Garcia Padilla Case (1983)

8/14/2019 Garcia Padilla Case (1983)

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Republic of the PhilippinesSUPREME 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 LOSSANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG,LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ. JR., JUANITO GRANADA andTOM 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 andproduce 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., JUANITOGRANADA and TOM VASQUEZ, forthwith before this Honorable Court and to makedue return of the writ therewith;

2. To issue, in addition or in the alternative to the writ of habeas corpus, a writ ofmandamus compelling the respondents to disclose the petitioners' present place ofdetention and to order the respondents to allow counsel and relatives to visit andconfer with the petitioners;

3. Pending the determination of the legality of their continued detention, to forthwithrelease 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 andequitable in the premises.

The records show that nine (9) of the fourteen (14) detainees herein were arrested on July 6, 1982at 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 byJudge Sofronio Sayo of the Court of First Instance of Nueva Viscaya conducted a raid at theresidence of Dra. Aurora Parong. Apprehended during the said raid were Dra. Aurora Parong,Benjamin Pineda, Sabino Padilla, Francisco Divinagracia, Zenaida Mallari, Letty Ballogan, NorbertoPortuguese, 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., JuanitaGranada, and Bienvenida Garcia, were arrested on the following day, July 7, 1982 by the same PCteams.


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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 detainedat the PC/INP Command Headquarters, Bayombong, Nueva Vizcaya from July 6, 1982 until theirtransfer 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 ofthe instant petition has, however, become moot and academic, and whereabouts of petitionershaving 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 waseffected without any warrant of arrest; that the PC/INP raiding team which made the arrest were onlyarmed with a search warrant (No. 3-82) issued by Judge Sofronio G. Sayo of the Court of FirstInstance of Nueva Viscaya, and nowhere in said warrant was authority given to make arrests, muchless detention; that the search warrant which authorized respondents to seize "subversive

documents, firearms of assorted calibers, medicine and other subversive paraphernalia" in thehouse and clinic of Dra. Aurora Parong was a roving and general warrant and is, therefore, illegalper se because it does not state specifically the things that are to be seized (Stonehill vs. Diokno, 20SCRA 383); that no criminal charges have as of yet been filed against any of the detainees; that thefourteen (14) detainees were initially held at the PC/INP Command in Bayombong, Nueva Viscayafrom 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 thepetitioner; that while it is true that a purported telegram stating the issuance of a PresidentialCommitment Order (PCO) was shown to the detainees on or about July 11 and 12, 1982, butcounsel 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 ofdetention 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 CrameIntelligence Units) took full control of the investigation, counsels were allowed to visit only onweekends; that when the detainees were transferred on August 10, 1982 to a place known only torespondents, the detainees' counsels and relatives were not notified, raising the apprehension thatpetitioners' constitutional rights to silence, to counsel and against self- incrimination are beingviolated; that counsels have tried to locate if the detainees were taken to Camp Crame or CampBago Bantay but to no avail; that Major Forondo of the PC Command in Nueva Viscaya informedMrs. Josefina Padilla that the detainees were transferred to Tuguegarao, Cagayan, others toEchague, Isabela; that there seems to be a deliberate and concerted effort by respondents toconceal from counsel and relatives the detainees' place of detention, raising the apprehension thatrespondents are using force, violence, threat, intimidation and other means which vitiate free will toobtain 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 issuedand 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 whowas temporarily released on July 17, 1982, after his arrest on July 15, 1982, are allbeing detained by virtue of a Presidential Commitment Order (PCO) issued on July12, 1982, pursuant to LOI No. 1211 dated March 9, 1982, in relation to PresidentialProclamation No. 2045 dated January 17, 1981. The said PCO was issued byPresident Ferdinand E. Marcos for violation of P.D. No. 885. ...


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

II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS

3. The persons named in the above-mentioned Presidential Commitment Order werearrested and are being detained for offenses with respect to which underProclamation No. 2045, the privilege of the writ of habeas corpus continues to besuspended, thus:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President/PrimeMinister of the Philippines, by virtue of the powers vested in me bythe Constitution, do hereby revoke Proclamation No. 1081(Proclaiming a state of Martial Law in the Philippines) andProclamation No. 1104 (Declaring the Continuation of Martial Law)

and proclaim the termination of the state of martial law throughout thePhilippines; Provided, that the call to the Armed Forces of thePhilippines to prevent or suppress lawless violence, insurrection,rebellion and subversion shall continue to be in force and effect; andProvided that in the two autonomous regions in Mindanao, upon therequest of the residents therein, the suspension of the privilege of thewrit of habeas corpus shag continue; and in all other places thesuspension of the privilege of the writ shall also continue with respectto persons at present detained as well as others who may hereafterbe similarly detained for the crimes of insurrection or rebellion,subversion, conspiracy or proposals to commit such crimes, and forall other crimes and offenses committed by them in furtherance or onthe 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 cannotinquire into the validity and cause of their arrest and detention.

4. The power of the President in an emergency, such as that which necessitated thecontinued suspension of the privilege of the writ of habeas corpus, to order thedetention of persons believed engaged in crimes related to national security isrecognized. (Aquino vs. Enrile, 59 SCRA 83; Luneta, et al. vs. Special MilitaryCommission, 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 atbar."

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

G.R. No. 61388 (In the Matter of the Petition for the Insurance of the Writ of HabeasCorpus of Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, FrancisDivinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, MarianoSoriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr.,Juanito Granada and Tom Vasquez; Josefina Garcia-Padilla vs. Minister Juan PonceEnrile, Gen. Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col. Miguel Coronel.)- Thereturn of the writ of habeas corpus and answer to the prayer for mandamus filed bythe 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, AttorneysAlexander A. Padilla and Efren H. Mercado appeared for petitioner. Solicitor GeneralEstelito P. Mendoza and Assistant Solicitor General Ramon A. Barcelona, appearedfor the respondents. All of the detainees, except Tom Vasquez, who was temporarilyreleased on July 17, 1982, were present in Court; Dr. Aurora Parong, Norberto


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Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, BenjaminPineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, BienvenidaGarcia, Eufronio Ortiz, Jr. and Juanito Granada. Attorney Alexander A. Padillaargued for the petitioner. Solicitor General Mendoza argued for the respondents.Former Senator Diokno argued in the rebuttal. The Court Resolved to require theSolicitor General to SUBMIT within five (5) days from date the documents relevant to

the issuance of the Presidential Commitment Order. Thereafter, the case shall beconsidered SUBMITTED for resolution.

