IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON MITRA, JR., FRANCISCO RODRIGO, AND NAPOLEON RAMA, PETITIONERS, VS. HON. JUAN PONCE ENRILE, SECRE…

CONCURRING OPINION

BARREDO, J.:

It is to my mind very unfortunate that, for reasons I cannot
comprehend or do not deem convincing, the majority of the Court has agreed that
no main opinion be prepared for the decision in these cases.  Honestly, I feel that the grounds given by
the Chief Justice do not justify a deviation from the regular practice of a
main opinion being prepared by one Justice even when the members of the Court
are not all agreed as to the grounds of the judgment as long as at least a
substantial number of Justices concur in the basic ones and there are enough
other Justices concurring in the result to form the required majority.  I do not see such varying substantial
disparity in the views of the members of the Court regarding the different
issues here as to call for a summarization like the one that was done, with
controversial consequences, in Javellana.(a) Actually, the summarization made
by the Chief Justice does not in my opinion portray accurately the spectrum of
our views, if one is to assay the doctrinal value of this decision.  The divergences stated are I think more
apparent than real.

In any event, it is my considered view that a historical decision
like this, one likely to be sui generis, at the same time that it is of
utmost transcendental importance because it revolves around the proper
construction of the constitutional provisions securing individual rights as
they may be affected by those empowering the Government to defend itself
against the threat of internal and external aggression, as these are actually
operating in the setting of the official proclamation of the Executive that
rebellion endangering public safety actually exists, deserves better treatment
from the Court.  Indeed, I believe that
our point of seeming variance respecting the questions, before us could have
been threshed out, if only enough effort in that direction had been exerted by
all.  The trouble is that from the very
beginning many members of the Court, myself included, announced our desire to
have our views recorded for history, hence, individualization rather than
consensus became the order of the day. 
In consequence, the convenient solution was forged that as long as there
would be enough votes to support a legally binding, judgment, here need not be
any opinion of the Court, everyone could give his own views and the Chief
Justice would just try to analyze the opinions of those who would care to
prepare one and then make a certification, of the final result of the voting.  It was only at the last minute that, at my
suggestion, supported by Justice Castro, the Chief’s prepared certification was
modified to assume the form of a judgment, thereby giving this decision a
better semblance of respectability.

As will be seen, this separate opinion of concurrence is not due
to any irreconcilable conflict of conviction between me and any other member of
the Court.  Truth to tell, at the early
stages of our efforts to decide these cases, but after the Court had more or
less already arrived at a consensus as to the result, I was made to understand
that I could prepare the opinion for the Court. 
Apparently, however, for one reason or another, some of our colleagues
felt that it is unnecessary to touch on certain matters contained in the draft
I had submitted, incomplete and unedited as it was, hence, the plan was
abandoned.  My explanation that a
decision of this import should be addressed in part to the fixture and should
attempt to answer, as best we can, not only the questions raised by the parties
but also the relevant ones that we are certain are bothering many of our
countrymen, not to speak of those who are interested in the correct juridical
implications of the unusual political developments being witnessed in the
Philippines these days, failed to persuade them.  I still feel very strongly, however, the need
for articulating the thoughts that will enable the whole world to visualize and
comprehend the exact length, breadth and depth of the juridical foundations of
the current constitutional order and thus be better positioned to render its
verdict thereon.

The following then is the draft of the opinion I prepared for the
Court.  I feel I need not adjust it to
give it the tenor of an individual opinion. 
Something inside me dictates that I should let it stand as I had
originally prepared it.  I am emboldened
to do this by the conviction that actually, when properly analyzed, it will be
realized that whatever differences there might be in the various opinions we
are submitting individually, such differences lie only in the distinctive
methods of approach we have each prepared to adopt rather than in any basically
substantial and irreconcilable disagreement. 
If we had only striven a little more, I am confident, we could have even
found a common mode of approach.  I am
referring, of course, only to those of Us who sincerely feel the urgency of
resolving the fundamental issues herein, regardless of purely technical and
strained reasons there might be to apparently justify an attitude of
indifference, if not concealed antagonism, to the need for authoritative
judicial clarification of the juridical aspects of the New Society in the
Philippines.

On September 11, 1974,
petitioner Diokno was released by order of the President, “under existing
rules and regulations.” The Court has, therefore, resolved that his
particular case has become moot and academic, but this development has not
affected the issues insofar as the other petitioners, particularly Senator
Aquino, are concerned.  And inasmuch as
the principal arguments of petitioner Diokno, although presented only in the
pleadings filed on his behalf, apply with more or less equal force to the other
petitioners, I feel that my reference to and discussion of said arguments in my
draft may well be preserved, if only to maintain the purported
comprehensiveness of my treatment of all the important aspects of these cases.

Before proceeding any further, however, I would like to explain
why I am saying we have no basic disagreements.

Except for Justices Makasiar and Esguerra who consider the
recitals in the Proclamation to be absolutely conclusive upon the courts and
for Justice Teehankee who considers it unnecessary to express any opinion on
the matter at this point, the rest or eight of us have actually inquired into
the constitutional sufficiency of the Proclamation.  Where we have differed is only as to the
extent and basis of the inquiry.  Without
committing themselves expressly as to whether the issue is justiciable or
otherwise, the Chief Justice and Justice Castro unmistakably appear to have
actually conducted an inquiry which as far as I can see is based on facts which
are uncontradicted in the record plus additional facts of judicial notice.  No independent evidence has been considered,
nor is any reference made to the evidence on which the President had
acted.  On their part, Justices Antonio,
Fernandez and Aquino are of the view that the Proclamation is not subject to
inquiry by the courts, but assuming it is, they are of the conviction that the
record amply supports the reasonableness, or lack of arbitrariness, of the
President’s action.  Again, in arriving
at this latter conclusion, they have relied exclusively on the same factual
bases utilized by the Chief Justice and Justice Castro.  Justices Fernando and Muñoz Palma
categorically hold that the issue is justiciable and, on that premise, they
made their own inquiry, but with no other basis than the same undisputed facts
in the record and facts of judicial notice from which the others have drawn
their conclusions.  For myself, I am just
making it very clear that the inquiry which the Constitution contemplates for
the determination of the constitutional sufficiency of a proclamation of
martial law by the President should not go beyond facts of judicial notice and
those that may be stated in the proclamation, if these are by their very nature
capable of unquestionable demonstration. 
In other words, eight of us virtually hold that the Executive’s
Proclamation is not absolutely conclusive — but it is not to be interfered with
whenever it accords with facts undisputed in the record as well as those of
judicial notice or capable of unquestionable demonstration.  Thus, it is obvious that although we are
split between upholding justiciability or non-justiciability, those who believe
in the latter have nonetheless conducted an inquiry, while those who adhere to
the former theory, insisting on following Lansang, have limited their inquiry
to the uncontroverted facts and facts of judicial notice.  Indeed, the truth is that no one has asked
for inquiry into the evidence before the President which is what the real
import of justiciability means.  In the
final analysis, none of us has gone beyond what in my humble opinion the
Constitution permits in the premises.  In
other words, while a declaration of martial law is not absolutely conclusive,
the Court’s inquiry into its constitutional sufficiency may not, contrary to
what is implied in Lansang, involve the reception of evidence to be weighed
against those on which the President has acted, nor may it extend to the
investigation of what evidence the President had before him.  Such inquiry must be limited to what is
undisputed in the record and to what accords or does not accord with facts of
judicial notice.

Following now is my separate concurring opinion which as I have
said is the draft I submitted to the Court’s approval:

This is a cluster of petitions for habeas corpus seeking the
release of petitioners from detention, upon the main ground that, allegedly,
Proclamation 1081 issued by President Ferdinand E. Marcos on September 21, 1972
placing the whole country under martial law as well as the general orders
subsequently issued also by the President by virtue of the said proclamation,
pursuant to which petitioners have been apprehended and detained, two of them
until the present, while the rest have been released conditionally, are
unconstitutional and null and void, hence their arrest and detention have no
legal basis.

The petitioners in G.R. No. L-35538 are all journalist, namely,
Joaquin P. Roces, Teodoro M. Locsin, Rolando Fadul, Rosalind Galang, Go Eng
Guan, Maximo M. Soliven, Renato Constantino and Luis R. Mauricio.  Their petition was filed at about noon of September
23, 1972.

Almost three hours later of the same day, the petition in G.R.
No. L-35539 was filed, with Carmen I. Diokno, as petitioner, acting on behalf
of her husband, Jose W. Diokno, a senator, who is one of those still detained.

Two days later, early in the morning of September 25, 1972, the petition of Maximo V.
Soliven, Napoleon G. Rama and Jose Mari Velez, all media men, was docketed as
G.R. No. L-35540.  The last two were also
delegates to the Constitutional Convention of 1971.

In all the three foregoing cases, the proper writs of habeas
corpus were issued returnable not later than 4:00
p.m. of September 25, 1972,
and hearing of the petitions was held on September 26, 1972.^[1]

Late in the afternoon of September
25, 1972, another petition was filed on behalf of Senators Benigno
S. Aquino, Jr. and Ramon V. Mitra, Jr., and former Senator Francisco
“Soc” Rodrigo, also a TV commentator. 
(Delegate Napoleon Rama also appears as petitioner in this case.) It was
docketed as G.R. No. L-35546.

The next day, September
26, 1972, a petition was filed by Voltaire Garcia II, another
delegate to the Constitutional Convention, as G.R. No. L-35547.^[2]

In these two cases the writs prayed for were also issued and the
petitions were heard together on September
29, 1972.

In G.R. No. L-35556, the petition was filed by Tan Chin Hian and
Veronica L. Yuyitung on September 27,
1972, but the same was withdrawn by the latter on October 6, 1972 and the former on October 9, 1972, since they were
released from custody on September 30,
1972 and October 9, 1972,
respectively.  The Court allowed the
withdrawals by resolution on October
11, 1972.

On October 2, 1972, the petition of journalists Amando Doronila,
Juan L. Mercado, Hernando J. Abaya, Ernesto Granada, Luis Beltran, Tan Chin
Hian, (already a petitioner in G. R. No. L-35556) Bren Guiao, (for whom a
subsequent petition was also filed by his wife in G. R. No. L-35571, but both
petitions on his behalf were immediately withdrawn with the approval of the
Court which was given by resolution on October
11, 1972) Ruben Cusipag, Roberto Ordoñez, Manuel Almario and Willie
Baun was filed in G.R. No. L-35567.  All
these petitioners, except Juan L. Mercado, Manuel Almario and Roberto Ordoñez
withdrew their petitions and the Court allowed the withdrawals by resolutions
of October 3 and 11, 1972.

And on October 3, 1972,
Ernesto Rondon, also a delegate to the Constitutional Convention and a radio
commentator, filed his petition in G.R. No. L-35573.

Again, in all these last four cases, G.R. Nos. L-35556, 35567,
35571 and 35573, the corresponding writs were issued and a joint hearing
of the petitions was held October 6,
1972, except as to the petitioners who had as of then announced the
withdrawal of their respective petitions.

The returns and answers of the Solicitor General in all these
nine cases, filed on behalf of the principal respondents, the Secretary of
National Defense, Hon. Juan Ponce Enrile, the Chief of Staff of the Armed
Forces of the Philippines,
General Romeo Espino, and the Chief of the Philippine Constabulary, General
Fidel V. Ramos, were practically identical as follows:

“RETURN
TO WRIT

and

ANSWER TO THE PETITION

COME NOW respondents, by the undersigned counsel, and appearing
before this Honorable Court only for purposes of this action, as hereunder set
forth, hereby state by way of return to the writ and answer to the petition, as
follows:

ADMISSIONS/DENIALS

1.    They ADMIT the allegations in paragraphs I
and V of the Petition;

2.    They ADMIT the allegations in paragraph II of
the Petition that the petitioners were arrested on September 22, 1972 and are
presently detained at Fort Bonifacio, Makati, Rizal, but SPECIFICALLY DENY the
allegation that their detention is illegal, the truth being that stated in the
Special and Affirmative Defenses of this Answer and Return;

3.    They SPECIFICALLY DENY the allegations in
paragraphs III, IV, VI and VII, of the Petition, the truth of the matter being
that stated in the Special and Affirmative Defenses of this Answer and Return.

Respondents state by way of

SPECIAL AND
AFFIRMATIVE DEFENSES

4.    On September 21, 1972, the President of the
Philippines, in the exercise of the powers vested in him by Article VII,
section 10, paragraph 2 of the Constitution, issued Proclamation No. 1081
placing the entire Philippines under martial law;

5.    Pursuant to said Proclamation, the President
issued General Orders Nos. 1, 2, 3, 3­A, 4, 5, 6, and 7 and Letters of
Instruction Nos. 1, 2 and 3.  True copies
of these documents are hereto attached and made integral parts hereof as
Annexes 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11. 
A copy of the President’s statement to the country on September 23, 1972 is also attached
as Annex 12;

6.    Finally, the petition states no cause of
action.

P R A Y E R

IN VIEW WHEREOF, it is respectfully prayed of this Honorable
Supreme Court that the petition be dismissed.

Manila, Philippines,
September 27, 1972.”

At the hearings, the following well-known and distinguished
members of the bar appeared and argued for the petitioners:  Petitioner Diokno argued on his own behalf to
supplement the arguments of his counsel of record; Attys. Joker D. Arroyo
appeared and argued for the petitioners in L-35538 and L-35567; Francis E.
Garchitorena, assisted by Oscar Diokno Perez, appeared and argued for the petitioner
in L-35539; Ramon A. Gonzales, assisted by Manuel B. Imbong, appeared and
argued for the petitioners in L-35540; Senators Gerardo Roxas and Jovito R.
Salonga, assisted by Attys. Pedro L. Yap, Sedfrey A. Ordonez, Custodio O.
Parlade, Leopoldo L. Africa, Francisco Rodrigo Jr., Magdaleno Palacol and
Dakila F. Castro, appeared and argued for the petitioners in L-35546; Atty. E.
Voltaire Garcia, Sr. appeared and argued in behalf of his petitioner son in
L-35547; Attys. Raul I. Goco and Teodulo R. Diño appeared for the petitioners
in L-35556; Atty. Roberto P. Tolentino appeared for the petitioner in L-35571;
and Atty. Aquilino Pimentel Jr. assisted by Atty. Modesto R. Galias Jr.
appeared and argued for the petitioner in L­35578.

