1972 (pending transfer of ownership after full
payment of just compensation), shall be considered as advance payment for the land."

The CARP Law, for its part, conditions the transfer of possession and ownership of the land to the
government on receipt by the landowner of the corresponding payment or the deposit by the DAR of the
compensation in cash or LBP bonds with an accessible bank. Until then, title also remains with the
landowner. 57 No outright change of ownership is contemplated either.

Hence, the argument that the assailed measures violate due process by arbitrarily transferring title
before the land is fully paid for must also be rejected.

It is worth stressing at this point that all rights acquired by the tenant-farmer under P.D. No. 27, as
recognized under E.O. No. 228, are retained by him even now under R.A. No. 6657. This should counter-
balance the express provision in Section 6 of the said law that "the landowners whose lands have been
covered by Presidential Decree No. 27 shall be allowed to keep the area originally retained by them
thereunder, further, That original homestead grantees or direct compulsory heirs who still own the
original homestead at the time of the approval of this Act shall retain the same areas as long as they
continue to cultivate said homestead."

In connection with these retained rights, it does not appear in G.R. No. 78742 that the appeal filed by
the petitioners with the Office of the President has already been resolved. Although we have said that
the doctrine of exhaustion of administrative remedies need not preclude immediate resort to judicial
action, there are factual issues that have yet to be examined on the administrative level, especially the
claim that the petitioners are not covered by LOI 474 because they do not own other agricultural lands
than the subjects of their petition.

Obviously, the Court cannot resolve these issues. In any event, assuming that the petitioners have not
yet exercised their retention rights, if any, under P.D. No. 27, the Court holds that they are entitled to the
new retention rights provided for by R.A. No. 6657, which in fact are on the whole more liberal than
those granted by the decree.
V

The CARP Law and the other enactments also involved in these cases have been the subject of bitter
attack from those who point to the shortcomings of these measures and ask that they be scrapped
entirely. To be sure, these enactments are less than perfect; indeed, they should be continuously re-
examined and rehoned, that they may be sharper instruments for the better protection of the farmer's
rights. But we have to start somewhere. In the pursuit of agrarian reform, we do not tread on familiar
ground but grope on terrain fraught with pitfalls and expected difficulties. This is inevitable. The CARP
Law is not a tried and tested project. On the contrary, to use Justice Holmes's words, "it is an experiment,
as all life is an experiment," and so we learn as we venture forward, and, if necessary, by our own
mistakes. We cannot expect perfection although we should strive for it by all means. Meantime, we
struggle as best we can in freeing the farmer from the iron shackles that have unconscionably, and for so
long, fettered his soul to the soil.

By the decision we reach today, all major legal obstacles to the comprehensive agrarian reform program
are removed, to clear the way for the true freedom of the farmer. We may now glimpse the day he will
be released not only from want but also from the exploitation and disdain of the past and from his own
feelings of inadequacy and helplessness. At last his servitude will be ended forever. At last the farm on
which he toils will be his farm. It will be his portion of the Mother Earth that will give him not only the
staff of life but also the joy of living. And where once it bred for him only deep despair, now can he see in
it the fruition of his hopes for a more fulfilling future. Now at last can he banish from his small plot of
earth his insecurities and dark resentments and "rebuild in it the music and the dream."

WHEREFORE, the Court holds as follows:

1. R.A. No. 6657, P.D. No. 27, Proc. No. 131, and E.O. Nos. 228 and 229 are SUSTAINED against all
the constitutional objections raised in the herein petitions.

2. Title to all expropriated properties shall be transferred to the State only upon full payment of
compensation to their respective owners.

3. All rights previously acquired by the tenant- farmers under P.D. No. 27 are retained and recognized.
4. Landowners who were unable to exercise their rights of retention under P.D. No. 27 shall enjoy the
retention rights granted by R.A. No. 6657 under the conditions therein prescribed.

5. Subject to the above-mentioned rulings all the petitions are DISMISSED, without pronouncement as to
costs.

SO ORDERED.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Footnotes

1 Art. 11, Sec. 5.

2 1973 Constitution, Art. II, Sec. 6.

3 Ibid., Art. XIV, Sec. 12.

4 R.A. No. 6657, Sec. 15.

5 149 SCRA 305.

6 150 SCRA 89.

7 55 SCRA 26.

8 91 SCRA 294.

9 113 SCRA 798.

10 136 SCRA 271; 146 SCRA 446.

11 Art. VIII, Sec. 4(2).

12 Dumlao v. COMELEC, 95 SCRA 392.

13 Ex Parte Levitt, 303 US 633.

14 Araneta v. Dinglasan, 84 Phil. 368.

15 Pascual v. Secretary of Public Works, 110 Phil. 331; PHILCONSA v. Gimenez, 15 SCRA 479; Sanidad v.
COMELEC, 73 SCRA 333.

16 Angara v. Electoral Commission, 63 Phil. 139.

17 R.A. No. 6657, Sec. 75.

18 Ibid., Sec. 63.

19 Bengzon v. Secretary of Justice, 299 US 410.

20 Alalayan v. NPC, 24 SCRA 172; Sumulong v. COMELEC, 73 Phil. 288. Tio v. Videogram Regulatory
Board, 151 SCRA 208.

21 Supra.

22 Lamb v. Phipps, 22 Phil. 456.

23 Malabanan v. Ramento, 129 SCRA 359; Espanol v. Chairman, Philippine Veterans Administration,
137 SCRA 314.

24 106 Phil. 144.

25 260 US 393.

26 Powell v. Pennsylvania, 127 US 678: Lutz v. Araneta, 98 Phil. 148; Tio v. Videogram Regulatory
Board, supra.

27 John J. Costonis "The Disparity Issue: A Context for the Grand Central Terminal Decision,"
Harvard Law Review, Vol. 91:40,1977, p. 404.

28 348 US 1954.

29 438 US 104.

30 See note 27.

31 International Harvester Co. v. Missouri, 234 US 199.

32 People v. Cayat, 68 Phil. 12.

33 Ichong v. Hernandez, 101 Phil. 1155.

34 US v. Toribio, 15 Phil. 85; Fable v. City of Manila, 21 Phil. 486; Case v. Board of Health, 24 Phil. 256.

35 Noble v. City of Manila, 67 Phil. 1.

36 100 Phil. 1101.

37 1987 Constitution, Art. VIII, Sec. 1.

38 57 L ed. 1063.

39 Manila Railroad Co. v. Velasquez, 32 Phil. 286.

40 Province of Tayabas v. Perez, 66 Phil. 467; J.M. Tuazon & Co., Inc. v. Land Tenure Administration,
31 SCRA 413; Municipality of Daet v. Court of Appeals, 93 SCRA 503; Manotok v. National Housing
Authority, 150 SCRA 89.

41 City of Manila v. Estrada, 25 Phil. 208.

42 58 SCRA 336.
43 Lewis, Law of Eminent Domain, 3rd Edition, pp. 1166- 1167.

44 149 SCRA 305.

45 Manila Railroad Co. v. Velasquez, 32 Phil. 286; Province of Tayabas v. Perez, supra, at note 40.

46 31 SCRA 413.

47 Mandl v. City of Phoenix, 18 p 2d 273.

48 Sacramento Southern R. Co. v. Heilbron 156 Cal. 408,104 pp. 979, 980.

49 City of Waterbury v. Platt Bros. & Co., 56 A 856, 76 Conn, 435 citing Butler v. Ravine Road Sewer
Com'rs, 39 N.J.L. 665; Bloodgood v. Mohawk v. H.R.R. Co., N.Y. 18 Wend. 9 35, 31 Am. Dec. 313; Sanborn
v. Helden, 51 Cal 266; Burlington & C.R. Co. v. Schweikart, 14 p. 329, 10 Colo, 178; 23 Words and Phrases,
pl. 460.

50 Record of the Constitutional Commission, Vol. 2, pp. 647, 704; Vol. 3, pp. 16-20, 243-247.

51 Chicago Park Dist. v. Downey Coal Co., 1 Ill. 2d 54.

52 Kennedy v. Indianapolis, 103 US 599, 26 L ed 550.

53 Ibid.

54 4 Blkf., 508.
55 11 NY 314.

56 40 Phil. 550.

57 Sec. 16(d).

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC
G.R. No. L-11959 October 31, 1959

ARTURO B. PASCUAL, petitioner-appellant,

vs.

HON. PROVINCIAL BOARD OF NUEVA ECIJA, respondent-appellee.

Amado G. Salazar, Felicisimo S. Ocampo, Arturo S. Tomas, Feliciano Bautista and Severo Ongsiapco for
appellant.

Mariano D. Capuyoc for appellee.

GUTIERREZ DAVID, J.:

We are asked in this appeal to revoke an order of the Court of First Instance of Nueva Ecija denying
appellant's petition for a writ of prohibition with preliminary injunction.

Petitioner-appellant Arturo B. Pascual had been elected mayor of San Jose, Nueva Ecija, in November
1951 and reelected in 1955. In October 6, 1956, the Acting Provincial Governor of that province filed
with the Provincial Board three administrative charges against the said appellant. Charge III was for
"Maladministrative, Abuse of Authority, and Usurpation of Judicial Functions," committed as follows:

Specification I — That on or about the 18th and 20th day of December, 1954, in the municipality of San
Jose, Nueva Ecija, the above-named respondent, being municipal mayor of San Jose, Nueva Ecija, and
while the justice of the peace of the said municipality was present therein, did there and then willfully,
feloniously, criminally, without legal authority, and with grave abuse of authority, assumed and usurped
the judicial powers of the said justice of the peace by accepting the criminal complaint filed in Criminal
Case No. 3556, of the said court, conducting the preliminary investigation thereof, fixing the bail bond of
P6,000.00, and issuing the corresponding warrant of arrest; and after the accused in the said criminal
case had been arrested, while the justice of the peace was in his office in San Jose, Nueva Ecija, the
herein respondent, in defiance of the express refusal by the justice of the peace to reduce the bail bond
of the accused in Criminal Case No. 1556, acted on the motion to reduce bail and did reduce the bail
bond to P3,000.00.

After the presentation of evidence regarding the first two charges, petitioner-appellant filed with the
respondent-appellee, the Provincial Board, a motion to dismiss the third charge above referred to, on
the main ground that the wrongful acts therein alleged had been committed during his previous term of
office and could not constitute a ground for disciplining him during his second term. Upon opposition
filed by a special counsel for the respondent-appellee, the motion to dismiss was denied by resolution of
the Board.

After the denial of the motion for reconsideration of that resolution, the appellant filed with this Court a
petition for a writ of prohibition with preliminary injunction (G. R. No. L-11730), to enjoin the Provincial
Board of Nueva Ecija from taking cognizance of the third charge, but the petition was denied by minute
resolution of December 21, 1956 "without prejudice to action, if any, in the Court of First Instance."
Accordingly, the petitioner-appellant filed with the Court of First Instance of Nueva Ecija a petition for
prohibition with preliminary injunction seeking to inhibit the said Provincial Board from proceeding with
the hearing of Charge No. III, for lack of jurisdiction.

Instead of filing an answer, the respondent-appellee moved for the dismissal of the case on the ground
that it states no cause of action because the petitioner-appellant had not complied with the cardinal
principle of exhaustion of administrative remedies before he could appeal to the courts, and because the
Provincial Board had jurisdiction over Charge No. III. After responsive pleadings had been filed by both
parties, the court below issued an order dismissing the petition "for being premature," for the reason
that the petitioner had not first appealed to the Executive Secretary. From that order, the case was
brought before us on appeal. Upon urgent petition, a writ of preliminary injunction was issued
restraining the respondent-appellee from investigating petitioner-appellant on the charge above-
mentioned.

In his brief, petitioner-appellant claims that the court below erred: (1) in not holding that the alleged
usurpation of judicial functions in December 1954 is not a legal ground for disciplining the appellant
during his second term of office after a reelection, and in not holding that the respondent patently has
no authority or jurisdiction to take cognizance of Charge No. 3; (2) in holding that the petition for
prohibition is premature and that the appellant must first exhaust all administrative remedies available
to him under the Revised Administrative Code; and (3) in dismissing the petition for prohibition.
The first question posed is whether or not it was legally proper for petitioner-appellant to have come to
court without first bringing his case to the Executive Secretary for review. True it is that, in this
jurisdiction, the settled rule is that where the law has delineated the procedure by which administrative
appeal or remedy could be effected, the same should be followed before recourse to judicial action can
be initiated (Ang Tuan Kai vs. Import Control Commission, 91 Phil., 143; Coloso vs. Board, 92 Phil., 938;
Miguel vs. Reyes, 93 Phil., 542, and several other cases), but we believe that this rule is not without
exceptions, as in a case like the present, where the only question to be settled in the prohibition
proceedings is a purely legal one — whether or not a municipal mayor may be subjected to an
administrative investigation of a charge based on misconduct allegedly committed by him during his
prior term.

The rule is inapplicable where administrative remedy is provided. Likewise, the rule will be relaxed where
there is grave doubt as to availability of the administrative remedy; where the question in dispute is
purely a legal one, and nothing of an administrative nature is to be or can be done; where although
there are steps to be taken, they are, under the admitted facts, merely matters of from, and the
administrative process, as a process of judgment, is really over; or where the administrative remedy is
not exclusive but merely cumulative or concurrent to a judicial remedy. A litigant need not proceed with
optional administrative process before seeking juducial relief. (73 C. J. S. p. 354) (Emphasis supplied) .

On the above authority, we are inclined to agree with the petitioner-appellant that his bringing the case
to court is not a violation of, but merely an exception to, the cardinal rule above referred to.

In a case (Mondano vs. Silvosa * 51 Off Gaz., [6], p. 2884), this court granted a writ of prohibition against
the provincial board of Capiz, notwithstanding the fact that the petitioner therein did into appeal to the
Executive Secretary, the only question therein involved being whether or not the charged filed against
the municipal mayor of Calibo, Capiz, constituted any one of the grounds for suspension or removal
provided for in sec. 2188 of the Revised Administrative Code.

We now come to the main issue of the controversy — the legality of disciplining an elective municipal
official for a wrongful act committed by him during his immediately preceding term of office.

In the absence of any precedent in this jurisdiction, we have resorted to American authorities. We found
that cases on the matter are conflicting due in part, probably, to differences in statutes and
constitutional provisions, and also, in part, to a divergence of views with respect to the question of
whether the subsequent election or appointment condones the prior misconduct. The weight of
authorities, however, seems to incline to the rule denying the right to remove one from office because of
misconduct during a prior term, to which we fully subscribe.

Offenses committed, or acts done, during previous term are generally held not to furnish cause for
removal and this is especially true where the constitution provides that the penalty in proceedings for
removal shall not extend beyond the removal from office, and disqualification from holding office for the
term for which the officer was elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d.
401; Montgomery vs. Nowell, 40 S.W. 2d. 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d. 237;
Board of Com'rs of Kingfisher County vs. Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147
A. 67; State vs. Ward, 43 S.W. 2d. 217).

The underlying theory is that each term is separate from other terms, and that the reelection to office
operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to
remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A.
(NS) 553. As held in Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA
(NS) 553 —

The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When the people have
elected a man to office, it must be assumed that they did this with knowledge of his life and character,
and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for
the court, by reason of such faults or misconduct to practically overrule the will of the people.

In view of the foregoing, the order appealed from is hereby revoked; the writ of prohibition prayed for is
hereby granted and the preliminary injunction heretofore issued made permanent. Without special
pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Reyes, J.B.L., Endencia and Barrera,
JJ., concur.

Footnotes
* 97 Phil., 143.

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-61388 April 20, 1983

IN THE ISSUANCE OF THE WRIT OF HABEAS CORPUS FOR DR. AURORA PARONG, NORBERTO
PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA,
ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN, BIENVENIDA GARCIA,
EUFRONIO ORTIZ. JR., JUANITO GRANADA and TOM VASQUEZ. JOSEFINA GARCIA-PADILLA, petitioner,

vs.

MINISTER JUAN PONCE ENRILE, GEN, FABIAN C. VER, GEN. FIDEL V. RAMOS, and FIDEL V. RAMOS, and
LT. COL. MIGUEL CORONEL, respondents.

Lorenzo M. Tanada, Jose W. Diokno, Joker P. Arroyo, Efren M Mercado and Alexander Padilla for
petitioner.

The Solicitor General for respondents.

DE CASTRO, J.:

Petition for a writ of habeas corpus and mandamus seeking the following relief:

WHEREFORE, petitioners pray this Honorable Court:

1. To immediately issue a writ of habeas corpus directing respondents to appear and produce the
bodies of Dr. AURORA PARONG, NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA,
IMELDA DE LOS SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG,
LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM VASQUEZ,
forthwith before this Honorable Court and to make due return of the writ therewith;

2. To issue, in addition or in the alternative to the writ of habeas corpus, a writ of mandamus
compelling the respondents to disclose the petitioners' present place of detention and to order the
respondents to allow counsel and relatives to visit and confer with the petitioners;
3. Pending the determination of the legality of their continued detention, to forthwith release the
detainees on bail upon such terms and conditions as the Court may fix, and after hearing, to order
petitioners' immediate release; and

4. To grant petitioners such other and further relief as may be deemed just and equitable in the
premises.

The records show that nine (9) of the fourteen (14) detainees herein were arrested on July 6, 1982 at
about 1:45 p.m. when three (3) teams of the PC/INP of Bayombong, Nueva Viscaya led by Lt. Col.
Coronel, lst Lt. de Guzman and lst Lt. Baria, after securing a Search Warrant No. S-82 issued by Judge
Sofronio Sayo of the Court of First Instance of Nueva Viscaya conducted a raid at the residence of Dra.
Aurora Parong. Apprehended during the said raid were Dra. Aurora Parong, Benjamin Pineda, Sabino
Padilla, Francisco Divinagracia, Zenaida Mallari, Letty Ballogan, Norberto Portuguese, and Mariano
Soriano who were then having a conference in the dining room of Dra. Parong's residence which had
been doing on since 10:00 a.m. of that same day.