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

The fundamental issue here, as in all petitioner for the writ of habeas corpus, is whether or notpetitioners' detention is legal. We have carefully gone over the claims of the parties in theirrespective pleadings as well as in the oral argument during the hearing on August 26, 1982, and Wefind that petitioners have not been illegally deprived of their constitutional right to liberty, neither inthe manner of their arrest, nor by their continued detention, and that the circumstances attendant inthe 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 residencefrom 10:00 a.m. of that same day. Prior thereto, all the fourteen (14) detainees were undersurveillance 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 inBayombong, Nueva Viscaya, as their headquarters. Caught in flagrante delicto, the nine (9)detainees mentioned scampered towards different directions leaving in top of their conference tablenumerous subversive documents, periodicals, pamphlets, books, correspondence, stationaries, andother papers, including a plan on how they would infiltrate the youth and student sector (code-namedYORK). Also found were one (1) .38 cal. revolver with eight (8) live bullets, nineteen (19) rounds ofammunition 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 ofprinting paraphernalia, which were then seized. There is no doubt that circumstances attendant inthe arrest of the herein detainees fall under a situation where arrest is lawful even without a judicialwarrant as specifically provided for under Section 6(a), Rule 113 of the Rules of Court and allowedunder existing jurisprudence on the matter. As provided therein, a peace officer or a private personmay, without a warrant, arrest a person when the person to be arrested has committed or actuallycommitting, 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 illegallyis, 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 thefurtherance on the occasion thereof, or incident thereto, or in connection therewith underPresidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apartfrom the common offenses, aside from their essentially involving a massive conspiracy of nationwidemagnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law andexisting jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or forcommitting non-violent acts but in furtherance of the rebellion, is more an act of capturing them inthe course of an armed conflict, to quell the rebellion, than for the purpose of immediatelyprosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usualprocedure in the prosecution of offenses which requires the determination by a judge of theexistence of probable cause before the issuance of a judicial warrant of arrest and the granting ofbail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment toarresting 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 thusimpelled by the exigencies of the situation that involves the very survival of society and itsgovernment and duly constituted authorities. If killing and other acts of violence against the rebelsfind justification in the exigencies of armed hostilities which is of the essence of waging a rebellion orinsurrection, most assuredly so in case of invasion, merely seizing their persons and detaining themwhile any of these contingencies continues cannot be less justified. In the language ofMoyer vs.Peabody, 1cited with approval inAquino, et al. vs. Ponce Enrile, 2the President " shall make theordinary use of the soldiers to that end that he may kill persons who resist, and, of course, that he


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may use the milder measure of seizing the bodies of those whom he considers to stand in the way ofrestoring peace. Such arrests are not necessarily for punishment, but are by way of precaution, toprevent the exercise of hostile power."

Thus characterized, the arrest and detention of persons ordered by the President through theissuance 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 yieldto what he deems the necessities of the moment. Public danger warrants the substitution ofexecutive process for judicial process." 3What should be underscored is that if the greater violationagainst life itself such as killing, will not be the subject of judicial inquiry, as it cannot be raised astransgressing against the due process clause that protects life, liberty and property, lesser violationsagainst 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 PresidentialCommitment Order (PCO) has provided the legal basis of the detention of herein detainees followingtheir arrest for Proclamation No. 2045 covered offenses. This question has to be set at rest promptlyand decisively, if We are to break a seemingly continuous flow of petitions for habeas corpus, aswhat 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 ofthe offenses covered by Proclamation No. 2045 which continues in force the suspension of theprivilege of the writ of habeas corpus, if the arrest has been made initially without any warrant, itslegal effect is to render the writ unavailing as a means of judicially inquiring into the legality of thedetention in view of the suspension of the privilege of the writ. The grant of the power to suspend thesaid privilege provides the basis for continuing with perfect legality the detention as long as theinvasion or rebellion has not been repelled or quelled, and the need therefor in the interest of publicsafety 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 itslegality 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 maydetermine as an incident of his grave responsibility as the Commander-in-Chief of the ArmedForces, of protecting not only public safety but the very life of the State, the government and dulyconstituted 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 alegal question on whether there is a violation of the right to personal liberty when any member of theinvading force is captured and detained.

The presidential responsibility is one attended with all urgency when so grave a peril to the life of theNation besets the country in times of the aforementioned contingencies. In the discharge of thisawesome and sacred responsibility, the President should be free from interference. The existence ofwarlike 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 thisregard to judicial inquiry or interference from whatever source. If freedom from judicial review isconceded 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 hiswartime power, as it were, to adopt any measure in dealing with situations calling for military actionas 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 ofthe President as Commander-in-Chief of the Nation's armed forces. The need for a unified commandin such contingencies is imperative-even axiomatic-as a basic military concept in the art of warfare.

4. From the clear language of the Lansangcase, 4"the function of Court is merely to checknot tosupplantthe Executive, or to ascertain merely whether he has gone beyond the constitutionallimits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of hisact. " 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 thesupplanting of the decision of the President to detain pursuant to Proclamation No. 2045, of personswho come under its coverage.


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The specific mention in the Constitution of rebellion and insurrection along with invasion andimminent danger thereof, shows that the terms "rebellion and insurrection" are used therein in thesense 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 ameasure 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 theclaim of those detained to the right to bail to obtain their freedom. To hold otherwise would defeatthe purpose of the constitutional grant of the power to suspend the privilege of the writ of habeascorpus on the occasions expressly mentioned in the charter. For what indeed could the purpose beof suspending the privilege of the writ of habeas corpus other than to restrict, at least for the durationof the emergency of invasion or rebellion, the right to personal liberty, dictated as it is, in the greaterinterest of public safety and national security.