On October 31, 1972,
former Senator Lorenzo M. Tañada, together with his lawyer-sons, Attorneys
Renato and Wigberto Tañada, entered their appearance as counsel for all the
petitioners in G.R. No. L-35538, except Fadul, Galang and Go Eng Guan, for
petitioner Diokno in G.R. No. L-35539 and for petitioners Aquino, Mitra,
Rodrigo and Rama in G.R. No. L-35546.

For the respondents, Solicitor General Estelito P. Mendoza,
Assistant Solicitors General Bernardo P. Pardo and Rosalio A. de Leon (both of
whom are judges now), Solicitor Reynato S. Puno (now Assistant Solicitor
General) and Solicitors Jose A.R. Melo and Jose A. Janolo appeared in all the
cases, but only the Solicitor General argued. 
Later, Assistant Solicitor General Vicente V. Mendoza also appeared and
co-signed all the subsequent pleadings and memoranda for respondents.

After the hearing of September 26 and 29 and October 6, 1972, the parties were required to
file their respective memoranda.  On November 9, 1972 petitioners in all
the cases filed their consolidated 109-page memorandum, together with the
answers, contained in 86 pages, to some 33 questions posed by the Court in its
resolution of September 29, 1972,
and later, on December 1, 1972,
an 88-page reply to the memorandum of respondents, with annexes.  In a separate Manifestation of Compliance and
Submission filed simultaneously with their reply, petitioners stressed that:

“4.    That undersigned counsel for Petitioners did
not ask for any extension of the period within which to file the Reply
Memorandum for Petitioners, despite overwhelming pressure of work, because —

a.    everyday of delay would mean one day more of
indescribable misery and anguish on the part of Petitioners and their families;

b.    any further delay would only diminish
whatever time is left — more than a month’s time — within which this Court can
deliberate on and decide these petitions, having in mind some irreversible
events which may plunge this nation into an entirely new constitutional order,
namely, the approval of the draft of the proposed Constitution by the
Constitutional Convention and the ‘plebiscite’ scheduled on January 15, 1973;

c.    the proposed Constitution, if ‘ratified’,
might prejudice these petitions, in view of the following transitory provision:

‘All proclamations, orders, decrees, instructions, and acts
promulgated, issued, or done by the incumbent President shall be part of the
law of the land, and shall remain valid, legal, binding, and effective even
after the lifting of martial law or the ratification of this Constitution,
unless modified, revoked, or superseded by subsequent proclamations, decrees,
instructions, or other acts of the incumbent President, or unless expressly and
explicitly modified or repealed by the regular National Assembly.  (Article XVII, sec. 3, par. 2 of the proposed
Constitution).

“5.    In view of the fact that they were arrested
and detained allegedly in keeping with the existing Constitution, it is only
humane and just that these petitions . . . to be accorded preference under Rule
22, section 1 of the Rules of Court . . . be disposed of while there is still
time left, in accordance with the present Constitution and not in accordance
with a new constitutional order being ushered in, under the aegis of a martial
rule, the constitutionality and validity of which is the very point at issue in
the instant petitions;

“6.    Since, according to the unanimous view of
the authorities, as cited in their Memorandum, the overriding purpose of
martial law is . . . and cannot go beyond . . . the preservation of the constitutional
status quo, and not to alter it or hasten its alteration, it would be
extremely unjust and inhuman, to say the least, to allow these petitions for
the great writ of liberty to be imperiled, by virtue of a new Constitution . .
. ‘submission’ and ‘ratification’ of which are being pressed under martial law
. . . that would purportedly ratify all Executive edicts issued and acts done
under said regime . . . something that has never been done as far as is known
in the entire history of the Anglo-American legal system;” (pp. 414­-416,
Rollo, L-35539.)

At this juncture, it may be stated that as of October 11, 1972,
the following petitioners had already withdrawn:  Amando Doronila, Hernando J. Abaya, Ernesto
Granada, Luis Beltran, Bren Guiao, Ruben Cusipag, Willie Baun, Tan Chin Hian
and Veronica L. Yuyitung; hence, of the original nine cases with a total of 32
petitioners,^[3]
only the six above-entitled cases remain with 18 petitioners.^[4]
The remaining petitioners are:  Joaquin
P. Roces, Teodoro M. Locsin, Sr., Rolando Fadul, Rosalind Galang, Go Eng Guan,
Maximo V. Soliven, Renato Constantino, Luis R. Mauricio, Jose W. Diokno thru
Carmen Diokno, Napoleon G. Rama, Jose Mari Velez, Benigno S. Aquino, Ramon V.
Mitra, Jr., Francisco S. Rodrigo, Juan L. Mercado, Roberto Ordonez, Manuel
Almario and Ernesto Rondon, but only Senators Diokno and Aquino are still in
confinement, the rest having been released under conditions hereinafter to be
discussed.  The case of petitioner Garcia
in G.R. No. L-35547 is deemed abated on account of his death.

Over the opposition of these remaining petitioners, respondents
counsel was given several extensions of their period to file their memorandum,
and it was not until January 10, 1973
that they were able to file their reply of 35 pages.  Previously, their memorandum of 77 pages was
filed on November 17, 1972.  Thus, the cases were declared submitted for
decision only on February 26, 1973,
per resolution of even date, only to be reopened later, as will be stated anon.

In the meanwhile, practically the same counsel for petitioners in
these cases engaged the government lawyers in another and separate
transcendental judicial tussle of two stages relative to the New
Constitution.  On December 7, 1972, the first of the so-called
Plebiscite Cases (G.R. No. L-35925, Charito Planas vs. Comelec, G. R.
No. L-35929, Pablo C. Sanidad vs. Comelec, G. R. No. L-35940, Gerardo
Roxas et al. vs. Comelec, G. R. No. L-­35941, Eddie B. Monteclaro vs.
Comelec, G. R. No. L­-35942, Sedfrey A. Ordonez vs. Treasurer, G. R. No.
L-­35948.  Vidal Tan vs. Comelec,
G. R. No. L-35953, Jose W. Diokno et als. vs. Comelec, G. R. No.
L-35961, Jacinto Jimenez vs. Comelec, G. R. No. L-35965, Raul M.
Gonzales vs. Comelec and G. R. No. L-35979, Ernesto Hidalgo vs.
Comelec) was filed.  These cases took
most of the time of the Court until January
22, 1973, when they were declared moot and academic because of the
issuance of Proclamation 1102 on January
17, 1973, but on January
20, 1973, as a sequel to the Plebiscite Cases, Josue Javellana
filed Case No. G. R. No. L-36142 against the Executive Secretary and the
Secretaries of National Defense, Justice and Finance.  This started the second series of cases known
as the Ratification Cases, namely, said G. R. No. L-36142 and G. R. No.
L-36164, Vidal Tan vs. The Executive Secretary et al., G.R. No. L-­36165,
Gerardo Roxas et al. vs. Alejandro Melchor etc. et al., G. R. No.
L-36236, Eddie B. Monteclaro vs. The Executive Secretary, and G. R. No.
L-36283, Napoleon V. Dilag vs. The Honorable Executive Secretary.  The main thrust of these petitions was that
the New Constitution had not been validly ratified, hence the Old Constitution
continued in force and, therefore, whatever provisions the New Constitution
might contain tending to validate the proclamations, orders, decrees, and acts
of the incumbent President which are being relied upon for the apprehension and
detention of petitioners, have no legal effect. 
In any event, the advent of a new constitution naturally entailed the
consequence that any question as to the legality of the continued detention of
petitioners or of any restraint of their liberties may not be resolved without
taking into account in one way or another the pertinent provisions of the new
charter.  Accordingly, the resolution of
these two series of cases became a prejudicial matter which the Court had to
resolved first.  It was not until March 31, 1973 that they were decided
adversely to the petitioners therein and it was only on April 17, 1973 that entry of final judgment was
made therein.

From April 18, 1973,
the membership of the Court was depleted to nine, in view of the retirement,
effective on said date, of then Chief Justice Roberto Concepcion.  With its nine remaining members, doubts were
expressed as to whether or not the Court could act on constitutional matters of
the nature and magnitude of those raised in these cases, the required quorum
for the resolution of issues of unconstitutionality under the New Constitution
being ten members.  (Section 2(2),
Article IX, Constitution of the Philippines of 1973).  Prescinding from this point, it is a fact
that even if it is not required expressly by the Constitution, by the Court’s
own policy which the Constitution authorizes it to adopt, all cases involving
constitutional questions are heard en banc in which the quorum and at
the same time the binding vote is of eight Justices.  With only nine members out of a possible
membership of fifteen, it was not exactly fair for all concerned that the Court
should act, particularly in a case which in truth does not involve only those
who are actual parties therein but the whole people as well as the Government
of the Philippines.  So, the Court, even as it went on informally
discussing these cases from time to time, preferred to wait for the appointment
and qualification of new members, which took place only on October 29, 1973,
when Justices Estanislao Fernandez, Cecilia Muñoz Palma and Ramon Aquino joined
the Court.

Meantime, subsequent to the resolution of February 26, 1973, declaring these cases
submitted for decision, or, more particularly on June 29, 1973, counsel for petitioner Carmen I. Diokno in
G.R. No. L-35539 filed a 99-page Supplemental Petition and Motion for Immediate
Release which the Court had to refer to the respondents, on whose behalf, the
Solicitor General filed an answer on July
30, 1973.  On August 14,
1973, counsel for petitioner Diokno filed a motion asking that the said
petition and motion be set for hearing, which the Court could not do, in view
precisely of the question of quorum.  As
a matter of fact, in the related case of Benigno S. Aquino, Jr. vs. Military
Commission No. 2, et al., G.R. No. L-37364, further reference to which will be
made later, a preliminary hearing had to be held by the Court on Sunday, August 24, 1973, on the sole
question of whether or not with its membership of nine then, the Court could
act on issues of constitutionality of the acts of the President.

At this point, it may be mentioned incidentally that thru several
repeated manifestations and motions, Counsel Francis E. Garchitorena of
petitioner Diokno invited the attention of the Court not only to alleged denial
to his client of “the essential access of and freedom to confer and
communicate with counsel” but also to alleged deplorable subhuman
conditions surrounding his detention. 
And in relation to said manifestations and motions, on February 19,
1973, said petitioner, Diokno, together with petitioner Benigno S. Aquino and
joined by their common counsel, Senator Lorenzo M. Tañada, filed with this
Court a petition for mandamus praying that respondents be commanded “to
permit petitioner Tañada to visit and confer freely and actively with
petitioners Diokno and Aquino at reasonable hours pursuant to the provisions of
RA 857 and RA 1083 and in pursuance of such decision, (to direct said
respondents) (1) to clear the conference room of petitioners of all
representatives of the Armed Forces and all unwanted third persons, and
prohibit their presence; (2) to remove or cause the removal of all listening
devices and other similar electronic equipment from the conference room of
petitioners, with the further direction that no such instruments be hereafter
installed, and (3) to desist from the practice of examining (a) the notes taken
by petitioner Tañada of his conferences with petitioners Diokno and Aquino; and
(b) such other legal documents as petitioner Tañada may bring with him for
discussion with said petitioners.” (G. R. No. L-36315).  For obvious reasons, said petition will be
resolved in a separate decision.  It may
be stated here, however, that in said G. R. No. L-­36315, in attention to the
complaint made by Senator Tañada in his Reply dated April 2, 1973, that
Mesdames Diokno and Aquino were not being allowed to visit their husbands, and,
worse, their very whereabouts were not being made known to them, on April 6,
1973, after hearing the explanations of counsel for therein respondents, the
Court issued the following resolution:

“Upon humanitarian considerations, the Court RESOLVED
unanimously to grant, pending further action by this Court, that portion of the
prayer in petitioners’ ‘Supplement and/or Amendment to Petition’ filed on April
6, 1973 that the wives and minor children of petitioners Diokno and Aquino be
allowed to visit them, subject to such precautions as respondents may deem
necessary.”

We have taken pains to recite all the circumstances surrounding
the progress of these cases from their inception in order to correct the
impression, conveyed by the pleadings of petitioner Diokno, that their
disposition has been unnecessarily, if not deliberately, delayed.  The Court cannot yield to anyone in being
concerned that individual rights and liberties guaranteed by the fundamental
law of the land are duly protected and safeguarded.  It is fully cognizant of how important not
only to the petitioners but also to the maintenance of the rule of law is the
issue of legality of the continued constraints on the freedoms of petitioners.  Under ordinary circumstances, it does not
really take the Court much time to determine whether a deprivation of personal
liberty is legal or illegal.  But, aside
from the unusual procedural setbacks related above, it just happens that the
basic issues to resolve here do not affect only the individual rights of
petitioners.  Indeed, the importance of
these cases transcends the interest of those who, like petitioners, have come
to the Court.  Actually, what is directly
involved here is the issue of the legality of the existing government
itself.  Accordingly, We have to act with
utmost care.  Besides, in a sense, the
legality of the Court’s own existence is also involved here, and We do not want
anyone to even suspect We have hurried precipitately to uphold Ourselves.

In addition to these considerations, it must be borne in mind
that there are thousands of other cases in the Court needing its continued
attention.  With its clogged docket, the
Court, could ill afford to give petitioners any preference that would entail
corresponding injustice to other litigants before it.

What is more, under the New Constitution, the administrative
jurisdiction over all lower courts, including the Court of Appeals, has been
transferred from the Department of Justice to the Supreme Court, and because
that Department refrained from attending to any administrative function over
the courts since January 17, 1973, on April 18, 1973, after the Ratification
Cases became final, We found in Our hands a vast accumulation of administrative
matters which had to be acted upon without further delay, if the smooth and
orderly functioning of the courts had to be maintained.  And, of course, the Court has to continuously
attend to its new administrative work from day to day, what with all kinds of complaints
and charges being filed daily against judges, clerks of courts and other
officers and employees of the different courts all over the country, which the
Court en banc has to tackle It should not be surprising at all that a
great portion of our sessions en banc has to be devoted to the consideration
and disposition of such administrative matters.