The other four (4) detainees herein, namely: Imelda de los Santos, Eufronio Ortiz, Jr., Juanita Granada,
and Bienvenida Garcia, were arrested on the following day, July 7, 1982 by the same PC teams.

On July 15, 1982, Tom Vasquez was arrested, and his Volkswagen car, bearing Plate No. DAP 347, was
seized by the PC authorities.

The herein fourteen (14) detainees (hereafter referred to sometimes as petitioners) were all detained at
the PC/INP Command Headquarters, Bayombong, Nueva Vizcaya from July 6, 1982 until their transfer on
the morning of August 10, 1982 to an undisclosed place reportedly to Camp Crame, Quezon City, to
Echague, Isabela, and to Tuguegarao, Cagayan.

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

It is further alleged that respondents are denying the detainees their constitutional right to counsel,
averring that the detainees were allowed regular visits by counsel and relatives during their period of
detention from July 6 to August 10, 1982 at the PC/INP Command in Bayombong, Nueva Viscaya;
however, when a certain Major Cristobal and Lt. Marcos (alleged to be from the Camp Crame Intelligence
Units) took full control of the investigation, counsels were allowed to visit only on weekends; that when
the detainees were transferred on August 10, 1982 to a place known only to respondents, the detainees'
counsels and relatives were not notified, raising the apprehension that petitioners' constitutional rights
to silence, to counsel and against self- incrimination are being violated; that counsels have tried to locate
if the detainees were taken to Camp Crame or Camp Bago Bantay but to no avail; that Major Forondo of
the PC Command in Nueva Viscaya informed Mrs. Josefina Padilla that the detainees were transferred to
Tuguegarao, Cagayan, others to Echague, Isabela; that there seems to be a deliberate and concerted
effort by respondents to conceal from counsel and relatives the detainees' place of detention, raising the
apprehension that respondents are using force, violence, threat, intimidation and other means which
vitiate free will to obtain confession and statements from the detainees in violation of their
constitutional rights.

In the resolution of this Court en banc dated August 17, 1982, the writ of habeas corpus was issued and
respondents were required to make a return of the writ. Hearing on the petition was set on August 26,
1982.
In the return to the writ filed on August 23, 1982. respondents, through the Solicitor General, alleged, to
wit:

I. AS TO HABEAS CORPUS

1. The detainees mentioned in the petition, with the exception of Tom Vasquez who was
temporarily released on July 17, 1982, after his arrest on July 15, 1982, are all being detained by virtue of
a Presidential Commitment Order (PCO) issued on July 12, 1982, pursuant to LOI No. 1211 dated March
9, 1982, in relation to Presidential Proclamation No. 2045 dated January 17, 1981. The said PCO was
issued by President Ferdinand E. Marcos for violation of P.D. No. 885. ...

2. The corresponding charges against the said detainees have been filed in court and before the
Acting Provincial Fiscal of Nueva Viscaya where they are pleading. A warrant of arrest against detainee
Dra. Aurora Parong was issued on August 4, 1982, by the Municipal Court of Bayombong, for illegal
possession of firearm and ammunition. ...

II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS

3. The persons named in the above-mentioned Presidential Commitment Order were arrested and
are being detained for offenses with respect to which under Proclamation No. 2045, the privilege of the
writ of habeas corpus continues to be suspended, thus:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime Minister of the Philippines, by virtue of

the powers vested in me by the Constitution, do hereby revoke Proclamation No. 1081 (Proclaiming a
state of Martial Law in the Philippines) and Proclamation No. 1104 (Declaring the Continuation of Martial
Law) and proclaim the termination of the state of martial law throughout the Philippines; Provided, that
the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insurrection,
rebellion and subversion shall continue to be in force and effect; and Provided that in the two
autonomous regions in Mindanao, upon the request of the residents therein, the suspension of the
privilege of the writ of habeas corpus shag continue; and in all other places the suspension of the
privilege of the writ shall also continue with respect to persons at present detained as well as others who
may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or
proposals to commit such crimes, and for all other crimes and offenses committed by them in
furtherance or on the occasion thereof, or incident thereto, or in connection therewith. (Emphasis
supplied)

The privilege of the writ of habeas corpus is unavailing as to them. Courts cannot inquire into the validity
and cause of their arrest and detention.

4. The power of the President in an emergency, such as that which necessitated the continued
suspension of the privilege of the writ of habeas corpus, to order the detention of persons believed
engaged in crimes related to national security is recognized. (Aquino vs. Enrile, 59 SCRA 83; Luneta, et al.
vs. Special Military Commission, No. 1, et al., 102 SCRA 56).

5. In the instant petition, petitioner Josefina Garcia-Padilla does not appear to have been
authorized by the thirteen (13) other detainees to represent them in the case at bar."

Accordingly, the petition was duly heard on August 26, 1982. After hearing, the Court issued the
following resolution, to wit:

G.R. No. 61388 (In the Matter of the Petition for the Insurance of the Writ of Habeas Corpus of Dr.
Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos,
Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia,
Eufronio Ortiz, Jr., Juanito Granada and Tom Vasquez; Josefina Garcia-Padilla vs. Minister Juan Ponce
Enrile, Gen. Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col. Miguel Coronel.)- The return of the writ of
habeas corpus and answer to the prayer for mandamus filed by the Solicitor General for respondents in
compliance with the resolution of August 17, 1982 is NOTED.

At the hearing of this case this morning, former Senator Jose W. Diokno, Attorneys Alexander A. Padilla
and Efren H. Mercado appeared for petitioner. Solicitor General Estelito P. Mendoza and Assistant
Solicitor General Ramon A. Barcelona, appeared for the respondents. All of the detainees, except Tom
Vasquez, who was temporarily released on July 17, 1982, were present in Court; Dr. Aurora Parong,
Norberto Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin Pineda,
Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr. and
Juanito Granada. Attorney Alexander A. Padilla argued for the petitioner. Solicitor General Mendoza
argued for the respondents. Former Senator Diokno argued in the rebuttal. The Court Resolved to
require the Solicitor General to SUBMIT within five (5) days from date the documents relevant to the
issuance of the Presidential Commitment Order. Thereafter, the case shall be considered SUBMITTED for
resolution.

As required, the Solicitor General submitted the documents relevant to the issuance of the Presidential
Commitment Order on August 27, 1982, after which the case was submitted for resolution.

The fundamental issue here, as in all petitioner for the writ of habeas corpus, is whether or not
petitioners' detention is legal. We have carefully gone over the claims of the parties in their respective
pleadings as well as in the oral argument during the hearing on August 26, 1982, and We find that
petitioners have not been illegally deprived of their constitutional right to liberty, neither in the manner
of their arrest, nor by their continued detention, and that the circumstances attendant in the herein case
do not warrant their release on a writ of habeas corpus.

1. At the time of the arrest of the nine (9) of the fourteen (14) detainees herein on July 6, 1982,
records reveal that they were then having conference in the dining room of Dra. Parong's residence from
10:00 a.m. of that same day. Prior thereto, all the fourteen (14) detainees were under surveillance as
they were then Identified as members of the Communist Party of the Philippines (CPP) engaging in
subversive activities and using the house of detainee Dra. Aurora Parong in Bayombong, Nueva Viscaya,
as their headquarters. Caught in flagrante delicto, the nine (9) detainees mentioned scampered towards
different directions leaving in top of their conference table numerous subversive documents, periodicals,
pamphlets, books, correspondence, stationaries, and other papers, including a plan on how they would
infiltrate the youth and student sector (code-named YORK). Also found were one (1) .38 cal. revolver
with eight (8) live bullets, nineteen (19) rounds of ammunition for M16 armalite, eighteen thousand six
hundred fifty pesos (P18,650.00) cash believed to be CPP/NPA funds, assorted medicine packed and
ready for distribution, as sizeable quantity of printing paraphernalia, which were then seized. There is no
doubt that circumstances attendant in the arrest of the herein detainees fall under a situation where
arrest is lawful even without a judicial warrant as specifically provided for under Section 6(a), Rule 113 of
the Rules of Court and allowed under existing jurisprudence on the matter. As provided therein, a peace
officer or a private person may, without a warrant, arrest a person when the person to be arrested has
committed or actually committing, or is about to commit an offense in his presence.

From the facts as above narrated, the claim of the petitioners that they were initially arrested illegally is,
therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy
or proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the
occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside
from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of
the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the
course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting
them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of the existence of probable cause
before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable.
Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons
committing overt acts of violence against government forces, or any other milder acts but equally in
pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the
situation that involves the very survival of society and its government and duly constituted authorities. If
killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities
which is of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion,
merely seizing their persons and detaining them while any of these contingencies continues cannot be
less justified. In the language of Moyer vs. Peabody, 1 cited with approval in Aquino, et al. vs. Ponce
Enrile, 2 the President " shall make the ordinary use of the soldiers to that end that he may kill persons
who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he
considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are
by way of precaution, to prevent the exercise of hostile power."

Thus characterized, the arrest and detention of persons ordered by the President through the issuance
of Presidential Commitment Order PCO is merely preventive. "When it comes to a decision by the head
of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he
deems the necessities of the moment. Public danger warrants the substitution of executive process for
judicial process." 3 What should be underscored is that if the greater violation against life itself such as
killing, will not be the subject of judicial inquiry, as it cannot be raised as transgressing against the due
process clause that protects life, liberty and property, lesser violations against liberty, such as arrest and
detention, may not be insisted upon as reviewable by the courts.

3. Transcendentally important, therefore, is the question of whether the issuance of a Presidential

Commitment Order (PCO) has provided the legal basis of the detention of herein detainees following
their arrest for Proclamation No. 2045 covered offenses. This question has to be set at rest promptly and
decisively, if We are to break a seemingly continuous flow of petitions for habeas corpus, as what had
been seen lately of such petitioners being filed in this Court one after the other.
The function of the PCO is to validate, on constitutional ground, the detention of a person for any of the
offenses covered by Proclamation No. 2045 which continues in force the suspension of the privilege of
the writ of habeas corpus, if the arrest has been made initially without any warrant, its legal effect is to
render the writ unavailing as a means of judicially inquiring into the legality of the detention in view of
the suspension of the privilege of the writ. The grant of the power to suspend the said privilege provides
the basis for continuing with perfect legality the detention as long as the invasion or rebellion has not
been repelled or quelled, and the need therefor in the interest of public safety continues.

The significance of the conferment of this power, constitutionally upon the President as Commander-in-
Chief, is that the exercise thereof is not subject to judicial inquiry, with a view to determining its legality
in the light of the bill of rights guarantee to individual freedom. This must be so because the suspension
of the privilege is a military measure the necessity of which the President alone may determine as an
incident of his grave responsibility as the Commander-in-Chief of the Armed Forces, of protecting not
only public safety but the very life of the State, the government and duly constituted authorities. This
should be clear beyond doubt in the case of "invasion," along which "rebellion" or "insurrection" is
mentioned by the Constitution, which contingency does not present a legal question on whether there is
a violation of the right to personal liberty when any member of the invading force is captured and
detained.

The presidential responsibility is one attended with all urgency when so grave a peril to the life of the
Nation besets the country in times of the aforementioned contingencies. In the discharge of this
awesome and sacred responsibility, the President should be free from interference. The existence of
warlike conditions as are created by invasion, rebellion or insurrection, the direst of all emergencies that
can possibly confront a nation, argues, beyond dispute, against subjecting his actions in this regard to
judicial inquiry or interference from whatever source. If freedom from judicial review is conceded in the
exercise of his peacetime powers as that of appointment and of granting pardon, denominated as
political powers of the President, it should incontestably be more so with his wartime power, as it were,
to adopt any measure in dealing with situations calling for military action as in case of invasion, rebellion
or insurrection.

The suspension of the privilege of the writ of habeas corpus is one such measure. To be effective, the
occasion for its application on specific individuals should be left to the exclusive and sound judgment of
the President, at least while the exigencies of invasion, rebellion or insurrection persist, and the public
safety requires it, a matter, likewise, which should be left for the sole determination of the President as
Commander-in-Chief of the Nation's armed forces. The need for a unified command in such
contingencies is imperative-even axiomatic-as a basic military concept in the art of warfare.
4. From the clear language of the Lansang case, 4 "the function of Court is merely to check — not
to supplant — the Executive, or to ascertain merely whether he has gone beyond the constitutional
limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act. "
If, however, the constitutional right to bail is granted to the herein petitioners by the court, through the
procedure laid down under Rule 114 of the Rules of court, what inevitably results is the supplanting of
the decision of the President to detain pursuant to Proclamation No. 2045, of persons who come under
its coverage.

The specific mention in the Constitution of rebellion and insurrection along with invasion and imminent
danger thereof, shows that the terms "rebellion and insurrection" are used therein in the sense of a state
or condition of the Nation, not in the concept of a statutory offense. What, therefore, should determine
the legality of imposing what is commonly referred to as "preventive detention" resulting from the
suspension of the privilege of habeas corpus, is the necessity of its adoption as a measure to suppress or
quell the rebellion, or beat off an invasion. The necessity for such measure as a means of defense for
national survival quite clearly transcends in importance and urgency the claim of those detained to the
right to bail to obtain their freedom. To hold otherwise would defeat the purpose of the constitutional
grant of the power to suspend the privilege of the writ of habeas corpus on the occasions expressly
mentioned in the charter. For what indeed could the purpose be of suspending the privilege of the writ
of habeas corpus other than to restrict, at least for the duration of the emergency of invasion or
rebellion, the right to personal liberty, dictated as it is, in the greater interest of public safety and
national security.

So it is that Proclamation No. 2045 mentions not only rebellion or insurrection as coming within the
suspension of the privilege of the writ of habeas corpus, but also other offenses, including subversion
which is not mentioned in the Constitution, committed by reason or on the occasion of the rebellion, or
in connection therewith, or in the furtherance thereof. There need be no alarm over what libertarian
jurists fear as violation of the constitutional right to personal liberty when the President decrees the
suspension of the privilege of habeas corpus. Only those who give cause for it will be subject to
restriction of their liberty, as the necessity therefor arises in the interest of national defense and survival.
The constitutional guarantee of individual freedom is intact in all its plenitude and sanctity, save only as
the Constitution has envisioned the need for its limitation, and only to a few, in relation to the entire
population, as the Constitution itself permits in case of overwhelming and imperious necessity.

5. Worthy of profound notice and keen appreciation is the fact that the authority to suspend the
privilege of the writ of habeas corpus has been deliberately vested on the President as the Commander-
in-Chief of the armed forces, together with the related power to call out the armed forces to suppress
lawless violence and impose martial law. 5 The choice could not have been more wise and sound, for no
other official may, with equal capability and fitness, be entrusted with the grave responsibility that goes
with the grant of the authority. The legislature was considered in the alternative upon which to lodge the
power, or to share in its exercise, but the distilled wisdom of the Constitutional Convention finally made
its choice for the President alone.

As previously noted, "invasion" which is not a statutorily-defined offense and "imminent danger thereof"
as mentioned in the Constitution indicate that "rebellion and insurrection" are also mentioned therein
not in their concept as statutorily-defined public crimes, but as a state or condition of extreme
emergency resulting from the existence of the aforesaid events. Now, if captured enemies from the
invading force may not be charged with any statutory offense that would provide the occasion to
demand the right to bail, it is obvious that persons engaged in rebellion or insurrection may not claim
the right to be released on bail when similarly captured or arrested during the continuance of the
aforesaid contingency. They may not even claim the right to be charged immediately in court, as they
may rightfully do so, were they being charged with an ordinary or common offense. This is so because
according to legal writers or publicists, the suspension of the privilege of the writ of habeas corpus "has
the sole effect of allowing the executive to defer the trials of persons charged with certain offenses
during the period of emergency." 6 This clearly means denial of the right to be released on bail on being
charged in court with bailable offenses.

The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of
the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered
effective. If the right to bail may be demanded during the continuance of the rebellion, and those
arrested, captured and detained in the course thereof will be released, they would, without the least
doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring
to an end the invasion, rebellion or insurrection.

Realistically, a person engaged in the rebellion does not, upon being arrested or captured, cease to be as
committed to the cause of the movement. Through a grand conspiracy, as is of the essence of how
rebellion is committed, involving a great mass of confederates bound together by a common goal, he
remains in a state of continued participation in the criminal act or design. His heart still beats with the
same emotion for the success of the movement of which he continues to be an ardent adherent and ally.
It is simple logic then to hold that there should be no legal compulsion for a captured rebel to be charged
in court, only to be released on bail, while he is, realistically and legally, still as much as part and parcel
of the movement, continuing as it is, as those still engaged in carrying on actively to attain their goal of
overthrowing the established regime. Hence, it is easy to perceive how impressed with absolute verity is
the opinion expressed by two acknowledged authorities on Constitutional law in our country, 7 which
We quote:
... If the return to the writ shows that the person in custody was apprehended and detained in areas
where the privileges of the writ have been suspended or for the crimes mentioned in the executive
proclamation, the court will suspend further proceedings in the action.