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

5. Worthy of profound notice and keen appreciation is the fact that the authority to suspend theprivilege of the writ of habeas corpus has been deliberately vested on the President as theCommander-in-Chief of the armed forces, together with the related power to call out the armedforces to suppress lawless violence and impose martial law. 5The choice could not have been morewise 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 thealternative upon which to lodge the power, or to share in its exercise, but the distilled wisdom of theConstitutional Convention finally made its choice for the President alone.

As previously noted, "invasion" which is not a statutorily-defined offense and "imminent dangerthereof" as mentioned in the Constitution indicate that "rebellion and insurrection" are alsomentioned therein not in their concept as statutorily-defined public crimes, but as a state or conditionof extreme emergency resulting from the existence of the aforesaid events. Now, if capturedenemies from the invading force may not be charged with any statutory offense that would providethe occasion to demand the right to bail, it is obvious that persons engaged in rebellion orinsurrection may not claim the right to be released on bail when similarly captured or arrested duringthe continuance of the aforesaid contingency. They may not even claim the right to be chargedimmediately in court, as they may rightfully do so, were they being charged with an ordinary orcommon offense. This is so because according to legal writers or publicists, the suspension of theprivilege of the writ of habeas corpus "has the sole effect of allowing the executive to defer the trialsof persons charged with certain offenses during the period of emergency." 6This clearly meansdenial 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 thesuspension of the right to bail, if the government's campaign to suppress the rebellion is to beenhanced and rendered effective. If the right to bail may be demanded during the continuance of therebellion, and those arrested, captured and detained in the course thereof will be released, theywould, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success ofgovernment 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 tobe as committed to the cause of the movement. Through a grand conspiracy, as is of the essence ofhow rebellion is committed, involving a great mass of confederates bound together by a commongoal, he remains in a state of continued participation in the criminal act or design. His heart stillbeats with the same emotion for the success of the movement of which he continues to be an ardentadherent and ally. It is simple logic then to hold that there should be no legal compulsion for acaptured rebel to be charged in court, only to be released on bail, while he is, realistically andlegally, still as much as part and parcel of the movement, continuing as it is, as those still engaged in


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carrying on actively to attain their goal of overthrowing the established regime. Hence, it is easy toperceive how impressed with absolute verity is the opinion expressed by two acknowledgedauthorities on Constitutional law in our country, 7 which We quote:

... If the return to the writ shows that the person in custody was apprehended anddetained in areas where the privileges of the writ have been suspended or for the

crimes mentioned in the executive proclamation, the court will suspend furtherproceedings in the action.

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

It is, likewise, all too well-known that when the rebel forces capture government troopers or kidnapprivate individuals, they do not accord to them any of the rights now being demanded by the hereinpetitioners, 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 deniedtrial of any kind. In some instances, they may even be liquidated unceremoniously. What is thensought by the suspension of the privilege of the writ of habeas corpus is, among others, to put thegovernment forces on equal fighting terms with the rebels, by authorizing the detention of their ownrebel or dissident captives as the rebellion goes on. In this way, the advantage the rebellion forceshave over those of the government, as when they resort to guerilla tactics with sophisticatedweapons, is, at least, minimized, thereby enhancing the latter's chances of beating their enemy. Itwould, therefore, seem to be ignoring realities in the name of misplaced magnanimity andcompassion, and for the sake of humanity, to grant the demand for respect of rights supposedlyguaranteed 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 actualitygives added force and substance to the rationale of the suspension of the privilege of the writ ofhabeas corpus in case of invasion, insurrection, rebellion, or imminent danger thereof, when public

safety requires it.

6. Invoking the Lansangcase, 9however, petitioners would ask this Court to review the issuance ofthe PCO against them, intimating that arbitrariness attended its issuance because, relying on theevidence 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 ofhabeas corpus on August 21, 1971, valid and constitutional, on a finding that there was noarbitrariness attendant to the suspension. It never intended to suggest that for every individual caseof arrest and detention, the writ of habeas corpus is available, even after the suspension of thisprivilege, 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 petitionfor 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 lawhas afforded him adequate safeguards against arbitrariness, such as the requirement of determiningthe existence of a probable cause by the judge before the issuance of the warrant of arrest. Thefinding of such probable cause may not be immediately brought for review by this Court in a habeascorpus proceeding, on the claim of arbitrariness. The matter is to be decided on the basis of theevidence, and this Court is not the proper forum for the review sought, not being a trier of facts. Ifsuch a procedure were allowed, it would be easy to delay and obstruct the prosecution of an offenseby 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 exactlyone of this kind. If granted, the effect is to transfer the jurisdiction of the trial courts in criminal casesto 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 theperformance of official duty. Unexhilaratingly, this is the revealing experience of this Court in theLansang case, where it doubtlessly realized how hardly possible it is to adduce evidence or proofupon 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 thePresident on July 12, 1982, tested by the conformity of its issuance to the procedure laid down underLOI 1211, petitioners insisting that the LOI limits the authority of the President to cause the arrest


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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 PCOissued thereunder did not validate the initial illegal arrest of the herein petitioners as wen as theircontinued 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 lawenforcement agency after it is determined that the person or persons to be arrestedwould probably escape or commit further acts which would endanger public orderand safety. After the arrest, however, the case shall be immediately referred to thecity or provincial fiscal or to the municipal, city, circuit, or district judge for preliminaryexamination or investigation who, if the evidence warrants, shall file thecorresponding charges and, thereafter, we a warrant of arrest;

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

(a) When resort to judicial process isnot possible or expedientwithout endangering public order and safety;or

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

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

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

(a) When resort to judicial process is not possible or expedientwithout endangering public order and safety; or