Furthermore, in this same connection account must also be taken
of the fact that the transfer of the administrative functions of the Department
to the Court naturally entailed problems and difficulties which consumed Our
time, if only because some of the personnel had to acquaint themselves with the
new functions entrusted to them, while corresponding adjustments had to be made
in the duties and functions of the personnel affected by the transfer.

PRELIMINARY ISSUES

Now, before proceeding to the discussion and resolution of the
issues in the pending petitions, two preliminary matters call for disposition,
namely, first, the motion of petitioner Jose W. Diokno, thru counsel Senator
Tañada, to be allowed to withdraw his basic petition and second, the objection
of petitioner, Francisco “Soc” Rodrigo, to the Court’s considering
his petition as moot and academic as a consequence of his having been released
from his place of confinement in Fort Bonifacio.  Related to the latter is the express
manifestation of the other petitioners: 
Joaquin P. Roces, Teodoro M. Locsin, Sr., Rolando Fadul, Rosalind
Galang, Go Eng Guan, Maximo V. Soliven, Renato Constantino, Luis R. Mauricio,
Napoleon G. Rama, Jose Mari Velez, Ramon. V. Mitra, Jr., Juan L. Mercardo,
Roberto Ordoñez, Manuel Almario and Ernesto Rondon, to the effect that they
remain as petitioners, notwithstanding their having been released (under the
same conditions as those imposed on petitioner Rodrigo), thereby implying that
they are not withdrawing, as, in fact, they have not withdrawn their petitions
and would wish them resolved on their merits. 
(Manifestation of counsel for petitioners dated March 15, 1974.)

I

Anent petitioner Diokno’s motion to withdraw, only seven members
of the Court, namely, Chief Justice Makalintal, and Justices Zaldivar,
Fernando, Teehankee, Muñoz Palma, Aquino and the writer of this opinion, voted
to grant the same.  Said number being
short of the eight votes required for binding action of the Court en banc
even in an incident, pursuant to Section 11 of Rule 56, the said motion is
denied, without prejudice to the right of each member of the Court to render
his individual opinion in regard to said motion.^[5]

One of the reasons vigorously advanced by petitioner Diokno in
his motion to withdraw is that he cannot submit his case to the Supreme Court
as it is presently constituted, because it is different from the one in which
he filed his petition, and that, furthermore, he is invoking, not the present
or New Constitution of the Philippines the incumbent justices have now sworn to
protect and defend but the Constitution of 1935^[6]
under which they were serving before. 
Indeed, in the “Manifestation of Compliance and Submission”
filed by his counsel as early as December 1, 1973, a similar feeling was
already indicated, as may be gathered from the portions thereof quoted earlier
in this opinion.

Had petitioner reiterated and insisted on the position asserted
by him in said manifestation shortly after the ratification of the New
Constitution on January 17, 1973 or even later, after the decision of this
Court in the Ratification Cases became final on April 17, 1973, perhaps, there
could have been some kind of justification for Our then and there declaring his
petition moot and academic, considering his personal attitude of refusing to
recognize the passing out of the 1935 Constitution and of the Supreme Court
under it.  But the fact is that as late
as June 29, 1973, more than six months after the ratification of the New
Constitution and more than two months after this Court had declared that
“there is no more judicial obstacle to the New Constitution being
considered as in force and effect”, petitioner Diokno, thru counsel
Tañada, filed a “Supplemental Petition and Motion for Immediate
Release” wherein nary a word may be found suggesting the point that both
the Constitution he is invoking and the Court he has submitted his petition to
have already passed into inexistence.  On
the contrary, he insisted in this last motion that “an order be issued (by
this Court) directing respondents to immediately file charges against him if
they have evidence supporting the same.” Be it noted, in this connection,
that by resolution of the Court of June 1, 1973, it had already implemented the
provisions on the Judiciary of the New Constitution and had constituted itself
with nine members into the first Division, thereby making it unmistakably clear
that it was already operating as the Supreme Court under the New Constitution.  The fact now capitalized by petitioner that
the Justices took the oath only on October 29, 1973 is of no significance, the
truth being that neither the Justices continuation in office after the New
Constitution took effect nor the validity or propriety of the Court’s
resolution of June 1, 1973 just mentioned were questioned by him before.
Accordingly, the allegation in his motion to withdraw relative to the New
Constitution and the present Supreme Court appear to be obvious afterthoughts
intended only to lend color to his refusal to have the issue of alleged
illegality of his detention duly resolved, realizing perchance the untenability
thereof and the inevitability of the denial of his petition, albeit none of
this will ever be admitted, as may be gathered from his manifestation that he
would not want to have anything to do with any ruling of the Court adverse to
his pretensions. Just the same, the new oaths of the Justices and the
applicability hereto of the Old and the New Constitution will be discussed in
another part of this opinion, if only to satisfy the curiosity of petitioner.

Although the other petitioners have not joined the subject
withdrawal motion, it might just as well be stated, for whatever relevant
purpose it may serve, that with particular reference to petitioner Rodrigo, as
late as November 27, 1973, after three new justices were added to the
membership of the Court in partial obedience to the mandate of the New
Constitution increasing its total membership to fifteen, and after the Court
had, by resolution of November 15, 1973, already constituted itself into two
divisions of six Justices each, said petitioner filed a Manifestation “for
the purpose of showing that, insofar as (he) herein petitioner is concerned,
his petition for habeas corpus is not moot and academic.” Notably,
this manifestation deals specifically with the matter of his “conditional
release” as being still a ground for habeas corpus but does not
even suggest the fundamental change of circumstances relied upon in petitioner
Diokno’s motion to withdraw. On the contrary, said manifestation indicates
unconditional submission of said petitioner to the jurisdiction of this Court
as presently constituted.  Of similar
tenor is the manifestation of counsel for the remaining petitioners in these
cases dated March 15, 1974.  In other words, it appears quite clearly that
petitioners should be deemed as having submitted to the jurisdiction of the
Supreme Court as it is presently constituted in order that it may resolve their
petitions for habeas corpus even in the light of the provisions of the
New Constitution.

II

Coming now to the conditions attached to the release of the
petitioners other than Senators Diokno and Aquino, it is to be noted that they
were all given identical release papers reading as follows:

“HEADQUARTERS

5TH MILITARY
INTELLIGENCE GROUP, ISAFP

Camp General
Emilio Aguinaldo

Quezon
City

M56P

5
December 1972

SUBJECT:
Conditional Release

TO: Francisco Soc Rodrigo

1.    After having been arrested and detained for subversion
pursuant to Proclamation No. 1081 of the President of the Philippines
in his capacity as Commander-in-Chief of the Armed Forces of the Philippines,
dated 21 September 1972,
you are hereby conditionally released.

2.    You are advised to abide strictly with the
provisions of Proclamation No. 1081 and the ensuing LOIs.  Any violation of these provisions would
subject you to immediate arrest and confinement.

3.    Your investigation will continue following a
schedule which you will later on be informed. 
You are advised to follow this schedule strictly.

“4.  You are not allowed to leave the confines of
Greater Manila Area unless specifically authorized by this Office indicating
the provincial address and expected duration of stay thereat.  Contact this Office through telephone No.
97-17-56 when necessary.

5.    You are prohibited from giving or
participating in any interview conducted by any local or foreign mass media
representative for purpose of publication and/or radio/TV broadcast.

6.    Be guided accordingly.

(SGD.) MARIANO G.
MIRANDA

Lt. Colonel    PA

Group Commander

P L E D G E

THIS IS TO CERTIFY that I have read and understood the foregoing
conditional release.

I HEREBY PLEDGE to conduct myself accordingly and will not engage
in any subversive activity.  I will
immediately report any subversive activity that will come to my knowledge.

(SGD.)
F. RODRIGO

Address: 60 Juana
Rodriguez

Quezon
City

Tel.
No.: 70-25-66; 70-49-20

70-27-55”

It is the submission of these petitioners that their release
under the foregoing conditions is not absolute, hence their present cases
before the Court have not become moot and academic and should not be dismissed
without consideration of the merits thereof. 
They claim that in truth they have nut been freed, because actually,
what has been done to them is only to enlarge or expand the area of their
confinement in order to include the whole Greater Manila area instead of being
limited by the boundaries of the army camps wherein they were previously
detained.  They say that although they
are allowed to go elsewhere, they can do so only if expressly and specifically
permitted by the army authorities, and this is nothing new, since they could
also go out of the camps before with proper passes.  They maintain that they never accepted the
above conditions voluntarily.  In other
words, it is their position that they are in actual fact being still so
detained and restrained of their liberty against their will as to entitle them
in law to the remedy of habeas corpus.

We find merit in this particular submittal regarding the reach of
habeas corpus.  We readily agree
that the fundamental law of the land does not countenance the diminution or
restriction of their individual freedoms of any person in the Philippines
without due process of law.  No one in
this country may suffer, against his will, any kind or degree of constraint
upon his right to go to any place not prohibited by law, without being entitled
to this great writ of liberty, for it has not been designed only against
illegal and involuntary detention in jails, prisons and concentration camps,
but for all forms and degrees of restraint, without authority of law or the
consent of the person concerned, upon his freedom to move freely, irrespective
of whether the area within which he is small or large, as long as it is not
co-extensive with that which may be freely reached by anybody else, given the
desire and the means.  More than half a
century ago in 1919, this Court already drew the broad and all-encompassing
scope of habeas corpus in these unequivocal words:  “A prime specification of an application
for a writ of habeas corpus is restraint of liberty.  The essential object and purpose of the writ
of habeas corpus is to inquire into all manners of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal.  Any restraint
which will preclude freedom of action is sufficient.”6a There is no reason at all at this
time, hopefully there will never be any in the future, to detract a whit from
this noble attitude.  Definitely, the
conditions under which petitioners have been released fall short of restoring
to them the freedom to which they are constitutionally entitled.  Only a showing that the imposition of said
conditions is authorized by law can stand in the way of an order that they be
immediately and completely withdrawn by the proper authorities so that the
petitioners may again be free men as we are.

And so, We mime to the basic question in these cases:  Are petitioners being detained or otherwise
restrained of liberty, evidently against their will, without authority of law
and due process?

THE FACTS

Aside from those already made reference to above, the other
background facts of these cases are as follows:

On September 21 1972,
President Ferdinand E. Marcos7 signed the following proclamation:

“PROCLAMATION
NO. 1081

PROCLAIMING A STATE OF
MARTIAL LAW IN THE PHILIPPINES

WHEREAS, on the basis of carefully evaluated and verified
information, it is definitely established that lawless elements who are moved
by a common or similar ideological conviction, design, strategy and goal and
enjoying the active moral and material support of a foreign power and being
guided and directed by intensely devoted, well trained, determined and ruthless
groups of men and seeking refuge under the protection of our constitutional
liberties to promote and attain their ends, have entered into a conspiracy and
have in fact joined and banded their resources and forces together for the
prime purpose of, and in fact they have been and are actually staging,
undertaking and waging an armed insurrection and rebellion against the
Government of the Republic of the Philippines in order to forcibly seize
political and state power in this country, overthrow the duly constituted
Government, and supplant our existing political, social, economic and legal
order with an entirely new one whose form of government, whose system of laws,
whose conception of God and religion, whose notion of individual rights and family
relations, and whose political, social, economic, legal and moral precepts are
based on the Marxist-Leninist-Maoist teachings and beliefs;

WHEREAS, these lawless elements, acting in concert through
seemingly innocent and harmless, although actually destructive, front
organizations which have been infiltrated or deliberately formed by them, have
continuously and systematically strengthened and broadened their memberships
through sustained and careful recruiting and enlistment of new adherents from among
our peasantry, laborers, professionals, intellectuals, students, and mass media
personnel, and through such sustained and careful recruitment and enlistment
have succeeded in spreading and expanding their control and influence over
almost every segment and level of our society throughout the land in their
ceaseless effort to erode and weaken the political, social, economic, legal and
moral foundations of our existing Government, and to influence, manipulate and
move peasant, labor, student and terroristic organizations under their
influence or control to commit, as in fact they have committed and still are
committing, acts of violence, depredations, sabotage and injuries against our
duly constituted authorities, against the members of our law enforcement agencies,
and worst of all, against the peaceful members of our society;

WHEREAS, in the fanatical pursuit of their conspiracy and
widespread acts of violence, depredations, sabotage and injuries against our
people, and in order to provide the essential instrument to direct and carry
out their criminal design and unlawful activities, and to achieve their
ultimate sinister objectives, these lawless elements have in fact organized,
established and are now maintaining a Central Committee, composed of young and
dedicated radical students and intellectuals, which is charged with guiding and
directing the armed struggle and propaganda assaults against our duly
constituted Government, and this Central Committee is now imposing its will and
asserting its sham authority on certain segments of our population, especially
in the rural areas, through varied means of subterfuge, deceit, coercion,
threats, intimidations, machinations, treachery, violence and other modes of
terror, and has been and is illegally exacting financial and other forms of
tributes from our people to raise funds and material resources to support its
insurrectionary and propaganda activities against our duly constituted
Government and against our peace-loving people;

WHEREAS, in order to carry out, as in fact they have carried out,
their premeditated plan to stage, undertake and wage a full scale armed
insurrection and rebellion in this country, these lawless elements have
organized, established and are now maintaining a well trained, well armed and highly
indoctrinated and greatly expanded insurrectionary force, popularly known as
the ‘New People’s Army,’ which has since vigorously pursued and still is
vigorously pursuing a relentless and ruthless armed struggle against our duly
constituted Government and whose unmitigated forays, raids, ambuscades,
assaults and reign of terror and acts of lawlessness in the rural areas and in
our urban centers brought about the treacherous and cold-blooded assassination
of innocent civilians, military personnel of the Government and local public
officials in many parts of the country, notably in the Cagayan Valley, in
Central Luzon, in the Southern Tagalog Region, in the Bicol Area, in the
Visayas and in Mindanao, and whose daring and wanton guerrilla activities have generated
and sown fear and panic among our people, have created a climate of chaos and
disorder, produced a state of political, social, psychological, and economic
instability in our land, and have inflicted great suffering and  irreparable injury to persons and property in
our society;