Impeccable as it is, the opinion could not but find a resonant echo as it did in the recent case of
Buscayno vs. Military Commission; 8 decided after Proclamation No. 2045 was issued, which in terms
clear and categorical, held that the constitutional right to bail is unavailing when the privilege of the writ
of habeas corpus is suspended with respect to certain crimes as enumerated or described in the
abovementioned Proclamation.

It is, likewise, all too well-known that when the rebel forces capture government troopers or kidnap
private individuals, they do not accord to them any of the rights now being demanded by the herein
petitioners, particularly to be set at liberty upon the filing of bail. As a matter of common knowledge,
captives of the rebels or insurgents are not only not given the right to be released, but also denied trial
of any kind. In some instances, they may even be liquidated unceremoniously. What is then sought by
the suspension of the privilege of the writ of habeas corpus is, among others, to put the government
forces on equal fighting terms with the rebels, by authorizing the detention of their own rebel or
dissident captives as the rebellion goes on. In this way, the advantage the rebellion forces have over
those of the government, as when they resort to guerilla tactics with sophisticated weapons, is, at least,
minimized, thereby enhancing the latter's chances of beating their enemy. It would, therefore, seem to
be ignoring realities in the name of misplaced magnanimity and compassion, and for the sake of
humanity, to grant the demand for respect of rights supposedly guaranteed by the Constitution by those
who themselves seek to destroy that very same instrument, trampling over it already as they are still
waging war against the government. This stark actuality gives added force and substance to the rationale
of the suspension of the privilege of the writ of habeas corpus in case of invasion, insurrection, rebellion,
or imminent danger thereof, when public safety requires it.

6. Invoking the Lansang case, 9 however, petitioners would ask this Court to review the issuance of
the PCO against them, intimating that arbitrariness attended its issuance because, relying on the
evidence supposedly available in the hands of the military, they claim they are not guilty of rebellion.
They also contend that the provisions of LOI No. 1211 have not been complied with.

The Lansang case went no further than to pronounce the suspension of the writ of the privilege of
habeas corpus on August 21, 1971, valid and constitutional, on a finding that there was no arbitrariness
attendant to the suspension. It never intended to suggest that for every individual case of arrest and
detention, the writ of habeas corpus is available, even after the suspension of this privilege, to question
the legality of the arrest and detention on ground of arbitrariness. When a person is charged in court for
an ordinary offense, the law does not authorize the filing of a petition for habeas corpus based on the
ground that there is absolutely no evidence to hold him for trial, which, in effect, constitutes an
allegation of arbitrariness in the filing of the case against him. The law has afforded him adequate
safeguards against arbitrariness, such as the requirement of determining the existence of a probable
cause by the judge before the issuance of the warrant of arrest. The finding of such probable cause may
not be immediately brought for review by this Court in a habeas corpus proceeding, on the claim of
arbitrariness. The matter is to be decided on the basis of the evidence, and this Court is not the proper
forum for the review sought, not being a trier of facts. If such a procedure were allowed, it would be
easy to delay and obstruct the prosecution of an offense by a resort to a petition for habeas corpus
based on arbitrariness, which most accuse, if not all, would be most inclined, specially when they are out
on bail. The petition now before Us is exactly one of this kind. If granted, the effect is to transfer the
jurisdiction of the trial courts in criminal cases to this Court, which is simply inconceivable. Moreover,
arbitrariness, while so easy to allege, is hard to prove, in the face of the formidable obstacle built up by
the presumption of regularity in the performance of official duty. Unexhilaratingly, this is the revealing
experience of this Court in the Lansang case, where it doubtlessly realized how hardly possible it is to
adduce evidence or proof upon which to show the President having acted with arbitrariness.

7. The last question relates to the legality of the Presidential Commitment Order (PCO) issued by
the President on July 12, 1982, tested by the conformity of its issuance to the procedure laid down under
LOI 1211, petitioners insisting that the LOI limits the authority of the President to cause the arrest and
detention of persons engaged in or charged with, the crimes mentioned in Proclamation No. 2045. They
contend that the procedure prescribed in the LOI not having been observed, the PCO issued thereunder
did not validate the initial illegal arrest of the herein petitioners as wen as their continued detention.

It must be noted that LOI No. 1211, which provides the guidelines in the arrest and detention of persons
engaged in, or charged with, the crimes mentioned in Proclamation No. 2045, charged with, the crimes
mentioned contemplates of three situations when an arrest can be made, to wit:

1. The arrest and detention effected by virtue of a warrant issued by a judge;

2. The arrest and detention effected by a military commander or the head of a law enforcement
agency after it is determined that the person or persons to be arrested would probably escape or
commit further acts which would endanger public order and safety. After the arrest, however, the case
shall be immediately referred to the city or provincial fiscal or to the municipal, city, circuit, or district
judge for preliminary examination or investigation who, if the evidence warrants, shall file the
corresponding charges and, thereafter, we a warrant of arrest;

3. The military commander or the head of the law enforcement agency may apply to the President
thru the Minister of National Defense, for a Presidential Commitment Order under the following
circumstances:

(a) When resort to judicial process is not possible or expedient without endangering public order
and safety; or

(b) When the release on bail of the person or persons already under arrest by virtue of a judicial
warrant would endanger said public order and safety.

Petitioners appear to place entire reliance on paragraphs 1 and 2 of LOI No. 1211, ignoring paragraph 3
of LOI No. 1211, which provides:

3. The above notwithstanding, the military commander or the head of the law enforcement agency
may apply to the President thru the Minister of National Defense, for a Presidential Commitment Order
covering the person or persons believed to be participants in the commission of the crimes referred to in
paragraph 1 under the following circumstances:

(a) When resort to judicial process is not possible or expedient without endangering public order
and safety; or

(b) When the release on bail of the person or persons already under arrest by virtue of a judicial
warrant would endanger said public order and safety.

The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged necessity of judicial
warrant before a person may be arrested and detained is not well-founded. Neither is the contention
that paragraph 3 of LOI 1211 applies only when judicial process is not possible. This is a narrow and
constricted interpretation of LOI 1211 when viewed in its entirety. Even in instances when a resort to
judicial process is possible, where, in the judgment of the President, a resort thereto would not be
expedient because it would endanger the public order or safety, a PCO is justified. So, too, when release
on bail in the ordinary judicial process will invite the same danger.

By its very nature, and clearly by its language, LOI 1211 is a mere directive of the President as
Commander-in-Chief of the Armed Forces of the Philippines to his subordinates or implementing officers
for the ultimate objective of providing guidelines in the arrest and detention of the persons covered by
Presidential Proclamation No. 2045. The purpose is "to insure protection to individual liberties without
sacrificing the requirements of public order and safety and the effectiveness of the campaign against
those seeking the forcible overthrow of the government and duty constituted authorities. " LOI 1211
does not, in any manner, limit the authority of the President to cause the arrest and detention of
persons engaged in, or charged with the crimes or offenses mentioned in said Proclamation in that he
(President) would subject himself to the superior authority of the judge who, under normal judicial
processes in the prosecution of the common offenses, is the one authorized to issue a judicial warrant
after a preliminary investigation is conducted with a finding of probable cause. Those who would read
such an intention on the part of the President in issuing LOI 1211 seems to do so in their view that LOI
forms part of the law of the land under the 1976 amendment of the Constitution. 10 They would then
contend that a PCO issued not in compliance with the provisions of the LOI would be an illegality and of
no effect.

To form part of the law of the land, the decree, order or LOI must be issued by the President in the
exercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976 amendments
to the Constitution, whenever in his judgment, there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasan Pambansa or the regular National Assembly fails or is unable
to act adequately on any matter for any reason that in his judgment requires immediate action. There
can be no pretense, much less a showing, that these conditions prompted the President to issue LOI
1211. Verily, not all LOI issued by the President should be dignified into forming part of the law of the
land.

In the event then that the judge believes no warrant shall issue, the President, under Presidential
Proclamation No. 2045 and Letter of Instruction No. 1211, is not bound by such finding, as explicitly
provided in paragraph 2 of LOI 1211. That the President avails of the facilities of the judicial machinery,
as is the clear intent of LOI 1211, to aid him in exercising his power to restrain personal liberty, as
dictated by the necessities and exigencies of the emergency, does not indicate any intention on his part
to renounce or to allow even mere curtailment of his power such that the judicial process will thereupon
take its normal course, under which the detainees or accused would then be entitled to demand their
right of due process, particularly in relation to their personal liberty. 11 The issuance of the PCO by the
President necessarily constitutes a finding that the conditions he has prescribed in LOI 1211 for the
issuance of that PCO have been met, and intends that the detention would be pursuant to the executive
process incident to the government campaign against the rebels, subversives and dissidents waging a
rebellion or insurrection. The ruling in the Nava vs. Gatmaitan case,* as above intimated, must have
shown him that to prosecute the offense through the judicial process of forthwith instead of deferring it,
would neither be wise nor expedient if he were to deal effectively with the grave emergency at hand.

What has been said above shows the need of reexamining the Lansang case with a view to reverting to
the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905 decision, and Montenegro vs. Castaneda, 91 Phil. 882
(1952), that the President's decision to suspend the privilege of the writ of habeas corpus is "final and
conclusive upon the courts, and all other persons." This well-settled ruling was diluted in the Lansang
case which declared that the "function of the Court is merely to check — not to supplant — the
Executive, or ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction
not to exercise the power vested in him or to determine the wisdom of his act." Judicial interference was
thus held as permissible, and the test as laid down therein is not whether the President acted correctly
but whether he acted arbitrarily. This would seem to be pure semanticism, if We consider that with
particular reference to the nature of the actions the President would take on the occasion of the grave
emergency he has to deal with, which, as clearly indicated in Section 9, Art. VII of the Constitution
partakes of military measures, the judiciary can, with becoming modesty, ill afford to assume the
authority to check or reverse or supplant the presidential actions. On these occasions, the President
takes absolute command, for the very life of the Nation and its government, which, incidentally, includes
the courts, is in grave peril. In so doing, the President is answerable only to his conscience, the people
and to God. For their part, in giving him the supreme mandate as their President, the people can only
trust and pray that, giving him their own loyalty with utmost patriotism, the President will not fail them.

In his separate opinion in the Lansang case, then Justice Fernando, now our learned Chief Justice, went
along with the proposition that the decision of the Executive in the exercise of his power to suspend the
privilege of the writ of habeas corpus is his alone, and in his own language, is "ordinarily beyond the ken
of the Courts." This is so, as the Founding Fathers must have felt that in the particular situations at hand,
the Executive and the Judiciary should maintain a mutually deferential attitude. This is the very essence
of the doctrine of "political question, " as determining the justiciability of a case. The wisdom of this
concept remains well-recognized in advanced constitutional systems. To erase it from our own system as
seems to be what was done in the Lansang case, may neither be proper nor prudent. A good example
could be given in the exercise of the presidential power of pardon which is beyond judicial review,
specially under the new Constitution where the condition that it may be granted only after final
conviction has been done away with.

True, the Constitution is the law "equally in war and in peace," 12 as Chief Justice Fernando cited in his
brilliant separate opinion in the same Lansang case. Precisely, it is the Constitution that gives the
President specific "military power" in times of warlike conditions as exist on the occasion of invasion,
insurrection or rebellion. Both power and right are constitutionally granted, with the difference that the
guarantee of the right to liberty is for personal benefit, while the grant of the presidential power is for
public safety. Which of the two enjoys primacy over the other is all too obvious. For the power is
intended as a limitation of the right, in much the same way as individual freedom yields to the exercise
of the police power of the State in the interest of general welfare. The difference again is that the power
comes into being during extreme emergencies the exercise of which, for complete effectiveness for the
purpose it was granted should not permit intereference, while individual freedom is obviously for full
enjoyment in time of peace, but in time of war or grave peril to the nation, should be limited or
restricted. In a true sense then, our Constitution is for both peacetime and in time of war; it is not that in
time of war the Constitution is silenced. The Founding Fathers, with admirable foresight and vision,
inserted provisions therein that come into play and application in time of war or similar emergencies. So
it is that, as proclaimed by the Constitution, the defense of the State is a prime duty of government.
Compulsory military service may be imposed, certainly a mandate that derogates on the right to
personal liberty. It, therefore, becomes self-evident that the duty of the judiciary to protect individual
rights must yield to the power of the Executive to protect the State, for if the State perishes, the
Constitution, with the Bill of Rights that guarantees the right to personal liberty, perishes with it.

In times of war or national emergency, the legislature may surrender a part of its power of legislation to
the President. 13 Would it not be as proper and wholly acceptable to lay down the principle that during
such crises, the judiciary should be less jealous of its power and more trusting of the Executive in the
exercise of its emergency powers in recognition of the same necessity? Verily, the existence of the
emergencies should be left to President's sole and unfettered determination. His exercise of the power
to suspend the privilege of the writ of habeas corpus on the occasion thereof, should also be beyond
judicial review. Arbitrariness, as a ground for judicial inquiry of presidential acts and decisions, sounds
good in theory but impractical and unrealistic, considering how well-nigh impossible it is for the courts to
contradict the finding of the President on the existence of the emergency that gives occasion for the
exercise of the power to suspend the privilege of the writ. For the Court to insist on reviewing
Presidential action on the ground of arbitrariness may only result in a violent collision of two jealous
powers with tragic consequences, by all means to be avoided, in favor of adhering to the more desirable
and long-tested doctrine of "political question" in reference to the power of judicial review. 14

Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the reexamination
of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro vs. Castaneda.

Accordingly, We hold that in times of war and similar emergency as expressly provided in the
Constitution, the President may suspend the privilege of the writ of habeas corpus, which has the effect
of allowing the Executive to defer the prosecution of any of the offenses covered by Proclamation No.
2045, including, as a necessary consequence, the withholding for the duration of the suspension of the
privilege, of the right to bail. The power could have been vested in Congress, instead of the President, as
it was so vested in the United States for which reason, when President Lincoln himself exercised the
power in 1861, Chief Justice Taney of the U.S. Supreme Court expressed the opinion that Congress alone
possessed this power under the Constitutional., 15 Incidentally, it seems unimaginable that the judiciary
could subject the suspension, if decreed through congressional action, to the same inquiry as our
Supreme Court did with the act of the President, in the Lansang case, to determine if the Congress acted
with arbitrariness.

We further hold that under LOI 1211, a Presidential Commitment Order, the issuance of which is the
exclusive prerogative of the President under the Constitution, may not be declared void by the courts,
under the doctrine of "political question," as has been applied in the Baker and Castaneda cases, on any
ground, let alone its supposed violation of the provision of LOI 1211, thus diluting, if not abandoning the
doctrine of the Lansang case. The supreme mandate received by the President from the people and his
oath to do justice to every man should be sufficient guarantee, without need of judicial overseeing,
against commission by him of an act of arbitrariness in the discharge particularly of those duties imposed
upon him for the protection of public safety which in itself includes the protection of life, liberty and
property. This Court is not possessed with the attribute of infallibility that when it reviews the acts of the
President in the exercise of his exclusive power, for possible fault of arbitrariness, it would not itself go so
far as to commit the self-same fault.

Finally, We hold that upon the issuance of the Presidential Commitment Order against herein petitioners,
their continued detention is rendered valid and legal, and their right to be released even after the filing
of charges against them in court, to depend on the President, who may order the release of a detainee
or his being placed under house arrest, as he has done in meritorious cases.

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

SO ORDERED.

Guerrero, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

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

Aquino, J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring:

In the result with qualification primarily on the respect that must be accorded the constitutional right to
bail once a case is flied and dissenting as to the overruling of Lansang v. Garcia:

MAKASIAR, J., concurring:

Concuring in the result and in overruling the Lansang case.

ABAD SANTOS, J., concurring:

In the result and in overruling Lansang. I reserve my right on the question of bail.

FERNANDO, C.J., concurring:

Concurring in the result with qualification primarily on the respect that must be accorded the
constitutional right to bail once a case is filed and dissenting as to the overruling of Lansang v. Garcia.

It does not admit of doubt that the question posed in this petition for the writ of habeas corpus, and in
other similar petitions for that matter, is impressed with significance that calls for the highest degree of
care and circumspection. The result arrived at by the Court is that once a presidential commitment order
is issued, the detention is rendered valid and legal, the right to be released of the person detained even
after the filing of charges being dependent on the President "who may order the release of a detainee or
his being placed under house arrest, as he has done in meritorious cases." 1 The exhaustive opinion of
the Court penned by Justice de Castro likewise re-examines the Lansang doctrine 2 which ruled that the
suspension of the privilege of the writ of habeas corpus raises a judicial rather than a political question
and reverts to the principle announced in the earlier cases of Barcelon v. Baker 3 and Montenegro v.
Castañeda, 4 both of which held that the question raised is political in character.

I concur in the ruling that while as a general rule preventive detention is an obstacle to judicial inquiry,
this Court is empowered where compelling reasons exist to inquire into the matter. Moreover, the
judiciary once a case has been filed has jurisdiction to act on a petition for bail. I dissent insofar as the
decision overrules Lansang v. Garcia.