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

The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged necessity of judicialwarrant before a person may be arrested and detained is not well-founded. Neither is the contentionthat paragraph 3 of LOI 1211 applies only when judicial process is not possible. This is a narrow andconstricted 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 beexpedient because it would endanger the public order or safety, a PCO is justified. So, too, whenrelease 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 implementingofficers for the ultimate objective of providing guidelines in the arrest and detention of the personscovered by Presidential Proclamation No. 2045. The purpose is "to insure protection to individualliberties without sacrificing the requirements of public order and safety and the effectiveness of thecampaign against those seeking the forcible overthrow of the government and duty constitutedauthorities. " LOI 1211 does not, in any manner, limit the authority of the President to cause thearrest and detention of persons engaged in, or charged with the crimes or offenses mentioned insaid Proclamation in that he (President) would subject himself to the superior authority of the judge


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who, under normal judicial processes in the prosecution of the common offenses, is the oneauthorized to issue a judicial warrant after a preliminary investigation is conducted with a finding ofprobable cause. Those who would read such an intention on the part of the President in issuing LOI1211 seems to do so in their view that LOI forms part of the law of the land under the 1976amendment of the Constitution. 10They would then contend that a PCO issued not in compliancewith 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 theexercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976amendments to the Constitution, whenever in his judgment, there exists a grave emergency or athreat 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 judgmentrequires immediate action. There can be no pretense, much less a showing, that these conditionsprompted the President to issue LOI 1211. Verily, not all LOI issued by the President should bedignified into forming part of the law of the land.

In the event then that the judge believes no warrant shall issue, the President, under PresidentialProclamation No. 2045 and Letter of Instruction No. 1211, is not bound by such finding, as explicitlyprovided in paragraph 2 of LOI 1211. That the President avails of the facilities of the judicialmachinery, as is the clear intent of LOI 1211, to aid him in exercising his power to restrain personalliberty, as dictated by the necessities and exigencies of the emergency, does not indicate anyintention on his part to renounce or to allow even mere curtailment of his power such that the judicialprocess will thereupon take its normal course, under which the detainees or accused would then beentitled to demand their right of due process, particularly in relation to their personal liberty. 11Theissuance of the PCO by the President necessarily constitutes a finding that the conditions he hasprescribed in LOI 1211 for the issuance of that PCO have been met, and intends that the detentionwould 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. Gatmaitancase,*as above intimated, must have shown him that to prosecute the offense through the judicialprocess of forthwith instead of deferring it, would neither be wise nor expedient if he were to dealeffectively with the grave emergency at hand.

What has been said above shows the need of reexamining the Lansang case with a view toreverting 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 ofhabeas corpus is "final and conclusive upon the courts, and all other persons." This well-settledruling was diluted in the Lansang case which declared that the "function of the Court is merely tochecknot to supplantthe Executive, or ascertain merely whether he has gone beyond theconstitutional limits of his jurisdiction not to exercise the power vested in him or to determine thewisdom of his act." Judicial interference was thus held as permissible, and the test as laid downtherein is not whether the President acted correctly but whether he acted arbitrarily. This wouldseem to be pure semanticism, if We consider that with particular reference to the nature of theactions 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 orsupplant the presidential actions. On these occasions, the President takes absolute command, forthe very life of the Nation and its government, which, incidentally, includes the courts, is in graveperil. In so doing, the President is answerable only to his conscience, the people and to God. Fortheir part, in giving him the supreme mandate as their President, the people can only trust and praythat, 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 tosuspend 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 inthe 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 determiningthe justiciability of a case. The wisdom of this concept remains well-recognized in advancedconstitutional systems. To erase it from our own system as seems to be what was done in theLansang case, may neither be proper nor prudent. A good example could be given in the exercise ofthe presidential power of pardon which is beyond judicial review, specially under the newConstitution where the condition that it may be granted only after final conviction has been doneaway with.


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True, the Constitution is the law "equally in war and in peace," 12as Chief Justice Fernando cited inhis brilliant separate opinion in the same Lansang case. Precisely, it is the Constitution that gives thePresident 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 thatthe guarantee of the right to liberty is for personal benefit, while the grant of the presidential power isfor public safety. Which of the two enjoys primacy over the other is all too obvious. For thepoweris

intended as a limitation of the right, in much the same way as individual freedom yields to theexercise of the police power of the State in the interest of general welfare. The difference again isthat the power comes into being during extreme emergencies the exercise of which, for completeeffectiveness for the purpose it was granted should not permit intereference, while individualfreedom is obviously for full enjoyment in time of peace, but in time of war or grave peril to thenation, should be limited or restricted. In a true sense then, our Constitution is for both peacetimeand 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 intime of war or similar emergencies. So it is that, as proclaimed by the Constitution, the defense ofthe State is a prime duty of government. Compulsory military service may be imposed, certainly amandate that derogates on the right to personal liberty. It, therefore, becomes self-evident that theduty of the judiciary to protect individual rights must yield to the power of the Executive to protect theState, 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 legislationto the President. 13Would it not be as proper and wholly acceptable to lay down the principle thatduring such crises, the judiciary should be less jealous of its power and more trusting of theExecutive in the exercise of its emergency powers in recognition of the same necessity? Verily, theexistence of the emergencies should be left to President's sole and unfettered determination. Hisexercise 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 presidentialacts and decisions, sounds good in theory but impractical and unrealistic, considering how well-nighimpossible it is for the courts to contradict the finding of the President on the existence of theemergency 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 aviolent collision of two jealous powers with tragic consequences, by all means to be avoided, in favorof adhering to the more desirable and long-tested doctrine of "political question" in reference to thepower of judicial review. 14

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

Accordingly, We hold that in times of war and similar emergency as expressly provided in theConstitution, the President may suspend the privilege of the writ of habeas corpus, which has theeffect of allowing the Executive to defer the prosecution of any of the offenses covered byProclamation No. 2045, including, as a necessary consequence, the withholding for the duration ofthe 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 PresidentLincoln himself exercised the power in 1861, Chief Justice Taney of the U.S. Supreme Courtexpressed the opinion that Congress alone possessed this power under theConstitutional., 15Incidentally, 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 actof 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 theexclusive prerogative of the President under the Constitution, may not be declared void by thecourts, under the doctrine of "political question," as has been applied inthe Bakerand Castanedacases, 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 mandatereceived by the President from the people and his oath to do justice to every man should besufficient guarantee, without need of judicial overseeing, against commission by him of an act ofarbitrariness in the discharge particularly of those duties imposed upon him for the protection ofpublic safety which in itself includes the protection of life, liberty and property. This Court is notpossessed with the attribute of infallibility that when it reviews the acts of the President in theexercise of his exclusive power, for possible fault of arbitrariness, it would not itself go so far as tocommit the self-same fault.