WHEREAS, these lawless elements, their cadres, fellow-travellers,
friends, sympathizers and supporters have for many years up to the present time
been mounting sustained, massive and destructive propaganda assaults against our
duly constituted Government its instrumentalities, agencies and officials, and
also against our social, political, economic and religious institutions,
through the publications, broadcasts and disseminations of deliberately slanted
and overly exaggerated news stories and news commentaries as well as false,
vile, foul and scurrilous statements, utterances, writings and pictures through
the press-radio-television media and through leaflets, college campus
newspapers and some newspapers published and still being published by these
lawless elements, notably the ‘Ang Bayan,’ ‘Pulang Bandila’ and the ‘Ang
Komunista,’ all of which are clearly well-conceived, intended and calculated to
malign and discredit our duly constituted Government, its instrumentalities, agencies
and officials before our people, making it appear to the people that our
government has become so weak and so impotent to perform and discharge its
functions and responsibilities in our society and to our people, and thus
undermine and destroy the faith and loyalty and allegiance of our people in and
alienate  their support for their duly
constituted Government, its instrumentalities, agencies and officials, and
thereby gradually erode and weaken as in fact they had so eroded and weakened
the will of our people to sustain and defend our Government and our democratic
way of life;

WHEREAS, these lawless elements having taken up arms against our
duly constituted Government and against our people, and having committed and
are still committing acts of armed insurrection and rebellion consisting of
armed raids, forays, sorties, ambushes, wanton acts of murders, spoilage,
plunder, looting, arsons, destruction of public and private buildings, and
attacks against innocent and defenseless civilian lives and property, all of
which activities have seriously endangered and continue to endanger public
order and safety and the security of the nation, and acting with cunning and
manifest precision and deliberation and without regard to the health, safety
and well-being of the people, are now implementing their plan to cause
widespread, massive and systematic destruction and paralyzation of vital  public utilities and services, particularly
water systems, sources of electrical power, communication and transportation
facilities, to the great detriment, suffering, injury and prejudice of our
people and the nation and to generate a deep psychological fear and panic among
our people;

WHEREAS, the Supreme Court in the cases brought before it, docketed
as G.R. Nos. L-33964, L-33965, L-33973, L-33982, L-34004, L-34013, L-34039,
L-34265, and L-34339, as a consequence of the suspension of the privilege of
the writ of habeas corpus by me as President of the Philippines in my
Proclamation No. 889, dated August 21, 1971, as amended, has found that in
truth and in fact there exists an actual insurrection and rebellion in the
country by a sizeable group of men who have publicly risen in arms to overthrow
the Government.  Here is what the Supreme
Court said in its decision promulgated on December 11, 1971:

‘. . . our jurisprudence attests abundantly to the Communist
activities in the Philippines,
especially in Manila, from the late
twenties to the early thirties, then aimed principally at incitement to
sedition or rebellion, as the immediate objective.  Upon the establishment of the Commonwealth of
the Philippines, the movement seemed to have waned notably; but, the outbreak
of World War II in the Pacific and the miseries, the devastation and havoc, and
the proliferation of unlicensed firearms concomitant with the military
occupation of the Philippines and its subsequent liberation, brought about, in
the late forties, a resurgence of the Communist threat, with such vigor as to
be able to organize and operate in Central Luzon an army — called HUKBALAHAP,
during the occupation, and renamed Hukbong Mapagpalaya ng Bayan (HMB) after
liberation — which clashed several times with the Armed Forces of the
Republic.  This prompted then President
Quirino to issue Proclamation No. 210, dated October 22, 1950, suspending the privilege of the writ of
habeas corpus the validity of which was upheld in Montenegro
vs. Castaneda.  Days before the
promulgation of said Proclamation, or on October 18, 1950, members of the Communist Politburo in
the Philippines
were apprehended in Manila.  Subsequently accused and convicted of the
crime of rebellion, they served their respective sentences.

‘The fifties saw a comparative lull in Communist activities,
insofar as peace and order were concerned. 
Still, on June 20, 1957, Republic Act No. 1700, otherwise known as the
Anti-Subversion Act, was approved, upon the grounds stated in the very preamble
of said statute — that

‘. . . the Communist Party of the Philippines, although purportedly
a political party, is in fact an organized conspiracy to overthrow the
Government of the Republic of the Philippines, not only by force and violence
but also by deceit, subversion and other illegal means, for the purpose of
establishing in the Philippines a totalitarian regime subject to alien
domination and control;

‘. . . the continued existence and activities of the Communist
Party of the Philippines
constitutes a clear, present and grave danger to the security of the Philippines;
and

‘. . . in the face of the organized, systematic and persistent
subversion, national in scope but international in direction, posed by the
Communist Party of the Philippines and its activities, there is urgent need for
special legislation to cope with this continuing menace to the freedom and
security of the country. . .’

“In the language of the Report on Central Luzon,
submitted, on September 4, 1971,
by the Senate Ad Hoc Committee of Seven — copy of which Report was filed in
these case by the petitioners herein —

‘The years following 1963 saw the successive emergence in the
country of several mass organizations, notably the Lapiang Manggagawa (now the
Socialist Party of the Philippines) among the workers, the Malayang Samahan ng
mga Magsasaka (MASAKA) among the peasantry; the Kabataang Makabayan (KM) among
the youth/students; and the Movement for the Advancement of Nationalism (MAN)
among the intellectuals/professionals, the PKP has exerted all-out effort to
infiltrate, influence and utilize these organizations in promoting its radical
brand of nationalism.’

“Meanwhile, the Communist leaders in the Philippines had been
split into two (2) groups, one of which — composed mainly of young radicals,
constituting the Maoist faction — reorganized the Communist Party of the
Philippines early in 1969 and established a New People’s Army.  This faction adheres to the Maoist concept of
the ‘Protracted People’s War’ or ‘War of National Liberation.’ Its ‘Programme
for a People’s Democratic Revolution’ states, inter alia:

‘The Communist Party of the Philippines
is determined to implement its general programme for a people’s democratic
revolution.  All Filipino communists are
ready to sacrifice their lives for the worthy cause of achieving the new type
of democracy, of building a new Philippines
that is genuinely and completely independent, democratic, united, just and
prosperous . . .

‘The central task of any revolutionary movement is to seize
political power.  The Communist Party of
the Philippines
assumes this task at a time that both the international and national situation
are favorable, to taking the road of armed revolution . . .’

‘In the year 1969, the NPA had — according to the records of the
Department of National Defense — conducted raids, resorted to kidnappings and
taken part in other violent incidents numbering over 230, in which it inflicted
404 casualties, and, in turn, suffered 243 losses.  In 1970, its record of violent incidents was
about the same, but the NPA casualties more than doubled.

‘At any rate, two (2) facts are undeniable:  (a) all Communists, whether they belong to
the traditional group or to the Maoist faction, believe that force and violence
are indispensable to the attainment of their main and ultimate objective, and
act in accordance with such belief, although they disagree on the means to be
used at a given time and in a particular place; and (b) there is a New People’s
Army, other, of course, than the Armed Forces of the Republic and antagonistic
thereto.  Such New People’s Army is per
se proof of the existence of a rebellion especially considering that its
establishment was announced publicly by the reorganized CPP.  Such announcement is in the nature of a
public challenge to the duly constituted authorities and may be likened to a
declaration of war, sufficient to establish a war status or a condition of
belligerency, even before the actual commencement of hostilities.

‘We entertain, therefore, no doubts about the existence of a
sizeable group of men who have publicly risen in arms to overthrow the
Government and have thus been and still are engage in rebellion against the
Government of the Philippines.’

“WHEREAS, these lawless elements have to a considerable extent
succeeded in impeding our duly constituted authorities from performing their functions
and discharging their duties and responsibilities in accordance with our laws
and our Constitution to the great damage, prejudice and detriment of the people
and the nation;

“WHEREAS, it is evident that there is throughout the land a
state of anarchy and lawlessness, chaos and disorder, turmoil and destruction
of a magnitude equivalent to an actual war between the forces of our duly
constituted Government and the New People’s Army and their satellite
organizations because of the unmitigated forays, raids, ambuscades, assaults,
violence, murders, assassinations, acts of terror, deceits, coercions, threats,
intimidations, treachery, machinations, arsons, plunders and depredations
committed and being committed by the aforesaid lawless elements who have
pledged to the whole nation that they will not stop their dastardly effort and
scheme until and unless they have fully attained their primary and ultimate
purpose of forcibly seizing political and state power in this country by
overthrowing our present duly constituted Government, by destroying our
democratic way of life and our established secular and religious institutions
and beliefs, and by supplanting our existing political, social, economic, legal
and moral order with an entirely new one whose form of government, whose notion
of individual rights and family relations, and whose political, social,
economic and moral precepts are based on the Marxist-Leninist-Maoist teachings
and beliefs;

“WHEREAS, the Supreme Court in its said decision concluded
that the unlawful activities of the aforesaid lawless elements actually pose a
clear, present and grave danger to public safety and the security of the nation
and in support of that conclusion found that:

‘. . . the Executive had information and reports — subsequently
confirmed, in many respects, by the above-mentioned Report of the Senate Ad Hoc
Committee of Seven — to the effect that the Communist Party of the Philippines
does not merely adhere to Lenin’s idea of a swift armed uprising; that it has,
also, adopted Ho Chi Minh’s terrorist tactics and resorted to the assassination
of uncooperative local officials; that, in line with this policy, the
insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of police;
that there were fourteen (14) meaningful bombing incidents in the Greater
Manila Area in 1970; that the Constitutional Convention Hall was bombed on June
12, 1971, that, soon after the Plaza Miranda incident, the NAWASA main pipe at
the Quezon City-San Juan boundary, was bombed; that this was followed closely
by the bombing of the Manila City Hall, the COMELEC Building, the Congress
Building and the MERALCO sub-station at Cubao, Quezon City; and that the
respective residences of Senator Jose J. Roy and Congressman Eduardo Cojuangco
were, likewise, bombed, as were the MERALCO main office premises, along Ortigas
Avenue, and the Doctor’s Pharmaceuticals, Inc. Building, in Caloocan City.

‘. . . the reorganized Communist Party of the Philippines has,
moreover, adopted Mao’s concept of protracted people’s war, aimed at the
paralyzation of the will to resist of the Government, of the political,
economic and intellectual leadership, and of the people themselves; that
conformably to such concept, the Party has placed special emphasis upon a most
extensive and intensive program of subversion by the establishment of front
organizations in urban centers, the organization of armed city partisans and
the infiltration in student groups, labor unions, and farmer and professional
groups; that the CPP has managed to infiltrate or establish and control nine
(9) major labor organizations; that it has exploited the youth movement and
succeeded in making Communist fronts of eleven (11) major student or youth
organizations; that there are, accordingly, about thirty (30) mass
organizations actively advancing the CPP interests, among which are the
Malayang Samahan ng Magsasaka (MASAKA), the Kabataang Makabayan (KM), the
Movement for the Advancement of Nationalism (MAN), the Samahang Demokratiko ng
Kabataan (SDK), the Samahang Molave (SM), and the Malayang Pagkakaisa ng
Kabataang Pilipino (MPKP); that, as of August, 1971, the KM had two hundred
forty-five (245) operational chapters throughout the Philippines of which
seventy-three were in the Greater Manila Area, sixty (60) in Northern Luzon,
forty-nine (49) in Central Luzon, forty-two (42) in the Visayas and twenty-one
(21) in Mindanao and Sulu; that in 1970, the Party had recorded two hundred
fifty-eight (258) major demonstrations, of which about thirty-three (33) ended
in violence, resulting in fifteen (15) killed and over five hundred (500)
injured; that most of these actions were organized, coordinated or led by the
aforementioned front organizations; that the violent demonstrations were
generally instigated by a small, but well-trained group of armed agitators;
that the number of demonstrations heretofore staged in 1971 has already
exceeded those of 1970; and that twenty-four (24) of these demonstrations were
violent, and resulted in the death of fifteen (15) persons and the injury of
many more.

‘Subsequent events . . . have also proven . . . the threat to
public safety posed by the New People’s Army. 
Indeed, it appears that, since August 21, 1971, it had in Northern Luzon
six (6) encounters and staged one (1) raid, in consequence of which seven (7)
soldiers lost their lives and two (2) others were wounded, whereas the
insurgents suffered five (5) casualties; that on August 26, 1971, a well-armed
group of NPA, trained by defector Lt. Victor Corpus, attacked the very command
post of TF LAWIN in Isabela, destroying two (2) helicopters and one (1) plane,
and wounding one (1) soldier; that the NPA had in Central Luzon a total of four
(4) encounters, with two (2) killed and three (3) wounded on the side of the
Government, one (1) BSDU killed and three (3) KM-SDK leader, an unidentified
dissident, and Commander Panchito leader of the dissident group were killed;
that on August 26, 1971, there was an encounter in the barrio of San Pedro,
Iriga City, Camarines Sur, between the PC and the NPA, in which a PC and two
(2) KM members were killed; that the current disturbances in Cotabato and the
Lanao provinces have been rendered more complex by the involvement of the
CPP/NPA, for, in mid-1971, a KM group, headed by Jovencio Esparagoza, contacted
the Higaonan tribes, in their settlement in Magsaysay, Misamis Oriental, and
offered them books, pamphlets and brochures of Mao Tse Tung, as well as
conducted teach-ins in the reservation; that Esparagoza was reportedly killed
on September 22, 1971, in an operation of the PC in said reservation; and that
there are now two (2) NPA cadres in Mindanao.

‘It should, also be noted that adherents of the CPP and its front
organizations are, according to intelligence findings, definitely capable of
preparing powerful explosives out of locally available materials; that the bomb
used in the Constitutional Convention Hall was a ‘Claymore’ mine, a powerful
explosive device used by the U.S. Army, believed to have been one of many
pilfered from the Subic Naval Base a few days before; that the President had
received intelligence information to the effect that there was a July-August
Plan involving a wave of assassinations, kidnappings, terrorism and mass
destruction of property and that an extraordinary occurrence would signal the
beginning of said event; that the rather serious condition of peace and order
in Mindanao, particularly in Cotabato and Lanao, demanded the presence therein
of forces sufficient to cope with the situation; that a sizeable part of our
armed forces discharges other functions, and that the expansion of the CPP
activities from Central Luzon to other parts of the country, particularly
Manila and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon
and the Bicol Region, required that the rest of our armed forced be spread thin
over a wide area.’