1. Petitioners in their application for the writ of liberty assert an infringement of a right that finds
shelter in the fundamental law. This Court, both in normal times and under emergency conditions, is not
susceptible to the accusation that it has not accorded the most careful study to a plea of such character.
Petitioners were heard and their cases decided. In addition to Lansang, People v. Ferrer, 5 Aquino Jr. v.
Ponce Enrile 6 and Aquino Jr. v. Military Commission No. 2 7 may be cited. This Tribunal then has not
been insensible to its duty to render fealty to the applicable mandates of the Constitution. That is to be
true to the primordial concept first announced in the landmark decision of Marbury v. Madison, 8 the
opinion being rendered by the illustrious Chief Justice Marshall, enunciating the principle of judicial
review. Our Constitution is quite clear on the matter. So it was held in Angara v. Electoral Tribunal, 9 the
first case of transcendental importance under the 1935 Charter. It is quite manifest that judicial review is
not only a power but a duty. 10

2. Thus the judiciary can be appealed to and in appropriate cases, annul executive or legislative
acts. For as so often stressed, "the Constitution is not only law, but a higher law, to which other law must
bow." 11 Professor Black went on to state: "Here, I think, we are laboring the obvious. The superior
status of the Constitution is clearer even than its standing as law. But if it is of superior status, and if it is
law, then it is law of a superior status. Again, the important thing is not whether some flaw could be
found in the logic by which this was established. The logic of human institutions is a logic of probability.
The important thing is that this concept of the superior status of the Constitution as law very early
became and has since continued to be a standard part of the way in which the American lawyer and
judge and citizen look at their government." 12 This is not to deny the possibility of judicial interference
with policy formulation, better left to the political branches. It is an entirely different matter of course
where the question is one of liberty.

3. An inquiry into the validity of executive or legislative act has been fitly characterized as both
awesome and delicate. Nonetheless, for the judiciary, there is no choice. To repeat, it is a duty to be
performed. This is so especially where the writ of habeas corpus has been invoked. It is then incumbent
on a court to pass on the legality of the detention. As I had occasion to state in my separate opinion in
Aquino Jr. vs. Enrile: 13 "This Court has to act then. The liberty enshrined in the Constitution, for the
protection of which habeas corpus is the appropriate remedy, imposes that obligation. Its task is clear. It
must be performed. That is a trust to which it cannot be recreant. Whenever the grievance complained
of is deprivation of liberty, it is its responsibility to inquire into the matter and to render the decision
appropriate under the circumstances. Precisely, a habeas corpus petition calls for that response." 14 It
cannot be overemphasized that the writ of habeas corpus, as a constitutional right, it, for eminent
commentators, protean in scope. A reference to the opinion of the Court in Gumabon v. Director of
Bureau of Prisons 15 may not be amiss. Thus: "The writ imposes on judges the grave responsibility of
ascertaining whether there is any legal justification for a deprivation of physical freedom. Unless there
be such a showing, the confinement must thereby cease. " 16 It continues: "Rightly then could Chafee
refer to the writ as 'The most important human rights provision' in the fundamental law. Nor is such
praise unique. Cooley spoke of it as 'One of the principal safeguards to personal liberty.' For Willoughby,
it is 'the greatest of the safeguards erected by the civil law against arbitrary and illegal imprisonment by
whomsoever detention may be exercised or ordered.' Burdick echoed a similar sentiment, referring to it
as 'One of the most important bulwarks of liberty.' Fraenkel made it unanimous, for to him. 'Without it
much else would be of no avail.' Thereby the rule of law is assured. A full awareness of the potentialities
of the writ of habeas corpus in the defense of liberty coupled with its limitations may be detected in the
opinions of former Chief Justices Arellano, Avancena, Abad Santos, Paras, Bengzon and [Chief Justice
Concepcion]. It fell to Justice Malcolm's lot, however to emphasize quite a few times the breadth of its
amplitude and of its reach."17

4. So it is in the United States. As so well put by Justice Brennan in Fay v. Noia: 18 "We do well to
bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-
American jurisprudence: 'the most celebrated writ in English Law,' 3 Blackstone Commentaries 129. It is
'a writ antecedent to statute, and throwing its root deep into the genius of our common law * * *. It is
perhaps the most important writ known to the constitutional law of England, affording as it does a swift
and imperative remedy in all cases of illegal restraint and confinement. It is of immemorial antiquity, an
instance of its use occurring in the thirty-third year of Edward I. 'Secretary of State for Home Affairs v.
O'Brien [1923] AC 603, 609 (HL) Received into our own law in the colonial period, given explicit
recognition in the Federal Constitution, Art. I, Sec. 9, cl. 2, incorporated in the first grant of federal court
jurisdiction, Act of September 24, 1978, c 20, sec. 14, 1 State 81, 82, habeas corpus was earlier
confirmed by Chief Justice John Marshall to be a 'Great constitutional privilege.' Ex parte Bollman and
Swartout (US) 4 Cranch 75, 95, 2L ed 554, 561. Only two Terms ago this Court had occasion to reaffirm
the high place of the writ in our jurisprudence: 'We repeat what has been so truly said of the federal
writ: "there is no higher duty than to maintain it unimpaired," Bowen v. Johnston, 306 US 19, 26, 83 L ed
455, 461, 59 S Ct 442 (1939), and unsuspended, save only in the cases specified in our Constitution.'
Smith v. Bennett, 365 US 708, 713, 6 1 ed 2d 39, 43, 81 s Ct. 895. " 19

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

6. The President as commander-in-chief may call out the armed forces to prevent or suppress
lawless violence, invasion, insurrection, or rebellion and in case of invasion, insurrection, or rebellion, or
imminent danger thereof, when the public safety requires it, "may suspend the privilege of the writ of
habeas corpus, or place the Philippines or any part thereof under martial law."23 There are thus three
alternatives which may be availed to meet a grave public danger to the security of the state. As pointed
out by Chief Justice Concepcion in Lansang, prior to the suspension of the privilege of the writ in 1971,
the armed forces had been called out, but such a move "proved inadequate to attain the desired result.
Of the two (2) other alternatives, the suspension of the privilege is the least harsh." 24 Even if only the
first alternative were resorted to, the executive could still exercise the power of preventive detention.
Moyer v. Peabody, 25 decided by the American Supreme Court, the opinion being penned by Justice
Holmes, may be cited. According to the statement of the facts of that case, "it appeared that the
governor had declared a county to be in a state of insurrection, had called out troops to put down the
trouble, and had ordered that the plaintiff should be arrested as a leader of the outbreak, and should be
detained until he could be discharged with safety, and that then he should be delivered to the civil
authorities, to be dealt with according to law." 26 On those facts the American Supreme Court held that
preventive detention was allowable, the test of its validity being one of good faith. The state governor
then could "make the ordinary use of the soldiers to that end; that he may kill persons who resist, and,
of course, that he may use the milder measure of seizing the bodies of those whom he considers to
stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of
precaution, to prevent the exercise of hostile power. So long as such arrests are made in good faith and
in the honest belief that they are needed in order to head the insurrection off, the governor is the final
judge and cannot be subjected to an action after he is out of office, on the ground that he had not
reasonable ground for his belief." 27 The last paragraph of Justice Holmes opinion was even more
emphatic: "When it comes to a decision by the head of the state upon a matter involving its life, the
ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger
warrants the substitution of executive process for judicial process. See Keely v. Sanders, 99 U.S. 441, 446,
25 L. ed. 327, 328. This was admitted with regard to killing men in the actual clash of arms; and we think
it obvious, although it was disputed, that the same is true of temporary detention to prevent
apprehended harm. As no one would deny that there was immunity for ordering a company to fire upon
a mob in insurrection, and that a state law authorizing the governor to deprive citizens of life under such
circumstances was consistent with the 14th Amendment, we are of opinion that the same is true of a
law authorizing by implication that was done in this case." 28 Nonetheless, while preventive detention is
a proper measure to cope with the danger arising from the insurrection or rebellion, it may continue for
such length of time as to make it punitive in character. If such were the case, I am not prepared to yield
concurrence to the view that this Court is devoid of the power in a habeas corpus proceeding to inquire
into the legality of the detention. As to when such a stage is reached cannot be set forth with precision.
The test would be an appraisal of the environmental facts of each case. This is not to deny that the
presumption must be in favor not only of the good faith characterizing the presidential action but of the
absence of any arbitrary taint in so ordering preventive detention. It is out of excess of caution and due
to the belief that habeas corpus as a writ of liberty should not be unnecessarily curtailed that I feel
compelled to qualify my concurrence in that respect.

7. Nor is this all. Once a case is filed, the party detained may avail himself of the right to bail. If
there be such a petition, the court has jurisdiction to grant or to deny bail in accordance with the
constitutional provision. 29 Inasmuch as the return to the writ filed by the Solicitor General states that a
warrant of arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by the Municipal
Court of Bayombong, for illegal possession of firearm and ammunition, then clearly she has a right to
invoke such right, notwithstanding the suspension of the privilege of the writ. So I did argue as counsel in
Hernandez v. Montesa, 30 where a majority of this Court with one vote lacking to make their conclusion
doctrinal agreed with such submission. There was adherence to such a view in my separate opinions in
Lansang 31 and in Buscayno v. Enrile, 32 I do again and to that extent dissent.

8. It may be worthwhile to touch briefly on the exercise of power of preventive detention in other
jurisdictions. The retired Lord President of the Federal Court of Malaysia Tun Mohamed Suffian in his
work on the Malaysian constitution, spoke of the emergency powers of the executive, the Yang
Dipertuan Agung in this wise: " If the Yang Dipertuan Agung (acting on Cabinet advice) is satisfied that a
grave emergency exists whereby the security or economic life of the Federation or any part thereof is
threatened, article 150 empowers him to issue a proclamation of emergency. He has done so thrice: first,
to meet the emergency caused by Indonesian confrontation, secondly, to meet the emergency caused by
the political crisis arising out of the position of the Chief Minister of Sarawak and, thirdly, to meet the
emergency caused as a result of the violence that erupted on 13th May, 1969. (The 1948-1960
emergency was proclaimed under pre-independence law, not under the constitution). If a proclamation
of emergency is issued when Parliament is not sitting, the Yang Dipertuan Agung must summon
Parliament as soon as may be practicable. Until both Houses of Parliament are sitting, he may
promulgate ordinances having the force of law, if satisfied that immediate action is required." 33 By
virtue of such competence, preventive detention may be ordered. 34 The power of preventive detention
is likewise recognized in India. According to Professor Jain, in a leading article, it "prevails in many
democratic countries and in some form or other, at one time or other, each democratic country has
taken recourse to preventive detention, especially during the war period." 35 He mentioned the United
States Internal Security Act enacted by its Congress in 1950 for emergency detention "during an
emergency of war, invasion or domestic insurrection of a person about whom there is a reasonable
ground to believe that he would probably engage in acts of sabotage or espionage. The U.S. Constitution
also provides for suspension of habeas corpus during rebellion or invasion if public safety so requires."
36 He likewise referred to England, citing Regulation 14B of the Defense of Realm Act Regulations, 1914,
during World War I and Regulation 18B of the Defense Regulations during World War II which according
to him led to the celebrated case of Liversidge v. Anderson. 37 Then he turned to his own country: "In
India, because of unstable law and order situation, preventive detention has been in vogue since its
independence in 1947. After the commencement of the Constitution, Parliament enacted the Preventive
Detention Act, 1950, to lay down a legal framework for preventive detention on certain grounds. The
present day law for the purpose is the Maintenance of Internal Security Act, 1971. A salient feature of
the law of preventive detention in India has been to confer a very broad discretion on the administrative
authority to order preventive detention of a person in certain circumstances." 38 He spoke of the
relevant constitutional provisions having a bearing on preventive detention: "A law for preventive
detention can be made by Parliament exclusively under entry 9, List 1, for reasons connected with
'defensee', 'foreign affairs' or the 'security of India.' Further, under entry 3, List 111, Parliament and the
State Legislatures can concurrently make a law for preventive detention for reasons connected with the "
security of a State', maintenance of public order,' or 'maintenance of supplies and services essential to
the community.' Parliament thus has a wide legislative jurisdiction in the matter as it can enact a law of
preventive detention for reasons connected with all the six heads mentioned above. The Preventive
Detention Act, 1950, and now the Maintenance of Internal Security Act, 1971, have been enacted by
Parliament providing for preventive detention for all these six heads." 39 For him the law of preventive
detention in India "has therefore been too much administrative-ridden and the scope of judicial review
has been very much limited." 40 He made a careful study of the cases on preventive detention in India.
As he pointed out, "the range and magnitude of administrative control over the individual's personal
liberty is very vast, and the range of judicial control is very restrictive, as the basic question, whether a
person should be detained or not on the facts and circumstances of the case, hes within the scope of
administrative discretion and beyond judicial review." 41 Nonetheless, the Supreme Court of India, as he
stressed, "in the interest or maintaining constitutionalism," has been able to take "a somewhat broad
view of its restricted powers, and has given whatever relief it can to the detained persons." 42 For me
that approach has much to recommend it. This is not to deny that in the event there is a
misapprehension as to the actual facts that led to the preventive detention, the plea for remedial action
should, in the first instance, be addressed to the President. Very likely, there will be an affirmative
response. Even then, the assurance to a party feeling aggrieved that there could still be resort to judicial
review, even if utilized only in rare and exceptional cases, may conduce to a deeper sense of loyalty to
the existing constitutional order on the part of the misguided or disaffected individuals. Hence, to
repeat, this qualified concurrence on my part.

9. The opinion of the Court, however, did not stop at dismissing the petition on the ground that the
issuance of a presidential commitment order validates the preventive detention of petitioners. It went
farther by reexamining the unanimous ruling in Lansang to the effect that the suspension of the privilege
of the writ of habeas corpus raises a judicial rather than a political question and holding that it is no
longer authoritative. With due respect, I cannot agree to such a conclusion. In the first place, there was
no need to go that far. For me, at least, the rationale that this Court must accord deference to a
presidential committment order suffices for the decision of this case. Nor would I limit my dissent on
that ground alone. It is for me, and again I say this with due respect, deplorable and unjustifiable for this
Court to turn its back on a doctrine that has elicited praise and commendation from eminent scholars
and jurists here and abroad.

10. That is easily understandable. The learned, comprehension and unanimous Lansang opinion
penned by Chief Justice Concepcion concurred in by all the Justices, 43 to my mind, explains with lucidity
and force why the question is judicial rather than political. Thus: "Indeed, the grant of power to suspend
the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under
the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill
of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the
former in the negative, evidently to stress its importance, by providing that '(t)he privilege of the writ of
habeas corpus shall not be suspended * * *.' It is only by way of exception that it permits the suspension
of the privilege 'in cases of invasion, insurrection, or rebellion'- or, under Art. VII of the Constitution,
'imminent danger thereof when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such suspension shall exist.' For from being full
and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and
restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as
regards the time when and the place where it may be exercised. These factors and the aforementioned
setting or conditions mark, establish and define the extent, the confines and the limits of said power,
beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental
Law upon the legislative department, adherence thereto and compliance therewith may, within proper
bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon
would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such
a wasteful exercise in futility." 44 The then Chief Justice continued: "Much less may the assumption be
indulged in when we bear in mind that our political system is essentially democratic and republican in
character and that the suspension of the privilege affects the most fundamental element of that system,
namely, individual freedom. Indeed, such freedom includes and connotes, as well as demands, the right
of every single member of our citizenry to freely discuss and dissent from, as well as criticize and
denounce, the views, the policies and the practices of the government and the party in power that he
deems unwise, improper or inimical to the commonwealth, regardless of whether his own opinion is
objectively correct or not. The untrammelled enjoyment and exercise of such right- which, under certain
conditions, may be a civic duty of the highest order- is vital to the democratic system and essential to its
successful operation and wholesome growth and development." 45

11. One of the merits of the ponencia of Chief Justice Concepcion is that it is infused with a sense of
realism. These are his words: "Manifestly, however, the liberty guaranteed and protected by our Basic
Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and, hence,
within the framework of the social order established by the Constitution and the context of the Rules of
Law. Accordingly, when individual freedom is used to destroy that social order, by means of force and
violence, in defiance of the Rule of Law- such as by rising publicly and taking arms against the
government to overthrow the same, thereby committing the crime of rebellion there emerges a
circumstance that may warrant a limited withdrawal of the aforementioned guarantee or protection, by
suspending the privilege of the writ of habeas corpus, when public safety requires it. Although we must
be forewarned against mistaking mere dissent-no matter how emphatic or intemperate it may be-fore
dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less-refuse-when the
existence of such rebellion or insurrection has been fairly established or cannot reasonably be denied-to
uphold the finding of the Executive thereon, without, in effect, encroaching upon a power vested in him
by the Supreme Law of the land and depriving him, to this extent, of such power, and, therefore, without
violating the Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize."
46
12. After which this Court, as set forth in the Lansang opinion, considered "the precise nature" of its
function: "Article VII of the Constitution vests in the Executive the power to suspend the privilege of the
writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is supreme, as regards the suspension of
the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested in the Judicial Department, which, in
this respect, is, in turn, constitutionally supreme." 47 Further: "In the exercise of such authority, the
function of the Court is merely to check-not to supplant-the Executive, or to ascertain merely whether he
has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or
to determine the wisdom of his act. To be sure, the power of the Court to determine the validity of the
contested proclamation is far from being Identical to, or even comparable with, its power over ordinary
civil or criminal cases elevated thereto by ordinary appeal from inferior courts, in which cases the
appellate court has all of the powers of the court of origin." 48 It is clear the competence of this Court to
pass upon the validity of the suspension of the privilege of the writ is confined within limits that
preclude the assumption of power that rightfully belongs to the Executive. There would then be, to my
mind, no sufficient Justification to retreat from a position that assures judicial participation on a matter
of momentous consequence. Moreover, to the extent that such a move has had the benefit of judicial
appraisal, and thereafter approval, to that extent there may be less valid opposition and hopefully
greater understanding of why such a step had to be taken.