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Finally, We hold that upon the issuance of the Presidential Commitment Order against hereinpetitioners, their continued detention is rendered valid and legal, and their right to be released evenafter the filing of charges against them in court, to depend on the President, who may order therelease 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 rightto 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 theconstitutional 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 inother similar petitions for that matter, is impressed with significance that calls for the highest degreeof care and circumspection. The result arrived at by the Court is that once a presidential commitmentorder is issued, the detention is rendered valid and legal, the right to be released of the persondetained even after the filing of charges being dependent on the President "who may order therelease of a detainee or his being placed under house arrest, as he has done in meritoriouscases." 1The exhaustive opinion of the Court penned by Justice de Castro likewise re-examines theLansang doctrine 2which ruled that the suspension of the privilege of the writ of habeas corpusraises a judicial rather than a political question and reverts to the principle announced in the earliercases ofBarcelon v. Baker 3and Montenegro v. Castaeda,4both of which held that the questionraised is political in character.

I concur in the ruling that while as a general rule preventive detention is an obstacle to judicialinquiry, 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. Idissent 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 findsshelter in the fundamental law. This Court, both in normal times and under emergency conditions, isnot susceptible to the accusation that it has not accorded the most careful study to a plea of such


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character. Petitioners were heard and their cases decided. In addition to Lansang, People v.Ferrer, 5Aquino Jr. v. Ponce Enrile6andAquino Jr. v. Military CommissionNo. 2 7may be cited.This Tribunal then has not been insensible to its duty to render fealty to the applicable mandates ofthe Constitution. That is to be true to the primordial concept first announced in the landmark decisionof Marbury v. Madison, 8the 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 inAngara v. Electoral Tribunal,9

the first case of transcendental importance under the 1935Charter. 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 legislativeacts. For as so often stressed, "the Constitution is not only law, but a higher law, to which other lawmust bow." 11Professor Black went on to state: "Here, I think, we are laboring the obvious. Thesuperior status of the Constitution is clearer even than its standing as law. But if it is of superiorstatus, and if it is law, then it is law of a superior status. Again, the important thing is not whethersome flaw could be found in the logic by which this was established. The logic of human institutionsis a logic of probability. The important thing is that this concept of the superior status of theConstitution as law very early became and has since continued to be a standard part of the way inwhich the American lawyer and judge and citizen look at their government." 12This is not to deny thepossibility of judicial interference with policy formulation, better left to the political branches. It is anentirely 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 bothawesome and delicate. Nonetheless, for the judiciary, there is no choice. To repeat, it is a duty to beperformed. This is so especially where the writ of habeas corpus has been invoked. It is thenincumbent on a court to pass on the legality of the detention. As I had occasion to state in myseparate opinion inAquino Jr. vs. Enrile:13"This Court has to act then. The liberty enshrined in theConstitution, for the protection of which habeas corpus is the appropriate remedy, imposes thatobligation. 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 intothe matter and to render the decision appropriate under the circumstances. Precisely, a habeascorpus petition calls for that response." 14It cannot be overemphasized that the writ of habeas

corpus, as a constitutional right, it, for eminent commentators, protean in scope. A reference to theopinion of the Court in Gumabon v. Director of Bureau of Prisons 15may not be amiss. Thus: "Thewrit imposes on judges the grave responsibility of ascertaining whether there is any legal justificationfor a deprivation of physical freedom. Unless there be such a showing, the confinement mustthereby cease. " 16It continues: "Rightly then could Chafee refer to the writ as 'The most importanthuman 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 thesafeguards erected by the civil law against arbitrary and illegal imprisonment by whomsoeverdetention may be exercised or ordered.' Burdick echoed a similar sentiment, referring to it as 'One ofthe most important bulwarks of liberty.' Fraenkel made it unanimous, for to him. 'Without it much elsewould be of no avail.' Thereby the rule of law is assured. A full awareness of the potentialities of thewrit of habeas corpus in the defense of liberty coupled with its limitations may be detected in theopinions 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 thebreadth 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 tobear 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 doesa swift and imperative remedy in all cases of illegal restraint and confinement. It is of immemorialantiquity, an instance of its use occurring in the thirty-third year of Edward I. 'Secretary of State forHome 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, habeascorpus 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 thisCourt had occasion to reaffirm the high place of the writ in our jurisprudence: 'We repeat what hasbeen so truly said of the federal writ: "there is no higher duty than to maintain it unimpaired," Bowenv. Johnston, 306 US 19, 26, 83 L ed 455, 461, 59 S Ct 442 (1939), and unsuspended, save only inthe cases specified in our Constitution.' Smith v. Bennett, 365 US 708, 713, 6 1 ed 2d 39, 43, 81 sCt. 895. " 19


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5. To repeat, it is the ruling of this Court that an issuance of a presidential commitment order impartsvalidity to a detention the right to be released of the person detained even after the filing of chargesbeing dependent on the President who may order such release or his being placed under housearrest. As I mentioned at the outset, I yield a qualified concurrence. The power of preventivedetention where the privilege of the writ of habeas corpus is suspended has been recognized. 20Thelifting 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 thewhereas clause spoke of the awareness of the government and the Filipino people of public safetycontinuing "to require a degree of capability to deal adequately with elements who persist inendeavoring to overthrow the government by violent means and exploiting every opportunity todisrupt [its] peaceful and productive" efforts. 21Accordingly, in terminating the state of martial lawthroughout the Philippines, it was provided: "that the call to the Armed Forces of the Philippines toprevent or suppress lawless violence, insurrection, rebellion and subversion shall continue to be inforce and effect; and Provided that in the two autonomous regions in Mindanao, upon the request ofthe 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 topersons at present detained as well as others who may hereafter be similarly detained for the crimesof insurrection or rebellion, subversion; conspiracy or proposal to commit such crimes and for allother crimes and offenses committed by them in furtherance or on the occasion thereof, or incident

thereto, or in connection therewith; * * *." 22That is the basis for the preventive detention ofpetitioners in this case.

