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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