13. With Lansang overruled, the doctrine that the suspension of the privilege of the writ announced
in Barcelon v. Baker 49 and Montenegro v. Castañeda 50 will be revived. This for me is unfortunate. The
Montenegro decision, as I had occasion to state "owed its existence to the compulsion exerted by
Barcelon v. Baker, a 1905 decision. This Court was partly misled by an undue reliance in the latter case on
what it considered to be authoritative pronouncements from such illustrious American jurists as
Marshall, Story, and Taney. That is to misread what was said by them. This is most evident in the case of
Chief Justice Marshall, whose epochal Marbury v. Madison was cited. Why that was so is difficult to
understand. For it speaks to the contrary. It was by virtue of this decision that the function of judicial
review owes its origin notwithstanding the absence of any explicit provision in the American Constitution
empowering the courts to do so. Thus: 'It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule to particular cases, must of necessity
expound and interpret that rule. If two laws conflict with each other, the courts must decide on the
operation of each. So if a law be in opposition to the constitution; if both the law and the constitution
apply to a particular case, so that the court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the constitution, disregarding the law; the court must
determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If,
then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the
legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.'"
51 The opinion went on to say: "Nor is the excerpt from Justice Story, speaking for the United States
Supreme Court, in Martin v. Mott, as made clear in the opinion of the Chief Justice, an authority directly
in point. There, a militiaman had been convicted of failing to respond to a call, made under the Act of
1795, to serve during the War of 1812. His property was taken to satisfy the judgment. He brought an
action of replevin. The American Constitution empowers its Congress 'to provide for calling forth the
Militia' in certain cases, and Congress did provide that in those cases the President should have authority
to make the call." All that Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American President to decide whether
the exigency has arisen. In stating that such power was exclusive and thus had a conclusive effect, he
relied on the language employed, impressed with such a character. The constitutional provision on the
suspension of the privilege of the writ is, as shown, anything but that. Chief Justice Taney in Luther v.
Borden, likewise had to deal with a situation involving the calling out of the militia. As a matter of fact,
an eminent commentator speaking of the two above decisions had this apt observation: "The common
element in these opinions would seem to be a genuine judicial reluctance to speak in a situation where
the voice of the Court, even if heard, could not have any effect. More than this, both Story and Taney
seem to share the suspicion, unusual in them, that under a popular form of government there are
certain questions that the political branches must be trusted to answer with finality. What was said next
is even more pertinent. Thus: 'It would be dangerous and misleading to push the principles of these
cases too far, especially the doctrine of "political questions" as implied in Luther v. Borden. Given the
opportunity to afford a grievously injured citizen relief from a palpably unwarranted use of presidential
or military power, especially when the question at issue falls in the penumbra between the "political"
and the "justiciable", the Court will act as if it had never heard of this doctrine and its underlying
assumption that there are some powers against which the judiciary simply cannot be expected to act as
the last line of defense.' It would thus seem evident that support for the hitherto prevailing Montenegro
ruling was rather frail. Happily, with our decision, it is no longer capable of the mischief to which it does
lend itself of an undue diminution of judicial power to the prejudice of constitutional rights." 52

14. An opinion of a court, especially this Tribunal, should not ignore the environmental facts which
gave rise to a litigation where the issues arise from problems inseparable from national security. There is,
in addition, the need to take into consideration the pressure of contemporary events. For as has so often
been stressed, judicial process does not take place in a social void. The questions before the Court are to
be viewed with full awareness of the consequences attendant to the decision reached. As so tersely
expressed by Justice Tuason in Araneta v. Dinglasan:" 53 "We test a rule by its results." 54 More often
than not especially during times of stress, it is inescapable that efforts be made to reconcile time-tested
principles to contemporary problems. The judiciary is called upon to do its part. There is wisdom in these
words of Justice Tuason from the same opinion: "The truth is that under our concept of constitutional
government, in times of extreme perils more than in normal circumstances, 'The various branches,
executive, legislative, and judicial,' given the ability to act, are called upon 'to perform the duties and
discharge the responsibilities committed to them respectively.'" 55 To repeat, I accord the fullest respect
to the mode and manner in which my brethren performed their duty and discharged their responsibility
in passing upon the transcendental question raised in this petition. With the basic premise of robust
concern for individual rights to which I have been committed,however, I have no choice except to vote
the way I did, even if for those whose opinions I value conformity with the hitherto unquestioned
verities may at times prove to be less than adequate to meet the exigencies of the turbulent present.

TEEHANKEE, J., dissenting:

I am constrained to dissent from the all-encompassing scope of the main opinion of Mr. Justice de Castro
which would overturn the landmark doctrine of Lansang vs. Garcia 1 which upheld the Supreme Court's
authority to inquire into the existence of factual bases for the President's suspension of the privilege of
the writ of habeas corpus in order to determine the constitutional sufficiency thereof and would revert
to the retrogressive and colonial era ruling of Barcelon vs. Baker 2 and Montenegro vs. Castañeda 3 that
the President's decision to so suspend the privilege of the writ "is final and conclusive upon the courts
and all other persons," and would further deny the right to bail even after the filing of charges in court to
persons detained under Presidential Commitment Orders.

This case, as in other like cases, focuses on the grievances that persons detained or charged for the
crimes of insurrection, rebellion, subversion, conspiracy or proposal to commit such crimes, invariably
bring to this Court. They complain, as petitioners do here, of being arrested without any warrant of
arrest; of being informed of purported telegrams concerning the issuance of a Presidential Commitment
Order PCO authorizing their arrest and detention, but that they are not given a copy of such PCO nor
notified of its contents, raising doubts whether such PCO has in fact been issued; of being kept in
isolation or transferred to so-called "safehouses" and being denied of their constitutional right to
counsel and to silence; of prolonged detention without charges; "of a seeming deliberate and concerted
effort by respondents to conceal from counsel and relatives the detainees' place of detention, raising the
apprehension that respondents are using force, violence, threat, intimidation and other means which
vitiate free will to obtain confessions and statements from the detainees in violation of their
constitutional rights;" and of their counsel and families undergoing great difficulties in locating or having
access to them (main opinion at p. 3).

The State through the Solicitor General on the other hand invariably denies all such charges and submits
affidavits of the arresting officers and detention custodian that detainees are afforded decent and
humane treatment, further countering that such claims are merely calculated to arouse sympathy and as
propaganda against the Government and its institutions.
In many such cases, however, the Court in issuing the writ of habeas corpus requiring respondents to
make a return of the writ includes a resolution, in recognition of the detainees' constitutional rights, "to
allow counsel for petitioners to visit and confer with the detainee(s) in an atmosphere of confidentiality
consistent with reasonable security measures which respondents may impose." 4 In other cases where
respondents military officials have allegedly denied having in their custody the person(s) detained, the
Court has issued its resolution "on the assumption that the detained person is in the custody of
respondents, that there be due observance and respect of his right to counsel and other constitutional
rights by respondents." 5

Respondents' return through the Solicitor General in the case at bar states that the detainees are all
detained by virtue of a Presidential Commitment Order issued on July 12, 1982 (several days after their
arrest without warrant on July 6 and 7, 1982) and that corresponding charges against the detainees were
filed in court and before the Acting Provincial Fiscal of Nueva Viscaya where they are pending. As to the
detainee Dr. Aurora Parong, the return further states that a warrant of arrest was issued against her on
August 4, 1982 by the Municipal Court of Bayombong for illegal possession of a firearm and ammunition.
As in all other returns in similar cases, the Solicitor General asserts "that the privilege of the writ of
habeas corpus is unavailing as to them. Courts cannot inquire into the validity and cause of their arrest
and detention" by virtue of the continued suspension, under Presidential Proclamation No. 2045 (which
proclaimed the termination of martial law in the Philippines), of the privilege of the writ of habeas
corpus in the two autonomous regions in Mindanao and in all other places with respect to persons
detained for suspected involvement in crimes related to national security.

The main opinion confronts the question of whether the issuance of a Presidential Commitment Order
(PCO) has provided the legal basis of the detention of herein detainees following their arrest for
Proclamation No. 2045-covered offenses," and remarks that "this question has to be set at rest promptly
and decisively, if we are to break a seemingly continuous flow of petitions for habeas corpus, as what
had been seen lately of such petitions being filed in this Court one after the other.

I. I submit that the resolution of the issues in this case does not call for the all-encompassing ruling
in the main opinion with its sweeping scope that would reexamine and overturn the benchmark ruling in
Lansang. The limited suspension of the privilege of the writ of habeas corpus in the two instances
provided under Presidential Proclamation No. 2045 has not been challenged in this case. So, what's the
point of an advance declaration that all checks and barriers are down? Lansang recognizes the greatest
deference and respect that is due the President's determination for the necessity of suspending the
privilege of the writ of habeas corpus. But Lansang sets at the same time the constitutional confines and
limits of the President's power to suspend the privilege of the writ and enunciates the constitutional
test, not of the correctness of the President's decision, but that the President's decision to suspend the
privilege not suffer from the constitutional infirmity of arbitrariness. 6 Thus, after laying the premise
"that every case must depend on its own circumstances," the Court therein thru then Chief Justice
Roberto Concepcion held that:

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority
conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is
limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an
exception thereto. What is more, it postulates the former in the negative, evidently to stress its
importance, by providing that '(t)he privilege of the writ of habeas corpus shall not be suspended ....' It is
only by way of exception that it permits the suspension of the privilege 'in cases of invasion, insurrection,
or rebellion'- or, under Art. VII of the Constitution, 'imminent danger thereof '- 'when the public safety
requires it, in any of which events the same may be suspended wherever during such period the
necessity for such suspension shall exist.' Far from being fun and plenary, the authority to suspend the
privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or
the conditions essential to its existence, but, also, as regards the time when ? the place where it may be
exercised. These factors and the aforementioned setting or conditions mark, establish and define the
extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations
and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto
and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise,
the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our
Constitution could not have intended to engage in such a wasteful exercise in futility.

Much less may the assumption be indulged in when we bear in mind that our political system is
essentially democratic and republican in character and that the suspension of the privilege affects the
most fundamental element of that system. namely, individual freedom. Indeed, such freedom includes
and connotes, as well as demands, the right of every single member of our citizenry to freely discuss and
dissent from, as well as criticize and denounce, the views, the policies and the practices of the
government and the party in power that he deems unwise, improper or inimical to the commonwealth,
regardless of whether his own opinion is objectively correct or not. The untrammelled enjoyment and
exercise of such right-which, under certain conditions, may be a civic duty of the highest order is-vital to
the democratic system and essential to its successful operation and wholesome growth and
development.

Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and exercise,
not in derogation thereof, but consistently therewith, and, hence, within the framework of the social
order established by the Constitution and the context of the Rule of Law. Accordingly, when individual
freedom is used to destroy that social order, by means of force and violence, in defiance of the Rule of
Law such as by rising publicly and taking arms against the government to overthrow the same, thereby
committing the crime of rebellion- there emerges a circumstance that may warrant a limited withdrawal
of the aforementioned guarantee or protection, by suspending the privilege of the writ of habeas
corpus, when public safety requires it. Although we must before warned against mistaking mere dissent-
no matter how emphatic or intemperate it may be-for dissidence amounting to rebellion or insurrection,
the Court cannot hesitate, much less refuse- when the existence of such rebellion or insurrection has
been fairly established or cannot reasonably be denied- to uphold the finding of the Executive thereon,
without, in effect, encroaching upon a power vested in him by the Supreme Law of the land and
depriving him, to this extent, of such power, and, therefore, without violating the Constitution and
jeopardizing the very Rule of Law the Court is called upon to epitomize. " 7

II. The crucial issue at bar is that adversely decided by the main opinion, denying petitioners'
motion that the Court order their release on bail, on the ground that the suspension of the privilege of
the writ of habeas corpus for any of the offenses covered by Proclamation No. 2045 "includes, as a
necessary consequence, the withholding for the duration of the suspension of the privilege of the right
to bail" (main opinion, at page 16).

1. I submit that notwithstanding the suspension of the privilege of the writ of habeas corpus and
the issuance on March 9, 1982 of Letter of Instruction No. 1211 that the Presidential Commitment Order
constitutes authority to keep the subject person under detention "until ordered released by the
President or his duly authorized representative" (which is a mere internal instruction to certain
agencies), the higher and superior mandate of the Constitution guarantees the right to bail and vests the
courts with the jurisdiction and judicial power to grant bail which may not be removed nor diminished
nor abdicated. We cannot but so hold, if we are to be true to the fundamental precept that "The
Constitution is a law for rulers and for people equally in war and in peace and covers with the shield of
its protection all classes of men at all times and under all circumstances."

The argument that otherwise the purpose of the suspension of the privilege would be defeated ignores
the overwhelming capability of the State and its military and police forces to keep suspects under
surveillance and the courts' imposition of reasonable conditions in granting bail, such as periodic reports
to the authorities concerned, and prohibiting their going to certain critical areas.

2. The most authoritative pronouncement in this regard is of course none other than the
President's himself. In all the metropolitan newspapers of April 20, 1983, the President is reported to
have "said that Pimentel has been charged with rebellion before the regional trial court of Cebu City and
is therefore under the jurisdiction of the civil court and not only under the jurisdiction of the military by
virtue of the PCO." In a telegram in reply to the appeal of Msgr. Patrick Cronin, Archbishop of Cagayan de
Oro and Misamis Oriental, for lifting of the PCO on Mayor Aquilino Pimentel of Cagayan de Oro City, the
President said that "(T)he disposal of the body of the accused, as any lawyer will inform you, is now
within the powers of the regional trial court of Cebu City and not within the powers of the President. "

3. This is but in consonance with the majority holding in the leading 1951 cases of Nava vs.
Gatmaitan and Hernandez vs. Montesa 8 (although it failed one vote short of the required majority of six
affirmative votes at the time) as expounded by then Chief Justice Ricardo Paras and Associate Justice
(later Chief Justice) Cesar Bengzon and Associate Justices Pedro Tuason, Alex Reyes and Fernando Jugo
that after formal indictment in court by the filing against them of an information charging rebellion with
multiple murder, etc., accused persons covered by the proclamation of suspension of the privilege of the
writ of habeas corpus are entitled to the right to bail.

4. As stressed by then Chief Justice Ricardo Paras, "(T)he right to bail, along with the right of an
accused to be heard by himself and counsel to be informed of the nature and cause of the accusation
against him, to have a speedy and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses in his behalf (Article III, Section 1, Paragraph
17, of the Constitution), tends to aid the accused to prove his innocence and obtain acquittal. If it be
contended that the suspension of the privilege of the writ of habeas corpus includes the suspension of
the distinct right to bail or to be provisionally at liberty, it would a fortiori imply the suspension of all his
other rights (even the right to be tried by a court) that may win for him ultimate acquittal and, hence,
absolute freedom. The latter result is not insisted upon for being patently untenable. "

Then Chief Justice Paras stressed that "... The privilege of the writ of habeas corpus and the right to bail
guaranteed under the Bill of Rights are separate and co-equal. If the intention of the framers of the
Constitution was that the suspension of the privilege of the writ of habeas corpus carries or implies the
suspension of the right to bail, they would have very easily provided that all persons shall before
conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of
guilt is strong and except when the privilege of the writ of habeas corpus is suspended. As stated in the
case of Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the Constitution limited the suspension to only one
great right, leaving the rest to remain forever inviolable. "

5. It is noteworthy and supportive of the prevailing stand since 1951 that the other great
constitutional rights remain forever inviolable since the Constitution limited the suspension to only one
great right (of the privilege of the writ of habeas corpus), that there has been no amendment of the
Constitution to curtail the right to bail in case of such suspension notwithstanding the numerous
constitutional amendments adopted after the 1973 Constitution.
6. The late Justice Pedro Tuason emphasized that "(T)o the plea that the security of the State would
be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is
never a justification for courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience, expediency
or the so-called 'judicial statesmanship.' The Legislature itself cannot infringe them, and no court
conscious of its responsibilities and limitations would do so. If the Bill of Rights are incompatible with
stable government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite
to say that, while the Constitution stands, the courts of justice as the repository of civil liberty are bound
to protect and maintain undiluted individual rights."

7. And former Chief Justice Cesar Bengzon then made the same forceful plea echoed these days by
men of goodwill that respect for constitutional and human rights and adherence to the rule of law would
help in the fight against rebellion and movement for national reconciliation, thus: "And in my opinion,
one of the surest means to ease the uprising is a sincere demonstration of this Government's adherence
to the principles of the Constitution together with an impartial application thereof to all citizens,
whether dissidents or not. Let the rebels have no reason to apprehend that their comrades now under
custody are being railroaded into Muntinglupa, without benefit of those fundamental privileges which
the experience of the ages has deemed essential for the protection of all persons accused of crime
before the tribunal of justice. Give them the assurance that the judiciary, ever mindful of its sacred
mission, will not, thru faulty or misplaced devotion, uphold any doubtful claims of governmental power
in diminution of individual rights, but will always cling to the principles uttered long ago by Chief Justice
Marshall that when in doubt as to the construction of the Constitution, 'The Courts will favor personal
liberty.'"

8. The right to bail cannot just be cancelled out summarily because of the issuance of a PCO In the
case at bar, detainee Dr. Aurora Parong is charged in the municipal court with the crime of illegal
possession of firearm, which is a clearly bailable offense. The charges filed against the other detainees
are likewise for clearly bailable offenses. It is elementary that the right to bail in non-capital offenses and
even in capital offenses where evidence of guilt is not strong will be generally granted and respected by
the courts, "the natural tendency of the courts (being) towards a fair and liberal appreciation,"
particularly taking into consideration the record and standing of the person charged and the unlikelihood
of his fleeing the court's jurisdiction.