6. The President as commander-in-chief may call out the armed forces to prevent or suppresslawless violence, invasion, insurrection, or rebellion and in case of invasion, insurrection, orrebellion, or imminent danger thereof, when the public safety requires it, "may suspend the privilegeof the writ of habeas corpus, or place the Philippines or any part thereof under martial law."23Thereare thus three alternatives which may be availed to meet a grave public danger to the security of thestate. As pointed out by Chief Justice Concepcion in Lansang, prior to the suspension of theprivilege of the writ in 1971, the armed forces had been called out, but such a move "provedinadequate to attain the desired result. Of the two (2) other alternatives, the suspension of theprivilege is the least harsh." 24Even 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 AmericanSupreme Court, the opinion being penned by Justice Holmes, may be cited. According to thestatement of the facts of that case, "it appeared that the governor had declared a county to be in astate of insurrection, had called out troops to put down the trouble, and had ordered that the plaintiffshould be arrested as a leader of the outbreak, and should be detained until he could be dischargedwith safety, and that then he should be delivered to the civil authorities, to be dealt with according tolaw." 26On 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 useof the soldiers to that end; that he may kill persons who resist, and, of course, that he may use themilder measure of seizing the bodies of those whom he considers to stand in the way of restoringpeace. Such arrests are not necessarily for punishment, but are by way of precaution, to prevent theexercise of hostile power. So long as such arrests are made in good faith and in the honest beliefthat 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 groundfor his belief." 27The last paragraph of Justice Holmes opinion was even more emphatic: "When itcomes to a decision by the head of the state upon a matter involving its life, the ordinary rights ofindividuals must yield to what he deems the necessities of the moment. Public danger warrants thesubstitution 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 itobvious, although it was disputed, that the same is true of temporary detention to preventapprehended harm. As no one would deny that there was immunity for ordering a company to fireupon a mob in insurrection, and that a state law authorizing the governor to deprive citizens of lifeunder such circumstances was consistent with the 14th Amendment, we are of opinion that thesame is true of a law authorizing by implication that was done in this case." 28Nonetheless, whilepreventive detention is a proper measure to cope with the danger arising from the insurrection orrebellion, it may continue for such length of time as to make it punitive in character. If such were thecase, I am not prepared to yield concurrence to the view that this Court is devoid of the power in ahabeas corpus proceeding to inquire into the legality of the detention. As to when such a stage isreached cannot be set forth with precision. The test would be an appraisal of the environmental factsof each case. This is not to deny that the presumption must be in favor not only of the good faithcharacterizing the presidential action but of the absence of any arbitrary taint in so orderingpreventive detention. It is out of excess of caution and due to the belief that habeas corpus as a writof liberty should not be unnecessarily curtailed that I feel compelled to qualify my concurrence in thatrespect.


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7. Nor is this all. Once a case is filed, the party detained may avail himself of the right to bail. If therebe such a petition, the court has jurisdiction to grant or to deny bail in accordance with theconstitutional provision. 29Inasmuch as the return to the writ filed by the Solicitor General states thata warrant of arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by theMunicipal Court of Bayombong, for illegal possession of firearm and ammunition, then clearly shehas 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 tomake their conclusion doctrinal agreed with such submission. There was adherence to such a viewin my separate opinions in Lansang 31and in Buscayno v. Enrile,32I do again and to that extentdissent.

8. It may be worthwhile to touch briefly on the exercise of power of preventive detention in otherjurisdictions. The retired Lord President of the Federal Court of Malaysia Tun Mohamed Suffian inhis work on the Malaysian constitution, spoke of the emergency powers of the executive, the YangDipertuan Agungin this wise: " If the Yang Dipertuan Agung (acting on Cabinet advice) is satisfiedthat a grave emergency exists whereby the security or economic life of the Federation or any partthereof is threatened, article 150 empowers him to issue a proclamation of emergency. He has doneso thrice: first, to meet the emergency caused by Indonesian confrontation, secondly, to meet theemergency caused by the political crisis arising out of the position of the Chief Minister of Sarawakand, 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 theconstitution). If a proclamation of emergency is issued when Parliament is not sitting, the YangDipertuan Agung must summon Parliament as soon as may be practicable. Until both Houses ofParliament are sitting, he may promulgate ordinances having the force of law, if satisfied thatimmediate action is required." 33By virtue of such competence, preventive detention may beordered. 34The power of preventive detention is likewise recognized in India. According to ProfessorJain, in a leading article, it "prevails in many democratic countries and in some form or other, at onetime or other, each democratic country has taken recourse to preventive detention, especially duringthe war period." 35He mentioned the United States Internal Security Act enacted by its Congress in1950 for emergency detention "during an emergency of war, invasion or domestic insurrection of aperson 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 corpusduring rebellion or invasion if public safety so requires." 36He likewise referred to England, citingRegulation 14B of the Defense of Realm Act Regulations, 1914, during World War I and Regulation18B of the Defense Regulations during World War II which according to him led to the celebratedcase of Liversidge v. Anderson. 37Then he turned to his own country: "In India, because of unstablelaw 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 daylaw for the purpose is the Maintenance of Internal Security Act, 1971. A salient feature of the law ofpreventive detention in India has been to confer a very broad discretion on the administrativeauthority to order preventive detention of a person in certain circumstances." 38He spoke of therelevant constitutional provisions having a bearing on preventive detention: "A law for preventivedetention 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 andthe State Legislatures can concurrently make a law for preventive detention for reasons connectedwith the " security of a State', maintenance of public order,' or 'maintenance of supplies and servicesessential to the community.' Parliament thus has a wide legislative jurisdiction in the matter as it canenact 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, havebeen enacted by Parliament providing for preventive detention for all these six heads." 39For him thelaw of preventive detention in India "has therefore been too much administrative-ridden and thescope of judicial review has been very much limited." 40He made a careful study of the cases onpreventive detention in India. As he pointed out, "the range and magnitude of administrative controlover 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 ofthe case, hes within the scope of administrative discretion and beyond judicialreview." 41Nonetheless, the Supreme Court of India, as he stressed, "in the interest or maintainingconstitutionalism," has been able to take "a somewhat broad view of its restricted powers, and hasgiven whatever relief it can to the detained persons." 42For me that approach has much torecommend it. This is not to deny that in the event there is a misapprehension as to the actual factsthat led to the preventive detention, the plea for remedial action should, in the first instance, beaddressed to the President. Very likely, there will be an affirmative response. Even then, theassurance to a party feeling aggrieved that there could still be resort to judicial review, even ifutilized only in rare and exceptional cases, may conduce to a deeper sense of loyalty to the existing