“WHEREAS, in the unwavering prosecution of their revolutionary
war against the Filipino people and their duly constituted Government, the
aforesaid lawless elements have, in the months of May, June and July, 1972,
succeeded in bringing and introducing into the country at Digoyo Point,
Palanan, Isabela and at other undetermined points along the Pacific coastline
of Luzon, a substantial quantity of war material consisting of M-14 rifles
estimated to be some 3,500 pieces, several dozens of 40 mm rocket launchers
which are said to be Chicom copies of a Russian prototype rocket launcher,
large quantities of 80 mm rockets and ammunitions, and other combat
paraphernalia, of which war material some had been discovered and captured by
government military forces, and the bringing and introduction of such quantity
and type of war material into the country is a mute but eloquent proof of the
sinister plan of the aforesaid lawless elements to hasten the escalation of
their present revolutionary war against the Filipino people and their
legitimate Government;

“WHEREAS, in the execution of their overall revolutionary
plan, the aforesaid lawless elements have prepared and released to their
various field commanders and Party workers a document captioned ‘REGIONAL
PROGRAM OF ACTION 1972,’ a copy of which was captured by elements of the 116th
and 119th Philippine Constabulary Companies on June 18, 1972 at Barrio
Taringsing, Cordon, Isabela the text of which reads as follows:

REGIONAL PROGRAM OF ACTION 1972

‘The following Regional Program of Action 1972 is prepared to be
carried out as part of the overall plan of the party to foment discontent and
precipitate the tide of nationwide mass revolution.  The fascist Marcos and his reactionary
members of Congress is expected to prepare themselves for the 1973 hence:

‘January — June:

‘1.   Intensify recruitment of new party members
especially from the workers-farmers class. 
Cadres are being trained in order to organize the different regional
bureaus.  These bureaus must concentrate
on mass action and organization to promote advancement of the mass
revolutionary movement. Reference is made to the Borador ng Programa sa
Pagkilos at Ulat ng ‘Panlipunang Pagsisiyasat’ as approved by the Central
Committee.

‘2.   Recruit and train armed city partisans and
urban guerrillas and organize them into units under Party cadres and activities
of mass organizations.  These units must
undergo specialized training on explosives and demolition and other forms of
sabotage.

‘3.   Intesify recruitment and training of new
members of the New People’s Army in preparation for limited offensive in
selected areas in the regions.

‘4.   Support a more aggressive program of
agitation and propaganda against the reactionary armed forces against the
Con-Con.

‘July — August:

‘During this period the Party expects the puppet Marcos government
to allow increase in bus rates thus aggravating further the plight of students,
workers and the farmers.

‘1.   All Regional Party Committees must plan for a
general strike movement.  The Regional
Operational Commands must plan for armed support if the fascist armed forces of
Marcos will try to intimidate the oppressed Filipino masses.

‘2.   Conduct sabotage against schools, colleges
and universities hiking tuition fees.

‘3.   Conduct sabotage and agitation against puppet
judges and courts hearing cases against top party leaders.

‘4.   Create regional chaos and disorders to
dramatize the inability of the fascist Marcos Government to keep and maintain
peace and order thru:  —

‘a.)    Robbery and hold-up of banks controlled by
American imperialists and those belonging to the enemies of the people.

‘b)     Attack military camps, US bases and towns.

‘c)     More violent strikes and demonstrations.

‘September — October:

‘Increase intensity of violence, disorder and confusion:

‘1.   Intesify sabotage and bombing of government
buildings and embassies and other utilities:

‘a)   Congress

‘b)   Supreme Court

‘c)   Con-Con

‘d)   City Hall

‘e)   US
Embassy

‘f)    Facilities of US Bases

‘g)   Provincial Capitols

‘h)   Power Plants

‘i)    PLDT

‘j)    Radio Stations

‘2.   Sporadic attacks on camps, towns and cities.

‘3.   Assassinate high Government officials of
Congress, Judiciary, Con-Con and private individuals sympathetic to puppet
Marcos.

‘4.   Establish provisional revolutionary
government in towns and cities with the support of the masses.

‘5.   With the sympathetic support of our allies,
establish provisional provincial revolutionary governments.

CENTRAL
COMMITTEE

COMMUNIST PARTY OF
THE

PHILIPPINES

“WHEREAS in line with their REGIONAL PROGRAM OF ACTION 1972,
the aforesaid lawless elements have of late been conducting intensified acts of
violence and terrorisms during the current year in the Greater Manila Area such
as the bombing of the Arca building at Taft Avenue, Pasay City, on March 15; of
the Filipinas Orient Airways board room at Domestic Road, Pasay City on April
23; of the Vietnamese Embassy on May 30; of the Court of Industrial Relations
on June 23; of the Philippine Trust Company branch office Cubao, Quezon City on
June 24; of the Philamlife building at United Nations Avenue, Manila, on July
3; of the Tabacalera Cigar & Cigarette Factory Compound at Marquez de
Comillas, Manila on July 27; of the PLDT exchange office at East Avenue, Quezon
City, and of the Philippine Sugar Institute building at North Avenue, Diliman,
Quezon City, both on August 15; of the Department of Social Welfare building
at  San Rafael Street, Sampaloc, Manila,
on August 17; of a water main on Aurora Boulevard and Madison Avenue, Quezon
City on August 19; of the Philamlife building again on August 30; this time
causing severe destruction on the Far East Bank and Trust Company building
nearby; of the armored car and building of the Philippine Banking Corporation
as well as the buildings of the Investment Development Inc. and the Daily Star
Publications when another explosion took place on Railroad Street, Port Area,
Manila also on August 30; of Joe’s Department Store on Carriedo Street, Quiapo,
Manila, on September 5, causing death to one woman and injuries to some 38
individuals; and of the City Hall of Manila on September 8; of the watermains
in San Juan, Rizal on September 12, of the San Miguel Building in Makati, Rizal
on September 14; and of the Quezon City Hall on September 18, 1972, as well as
the attempted bombing of the Congress Building on July 18, when an unexploded
bomb was found in the Senate Publication Division and the attempted bombing of
the Department of Foreign Affairs on August 30;

“WHEREAS, in line with the same ‘REGIONAL PROGRAM OF ACTION
1972,’ the aforesaid lawless elements have also fielded in the Greater Manila
area several of their ‘Sparrow Units’ or ‘Simbad Units’ to undertake
liquidation missions against ranking government officials, military personnel and
prominent citizens and to further heighten the destructions and depredations
already inflicted by them upon our innocent people, all of which are being
deliberately done to sow terror, fear and chaos amongst our population and to
make the Government look so helpless and incapable of protecting the lives and
property of our people;

“WHEREAS, in addition to the above described social disorder,
there is also the equally serious disorder in Mindanao and Sulu resulting from
the unsettled conflict between certain elements of the Christian and Muslim
population of Mindanao and Sulu, between the Christian ‘Ilagas’ and the Muslim
‘Barracudas,’ and between our government troops, and certain lawless
organizations such as the Mindanao Independence Movement;

“WHEREAS, the Mindanao Independence Movement with the active
material and financial assistance of foreign political and economic interests,
is engaged in an open and unconcealed attempt to establish by violence and
force a separate and independent political state out of the islands of Mindanao
and Sulu which are historically, politically and by law parts of the
territories and within the jurisdiction and sovereignty of the Republic of the
Philippines;

“WHEREAS, because of the aforesaid disorder resulting from armed
clashes, killings, massacres, arsons, rapes, pillages, destruction of whole
villages and towns and the inevitable cessation of agricultural and industrial
operations, all of which have been brought about by the violence inflicted by
the Christians, the Muslims, the ‘Ilagas,’ the ‘Barracudas,’ and the Mindanao
Independence Movement against each other and against our government troops, a
great many parts of the Islands of Mindanao and Sulu are virtually now in a
state of actual war;

“WHEREAS, the violent disorder in Mindanao and Sulu has to
date resulted in the killing of over 1,000 civilians and about 2,000 armed
Muslims and Christians, not to mention the more than five hundred thousand of
injured, displaced and homeless persons as well as the great number of
casualties among our government troops, and the paralyzation of the economy of
Mindanao and Sulu;

“WHEREAS, because of the foregoing acts of armed insurrection,
wanton destruction of human lives and property, unabated and unrestrained
propaganda attacks against the Government and its institutions,
instrumentalities, agencies and officials, and the rapidly expanding ranks of
the aforesaid lawless elements, and because of the spreading lawlessness and
anarchy throughout the land, all of which have prevented the Government to
exercise its authority, extend to its citizenry the protection of its laws and
in general exercise its sovereignty over all of its territories, caused serious
demoralization among our people and have made the public apprehensive and
fearful, and finally because public order and safety and the security of this
nation demand that immediate, swift, decisive and effective action be taken to
protect and insure the peace, order and security of the country and its
population and to maintain the authority of the Government;

“WHEREAS, in cases of invasion, insurrection or rebellion or
imminent danger thereof, I, as President of the Philippines, have, under the
Constitution three courses of action open to me, namely:  (a) call out the armed forces to suppress the
present lawless violence; (b) suspend the privilege of the writ of habeas
corpus to make the arrest and apprehension of these lawless elements easier
and more effective; or (c) place the Philippines or any part thereof under
martial law;

“WHEREAS, I have already utilized the first two courses of
action, first, by calling upon the armed forces to suppress the aforesaid
lawless violence, committing to that specific job almost 50% of the entire
armed forces of the country and creating several task forces for that purpose
such as Task Force Saranay, Task Force Palanan, Task Force Isarog, Task Force
Pagkakaisa and Task Force Lancaf, and, second, by suspending, the privilege of
the writ of habeas corpus on August 21, 1971 up to January 11, 1972, but
in spite of all that, both courses of action were found inadequate and
ineffective to contain, much less solve, the present rebellion and lawlessness
in the country as shown by the fact that:

1.    
The radical left has increased the
number and area of operation of its from organizations and has intensified the
recruitment and training of new adherents in the urban and rural areas
especially from among the youth;

2.    
The Kabataang Makabayan (KM), the
most militant and outspoken front organization of the radical left, has
increased the number of its chapters from 200 as of the end of 1970 to 317 as
of July 31, 1972 and its membership from 10,000 as of the end of 1970 to 13,000
as of the end of July, 1972, showing very clearly the rapid growth of the
communist  movement in this country.

3.    
The Samahang Demokratiko ng
Kabataan (SDK), another militant and outspoken front organization of the
radical left, has also increased the number of its chapters from an
insignificant number at the end of 1970 to 159 as of the end of July, 1972 and
has now a membership of some 1,495 highly indoctrinated, intensely committed
and almost fanatically devoted individuals;

4.    
The New People’s Army, the most
active and the most violent and ruthless military arm of the radical left, has
increased its total strength from an estimated 6,500 (composed of 560 regulars,
1,500 combat support and 4,400 service support) as of January 1, 1972 to about
7,900 (composed of 1,028 regulars, 1,800 combat support and 5,025 service
support) as of July 31, 1972, showing a marked increased in its regular troops
of over 100% in such a short period of six months;

5.    
The establishment of sanctuaries
for the insurgents in Isabela, in Zambales, in Camarines Sur, and in some parts
of Mindanao, a development heretofore unknown in
our campaign against subversion and insurgency in this country;

6.    
The disappearance and dropping out
of school of some 3,000 high school and college students and who are reported
to have joined with the insurgents for training in the handling of firearms and
explosives;

7.    
The bringing and introduction into
the country of substantial war material consisting of military hardware and
supplies through the MV Karagatan at Digoyo Point, Palanan, Isabela, and the
fact that many of these military hardware and supplies are now in the hands of
the insurgents and are being used against our Government troops;

8.    
The infiltration and control of
the media by persons who are sympathetic to the insurgents and — the consequent
intensification of their propaganda assault against the Government and the
military establishment of the Government;

9.    
The formation at the grass-root
level of ‘political power organs,’ heretofore unknown in the history of the
Communist movement in this country, composed of Barrio Organizing Committees
(BOCs) to mobilize the barrio people for active involvement in the revolution;
the Barrio Revolutionary Committees (BRCs) to act as ‘local governments’ in
barrios considered as CPP/NPA bailiwicks; the Workers Oganizing Committees
(WOCs) to organize workers from all sectors; the School Organizing Committees
(SOCs) to conduct agitation and propaganda activities and help in the expansion
of front groups among the studentry; and the Community Organizing Committees
(COCs) which operate in the urban areas in the same manner as the BOCs;

“WHEREAS, the rebellion and armed action undertaken by these
lawless elements of the communist and other armed aggrupations organized to
overthrow the Republic of the Philippines by armed violence and force have
assumed the magnitude of an actual state of war against our people and the
Republic of the Philippines;

“NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested upon me by Article VII, Section 10;
Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article I, Section 1 of the Constitution under martial law and, in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of
the Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction.

“In addition, I do hereby order that all persons presently
detained, as well as all others who may hereafter be similarly detained for the
crimes of insurrection or rebellion, and all other crimes and offenses
committed in furtherance or on the occasion thereof, or incident thereto, or in
connection therewith, for crimes against national security and the law of
nations, crimes against public order, crimes involving usurpation of authority,
rank, title and improper use of names, uniforms and insignia, crimes committed
by public officers, and for such other crimes as will be enumerated in orders
that I shall subsequently promulgate, as well as crimes as a consequence of any
violation of any decree, order or regulation promulgated by me personally or
promulgated upon my direction shall be kept under detention until otherwise
ordered released by me or by my duly designated representative.

“IN WITNESS WHEREOF.  I
have hereunto set my hand and caused the seal of the Republic of the Philippines
to be affixed.

“Done in the City of Manila,
this 21st day of September, in the year of Our Lord, nineteen hundred and
seventy-two.