As the Court held in the leading case of Montano vs. Ocampo 9 wherein the Supreme Court granted bail
to Senator Montano who was charged with multiple murders and frustrated murders:
Brushing aside the charge that the prelimiminary investigation of this case by the aforesaid Judge was
railroaded, the same having been conducted at midnight, a few hours after the complaint was filed, we
are of the opinion that, upon the evidence adduced in the applicaction for bail in the lower court, as
such evidence is recited lengthily in the present petition and the answer thereto, and extensively
analyzed and discussed in the oral argument, there is not such clear showing of guilt as would preclude
all reasonable probability of any other conclusion.

Exclusion from bail in capital offenses being an exception to the otherwise absolute right guaranteed by
the constitution, the natural tendency of the courts has been toward a fair and liberal appreciation,
rather than otherwise , of the evidence in the determination of the degree of proof and presumption of
guilt necessary to war. rant a deprivation of that right.

Besides, to deny bail it is not enough that the evidence of guilt is strong; it must also appear that in case
of conviction the defendant 's liability would probably call for a capital punishment. No clear or
conclusive showing before this Court has been made.

In the evaluation of the evidence the probability of flight is one other important factor to be taken into
account. The sole purpose of confining accusedin jail before conviction, it has been observed, is to assure
his presence at the trial. In other words, if denial of bail is authorized in capital cases, it is only on the
theory that the proof being strong, the dependant would flee, if he has the opportunity, rather than face
the verdict of the jury. Hence the exception to the fundamental right to be bailed should be applied in
direct ratio to the extent of the probability of evasion of prosecution.

The possibility of escape in this case, bearing in mind the defendant's official and social standing and his
other personal circumstances, seems remote if not nil."

In the recent case of Sobremonte vs. Enrile, 10 the detainee was released upon her filing of the
recommended P1,000.00 bail bond for the offense of possession of subversive literature with which she
was charged and the habeas corpus petition, like many others, although dismissed for having thereby
become moot, accomplished the purpose of securing the accused's release from prolonged detention.
The Court had occasion to decry therein that "all the effort, energy and manhours expended by the
parties and their counsel, including this Court, ... could have been avoided had the officers of the
AVSECOM and the ISAFP responded promptly to the inquiries of petitioner instead of giving her the 'run-
around' by referring her from one office to another."
9. "The continuous flow of petitions for habeas corpus" filed with this Court should not be decried
nor discouraged. The Court stands as the guarantor of the constitutional and human rights of all persons
within its jurisdiction and must see to it that the rights are respected and enforced. It is settled in his
jurisdiction that once a deprivation of a constitutional right is shown to exist, the court that rendered the
judgment or before whom the case is pending is ousted of jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of the detention. 11 So accused persons deprived of the
constitutional right of speedy trial have been set free. 12 And likewise persons detained indefinitely
without charges so much so that the detention becomes punitive and not merely preventive in character
are entitled to regain their freedom. The spirit and letter of our Constitution negates as contrary to the
basic precepts of human rights and freedom that a person be detained indefinitely without any charges.

III. The main opinion invokes "a time of war or grave peril to the nation" (at page 16), oblivious of
the Presidents lifting of martial law under Proclamation No. 2045 on January 17, 1981 and the specific
premises therein set forth that

WHEREAS, the Filipino people, having subdued threats to the stability of government, public order and
security, are aware that the time has come to consolidate the gains attained by the nation under a state
of martial law by assuming their normal political roles and shaping the national destiny within the
framework of civil government and popular democracy:

WHEREAS, the experience gained by the nation under martial law in subduing threats to the stability of
the government, public order and security, has enabled the Filipino people to rediscover their
confidence in their ability to command the resources of national unity, patriotism, discipline and sense of
common destiny;

WHEREAS, the government and the people are at the same time also aware that the public safety
continues to require a degree of capability to deal adequately with elements who persist in endeavoring
to overthrow the government by violent means and exploiting every opportunity to disrupt the peaceful
and productive labors of the government; ..."

As to the "self-evident" submittal of the main opinion that "the duty of the judiciary to protect individual
rights must yield to the power of the Executive to protect the State, for if the State perishes, the
Constitution, with the Bill of Rights that guarantees the right to personal liberty, perishes with it" (at
page 16), I can only recall the exhortation of the Holy Father John Paul II in his address to the Philippine
nation on February 17, 1981, thus: "Even in exceptional situations that may at times arise, one can never
justify any violation of the fundamental dignity of the human person or of the basic rights that safeguard
this dignity. Legitimate concern for the security of a nation, as demanded by the common good, could
lead to the temptation of subjugating to the State the human being and his or her dignity and rights. Any
apparent conflict between the exigencies of security and of the citizens' basic rights must be resolved
according to the fundamental principle-upheld always by the Church- that social organization exists only
for the service of man and for the protection of his dignity, and that it cannot claim to serve the common
good when human rights are not safeguaded. People will have faith in the safeguarding of their security
and the promotion of their well-being only to the extent that they feel truly involved, and supported in
their very humanity."

Separate Opinions

FERNANDO, C.J., concurring:

In the result with qualification primarily on the respect that must be accorded the constitutional right to
bail once a case is flied and dissenting as to the overruling of Lansang v. Garcia:

MAKASIAR, J., concurring:

Concuring in the result and in overruling the Lansang case.

ABAD SANTOS, J., concurring:

In the result and in overruling Lansang. I reserve my right on the question of bail.
FERNANDO, C.J., concurring:

Concurring in the result with qualification primarily on the respect that must be accorded the
constitutional right to bail once a case is filed and dissenting as to the overruling of Lansang v. Garcia.

It does not admit of doubt that the question posed in this petition for the writ of habeas corpus, and in
other similar petitions for that matter, is impressed with significance that calls for the highest degree of
care and circumspection. The result arrived at by the Court is that once a presidential commitment order
is issued, the detention is rendered valid and legal, the right to be released of the person detained even
after the filing of charges being dependent on the President "who may order the release of a detainee or
his being placed under house arrest, as he has done in meritorious cases." 1 The exhaustive opinion of
the Court penned by Justice de Castro likewise re-examines the Lansang doctrine 2 which ruled that the
suspension of the privilege of the writ of habeas corpus raises a judicial rather than a political question
and reverts to the principle announced in the earlier cases of Barcelon v. Baker 3 and Montenegro v.
Castañeda, 4 both of which held that the question raised is political in character.

I concur in the ruling that while as a general rule preventive detention is an obstacle to judicial inquiry,
this Court is empowered where compelling reasons exist to inquire into the matter. Moreover, the
judiciary once a case has been filed has jurisdiction to act on a petition for bail. I dissent insofar as the
decision overrules Lansang v. Garcia.

1. Petitioners in their application for the writ of liberty assert an infringement of a right that finds
shelter in the fundamental law. This Court, both in normal times and under emergency conditions, is not
susceptible to the accusation that it has not accorded the most careful study to a plea of such character.
Petitioners were heard and their cases decided. In addition to Lansang, People v. Ferrer, 5 Aquino Jr. v.
Ponce Enrile 6 and Aquino Jr. v. Military Commission No. 2 7 may be cited. This Tribunal then has not
been insensible to its duty to render fealty to the applicable mandates of the Constitution. That is to be
true to the primordial concept first announced in the landmark decision of Marbury v. Madison, 8 the
opinion being rendered by the illustrious Chief Justice Marshall, enunciating the principle of judicial
review. Our Constitution is quite clear on the matter. So it was held in Angara v. Electoral Tribunal, 9 the
first case of transcendental importance under the 1935 Charter. It is quite manifest that judicial review is
not only a power but a duty. 10
2. Thus the judiciary can be appealed to and in appropriate cases, annul executive or legislative
acts. For as so often stressed, "the Constitution is not only law, but a higher law, to which other law must
bow." 11 Professor Black went on to state: "Here, I think, we are laboring the obvious. The superior
status of the Constitution is clearer even than its standing as law. But if it is of superior status, and if it is
law, then it is law of a superior status. Again, the important thing is not whether some flaw could be
found in the logic by which this was established. The logic of human institutions is a logic of probability.
The important thing is that this concept of the superior status of the Constitution as law very early
became and has since continued to be a standard part of the way in which the American lawyer and
judge and citizen look at their government." 12 This is not to deny the possibility of judicial interference
with policy formulation, better left to the political branches. It is an entirely different matter of course
where the question is one of liberty.

3. An inquiry into the validity of executive or legislative act has been fitly characterized as both
awesome and delicate. Nonetheless, for the judiciary, there is no choice. To repeat, it is a duty to be
performed. This is so especially where the writ of habeas corpus has been invoked. It is then incumbent
on a court to pass on the legality of the detention. As I had occasion to state in my separate opinion in
Aquino Jr. vs. Enrile: 13 "This Court has to act then. The liberty enshrined in the Constitution, for the
protection of which habeas corpus is the appropriate remedy, imposes that obligation. Its task is clear. It
must be performed. That is a trust to which it cannot be recreant. Whenever the grievance complained
of is deprivation of liberty, it is its responsibility to inquire into the matter and to render the decision
appropriate under the circumstances. Precisely, a habeas corpus petition calls for that response." 14 It
cannot be overemphasized that the writ of habeas corpus, as a constitutional right, it, for eminent
commentators, protean in scope. A reference to the opinion of the Court in Gumabon v. Director of
Bureau of Prisons 15 may not be amiss. Thus: "The writ imposes on judges the grave responsibility of
ascertaining whether there is any legal justification for a deprivation of physical freedom. Unless there
be such a showing, the confinement must thereby cease. " 16 It continues: "Rightly then could Chafee
refer to the writ as 'The most important human rights provision' in the fundamental law. Nor is such
praise unique. Cooley spoke of it as 'One of the principal safeguards to personal liberty.' For Willoughby,
it is 'the greatest of the safeguards erected by the civil law against arbitrary and illegal imprisonment by
whomsoever detention may be exercised or ordered.' Burdick echoed a similar sentiment, referring to it
as 'One of the most important bulwarks of liberty.' Fraenkel made it unanimous, for to him. 'Without it
much else would be of no avail.' Thereby the rule of law is assured. A full awareness of the potentialities
of the writ of habeas corpus in the defense of liberty coupled with its limitations may be detected in the
opinions of former Chief Justices Arellano, Avancena, Abad Santos, Paras, Bengzon and [Chief Justice
Concepcion]. It fell to Justice Malcolm's lot, however to emphasize quite a few times the breadth of its
amplitude and of its reach."17

4. So it is in the United States. As so well put by Justice Brennan in Fay v. Noia: 18 "We do well to
bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-
American jurisprudence: 'the most celebrated writ in English Law,' 3 Blackstone Commentaries 129. It is
'a writ antecedent to statute, and throwing its root deep into the genius of our common law * * *. It is
perhaps the most important writ known to the constitutional law of England, affording as it does a swift
and imperative remedy in all cases of illegal restraint and confinement. It is of immemorial antiquity, an
instance of its use occurring in the thirty-third year of Edward I. 'Secretary of State for Home Affairs v.
O'Brien [1923] AC 603, 609 (HL) Received into our own law in the colonial period, given explicit
recognition in the Federal Constitution, Art. I, Sec. 9, cl. 2, incorporated in the first grant of federal court
jurisdiction, Act of September 24, 1978, c 20, sec. 14, 1 State 81, 82, habeas corpus was earlier
confirmed by Chief Justice John Marshall to be a 'Great constitutional privilege.' Ex parte Bollman and
Swartout (US) 4 Cranch 75, 95, 2L ed 554, 561. Only two Terms ago this Court had occasion to reaffirm
the high place of the writ in our jurisprudence: 'We repeat what has been so truly said of the federal
writ: "there is no higher duty than to maintain it unimpaired," Bowen v. Johnston, 306 US 19, 26, 83 L ed
455, 461, 59 S Ct 442 (1939), and unsuspended, save only in the cases specified in our Constitution.'
Smith v. Bennett, 365 US 708, 713, 6 1 ed 2d 39, 43, 81 s Ct. 895. " 19

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

6. The President as commander-in-chief may call out the armed forces to prevent or suppress
lawless violence, invasion, insurrection, or rebellion and in case of invasion, insurrection, or rebellion, or
imminent danger thereof, when the public safety requires it, "may suspend the privilege of the writ of
habeas corpus, or place the Philippines or any part thereof under martial law."23 There are thus three
alternatives which may be availed to meet a grave public danger to the security of the state. As pointed
out by Chief Justice Concepcion in Lansang, prior to the suspension of the privilege of the writ in 1971,
the armed forces had been called out, but such a move "proved inadequate to attain the desired result.
Of the two (2) other alternatives, the suspension of the privilege is the least harsh." 24 Even if only the
first alternative were resorted to, the executive could still exercise the power of preventive detention.
Moyer v. Peabody, 25 decided by the American Supreme Court, the opinion being penned by Justice
Holmes, may be cited. According to the statement of the facts of that case, "it appeared that the
governor had declared a county to be in a state of insurrection, had called out troops to put down the
trouble, and had ordered that the plaintiff should be arrested as a leader of the outbreak, and should be
detained until he could be discharged with safety, and that then he should be delivered to the civil
authorities, to be dealt with according to law." 26 On those facts the American Supreme Court held that
preventive detention was allowable, the test of its validity being one of good faith. The state governor
then could "make the ordinary use of the soldiers to that end; that he may kill persons who resist, and,
of course, that he may use the milder measure of seizing the bodies of those whom he considers to
stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of
precaution, to prevent the exercise of hostile power. So long as such arrests are made in good faith and
in the honest belief that they are needed in order to head the insurrection off, the governor is the final
judge and cannot be subjected to an action after he is out of office, on the ground that he had not
reasonable ground for his belief." 27 The last paragraph of Justice Holmes opinion was even more
emphatic: "When it comes to a decision by the head of the state upon a matter involving its life, the
ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger
warrants the substitution of executive process for judicial process. See Keely v. Sanders, 99 U.S. 441, 446,
25 L. ed. 327, 328. This was admitted with regard to killing men in the actual clash of arms; and we think
it obvious, although it was disputed, that the same is true of temporary detention to prevent
apprehended harm. As no one would deny that there was immunity for ordering a company to fire upon
a mob in insurrection, and that a state law authorizing the governor to deprive citizens of life under such
circumstances was consistent with the 14th Amendment, we are of opinion that the same is true of a
law authorizing by implication that was done in this case." 28 Nonetheless, while preventive detention is
a proper measure to cope with the danger arising from the insurrection or rebellion, it may continue for
such length of time as to make it punitive in character. If such were the case, I am not prepared to yield
concurrence to the view that this Court is devoid of the power in a habeas corpus proceeding to inquire
into the legality of the detention. As to when such a stage is reached cannot be set forth with precision.
The test would be an appraisal of the environmental facts of each case. This is not to deny that the
presumption must be in favor not only of the good faith characterizing the presidential action but of the
absence of any arbitrary taint in so ordering preventive detention. It is out of excess of caution and due
to the belief that habeas corpus as a writ of liberty should not be unnecessarily curtailed that I feel
compelled to qualify my concurrence in that respect.
7. Nor is this all. Once a case is filed, the party detained may avail himself of the right to bail. If
there be such a petition, the court has jurisdiction to grant or to deny bail in accordance with the
constitutional provision. 29 Inasmuch as the return to the writ filed by the Solicitor General states that a
warrant of arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by the Municipal
Court of Bayombong, for illegal possession of firearm and ammunition, then clearly she has a right to
invoke such right, notwithstanding the suspension of the privilege of the writ. So I did argue as counsel in
Hernandez v. Montesa, 30 where a majority of this Court with one vote lacking to make their conclusion
doctrinal agreed with such submission. There was adherence to such a view in my separate opinions in
Lansang 31 and in Buscayno v. Enrile, 32 I do again and to that extent dissent.