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constitutional order on the part of the misguided or disaffected individuals. Hence, to repeat, thisqualified concurrence on my part.

9. The opinion of the Court, however, did not stop at dismissing the petition on the ground that theissuance of a presidential commitment order validates the preventive detention of petitioners. It wentfarther 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 thatit 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 accorddeference to a presidential committment order suffices for the decision of this case. Nor would I limitmy dissent on that ground alone. It is for me, and again I say this with due respect, deplorable andunjustifiable for this Court to turn its back on a doctrine that has elicited praise and commendationfrom eminent scholars and jurists here and abroad.

10. That is easily understandable. The learned, comprehension and unanimous Lansang opinionpenned by Chief Justice Concepcion concurred in by all the Justices, 43to my mind, explains withlucidity and force why the question is judicial rather than political. Thus: "Indeed, the grant of powerto suspend the privilege is neither absolute nor unqualified. The authority conferred by theConstitution, both under the Bill of Rights and under the Executive Department, is limited andconditional. The precept in the Bill of Rights establishes a general rule, as well as an exceptionthereto. What is more, it postulates the former in the negative, evidently to stress its importance, byproviding that '(t)he privilege of the writ of habeas corpus shall not be suspended * * *.' It is only byway of exception that it permits the suspension of the privilege 'in cases of invasion, insurrection, orrebellion'- or, under Art. VII of the Constitution, 'imminent danger thereof when the public safetyrequires it, in any of which events the same may be suspended wherever during such period thenecessity for such suspension shall exist.' For from being full and plenary, the authority to suspendthe privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribedsetting or the conditions essential to its existence, but, also, as regards the time when and the placewhere 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 notexist. 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 inquiredinto by courts of justice. Otherwise, the explicit constitutional provisions thereon would bemeaningless. Surely, the framers of our Constitution could not have intended to engage in such awasteful exercise in futility." 44The then Chief Justice continued: "Much less may the assumption beindulged in when we bear in mind that our political system is essentially democratic and republicanin character and that the suspension of the privilege affects the most fundamental element of thatsystem, namely, individual freedom. Indeed, such freedom includes and connotes, as well asdemands, the right of every single member of our citizenry to freely discuss and dissent from, as wellas criticize and denounce, the views, the policies and the practices of the government and the partyin power that he deems unwise, improper or inimical to the commonwealth, regardless of whetherhis 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 democraticsystem and essential to its successful operation and wholesome growth and development." 45

11. One of the merits of theponenciaof Chief Justice Concepcion is that it is infused with a sense ofrealism. These are his words: "Manifestly, however, the liberty guaranteed and protected by ourBasic 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 theRules of Law. Accordingly, when individual freedom is used to destroy that social order, by means offorce and violence, in defiance of the Rule of Law- such as by rising publicly and taking arms againstthe government to overthrow the same, thereby committing the crime of rebellion there emerges acircumstance 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 wemust be forewarned against mistaking mere dissent-no matter how emphatic or intemperate it maybe-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 cannotreasonably be denied-to uphold the finding of the Executive thereon, without, in effect, encroachingupon a power vested in him by the Supreme Law of the land and depriving him, to this extent, ofsuch power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Lawthe Court is called upon to epitomize." 46

12. After which this Court, as set forth in the Lansang opinion, considered "the precise nature" of itsfunction: "Article VII of the Constitution vests in the Executive the power to suspend the privilege of


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the writ of habeas corpus under specified conditions. Pursuant to the principle of separation ofpowers 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 goeshand in hand with the system of checks and balances, under which the Executive is supreme, asregards the suspension of the privilege, but only if and when he acts within the sphere allotted to himby 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 theexercise 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 toexercise the power vested in him or to determine the wisdom of his act. To be sure, the power of theCourt to determine the validity of the contested proclamation is far from being Identical to, or evencomparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appealfrom inferior courts, in which cases the appellate court has all of the powers of the court oforigin." 48It is clear the competence of this Court to pass upon the validity of the suspension of theprivilege of the writ is confined within limits that preclude the assumption of power that rightfullybelongs to the Executive. There would then be, to my mind, no sufficient Justification to retreat froma position that assures judicial participation on a matter of momentous consequence. Moreover, tothe extent that such a move has had the benefit of judicial appraisal, and thereafter approval, to thatextent there may be less valid opposition and hopefully greater understanding of why such a step

had to be taken.