“(SGD.)
FERDINAND E. MARCOS

President

Republic of the Philippines”

On September 22, 1972
at 9 o’clock in the evening, clearance
for the implementation of the proclamation was granted, and forthwith, the
following general order, among others, was issued:

“GENERAL
ORDER NO. 2

(ORDERING THE SECRETARY OF
NATIONAL DEFENSE TO ARREST THE PERSONS NAMED IN THE ATTACHED LIST, AS WELL AS OTHER
PERSONS WHO MAY HAVE COMMITTED CRIMES AND OFFENSES ENUMERATED IN THE ORDER).

Pursuant to Proclamation No. 1081, dated September 21, 1972, and in
my capacity as Commander-in-Chief of all the Armed Forces of the Philippines
and for being active participants in the conspiracy to seize political and
state power in the country and to take over the Government by force, the extent
of which has now assumed the proportion of an actual war against our people and
their legitimate Government and in order to prevent them from further
committing acts that are inimical or injurious to our people, the Government
and our national interest, I hereby order you as Secretary of National Defense
to forthwith arrest or cause the arrest and take into your custody the individuals
named in the attached list and to hold them until otherwise so ordered by me or
by duly designated representative.

Likewise, I do hereby order you to arrest or cause the arrest and
take into custody and to hold them until otherwise ordered released by me or by
my duly authorized representative, such persons as may have committed crimes
and offenses in furtherance or on the occasion of or incident to or in
connection with the crimes of insurrection or rebellion as well as persons who
have committed crimes against national security and the law of nations crimes
against the fundamental law of the state, crimes against public order, crimes
involving usurpation of authority, title improper use of name, uniform and
insignia including persons guilty of crimes as public officers, as well as
those persons who may have violated any decree or order promulgated by me
personally or promulgated upon my direction.

Done in the City of Manila,
this 22nd day of September, in the year of Our Lord, nineteen hundred and seventy-two.

(SGD.)
FERDINAND E. MARCOS

President

REPUBLIC OF THE PHILIPPINES”

In the list referred to in this order were the names, among
others, of all the petitioners herein. 
Thus, from shortly after midnight of September 22, 1972 until they were
all apprehended, petitioners were taken one by one, either from their homes or
places of work, by officers and men of the Armed Forces of the Philippines,
without the usual warrant of arrest, and only upon orders of the Respondent
Secretary of National Defense directed to his co-respondent, the Chief of Staff
of the Armed Forces.  They have been
since then confined either at Camp Bonifacio.  Camp Crame or some other military camp,
until, as earlier adverted to, they were released subject to certain
conditions, with the exception of petitioners Diokno and Aquino, who are still
in custody up to the present.

The particular case of

petitioner
Aquino

As regards petitioner Aquino, it appears from his allegations in
his petition and supplemental petition for prohibition in G. R. No. L-37364,
already referred to earlier, (1) that on August 11, 1973, six criminal charges,
for illegal possession of firearms, etc., murder and violation of RA 1700 or
the Anti-Subersion Act, were filed against him with Military Commission No. 2, created
under General Order Nos. 8, 12 and 39, (2) that on August 28, 1973, the
President created, thru Administrative Order No. 355, a special committee to
undertake the preliminary investigation or reinvestigation of said charges, and
(3) that he questions the legality of his prosecution in a military commission
instead of in a regular civilian court as well as the creation of the special
committee, not only because of alleged invalidity of Proclamation 1081 and
General Order No. 2 and the orders authorizing the creation of military
commissions but also because Administrative Order No. 355 constitutes allegedly
a denial of the equal protection of the laws to him and to the others affected
thereby.

From the procedural standpoint, these developments did not warrant
the filing of a separate petition.  A
supplemental petition in G. R. No. L-35546, wherein he is one of the
petitioners, would have sufficed.  But
inasmuch as petitioner Aquino has chosen to file an independent special civil
action for prohibition in said G.R. No. L-37364 without withdrawing his
petition for habeas corpus in G. R. No. L-35546, We wish to make it
clear that in this decision, the Court is going to resolve, for purposes of the
habeas corpus petition of said petitioner, only the issues he has raised
that are common with those of the rest of the petitioners in all these cases,
thereby leaving for resolution in G.R. No. L-37364 all the issues that are
peculiar only to him.  In other words,
insofar as petitioner Aquino is concerned, the Court will resolve in this
decision the question of legality of his detention by virtue of Proclamation
1081 and General Order No. 2, such that in G. R. No. L-37364, what will be
resolved will be only the constitutional issues related to the filing of charges
against him with Military Commission No. 2, premised already on whatever will
be the Court’s resolution in the instant cases regarding Proclamation 1081 and
General Order No. 2.

With respect to the other petitioners, none of them stands
charged with any offense before any court or military commission.  In fact, they all contend that they have not
committed any act for which they can be held criminally liable.

Going back to the facts, it may be mentioned, at this juncture,
that on the day Proclamation 1081 was signed, the Congress of the Philippines
was actually holding a special session scheduled to end on September 22, 1972.  It had been in uninterrupted session since
its regular opening in January, 1972. 
Its regular session was adjourned on May 18, 1972, followed by three
special sessions of thirty days each,8 from May 19 to June 22, June 23 to
July 27 and July 28 to August 31, and one special session of twenty days, from
September 1 to September 22.  As a matter
of fact, petitioner Aquino was in a conference of a joint committee of the
Senate and the House of Representatives when he was arrested in one of the
rooms of the Hilton Hotel in Manila.

It must also be stilted at this point that on November 30, 1972,
the Constitutional Convention of 1971, which convened on June 1, 1971 and had
been in continuous session since then, approved a New Constitution; that on
January 17, 1973, Proclamation 1102 was issued proclaiming the ratification
thereof; and that in the Ratification Cases aforementioned, the Supreme Court
rendered on March 31, 1973, a judgment holding that “there is no further
judicial obstacle to the New Constitution being considered in force and
effect.” Among the pertinent provisions of the New Constitution is Section
3 (2) of Article XVII which reads thus:

“(2)  All proclamations, orders, decrees,
instructions, and acts promulgated, issued or done by the incumbent President
shall be part of the law of the land, and shall remain valid, legal, binding,
and effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, superseded by subsequent proclamations,
orders, decrees, instructions, or other acts of the incumbent President, or
unless expressly and explicitly modified or repealed by the regular National
Assembly.”

Before closing this narration of facts, it is relevant to state
that relative to petitioner Diokno’s motion to withdraw, respondents filed
under dated of May 13, 1974
the following Manifestation:

“COME NOW respondents, by the undersigned counsel, and to this
Honorable Court respectfully submit this manifestation:

1.     
In a Motion dated December 29, 1973 petitioner,
through counsel, prayed for the withdrawal of the above-entitled case more
particularly the pleadings tiled therein. 
Respondents’ Comments dated January
17, 1974, petitioners’ Reply dated March 7, 1974, and respondents’ Rejoinder dated March 27, 1974 were subsequently
submitted to this Honorable Court;

2.     
The motion to withdraw has been
used for propaganda purposes against the Government, including the Supreme
Court.  Lately, the propaganda has been
intensified and the detention of petitioner and the pendency of his case in
this Court have been exploited;

3.     
We are aware that the issues
raised in this case are of the utmost gravity and delicacy.  This is the reason we said that the decision
in these cases should be postponed until the emergency, which called for the
proclamation of martial law, is over. 
While this position is amply supported by precedents and is based on
sound policy consideration, we now feel that to protect the integrity of
government Institutions, including this Court, from scurrilous propaganda now
being waged with relentlessness, it would be in the greater interest of the
Nation to have the motion to withdraw resolved and if denied, to have the
petition itself decided;

4.     
This is not to say that the
emergency is over, but only to express a judgment that in view of recent
tactics employed in the propaganda against the Government, it is preferable in the
national interest to have the issues stirred by this litigation settled in this
forum.  For, indeed, we must state and
reiterate that:

a.      
Pursuant to the Presidents’
constitutional powers, functions, and responsibilities in a state of martial
law, he periodically requires to be conducted a continuing assessment of the
factual situation which necessitated the promulgation of Proclamation No. 1081
on September 21, 1972 and the continuation of martial law through Proclamation
No. 1104, dated January 17, 1973;

b.      
The Government’s current and
latest assessment of the situation, including evidence of the subversive
activities of various groups and individuals, indicates that there are still
pockets of actual armed insurrection and rebellion in certain parts of the country.  While in the major areas of the active
rebellion the military challenge to the Republic and its duly constituted
Government has been overcome and effective steps have been and are being taken
to redress the centuries-old and deep-seated causes upon which the fires of
insurrection and rebellion have fed, the essential process of rehabilitation
and renascence is a slow and delicate process. 
On the basis of said current assessment and of consultations with the people,
the President believes that the exigencies of the situation, the continued
threat to peace, order, and security, the danger to stable government and to
democratic processes and institutions, the requirements of public safety, and
the actual imminent danger of insurrection and rebellion all require the
continuation of the exercise of powers incident to martial law;

c.      
The majority of persons who had to
be detained upon the proclamation of martial law have been released and are now
engaged in their normal pursuits. 
However, the President has deemed that, considering the overall
situation described above and in view of adequate evidence which can not now be
declassified, the continued detention of certain individuals without the filing
of formal charges in court for subversive and other criminal acts is necessary
in the interest of national security and defense to enable the Government to
successfully meet the grave threats of rebellion and insurrection.  In this regard, the Secretary of National
Defense and his authorized representatives have acted in accordance with
guidelines relating to national security which the President has prescribed.

Respectfully submitted.

Manila,
Philippines, May 13, 1974.”

(Vol. II, Rollo, L-35539.)

and that earlier, in connection with the
issue of jurisdiction of the Supreme Court over the instant cases, the
respondents invoked General Orders Nos. 3 and 3-A reading as follows:

“GENERAL ORDER NO. 3

WHEREAS, martial law having been declared under Proclamation No.
1081, dated September 21, 1972 and is now in effect throughout the land;

WHEREAS, martial law, having been declared because of wanton
destruction of lives and property, widespread lawlessness and anarchy, and
chaos and disorder now prevailing throughout the country, which condition has
been brought about by groups of men who are actively engaged in a criminal
conspiracy to seize political and state power in the Philippines in order to
take over the Government by force and violence, the extent of which has now
assumed the proportion of an actual war against our people and their legitimate
Government; and

WHEREAS, in order to make more effective the implementation of the
aforesaid Proclamation No. 1081 without unduly affecting the operations of the
Government, and in order to end the present national emergency within the
shortest possible time;

NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all
the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081,
dated September 21, 1972, do hereby order that henceforth all executive
departments, bureaus, offices, agencies and instrumentalities of the National
Government, government-owned or controlled corporations, as well as all
governments of all the provinces, cities, municipalities and barrios throughout
the land shall continue to function under their present officers and employees
and in accordance with existing laws, until otherwise ordered by me or by my
duly designated representative.

I do hereby further order that the Judiciary shall continue to
function in accordance with its present organization and personnel, and shall
try and decide in accordance with existing laws all criminal and civil cases,
except the following cases:

1.    
Those involving the validity,
legality or constitutionality of any decree, order or acts issued, promulgated
or performed by me or by my duly designated representative pursuant to
Proclamation No. 1081, dated September
21, 1972.

2.    
Those involving the validity or
constitutionality of any rules, orders, or acts issued, promulgated or
performed by public servants pursuant to decrees, orders, rules and regulations
issued and promulgated by me or by my duly designated representative pursuant
to Proclamation No. 1081, dated September
21, 1972.

3.    
Those involving crimes against
national security and the law of nations.

4.    
Those involving crimes against the
fundamental laws of the State.

5.    
Those involving crimes against
public order.

6.    
Those crimes involving usurpation
of authority, rank, title, and improper use of names, uniforms, and insignia.

7.    
Those involving crimes committed
by public officers.

Done in the City of Manila,
this 22nd day of September, in the year of Our Lord, nineteen hundred and
seventy-two.

(SGD.)
FERDINAND E. MARCOS

President

Republic of the Philippines”

“GENERAL ORDER NO. 3-A

Sub-paragraph 1 of the second paragraph of the dispositive portion
of General Order No. 3, dated September
22, 1972, is hereby amended to read as follows:

* * *

1.   Those involving the validity, legality, or
constitutionality of Proclamation No. 1081, dated September 21, 1972, or of any
decree, order or acts issued, promulgated or performed by me or by my duly
designated representative pursuant thereto.

* * *

Done in the City of Manila,
this 24th day of September, in the year of Our Lord, nineteen hundred and
seventy-two.

(SGD.)
FERDINAND E. MARCOS

President

Republic of the Philippines”

Likewise relevant are the issuance by the President on January 17, 1973 of Proclamation 1104
reading thus:

“PROCLAMATION NO. 1104

DECLARING THE
CONTINUATION OF MARTIAL LAW.

WHEREAS, Barangays (Citizens Assemblies) were created in barrios in
municipalities and in districts/wards in chartered cities pursuant to
Presidential Decree No. 86, dated December 31, 1972, composed of all persons
who are residents of the barrio, district or ward for at Least six months,
fifteen years of age or over, citizens of the Philippines and who are
registered in the list of Citizen Assembly members kept by the barrio, district
or ward secretary;

WHEREAS, the said Barangays were established precisely to broaden
the base of citizen participation in the democratic process and to afford ample
opportunities for the citizenry to express their views on important national
issues;

WHEREAS, pursuant to Presidential Decree No. 86-A, dated January 5, 1973 and Presidential
Decree No. 86-B, dated January 7, 1973,
the question was posed before the Barangays: 
Do you want martial law to continue?

WHEREAS, fifteen million two hundred twenty-four thousand five
hundred eighteen (15,224,518) voted for the continuation of martial law as
against only eight hundred forty-three thousand fifty-one (843,051) who voted
against it;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers in me vested by the Constitution, do hereby declare
that martial law shall continue in accordance with the needs of the time and
the desire of the Filipino people.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal
of the Republic of the Philippines
to be affixed.

Done in the City of Manila,
this 17th day of January, in the year of Our Lord, nineteen hundred and
seventy-three.