8. It may be worthwhile to touch briefly on the exercise of power of preventive detention in other
jurisdictions. The retired Lord President of the Federal Court of Malaysia Tun Mohamed Suffian in his
work on the Malaysian constitution, spoke of the emergency powers of the executive, the Yang
Dipertuan Agung in this wise: " If the Yang Dipertuan Agung (acting on Cabinet advice) is satisfied that a
grave emergency exists whereby the security or economic life of the Federation or any part thereof is
threatened, article 150 empowers him to issue a proclamation of emergency. He has done so thrice: first,
to meet the emergency caused by Indonesian confrontation, secondly, to meet the emergency caused by
the political crisis arising out of the position of the Chief Minister of Sarawak and, thirdly, to meet the
emergency caused as a result of the violence that erupted on 13th May, 1969. (The 1948-1960
emergency was proclaimed under pre-independence law, not under the constitution). If a proclamation
of emergency is issued when Parliament is not sitting, the Yang Dipertuan Agung must summon
Parliament as soon as may be practicable. Until both Houses of Parliament are sitting, he may
promulgate ordinances having the force of law, if satisfied that immediate action is required." 33 By
virtue of such competence, preventive detention may be ordered. 34 The power of preventive detention
is likewise recognized in India. According to Professor Jain, in a leading article, it "prevails in many
democratic countries and in some form or other, at one time or other, each democratic country has
taken recourse to preventive detention, especially during the war period." 35 He mentioned the United
States Internal Security Act enacted by its Congress in 1950 for emergency detention "during an
emergency of war, invasion or domestic insurrection of a person about whom there is a reasonable
ground to believe that he would probably engage in acts of sabotage or espionage. The U.S. Constitution
also provides for suspension of habeas corpus during rebellion or invasion if public safety so requires."
36 He likewise referred to England, citing Regulation 14B of the Defense of Realm Act Regulations, 1914,
during World War I and Regulation 18B of the Defense Regulations during World War II which according
to him led to the celebrated case of Liversidge v. Anderson. 37 Then he turned to his own country: "In
India, because of unstable law and order situation, preventive detention has been in vogue since its
independence in 1947. After the commencement of the Constitution, Parliament enacted the Preventive
Detention Act, 1950, to lay down a legal framework for preventive detention on certain grounds. The
present day law for the purpose is the Maintenance of Internal Security Act, 1971. A salient feature of
the law of preventive detention in India has been to confer a very broad discretion on the administrative
authority to order preventive detention of a person in certain circumstances." 38 He spoke of the
relevant constitutional provisions having a bearing on preventive detention: "A law for preventive
detention can be made by Parliament exclusively under entry 9, List 1, for reasons connected with
'defensee', 'foreign affairs' or the 'security of India.' Further, under entry 3, List 111, Parliament and the
State Legislatures can concurrently make a law for preventive detention for reasons connected with the "
security of a State', maintenance of public order,' or 'maintenance of supplies and services essential to
the community.' Parliament thus has a wide legislative jurisdiction in the matter as it can enact a law of
preventive detention for reasons connected with all the six heads mentioned above. The Preventive
Detention Act, 1950, and now the Maintenance of Internal Security Act, 1971, have been enacted by
Parliament providing for preventive detention for all these six heads." 39 For him the law of preventive
detention in India "has therefore been too much administrative-ridden and the scope of judicial review
has been very much limited." 40 He made a careful study of the cases on preventive detention in India.
As he pointed out, "the range and magnitude of administrative control over the individual's personal
liberty is very vast, and the range of judicial control is very restrictive, as the basic question, whether a
person should be detained or not on the facts and circumstances of the case, hes within the scope of
administrative discretion and beyond judicial review." 41 Nonetheless, the Supreme Court of India, as he
stressed, "in the interest or maintaining constitutionalism," has been able to take "a somewhat broad
view of its restricted powers, and has given whatever relief it can to the detained persons." 42 For me
that approach has much to recommend it. This is not to deny that in the event there is a
misapprehension as to the actual facts that led to the preventive detention, the plea for remedial action
should, in the first instance, be addressed to the President. Very likely, there will be an affirmative
response. Even then, the assurance to a party feeling aggrieved that there could still be resort to judicial
review, even if utilized only in rare and exceptional cases, may conduce to a deeper sense of loyalty to
the existing constitutional order on the part of the misguided or disaffected individuals. Hence, to
repeat, this qualified concurrence on my part.

9. The opinion of the Court, however, did not stop at dismissing the petition on the ground that the
issuance of a presidential commitment order validates the preventive detention of petitioners. It went
farther by reexamining the unanimous ruling in Lansang to the effect that the suspension of the privilege
of the writ of habeas corpus raises a judicial rather than a political question and holding that it is no
longer authoritative. With due respect, I cannot agree to such a conclusion. In the first place, there was
no need to go that far. For me, at least, the rationale that this Court must accord deference to a
presidential committment order suffices for the decision of this case. Nor would I limit my dissent on
that ground alone. It is for me, and again I say this with due respect, deplorable and unjustifiable for this
Court to turn its back on a doctrine that has elicited praise and commendation from eminent scholars
and jurists here and abroad.

10. That is easily understandable. The learned, comprehension and unanimous Lansang opinion
penned by Chief Justice Concepcion concurred in by all the Justices, 43 to my mind, explains with lucidity
and force why the question is judicial rather than political. Thus: "Indeed, the grant of power to suspend
the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under
the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill
of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the
former in the negative, evidently to stress its importance, by providing that '(t)he privilege of the writ of
habeas corpus shall not be suspended * * *.' It is only by way of exception that it permits the suspension
of the privilege 'in cases of invasion, insurrection, or rebellion'- or, under Art. VII of the Constitution,
'imminent danger thereof when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such suspension shall exist.' For from being full
and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and
restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as
regards the time when and the place where it may be exercised. These factors and the aforementioned
setting or conditions mark, establish and define the extent, the confines and the limits of said power,
beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental
Law upon the legislative department, adherence thereto and compliance therewith may, within proper
bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon
would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such
a wasteful exercise in futility." 44 The then Chief Justice continued: "Much less may the assumption be
indulged in when we bear in mind that our political system is essentially democratic and republican in
character and that the suspension of the privilege affects the most fundamental element of that system,
namely, individual freedom. Indeed, such freedom includes and connotes, as well as demands, the right
of every single member of our citizenry to freely discuss and dissent from, as well as criticize and
denounce, the views, the policies and the practices of the government and the party in power that he
deems unwise, improper or inimical to the commonwealth, regardless of whether his own opinion is
objectively correct or not. The untrammelled enjoyment and exercise of such right- which, under certain
conditions, may be a civic duty of the highest order- is vital to the democratic system and essential to its
successful operation and wholesome growth and development." 45

11. One of the merits of the ponencia of Chief Justice Concepcion is that it is infused with a sense of
realism. These are his words: "Manifestly, however, the liberty guaranteed and protected by our Basic
Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and, hence,
within the framework of the social order established by the Constitution and the context of the Rules of
Law. Accordingly, when individual freedom is used to destroy that social order, by means of force and
violence, in defiance of the Rule of Law- such as by rising publicly and taking arms against the
government to overthrow the same, thereby committing the crime of rebellion there emerges a
circumstance that may warrant a limited withdrawal of the aforementioned guarantee or protection, by
suspending the privilege of the writ of habeas corpus, when public safety requires it. Although we must
be forewarned against mistaking mere dissent-no matter how emphatic or intemperate it may be-fore
dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less-refuse-when the
existence of such rebellion or insurrection has been fairly established or cannot reasonably be denied-to
uphold the finding of the Executive thereon, without, in effect, encroaching upon a power vested in him
by the Supreme Law of the land and depriving him, to this extent, of such power, and, therefore, without
violating the Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize."
46

12. After which this Court, as set forth in the Lansang opinion, considered "the precise nature" of its
function: "Article VII of the Constitution vests in the Executive the power to suspend the privilege of the
writ of habeas corpus under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is supreme, as regards the suspension of
the privilege, but only if and when he acts within the sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested in the Judicial Department, which, in
this respect, is, in turn, constitutionally supreme." 47 Further: "In the exercise of such authority, the
function of the Court is merely to check-not to supplant-the Executive, or to ascertain merely whether he
has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or
to determine the wisdom of his act. To be sure, the power of the Court to determine the validity of the
contested proclamation is far from being Identical to, or even comparable with, its power over ordinary
civil or criminal cases elevated thereto by ordinary appeal from inferior courts, in which cases the
appellate court has all of the powers of the court of origin." 48 It is clear the competence of this Court to
pass upon the validity of the suspension of the privilege of the writ is confined within limits that
preclude the assumption of power that rightfully belongs to the Executive. There would then be, to my
mind, no sufficient Justification to retreat from a position that assures judicial participation on a matter
of momentous consequence. Moreover, to the extent that such a move has had the benefit of judicial
appraisal, and thereafter approval, to that extent there may be less valid opposition and hopefully
greater understanding of why such a step had to be taken.

13. With Lansang overruled, the doctrine that the suspension of the privilege of the writ announced
in Barcelon v. Baker 49 and Montenegro v. Castañeda 50 will be revived. This for me is unfortunate. The
Montenegro decision, as I had occasion to state "owed its existence to the compulsion exerted by
Barcelon v. Baker, a 1905 decision. This Court was partly misled by an undue reliance in the latter case on
what it considered to be authoritative pronouncements from such illustrious American jurists as
Marshall, Story, and Taney. That is to misread what was said by them. This is most evident in the case of
Chief Justice Marshall, whose epochal Marbury v. Madison was cited. Why that was so is difficult to
understand. For it speaks to the contrary. It was by virtue of this decision that the function of judicial
review owes its origin notwithstanding the absence of any explicit provision in the American Constitution
empowering the courts to do so. Thus: 'It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule to particular cases, must of necessity
expound and interpret that rule. If two laws conflict with each other, the courts must decide on the
operation of each. So if a law be in opposition to the constitution; if both the law and the constitution
apply to a particular case, so that the court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the constitution, disregarding the law; the court must
determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If,
then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the
legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.'"
51 The opinion went on to say: "Nor is the excerpt from Justice Story, speaking for the United States
Supreme Court, in Martin v. Mott, as made clear in the opinion of the Chief Justice, an authority directly
in point. There, a militiaman had been convicted of failing to respond to a call, made under the Act of
1795, to serve during the War of 1812. His property was taken to satisfy the judgment. He brought an
action of replevin. The American Constitution empowers its Congress 'to provide for calling forth the
Militia' in certain cases, and Congress did provide that in those cases the President should have authority
to make the call." All that Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American President to decide whether
the exigency has arisen. In stating that such power was exclusive and thus had a conclusive effect, he
relied on the language employed, impressed with such a character. The constitutional provision on the
suspension of the privilege of the writ is, as shown, anything but that. Chief Justice Taney in Luther v.
Borden, likewise had to deal with a situation involving the calling out of the militia. As a matter of fact,
an eminent commentator speaking of the two above decisions had this apt observation: "The common
element in these opinions would seem to be a genuine judicial reluctance to speak in a situation where
the voice of the Court, even if heard, could not have any effect. More than this, both Story and Taney
seem to share the suspicion, unusual in them, that under a popular form of government there are
certain questions that the political branches must be trusted to answer with finality. What was said next
is even more pertinent. Thus: 'It would be dangerous and misleading to push the principles of these
cases too far, especially the doctrine of "political questions" as implied in Luther v. Borden. Given the
opportunity to afford a grievously injured citizen relief from a palpably unwarranted use of presidential
or military power, especially when the question at issue falls in the penumbra between the "political"
and the "justiciable", the Court will act as if it had never heard of this doctrine and its underlying
assumption that there are some powers against which the judiciary simply cannot be expected to act as
the last line of defense.' It would thus seem evident that support for the hitherto prevailing Montenegro
ruling was rather frail. Happily, with our decision, it is no longer capable of the mischief to which it does
lend itself of an undue diminution of judicial power to the prejudice of constitutional rights." 52

14. An opinion of a court, especially this Tribunal, should not ignore the environmental facts which
gave rise to a litigation where the issues arise from problems inseparable from national security. There is,
in addition, the need to take into consideration the pressure of contemporary events. For as has so often
been stressed, judicial process does not take place in a social void. The questions before the Court are to
be viewed with full awareness of the consequences attendant to the decision reached. As so tersely
expressed by Justice Tuason in Araneta v. Dinglasan:" 53 "We test a rule by its results." 54 More often
than not especially during times of stress, it is inescapable that efforts be made to reconcile time-tested
principles to contemporary problems. The judiciary is called upon to do its part. There is wisdom in these
words of Justice Tuason from the same opinion: "The truth is that under our concept of constitutional
government, in times of extreme perils more than in normal circumstances, 'The various branches,
executive, legislative, and judicial,' given the ability to act, are called upon 'to perform the duties and
discharge the responsibilities committed to them respectively.'" 55 To repeat, I accord the fullest respect
to the mode and manner in which my brethren performed their duty and discharged their responsibility
in passing upon the transcendental question raised in this petition. With the basic premise of robust
concern for individual rights to which I have been committed,however, I have no choice except to vote
the way I did, even if for those whose opinions I value conformity with the hitherto unquestioned
verities may at times prove to be less than adequate to meet the exigencies of the turbulent present.

TEEHANKEE, J., dissenting:

I am constrained to dissent from the all-encompassing scope of the main opinion of Mr. Justice de Castro
which would overturn the landmark doctrine of Lansang vs. Garcia 1 which upheld the Supreme Court's
authority to inquire into the existence of factual bases for the President's suspension of the privilege of
the writ of habeas corpus in order to determine the constitutional sufficiency thereof and would revert
to the retrogressive and colonial era ruling of Barcelon vs. Baker 2 and Montenegro vs. Castañeda 3 that
the President's decision to so suspend the privilege of the writ "is final and conclusive upon the courts
and all other persons," and would further deny the right to bail even after the filing of charges in court to
persons detained under Presidential Commitment Orders.

This case, as in other like cases, focuses on the grievances that persons detained or charged for the
crimes of insurrection, rebellion, subversion, conspiracy or proposal to commit such crimes, invariably
bring to this Court. They complain, as petitioners do here, of being arrested without any warrant of
arrest; of being informed of purported telegrams concerning the issuance of a Presidential Commitment
Order PCO authorizing their arrest and detention, but that they are not given a copy of such PCO nor
notified of its contents, raising doubts whether such PCO has in fact been issued; of being kept in
isolation or transferred to so-called "safehouses" and being denied of their constitutional right to
counsel and to silence; of prolonged detention without charges; "of a seeming deliberate and concerted
effort by respondents to conceal from counsel and relatives the detainees' place of detention, raising the
apprehension that respondents are using force, violence, threat, intimidation and other means which
vitiate free will to obtain confessions and statements from the detainees in violation of their
constitutional rights;" and of their counsel and families undergoing great difficulties in locating or having
access to them (main opinion at p. 3).
The State through the Solicitor General on the other hand invariably denies all such charges and submits
affidavits of the arresting officers and detention custodian that detainees are afforded decent and
humane treatment, further countering that such claims are merely calculated to arouse sympathy and as
propaganda against the Government and its institutions.

In many such cases, however, the Court in issuing the writ of habeas corpus requiring respondents to
make a return of the writ includes a resolution, in recognition of the detainees' constitutional rights, "to
allow counsel for petitioners to visit and confer with the detainee(s) in an atmosphere of confidentiality
consistent with reasonable security measures which respondents may impose." 4 In other cases where
respondents military officials have allegedly denied having in their custody the person(s) detained, the
Court has issued its resolution "on the assumption that the detained person is in the custody of
respondents, that there be due observance and respect of his right to counsel and other constitutional
rights by respondents." 5

Respondents' return through the Solicitor General in the case at bar states that the detainees are all
detained by virtue of a Presidential Commitment Order issued on July 12, 1982 (several days after their
arrest without warrant on July 6 and 7, 1982) and that corresponding charges against the detainees were
filed in court and before the Acting Provincial Fiscal of Nueva Viscaya where they are pending. As to the
detainee Dr. Aurora Parong, the return further states that a warrant of arrest was issued against her on
August 4, 1982 by the Municipal Court of Bayombong for illegal possession of a firearm and ammunition.
As in all other returns in similar cases, the Solicitor General asserts "that the privilege of the writ of
habeas corpus is unavailing as to them. Courts cannot inquire into the validity and cause of their arrest
and detention" by virtue of the continued suspension, under Presidential Proclamation No. 2045 (which
proclaimed the termination of martial law in the Philippines), of the privilege of the writ of habeas
corpus in the two autonomous regions in Mindanao and in all other places with respect to persons
detained for suspected involvement in crimes related to national security.

The main opinion confronts the question of whether the issuance of a Presidential Commitment Order
(PCO) has provided the legal basis of the detention of herein detainees following their arrest for
Proclamation No. 2045-covered offenses," and remarks that "this question has to be set at rest promptly
and decisively, if we are to break a seemingly continuous flow of petitions for habeas corpus, as what
had been seen lately of such petitions being filed in this Court one after the other.

I. I submit that the resolution of the issues in this case does not call for the all-encompassing ruling
in the main opinion with its sweeping scope that would reexamine and overturn the benchmark ruling in
Lansang. The limited suspension of the privilege of the writ of habeas corpus in the two instances
provided under Presidential Proclamation No. 2045 has not been challenged in this case. So, what's the
point of an advance declaration that all checks and barriers are down? Lansang recognizes the greatest
deference and respect that is due the President's determination for the necessity of suspending the
privilege of the writ of habeas corpus. But Lansang sets at the same time the constitutional confines and
limits of the President's power to suspend the privilege of the writ and enunciates the constitutional
test, not of the correctness of the President's decision, but that the President's decision to suspend the
privilege not suffer from the constitutional infirmity of arbitrariness. 6 Thus, after laying the premise
"that every case must depend on its own circumstances," the Court therein thru then Chief Justice
Roberto Concepcion held that:

Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority
conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is
limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an
exception thereto. What is more, it postulates the former in the negative, evidently to stress its
importance, by providing that '(t)he privilege of the writ of habeas corpus shall not be suspended ....' It is
only by way of exception that it permits the suspension of the privilege 'in cases of invasion, insurrection,
or rebellion'- or, under Art. VII of the Constitution, 'imminent danger thereof '- 'when the public safety
requires it, in any of which events the same may be suspended wherever during such period the
necessity for such suspension shall exist.' Far from being fun and plenary, the authority to suspend the
privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or
the conditions essential to its existence, but, also, as regards the time when ? the place where it may be
exercised. These factors and the aforementioned setting or conditions mark, establish and define the
extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations
and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto
and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise,
the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our
Constitution could not have intended to engage in such a wasteful exercise in futility.