13. WithLansangoverruled, the doctrine that the suspension of the privilege of the writ announcedin Barcelon v. Baker49and Montenegro v. Castaeda50will be revived. This for me is unfortunate.The Montenegro decision, as I had occasion to state "owed its existence to the compulsion exertedby Barcelon v. Baker, a 1905 decision. This Court was partly misled by an undue reliance in thelatter 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 evidentin the case of Chief Justice Marshall, whose epochal Marbury v. Madisonwas cited. Why that wasso is difficult to understand. For it speaks to the contrary. It was by virtue of this decision that thefunction 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 courtsmust decide on the operation of each. So if a law be in opposition to the constitution; if both the lawand the constitution apply to a particular case, so that the court must either decide that caseconformably to the law, disregarding the constitution; or conformably to the constitution, disregardingthe law; the court must determine which of these conflicting rules governs the case. This is of thevery essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution issuperior to any ordinary act of the legislature, the constitution, and not such ordinary act, mustgovern the case to which they both apply.'" 51The opinion went on to say: "Nor is the excerpt fromJustice Story, speaking for the United States Supreme Court, in Martin v. Mott, as made clear in theopinion of the Chief Justice, an authority directly in point. There, a militiaman had been convicted offailing to respond to a call, made under the Act of 1795, to serve during the War of 1812. Hisproperty 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, andCongress did provide that in those cases the President should have authority to make the call." Allthat Justice Story did in construing the statute in the light of the language and purpose of herConstitution was to recognize the authority of the American President to decide whether theexigency has arisen. In stating that such power was exclusive and thus had a conclusive effect, herelied on the language employed, impressed with such a character. The constitutional provision onthe suspension of the privilege of the writ is, as shown, anything but that. Chief Justice Taneyin Luther v. Borden, likewise had to deal with a situation involving the calling out of the militia. As amatter of fact, an eminent commentator speaking of the two above decisions had this aptobservation: "The common element in these opinions would seem to be a genuine judicial reluctanceto speak in a situation where the voice of the Court, even if heard, could not have any effect. Morethan this, both Story and Taney seem to share the suspicion, unusual in them, that under a popularform of government there are certain questions that the political branches must be trusted to answerwith finality. What was said next is even more pertinent. Thus: 'It would be dangerous andmisleading to push the principles of these cases too far, especially the doctrine of "politicalquestions" as implied in Luther v. Borden. Given the opportunity to afford a grievously injured citizenrelief from a palpably unwarranted use of presidential or military power, especially when the questionat issue falls in the penumbra between the "political" and the "justiciable", the Court will act as if ithad never heard of this doctrine and its underlying assumption that there are some powers againstwhich the judiciary simply cannot be expected to act as the last line of defense.' It would thus seemevident that support for the hitherto prevailing Montenegro ruling was rather frail. Happily, with our


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decision, it is no longer capable of the mischief to which it does lend itself of an undue diminution ofjudicial power to the prejudice of constitutional rights." 52

14. An opinion of a court, especially this Tribunal, should not ignore the environmental facts whichgave 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 questionsbefore the Court are to be viewed with full awareness of the consequences attendant to the decisionreached. As so tersely expressed by Justice Tuason inAraneta v. Dinglasan:" 53"We test a rule byits results." 54More often than not especially during times of stress, it is inescapable that efforts bemade to reconcile time-tested principles to contemporary problems. The judiciary is called upon todo its part. There is wisdom in these words of Justice Tuason from the same opinion: "The truth isthat under our concept of constitutional government, in times of extreme perils more than in normalcircumstances, 'The various branches, executive, legislative, and judicial,' given the ability to act, arecalled upon 'to perform the duties and discharge the responsibilities committed to themrespectively.'" 55To repeat, I accord the fullest respect to the mode and manner in which my brethrenperformed their duty and discharged their responsibility in passing upon the transcendental questionraised in this petition. With the basic premise of robust concern for individual rights to which I havebeen committed,however, I have no choice except to vote the way I did, even if for those whoseopinions I value conformity with the hitherto unquestioned verities may at times prove to be less thanadequate 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 deCastro which would overturn the landmark doctrine of Lansang vs. Garcia 1which upheld theSupreme Court's authority to inquire into the existence of factual bases for the President'ssuspension of the privilege of the writ of habeas corpus in order to determine the constitutionalsufficiency thereof and would revert to the retrogressive and colonial era ruling of Barcelon vs.Baker 2and Montenegro vs. Castaeda3that the President's decision to so suspend the privilege ofthe 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 PresidentialCommitment Orders.

This case, as in other like cases, focuses on the grievances that persons detained or charged for thecrimes 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 anywarrant of arrest; of being informed of purported telegrams concerning the issuance of a PresidentialCommitment Order PCO authorizing their arrest and detention, but that they are not given a copy ofsuch PCO nor notified of its contents, raising doubts whether such PCO has in fact been issued; ofbeing kept in isolation or transferred to so-called "safehouses" and being denied of theirconstitutional right to counsel and to silence; of prolonged detention without charges; "of a seemingdeliberate 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 thedetainees in violation of their constitutional rights;" and of their counsel and families undergoinggreat 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 andsubmits affidavits of the arresting officers and detention custodian that detainees are afforded decentand humane treatment, further countering that such claims are merely calculated to arousesympathy and as propaganda against the Government and its institutions.

In many such cases, however, the Court in issuing the writ of habeas corpus requiring respondentsto 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." 4Inother cases where respondents military officials have allegedly denied having in their custody theperson(s) detained, the Court has issued its resolution "on the assumption that the detained personis in the custody of respondents, that there be due observance and respect of his right to counseland other constitutional rights by respondents." 5

Respondents' return through the Solicitor General in the case at bar states that the detainees are alldetained by virtue of a Presidential Commitment Order issued on July 12, 1982 (several days after


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their arrest without warrant on July 6 and 7, 1982) and that corresponding charges against thedetainees were filed in court and before the Acting Provincial Fiscal of Nueva Viscaya where theyare pending. As to the detainee Dr. Aurora Parong, the return further states that a warrant of arrestwas issued against her on August 4, 1982 by the Municipal Court of Bayombong for illegalpossession of a firearm and ammunition. As in all other returns in similar cases, the Solicitor Generalasserts "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, underPresidential Proclamation No. 2045 (which proclaimed the termination of martial law in thePhilippines), of the privilege of the writ of habeas corpus in the two autonomous regions in Mindanaoand in all other places with respect to persons detained for suspected involvement in crimes relatedto national security.

The main opinion confronts the question of whether the issuance of a Presidential CommitmentOrder (PCO) has provided the legal basis of the detention of herein detainees following their arrestfor Proclamation No. 2045-covered offenses," and remarks that "this question

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Garcia Padilla Case (1983)

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