(SGD.)
FERDINAND E. MARCOS

President

Republic of the Philippines”

and the holding of a referendum on July 27-28, 1973 which as evidenced
by the COMELEC proclamation of August
3, 1973 resulted in the following:

“Under the present constitution the President, if he so
desires, can continue in office beyond 1973.

Do you want President Marcos to continue beyond 1973 and finish the
reforms he has initiated under Martial Law?

18,052,016 – YES

1,856,744 – NO”

(Phil. Daily Express, August 4, 1973)

THE FUNDAMENTAL ISSUES

First of all, petitioners challenge the factual premises and
constitutional sufficiency of Proclamation 1081.  Invoking the Constitution of 1935 under which
it was issued, they vigorously maintain that “while there may be rebellion
in some remote places, as in Isabela, there is no basis for the nationwide
imposition of martial law, since:  (a) no
large scale rebellion or insurrection exists in the Philippines; (b) public
safety does not require it, inasmuch as no department of the civil government —
is shown to have been unable to open or function because of or due to, the
activities of the lawless elements described in the Proclamation; (c) the
Executive has given the nation to understand — and there exists no evidence to
the contrary — that the armed forces can handle the situation without
‘utilizing the extraordinary powers of the President etc;’ and (d) problem in
the Greater Manila Area . . . where petitioners were seized and arrested was, a
the time martial law was proclaimed, plain lawlessness and criminality.”
(pp. 69-70, Petitioners’ Memorandum).  In
his supplemental petition, petitioner Diokno individually posits that
especially these days, with the improved conditions of peace and order, there
is no more constitutional justification for the continuance of martial
law.  In other words, petitioners
question not only the constitutional sufficiency both in fact and in law of the
proclamation but also the legality of their detention and constraints,
independently of any finding of validity of the proclamation, while in his
supplemental petition petitioner Diokno individually submits that the Court
should declare that it has already become illegal to continue the present
martial law regime because the emergency for which it was proclaimed, if it
ever existed, has already ceased,  as
attested by various public and official declarations of no less than the
President himself.  On the other hand,
respondents would want the Court to lay its hands off the instant petitions,
claiming that under General Orders Nos. 3 and 3-A, aforequoted, the President
has ordered that the Judiciary shall not try and decide cases “involving
the validity, legality or constitutionality” of Proclamation 1081 and any
order, decree or acts issued or done pursuant to said Proclamation.  They contend most vehemently that this Court
has no jurisdiction to inquire into the factual bases of the proclamation, any
question as to the propriety or constitutional sufficiency of its issuance
being, according to them, political and nonjusticiable.  They point out, in this connection, that in
the above-mentioned referendum of January 10-15, 1973 and more so in that of
July 27-28, 1973; the sovereign people impressed their seal of approval on the
continuation of martial law for as long as the President may deem it wise to
maintain the same.  And on the assumption
the Court can make an inquiry into the factual bases of the Proclamation, they
claim there was more than sufficient justification for its issuance, in the
light of the criterion of arbitrariness sanctioned by Us in Lansang vs.
Garcia, 42 SCRA 448.  Respondents further
maintain that it is only by another official proclamation by the President, not
by a judicial declaration, that martial law may be lifted.  Additionally, in their answer of July 26,
1973 to petitioner Diokno’s supplemental petition, respondents contend that the
express provisions of the above-quoted transitory provision of the New
Constitution, have made indubitable that Proclamation 1081 as well as all the
impugned General Orders are constitutional and valid.

Thus, the fundamental questions presented for the Court’s
resolution are:

1.     
Does the Supreme Court have
jurisdiction to resolve the merits of the instant petitions?  Put differently, are not the issues herein
related to the propriety or constitutional sufficiency of the issuance of the
Proclamation purely political, which are not for the judiciary, but for the
people and the political departments of the government to determine?  And viewed from existing jurisprudence in the
Philippines,
is not the doctrine laid down by this Court in Lansang vs. Garcia,
supra, applicable to these cases?

2.     
Even assuming Lansang to be applicable,
and on the basis of the criterion of arbitrariness sanctioned therein, can it
be said that the President acted arbitrarily, capriciously or whimsically in
issuing Proclamation 1081?

3.     
Even assuming also that said
proclamation was constitutionally issued, may not the Supreme Court declare
upon the facts of record and those judicially known to it now that the
necessity for martial law originally found by the President to exist has
already ceased so us to make further continuance of the present martial law
regime unconstitutional?

4.     
Even assuming again that the
placing of the country under martial law is constitutional until the President
himself declares otherwise, is there any legal justification for the arrest and
detention as well as the other constraints upon the individual liberties of the
petitioners, and, in the affirmative, does such justification continue up to
the present, almost two years from the time of their apprehension, there being
no criminal charges of any kind against them nor any warrants of arrest for
their apprehension duly issued pursuant to the procedure prescribed by law?

5.     
Finally, can there still be any
doubt regarding the constitutionality of the issuance of Proclamation 1081 and
all the other proclamations and orders, decrees, instructions and acts of the
President issued or done by him pursuant to said Proclamation, considering that
by the terms of Section 3 (2) of Article XVII of the Constitution of the
Philippines of 1973, “all proclamations, orders, decrees, instructions and
acts promulgated, issued or done by the incumbent President shall be part of
the law of the land, and shall remain valid, legal, binding and effective”
until revoked or superseded by the incumbent President himself or by the
regular National Assembly established under the same Constitution?

I

THE ISSUE OF JURISDICTION

By its very nature, the issue of jurisdiction vigorously urged by
the Solicitor General calls for prior resolution.  Indeed, whenever the authority of the Court to
act is seriously challenged, it should not proceed any further until that
authority is clearly established.  And it
goes without saying that such authority may be found only in the existing laws
and/or the Constitution.

For a moment, however, there was a feeling among some members of
the Court that the import of the transitory provisions of the New Constitution
referred to in the fifth question above has made the issue of jurisdiction
posed by the respondents of secondary importance, if not entirely academic.  Until, upon further reflection, a consensus
emerged that for Us to declare that the transitory provision invoked has
rendered moot and academic any controversy as to the legality of the impugned
acts of the President is to assume that the issue is justiciable, thereby by
passing the very issue of jurisdiction We are asked to resolve.  We feel that while perhaps, such reliance on
the transitory provision referred to may legally suffice to dispose of the
cases at bar, it cannot answer persistent queries regarding the powers of the
Supreme Court in a martial law situation. 
It would still leave unsettled a host of controversies related to the
continued exercise of extraordinary powers by the President.  Withal, such assumption of justiciability
would leave the Court open to successive petitions asking that martial law be
lifted, without Our having resolved first the correctness of such
assumption.  Indeed, nothing short of a
categorical and definite ruling of this Court is imperative regarding the
pretended non-justiciability of the issues herein, if the people are to know,
as they must, whether the present governmental order has legitimate
constitutional foundations or it is supported by nothing more than naked force
and self-created stilts to keep it above the murky waters of
unconstitutionality.  Thus, it is but
proper that We tackle first the questions about the authority of the Court to
entertain and decide these cases before discussing the materiality and effects
of the transitory provision relied upon by respondents.

As a matter of fact, it is not alone the matter of jurisdiction
that We should decide.  Beyond the purely
legal issues placed before Us by the parties, more fundamental problems are
involved in these proceedings.  There are
all-important matters which a historical decision like this cannot ignore on
the pretext that Our duty in the premises is exclusively judicial.  Whether all the members of the Court like it
or not, the Court has to play its indispensable and decisive role in resolving
the problems confronting our people in the critical circumstances in which they
find themselves.  After all, we cannot
dissociate ourselves from them, for we are Filipinos who must share the common
fate to which the denouement of the current situation will consign our
nation.  The priority issue before Us is
whether We will subject the assailed acts of the President to judicial scrutiny
as to its factual bases or We will defer to his findings predicated on evidence
which are in the very nature of things officially available only to him, but in
either case, our people must know that Our decision has democratic foundations
and conforms with the great principles for which our nation exists.

The New Constitution itself is in a large sense a product of the
political convulsion now shaking precariously the unity of the nation.  Upon the other hand, that those presently in
authority had a hand in one way or another in its formulation, approval and
ratification can hardly be denied.  To
justify, therefore, the restraint upon the liberties of petitioners through an
exclusive reliance on the mandates of the new charter, albeit logically and
technically tenable, may not suffice to keep our people united in the faith
that there is genuine democracy in the existing order and that the rule of law
still prevails in our land.  Somehow the
disturbing thought may keep lingering with some, if not with many, of our
countrymen that by predicating Our decision on the basis alone of what the New
Constitution ordains, We are in effect allowing those presently in authority
the dubious privilege of legalizing their acts and exculpating themselves from
their supposed constitutional transgressions through a device which might yet
have been of their own furtive making.

Besides, We should not be as naive as to ignore that in troublous
times like the present, simplistic solutions, however solidly based, of
constitutional controversies likely to have grave political consequences would
not sound cogent enough unless they ring in complete harmony with the tune set
by the founders of our nation when they solemnly consecrated it to the ideology
they considered best conducive to the contentment and prosperity of all our
people.  And the commitment of the Philippines
to the ideals of democracy and freedom is ever evident and indubitable.  It is writ in the martyrdom of our
revolutionary forbears when they violently overthrew the yoke of Spanish
despotism.  It is an indelible part of
the history of our passionate and zealous observance of democratic principles
and practices during the more than four decades that America
was with us.  It is reaffirmed in bright
crimson in the blood and the lives of the countless Filipinos who fought and
died in order that our country may not be subjugated under the militarism and
totalitarianism of the Japanese then, who were even enticing us with the idea
of a Greater East Asia Co-Prosperity Sphere. 
And today, that our people are showing considerable disposition to
suffer the imposition of martial law can only be explained by their belief that
it is the last recourse to save themselves from the inroads of ideologies
antithetic to those they cherish and uphold.

Withal, the eyes of all the peoples of the world on both sides of
the bamboo and iron curtains are focused and what has been happening in our
country since September 21, 1972.  Martial law in any country has such awesome
implications that any nation under it is naturally an interesting study subject
for the rest of mankind.  Those who
consider themselves to be our ideological allies must be keeping apprehensive
watch on how steadfastly we shall remain living and cherishing our common
fundamental political tenets and ways of life, whereas those of the opposite
ideology must be eagerly anticipating how soon we will join them in the
conviction that, after all, real progress and development cannot be achieved
without giving up individual freedom and liberty and unless there is
concentration of power in the exercise of government authority.  It is true the Philippines continues to enjoy
recognition of all the states with whom it had diplomatic relations before
martial law was proclaimed, but it is not difficult to imagine that as soon as
it has become definite or anyway apparent to those concerned that the
Philippines has ceased to adhere to the immutable concepts of freedom and
democracy enshrined in its own fundamental law, corresponding reactions would
manifest themselves in the treatment that will be given us by these states.

In our chosen form of government, the Supreme Court is the
department that most authoritatively speaks the language of the
Constitution.  Hence, how the present
martial law and the constraints upon the liberties of petitioners can be
justified under our Constitution which provides for a republican democratic
government will be read by the whole world in the considerations of this
decision.  From them they will know
whither we are going as a nation.  More
importantly, by the same token, history and the future generations of Filipinos
will render their own judgment on all of us who by the will of Divine
Providence have to play our respective roles in this epochal chapter of our
national life.  By this decision,
everyone concerned will determine how truly or otherwise, the Philippines of
today is keeping faith with the fundamental precepts of democracy and liberty
to which the nation has been irrevocably committed by our heroes and martyrs
since its birth.

And we should not gloss over the fact that petitioners have come
to this Court for the protection of their rights under the provisions of the
Old Charter that have remained unaltered by the New Constitution.  It would not be fair to them, if the
provisions invoked by them still mean what they had always meant before, to
determine the fate of their petitions on the basis merely of a transitory
provision whose consistency with democratic principles they vigorously
challenge.

In this delicate period of our national life, when faith in each
other and unity among all of the component elements of our people are indispensable,
We cannot treat the attitude and feelings of the petitioners, especially
Senator Diokno* who is still
under detention without formal charges, with apathy and indifferent
unconcern.  Their pleadings evince quite
distinctly an apprehensive, nay a fast dwindling faith in the capacity of this
Court to render them justice.  Bluntly
put, their pose is that the justice they seek may be found only in the correct
construction of the 1935 Constitution, and they make no secret of their fears
that because the incumbent members of the Court have taken an oath to defend
and protect the New Constitution, their hopes of due protection under the Bill
of Rights of the Old Charter may fall on deaf ears.  Petitioner Diokno, in particular, with the
undisguised concurrence of his chief counsel, former Senator Tañada
despairingly bewails that although they are “convinced beyond any nagging
doubt that (they are) on the side of right and reason and law and justice,
(they are) equally convinced that (they) cannot reasonably expect either right
or reason, law or justice, to prevail in (these) case(s).”

To be sure, We do not feel bound to soothe the subjective
despondency nor to cool down the infuriated feelings of litigants and lawyers
by means other than the sheer objectiveness and demonstrated technical accuracy
of our decisions.  Under the peculiar
milieu of these cases, however, it is perhaps best that We do not spare any
effort to make everyone see that in discharging the grave responsibility
incumbent upon Us in the best light that God has given Us to see it, We have
explored every angle the parties have indicated and that We have exhausted all
jurisprudential resources within our command before arriving at our conclusions
and rendering our verdict.  In a way, it
could indeed be part of the nobility that should never be lost in any court of
justice that no party before it is left sulking with the thought that he lost
because not all his important arguments in which he sincerely believes have
been duly considered or weighed in the balance.

But, of course, petitioners’ emotional misgivings are manifestly
baseless.  It is too evident for anyone
to ignore that the provisions of the Old Constitution petitioners are invoking
remain unaltered in the New Constitution and that when it comes to the basic
precepts underlying the main portions of both fundamental laws, there is no
disparity, much less any antagonism between them, for in truth, they are the
same identical tenets to which our country, our government and our people have always
been ineradicably committed.  Insofar,
therefore, as said provisions and their underlying principles are concerned,
the new oath taken by the members of the Court must be understood, not in the
disturbing sense petitioners take them, but rather as a continuing guarantee of
the Justices’ unswerving fealty and steadfast adherence to the self-same tenets
and ideals of democracy and liberty embodied in the oaths of loyalty they took
with reference to the 1935 Constitution.