Much less may the assumption be indulged in when we bear in mind that our political system is
essentially democratic and republican in character and that the suspension of the privilege affects the
most fundamental element of that system. namely, individual freedom. Indeed, such freedom includes
and connotes, as well as demands, the right of every single member of our citizenry to freely discuss and
dissent from, as well as criticize and denounce, the views, the policies and the practices of the
government and the party in power that he deems unwise, improper or inimical to the commonwealth,
regardless of whether his own opinion is objectively correct or not. The untrammelled enjoyment and
exercise of such right-which, under certain conditions, may be a civic duty of the highest order is-vital to
the democratic system and essential to its successful operation and wholesome growth and
development.
Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and exercise,
not in derogation thereof, but consistently therewith, and, hence, within the framework of the social
order established by the Constitution and the context of the Rule of Law. Accordingly, when individual
freedom is used to destroy that social order, by means of force and violence, in defiance of the Rule of
Law such as by rising publicly and taking arms against the government to overthrow the same, thereby
committing the crime of rebellion- there emerges a circumstance that may warrant a limited withdrawal
of the aforementioned guarantee or protection, by suspending the privilege of the writ of habeas
corpus, when public safety requires it. Although we must before warned against mistaking mere dissent-
no matter how emphatic or intemperate it may be-for dissidence amounting to rebellion or insurrection,
the Court cannot hesitate, much less refuse- when the existence of such rebellion or insurrection has
been fairly established or cannot reasonably be denied- to uphold the finding of the Executive thereon,
without, in effect, encroaching upon a power vested in him by the Supreme Law of the land and
depriving him, to this extent, of such power, and, therefore, without violating the Constitution and
jeopardizing the very Rule of Law the Court is called upon to epitomize. " 7

II. The crucial issue at bar is that adversely decided by the main opinion, denying petitioners'
motion that the Court order their release on bail, on the ground that the suspension of the privilege of
the writ of habeas corpus for any of the offenses covered by Proclamation No. 2045 "includes, as a
necessary consequence, the withholding for the duration of the suspension of the privilege of the right
to bail" (main opinion, at page 16).

1. I submit that notwithstanding the suspension of the privilege of the writ of habeas corpus and
the issuance on March 9, 1982 of Letter of Instruction No. 1211 that the Presidential Commitment Order
constitutes authority to keep the subject person under detention "until ordered released by the
President or his duly authorized representative" (which is a mere internal instruction to certain
agencies), the higher and superior mandate of the Constitution guarantees the right to bail and vests the
courts with the jurisdiction and judicial power to grant bail which may not be removed nor diminished
nor abdicated. We cannot but so hold, if we are to be true to the fundamental precept that "The
Constitution is a law for rulers and for people equally in war and in peace and covers with the shield of
its protection all classes of men at all times and under all circumstances."

The argument that otherwise the purpose of the suspension of the privilege would be defeated ignores
the overwhelming capability of the State and its military and police forces to keep suspects under
surveillance and the courts' imposition of reasonable conditions in granting bail, such as periodic reports
to the authorities concerned, and prohibiting their going to certain critical areas.
2. The most authoritative pronouncement in this regard is of course none other than the
President's himself. In all the metropolitan newspapers of April 20, 1983, the President is reported to
have "said that Pimentel has been charged with rebellion before the regional trial court of Cebu City and
is therefore under the jurisdiction of the civil court and not only under the jurisdiction of the military by
virtue of the PCO." In a telegram in reply to the appeal of Msgr. Patrick Cronin, Archbishop of Cagayan de
Oro and Misamis Oriental, for lifting of the PCO on Mayor Aquilino Pimentel of Cagayan de Oro City, the
President said that "(T)he disposal of the body of the accused, as any lawyer will inform you, is now
within the powers of the regional trial court of Cebu City and not within the powers of the President. "

3. This is but in consonance with the majority holding in the leading 1951 cases of Nava vs.
Gatmaitan and Hernandez vs. Montesa 8 (although it failed one vote short of the required majority of six
affirmative votes at the time) as expounded by then Chief Justice Ricardo Paras and Associate Justice
(later Chief Justice) Cesar Bengzon and Associate Justices Pedro Tuason, Alex Reyes and Fernando Jugo
that after formal indictment in court by the filing against them of an information charging rebellion with
multiple murder, etc., accused persons covered by the proclamation of suspension of the privilege of the
writ of habeas corpus are entitled to the right to bail.

4. As stressed by then Chief Justice Ricardo Paras, "(T)he right to bail, along with the right of an
accused to be heard by himself and counsel to be informed of the nature and cause of the accusation
against him, to have a speedy and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses in his behalf (Article III, Section 1, Paragraph
17, of the Constitution), tends to aid the accused to prove his innocence and obtain acquittal. If it be
contended that the suspension of the privilege of the writ of habeas corpus includes the suspension of
the distinct right to bail or to be provisionally at liberty, it would a fortiori imply the suspension of all his
other rights (even the right to be tried by a court) that may win for him ultimate acquittal and, hence,
absolute freedom. The latter result is not insisted upon for being patently untenable. "

Then Chief Justice Paras stressed that "... The privilege of the writ of habeas corpus and the right to bail
guaranteed under the Bill of Rights are separate and co-equal. If the intention of the framers of the
Constitution was that the suspension of the privilege of the writ of habeas corpus carries or implies the
suspension of the right to bail, they would have very easily provided that all persons shall before
conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of
guilt is strong and except when the privilege of the writ of habeas corpus is suspended. As stated in the
case of Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the Constitution limited the suspension to only one
great right, leaving the rest to remain forever inviolable. "
5. It is noteworthy and supportive of the prevailing stand since 1951 that the other great
constitutional rights remain forever inviolable since the Constitution limited the suspension to only one
great right (of the privilege of the writ of habeas corpus), that there has been no amendment of the
Constitution to curtail the right to bail in case of such suspension notwithstanding the numerous
constitutional amendments adopted after the 1973 Constitution.

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

7. And former Chief Justice Cesar Bengzon then made the same forceful plea echoed these days by
men of goodwill that respect for constitutional and human rights and adherence to the rule of law would
help in the fight against rebellion and movement for national reconciliation, thus: "And in my opinion,
one of the surest means to ease the uprising is a sincere demonstration of this Government's adherence
to the principles of the Constitution together with an impartial application thereof to all citizens,
whether dissidents or not. Let the rebels have no reason to apprehend that their comrades now under
custody are being railroaded into Muntinglupa, without benefit of those fundamental privileges which
the experience of the ages has deemed essential for the protection of all persons accused of crime
before the tribunal of justice. Give them the assurance that the judiciary, ever mindful of its sacred
mission, will not, thru faulty or misplaced devotion, uphold any doubtful claims of governmental power
in diminution of individual rights, but will always cling to the principles uttered long ago by Chief Justice
Marshall that when in doubt as to the construction of the Constitution, 'The Courts will favor personal
liberty.'"

8. The right to bail cannot just be cancelled out summarily because of the issuance of a PCO In the
case at bar, detainee Dr. Aurora Parong is charged in the municipal court with the crime of illegal
possession of firearm, which is a clearly bailable offense. The charges filed against the other detainees
are likewise for clearly bailable offenses. It is elementary that the right to bail in non-capital offenses and
even in capital offenses where evidence of guilt is not strong will be generally granted and respected by
the courts, "the natural tendency of the courts (being) towards a fair and liberal appreciation,"
particularly taking into consideration the record and standing of the person charged and the unlikelihood
of his fleeing the court's jurisdiction.

As the Court held in the leading case of Montano vs. Ocampo 9 wherein the Supreme Court granted bail
to Senator Montano who was charged with multiple murders and frustrated murders:

Brushing aside the charge that the prelimiminary investigation of this case by the aforesaid Judge was
railroaded, the same having been conducted at midnight, a few hours after the complaint was filed, we
are of the opinion that, upon the evidence adduced in the applicaction for bail in the lower court, as
such evidence is recited lengthily in the present petition and the answer thereto, and extensively
analyzed and discussed in the oral argument, there is not such clear showing of guilt as would preclude
all reasonable probability of any other conclusion.

Exclusion from bail in capital offenses being an exception to the otherwise absolute right guaranteed by
the constitution, the natural tendency of the courts has been toward a fair and liberal appreciation,
rather than otherwise , of the evidence in the determination of the degree of proof and presumption of
guilt necessary to war. rant a deprivation of that right.

Besides, to deny bail it is not enough that the evidence of guilt is strong; it must also appear that in case
of conviction the defendant 's liability would probably call for a capital punishment. No clear or
conclusive showing before this Court has been made.

In the evaluation of the evidence the probability of flight is one other important factor to be taken into
account. The sole purpose of confining accusedin jail before conviction, it has been observed, is to assure
his presence at the trial. In other words, if denial of bail is authorized in capital cases, it is only on the
theory that the proof being strong, the dependant would flee, if he has the opportunity, rather than face
the verdict of the jury. Hence the exception to the fundamental right to be bailed should be applied in
direct ratio to the extent of the probability of evasion of prosecution.

The possibility of escape in this case, bearing in mind the defendant's official and social standing and his
other personal circumstances, seems remote if not nil."
In the recent case of Sobremonte vs. Enrile, 10 the detainee was released upon her filing of the
recommended P1,000.00 bail bond for the offense of possession of subversive literature with which she
was charged and the habeas corpus petition, like many others, although dismissed for having thereby
become moot, accomplished the purpose of securing the accused's release from prolonged detention.
The Court had occasion to decry therein that "all the effort, energy and manhours expended by the
parties and their counsel, including this Court, ... could have been avoided had the officers of the
AVSECOM and the ISAFP responded promptly to the inquiries of petitioner instead of giving her the 'run-
around' by referring her from one office to another."

9. "The continuous flow of petitions for habeas corpus" filed with this Court should not be decried
nor discouraged. The Court stands as the guarantor of the constitutional and human rights of all persons
within its jurisdiction and must see to it that the rights are respected and enforced. It is settled in his
jurisdiction that once a deprivation of a constitutional right is shown to exist, the court that rendered the
judgment or before whom the case is pending is ousted of jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of the detention. 11 So accused persons deprived of the
constitutional right of speedy trial have been set free. 12 And likewise persons detained indefinitely
without charges so much so that the detention becomes punitive and not merely preventive in character
are entitled to regain their freedom. The spirit and letter of our Constitution negates as contrary to the
basic precepts of human rights and freedom that a person be detained indefinitely without any charges.

III. The main opinion invokes "a time of war or grave peril to the nation" (at page 16), oblivious of
the Presidents lifting of martial law under Proclamation No. 2045 on January 17, 1981 and the specific
premises therein set forth that

WHEREAS, the Filipino people, having subdued threats to the stability of government, public order and
security, are aware that the time has come to consolidate the gains attained by the nation under a state
of martial law by assuming their normal political roles and shaping the national destiny within the
framework of civil government and popular democracy:

WHEREAS, the experience gained by the nation under martial law in subduing threats to the stability of
the government, public order and security, has enabled the Filipino people to rediscover their
confidence in their ability to command the resources of national unity, patriotism, discipline and sense of
common destiny;
WHEREAS, the government and the people are at the same time also aware that the public safety
continues to require a degree of capability to deal adequately with elements who persist in endeavoring
to overthrow the government by violent means and exploiting every opportunity to disrupt the peaceful
and productive labors of the government; ..."

As to the "self-evident" submittal of the main opinion that "the duty of the judiciary to protect individual
rights must yield to the power of the Executive to protect the State, for if the State perishes, the
Constitution, with the Bill of Rights that guarantees the right to personal liberty, perishes with it" (at
page 16), I can only recall the exhortation of the Holy Father John Paul II in his address to the Philippine
nation on February 17, 1981, thus: "Even in exceptional situations that may at times arise, one can never
justify any violation of the fundamental dignity of the human person or of the basic rights that safeguard
this dignity. Legitimate concern for the security of a nation, as demanded by the common good, could
lead to the temptation of subjugating to the State the human being and his or her dignity and rights. Any
apparent conflict between the exigencies of security and of the citizens' basic rights must be resolved
according to the fundamental principle-upheld always by the Church- that social organization exists only
for the service of man and for the protection of his dignity, and that it cannot claim to serve the common
good when human rights are not safeguaded. People will have faith in the safeguarding of their security
and the promotion of their well-being only to the extent that they feel truly involved, and supported in
their very humanity."

Footnotes

1 212 U.S. 416, 417.

2 59 SCRA 183 (1974).

3 Moyer vs. Peabody, 212 U.S. 78, citing Keely vs. Sanders, 99 U.S. 441, 446, 25 L. Ed. 327, 328.

4 Lansang vs. Garcia, 42 SCRA 488.

5 Section 9, Article VII, Constitution.

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

7 Political Law of the Philippines by Senator Lorenzo Tañada and Atty. Francisco Carreon, Vol. II p.
236.

8 109 SCRA 273.

9 Lansang vs. Garcia, supra

10 Section 6, 1976 Amendment to the Constitution.

11 Nava vs. Gatmaitan, 90 Phil. 172.

* The ruling was non-doctrinal for lack of the necessary votes.

12 Ex parte Milligan, 4 Wallace 2 (1866).

13 Section 15, Article VIII, 1973 Constitution.

14 As explained in Tañada, et al. vs. Cuenco, et al. (103 Phil. 1051), term "political question"
connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. It refers to
those questions, which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
Executive branch of the Government (16 C.J.S. 413).

15 Ex parte Merryman, Federal Case No. 9487 (1861).

FERNANDO J.

1 Decision, 17.

2 L-33964, December 11, 1971, 42 SCRA 448.

3 5 Phil. 87 (1905).

4 91 Phil. 882 (1952).

5 L-32613, December 27, 1972, 48 SCRA 382.

6 L-35546, September 17, 1974, 59 SCRA 183.

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

8 1 Cranch 137 (1803).

9 63 Phil. 139 (1936).

10 Cf. In addition to Angara, there is likewise the case of Tañada v. Cuenco, 103 Phil. 1051 (1957).

11 Black, The People and the Court, 8 (1960).

12 Ibid., 8-9.
13 L-35546, September 17, 1974, 59 SCRA 183.

14 Ibid., 286.

15 L-30026, January 30,1971, 37 SCRA 420.

16 Ibid., 423.

17 Ibid., 423-424. The quotation from Chafee is found in The Most Important Human Right in the
Constitution, 32 Boston Univ. Law Rev. 143 (1947); from Cooley in 2 Constitutional Limitations 709
(1927); from Willoughby in 3 on the Constitution 1612 (1929); from Burdick in the Law of the American
Constitution 27 (1922); from Fraenkel in Our Civil Liberties 6 (1944).

18 372 US 391 (1963).

19 Ibid., 399-400.

20 Cf. Lansang v. Garcia, L-33964, December 11, 1971, 42 SCRA 448; Barcelon v. Baker, 5 Phil. 87
(1905); Montenegro v. Castaneda, 91 Phil. 882 (1952).

21 Proclamation No. 2045 (1981).

22 Ibid.

23 Article VII, Sec. 9 of the Constitution.

24 42 SCRA 448, 488.

25 212 US 78.

26 Ibid., 83.

27 Ibid., 84-85.

28 Ibid., 86.

29 According to Article IV, Sec. 18 of the Constitution: "All persons, except those charged with
capital offenses when evidence of guilt is strong, shall before conviction, be bailable by sufficient
sureties. Excessive bail shall not be required. "

30 90 Phil. 172 (1951). It is reported along with Nava v. Gatmaitan and Angeles v. Abaya in a single
resolution.

31 42 SCRA 448.

32 L-47185, January 15, 1981, 102 SCRA 7.

33 Suffian, (1976), An Introduction to the Constitution of Malaysia, 226.

34 Cf. Malaysia Soo Kua v. Public Prosecutor [1970] 1. Malaysian Law Journal 91; Karam Singh v. The
Minister of Internal Affairs [1969] 2. Malaysian Law Journal 129; Phong Chin Hock v. Public Prosecutor
(1977) 1 Malaysian Law Journal 70. The above provision is likewise applicable to Singapore. This decision
from that jurisdiction may be cited: Lim Hock Siew v. Minister of Interior and Defense [1918] 2 Malaysian
Law Journal 219. There is likewise relevance to these articles: Hickling, The Prerogative in Malaysia 17
Malaya Law Review 207 (1975) and Jayakumar, Emergency Powers in Malaysia 18 Malaya Law Review
149 (1976).

35 Jain, Judicial Creativity and Preventive Detention in India, 262.

36 Ibid.

37 Ibid., Liversidge is reported in [1942] A.C. 206.

38 Ibid., 263.

39 Ibid., 263-264.

40 Ibid., 263.

41 Ibid., 303-304.

42 Ibid., 304.

43 I had a separate opinion, dissenting in part, but I concurred in the holding that the question is
judicial rather than political.

44 42 SCRA 448, 473-474.

45 Ibid., 474-475.
46 Ibid., 475.

47 Ibid., 479-480.

48 Ibid., 480.

49 5 Phil. 87.

50 91 Phil. 882 (1952).

51 42 SCRA 448, 505-506.

52 Ibid., 506-507.

53 84 Phil. 368 (1949).

54 Ibid., 376.

55 Ibid., 383.

TEEHANKEE J.

1 42 SCRA 448 (1971).

2 5 Phil. 87 (1905).
3 91 Phil. 882 (1952).

4 Resolution of July 30, 1982 in G.R. No. 61016 In re: Petition for Habeas Corpus of Horacio R.
Morales, Jr.

5 Resolution of April 4, 1983 in G.R. No. 63581 In re: Petition for Habeas Corpus of Carl Gaspar.

6 42 SCRA at page 481.

7 Idem, at pages 473-475; emphasis copied.

8 Jointly decided with Angeles vs. Abaya and reported in 90 Phil. 172 (1951).

9 G.R. L-6352. Resolution of Jan. 29, 1953. 49 O.G. 1855; emphasis supplied. See Villasenor vs.
Abancio, 21 SCRA 321.

10 G.R. No. 60602, Sept. 30, 1982, per Escolin, J.

11 Gumabon v. Director of Prisons, 37 SCRA 420, 427.

12 Conde vs. Diaz, 45 Phil. 173.

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