Contrary to what is obviously the erroneous impression of
petitioner Diokno, the fundamental reason that impelled the members of the
Court to take the new oaths that are causing him unwarranted agony was
precisely to regain their independence from the Executive, inasmuch as the
transitory provisions of the 1973 Constitution had, as a matter of course,
subjected the judiciary to the usual rules attendant in the reorganization of
governments under a new charter.  Under
Sections 9 and 10 of Article XVII, “incumbent members of the Judiciary may
continue in office until they reach the age of seventy years, unless sooner
replaced” by the President, but “all officials whose appointments are
by this Constitution vested in the (President) shall vacate their offices upon
the appointment and qualification of their successors.” In other words,
under said provisions, the Justices ceased to be permanent.  And that is precisely why our new oaths
containing the phrase “na pinagpapatuloy sa panunungkulan”, which
petitioner Diokno uncharitably ridicules ignoring its real import, was prepared
by the Secretary of Justice in consultation with the Court, and not by the
President or any other subordinate in the Executive office, purposely to make
sure that the oath taking ceremony which was to be presided by the President
himself would connote and signify that thereby, in fact and in contemplation of
law, the President has already exercised the power conferred upon him by the
aforequoted transitory constitutional provisions to replace anyone of us with a
successor at anytime.

There was no Presidential edict at all for the Justices to take
such an oath.  The President informed the
Court that he was determined to restore the permanence of the respective
tenures of its members, but there was a feeling that to extend new appointments
to them as successors to themselves would sound somehow absurd.  And so, in a conference among the President,
the Secretary of Justice and all the Justices, a mutually acceptable
construction of the pertinent transitory provision was adopted to the effect
that an official public announcement was to be made that the incumbent Justices
would be continued in their respective offices without any new appointment, but
they would take a fittingly worded oath the text of which was to be prepared in
consultation between the Secretary of Justice and the Court.  Thus, by that oath taking, all the members of
the Court, other than the Chief Justice and the three new Associate Justices,
who because of their new appointments are not affected by the transitory
provisions, are now equally permanent with them in their constitutional
tenures, as officially and publicly announced by the President himself on that
occasion.  Otherwise stated, the
reorganization of the Supreme Court contemplated in the transitory provisions
referred to, which, incidentally was also a feature of the transitory
provisions of the 1935 Constitution, albeit, limited then expressly to one
year, (Section 4, Article XVI) has already been accomplished, and all the
Justices are now unreachably beyond the presidential prerogative either
explicit or implicit in the terms of the new transitory provisions.

It is, therefore, in these faith and spirit and with this
understanding, supported with prayers for guidance of Divine Providence, that
We have deliberated and voted on the issues in these cases — certainly, without
any claim of monopoly of wisdom and patriotism and of loyalty to all that is
sacred to the Philippines
and the Filipino people.

II

As already stated, the Governments insistent posture that the
Supreme Court should abstain from inquiring into the constitutional sufficiency
of Proclamation 1081 is predicated on two fundamental grounds, namely, (1) that
under General Order No. 3, as amended by General Order No. 3-A, “the
Judiciary (which includes the Supreme Court) shall continue to function in
accordance with its present organization and personnel, and shall try and
decide in accordance with existing laws all criminal and civil cases, except
the following:  1. Those involving the
validity, legality or constitutionality of Proclamation 1081 dated September
21, 1972 or of any decree, order or acts issued, promulgated or performed by
(the President) or by (his) duly designated representative pursuant
thereto,” and (2) the questions involved in these cases are political and
non-justiciable and, therefore, outside the domain of judicial inquiry.

A

GENERAL ORDERS NOS. 3 AND 3-A
HAVE CEASED TO BE OPERATIVE INSOFAR AS THEY ENJOIN THE JUDICIARY OF
JURISDICTION OVER CASES INVOLVING THE VALIDITY OF THE PROCLAMATIONS, ORDERS OR
ACTS OF THE PRESIDENT.

Anent the first ground thus invoked by the respondents, it is not
without importance to note that the Solicitor General relies barely on the
provisions of the general orders cited without elaborating as to how the
Supreme Court can be bound thereby. 
Considering that the totality of the judicial power is vested in the
Court by no less than the Constitution, both the Old and the New, the absence
of any independent showing of how the President may by his own fiat
constitutionally declare or order otherwise is certainly significant.  It may be that the Solicitor General
considered it more prudent to tone down any possible frontal clash with the
Court, but as We see it, the simplistic tenor of the Solicitor General’s
defense must be due to the fact too well known to require any evidential proof
that by the President’s own acts, publicized here and abroad, he had made it
plainly understood that General Orders Nos. 3 and 3-A are no longer operative
insofar as they were intended to divest the Judiciary of jurisdiction to pass
on the validity, legality or constitutionality of his acts under the aegis of
martial law.  In fact, according to the
President, it was upon his instructions given as early as September 24, 1972, soon after the filing of the
present petitions, that the Solicitor General submitted his return and answer
to the writs We have issued herein.  It
is a matter of public knowledge that the President’s repeated avowal of the
Government’s submission to the Court is being proudly acclaimed as the
distinctive characteristic of the so-called “martial law — Philippine
style”, since such attitude endows it with the democratic flavor so
dismally absent in the martial law prevailing in other countries of the world.

Accordingly, even if it were to be assumed at this juncture that
by virtue of the transitory provision of the New Constitution making all orders
of the incumbent President part of the law of the land, General Orders Nos. 3
and 3-A are valid, the position of the respondents on the present issue of
jurisdiction based on said orders has been rendered untenable by the very acts
of the President, which in the words of the same transitory provision have
“modified, revoked or superseded” them.  And in this connection, it is important to
note that the transitory provision just referred to textually says that the
acts of the incumbent President shall “remain valid, legal, binding and
effective . . . unless modified, revoked or superseded by subsequent proclamations,
orders, decrees, instructions or other acts of the incumbent President, or
unless expressly and explicitly modified or repealed by the regular National
Assembly”, thereby implying that the modificatory or revocatory acts of
the President need not be as express and explicit as in the case of the
National Assembly.  In other words, when
it comes to acts of the President, mere demonstrated inconsistency of his
posterior acts with earlier ones would be enough for implied modification or
revocation to be effective, even if no statement is made by him to such effect.

Rationalizing his attitude in regard to the Supreme Court during
martial law, President Marcos has the following to say in his book entitled
“Notes on the New Society of the Philippines”:

“Our martial law is unique in that it is based on the
supremacy of the civilian authority over the military and on complete
submission to the decision of the Supreme Court, and most important of all, the
people. . . .” (p. 103)

* * *

“Thus, upon the approval by the Constitutional Convention of a
new Constitution, I organized the barangays or village councils or citizens
assemblies in the barrios (a barrio is the smallest political unit in the Philippines).  I directed the new Constitution to be
submitted to the barangays or citizens assemblies in a formal plebiscite from January 10 to 15, 1973.  The barangays voted almost unanimously to
ratify the Constitution, continue with martial law and with the reforms of the
New Society.

This action was questioned in a petition filed before our Supreme
Court in the cases entitled Javellana vs. Executive Secretary et al,
G.R. No. L-36143, 36164, 36165, 36236 and 36283.  The issue raised was whether I had the power
to call a plebiscite; whether I could proclaim the ratification of the new
Constitution.  In raising this issue, the
petitioners (who, incidentally, were Liberals or political opposition leaders)
raised the fundamental issue of the power of the President under a proclamation
of martial law to issue decrees.

Inasmuch as the issues in turn raised the question of the
legitimacy of the entire Government and also to meet the insistent suggestion
that, in the event of an adverse decision, I proclaim a revolutionary
government, I decided to submit to the jurisdiction of the Supreme Court as I
had done in the Lansang vs. Garcia case (already quoted) in 1971 when
almost the same parties in interest questioned my powers as President to
suspend the privilege of the writ of habeas corpus.  (Refer to pp. 13-17.)

This would, at the same time, calm the fears of every cynic who had
any misgivings about my intentions and claimed that I was ready to set up a
dictatorship.  For who is the dictator
who would submit himself to a higher body like the Supreme Court on the question
of the constitutionality or validity of his actions?” (pp. 103-104.)

* * *

“It will be noted that I had submitted myself to the
jurisdiction of the Supreme Court in all cases questioning my authority in 1971
in the case of Lansang vs. Garcia on the question of the suspension of
the privilege of the writ of habeas corpus, and in the case just cited
on the proclamation of martial law as well as the other related cases.”
(pp. 105-106.)

Nothing could be more indicative, than
these words of the President himself, of his resolute intent to render General
Orders Nos. 3 and 3-A inoperative insofar as the Supreme Court’s jurisdiction
over cases involving the validity, legality or constitutionality of his acts
are concerned.  Actually, the tenor and
purpose of the said general orders are standard in martial law proclamations,
and the President’s attitude is more of an exception to the general
practice.  Be that as it may, with this
development, petitioners have no reason to charge that there is a
“disrobing” of the Supreme Court. 
But even as the President unequivocally reaffirms, over and above
martial law, his respect for the Supreme Court’s constitutionally assigned role
as the guardian of the Constitution and as the final authority as to its
correct interpretation and construction, it is entirely up to the Court to
determine and define its own constitutional prerogatives vis-a-vis the
Proclamation and the existing martial law situation, given the reasons for the
declaration and its avowed objectives.

B

MAY THE SUPREME COURT INQUIRE
INTO THE FACTUAL BASES OF THE ISSUANCE OF PROCLAMATION 1081 TO DETERMINE ITS
CONSTITUTIONAL SUFFICIENCY?

The second ground vigorously urged by the Solicitor General is
more fundamental, since, prescinding from the force of the general orders just
discussed, it strikes at the very core of the judicial power vested in the
Court by the people thru the Constitution. 
It is claimed that insofar as the instant petitions impugn the issuance
of Proclamation 1081 as having been issued by the President in excess of his
constitutional authority, they raise a political question not subject to
inquiry by the courts.  And with
reference to the plea of the petitioners that their arrest, detention and other
restraints, without any charges or warrants duly issued by the proper judge,
constitute clear violations of their rights guaranteed by the fundamental law,
the stand of the respondents is that the privilege of the writ of habeas
corpus has been suspended automatically in consequence of the imposition of
martial law, the propriety of which is left by the Constitution to the
exclusive discretion of the President, such that for the proper exercise of
that discretion he is accountable only to the sovereign people, either directly
at the polls or thru their representatives by impeachment.

Never before has the Supreme Court of the Philippines
been confronted with a problem of such transcendental consequences and
implications as the present one entails. 
There is here an exertion of extreme state power involving the
proclaimed assumption of the totality of government authority by the Executive,
predicated on his own declaration that a state of rebellion assuming “the
magnitude of an actual state of war against our people and the Republic of the
Philippines” exists (22nd whereas of Proclamation 1081) and that “the
public order and safety and the security of this nation demand that immediate,
swift, decisive and effective action be taken to protect and insure the peace,
order and security of the country and its population and to maintain the
authority of the government.” (19th whereas, id.) Upon the other hand,
petitioners deny the factual bases of the Proclamation and insist that it is
incumbent upon the Court, in the name of democracy, liberty and the Constitution,
to inquire into the veracity thereof and to declare, upon finding them to be
untrue, that the Proclamation is unconstitutional and void.  Respondents counter, however, that the very
nature of the Proclamation demands that the Court should refrain from making
any such inquiry, considering that, as already stated, the discretion as to
whether or not martial law should be imposed is lodged by the Constitution in
the President exclusively.

As We enter upon the extremely delicate task of resolving the
grave issues thus thrust upon Us, We are immediately encountered by absolute
verities to guide Us all the way.  The
first and most important of them is that the Constitution9 is
the supreme law of the land.  This means
among other things that all the powers of the government and of all its
officials from the President down to the lowest emanate from it.  None of them may exercise any power unless it
can be traced thereto either textually or by natural and logical implication.

The second is that is settled that the Judiciary provisions of
the Constitution point to the Supreme Court            as
the ultimate arbiter of all conflicts as to what the Constitution or any part
thereof means.  While the other
Departments may adopt their own construction thereof, when such construction is
challenged by the proper party in an appropriate case wherein a decision would
be impossible without determining the correct construction, the Supreme Court’s
word on the matter controls.

The third is that in the same way that the Supreme Court is the
designated guardian of the Constitution, the President is the specifically
assigned protector of the safety, tranquility and territorial integrity of the
nation.  This responsibility of the
President is his alone and may not be shared by any other Department.

The fourth is that, to the end just stated, the Constitution
expressly provides that “in case of invasion, insurrection or rebellion or
imminent danger thereof, when the public safety requires it, he (the Executive)
— “may (as a last resort) . . . place the Philippines
or any part thereof under martial law”.10

The fifth is that in the same manner that the Executive power
conferred upon the Executive by the Constitution is complete, total and
unlimited, so also, the judicial power vested in the Supreme Court and the
inferior courts, is the very whole of that power, without any limitation or
qualification.

The sixth is that although the Bill of Rights in the Constitution
strictly ordains that “no person shall be deprived of life, liberty or
property without due process of law”,11 even this basic guarantee of
protection readily reveals that the Constitution’s concern for individual
rights and liberties is not entirely above that for the national interests,
since the deprivation it enjoins is only that which is without due process of
law, and laws are always enacted in the national interest or to promote and
safeguard the general welfare.  Of
course, it is understood that the law thus passed, whether procedural or substantive,
must afford the party concerned the basic elements of justice, such as the
right to be heard, confrontation, and counsel, inter alia.

And the seventh is that whereas the Bill of Rights of the 1935
Constitution explicity enjoins that “(T)he privilege of the writ of habeas
corpus shall not be suspended except in cases of invasion, insurrection, or
rebellion, 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”,12 there is no similar injunction
whether expressed or implied against the declaration of martial law.

From these incontrovertible postulates, it results, first of all,
that the main question before Us is not in reality one of jurisdiction, for
there can be no conceivable controversy, especially one involving a conflict as
to the correct construction of the Constitution, that is not contemplated to be
within the judicial authority of the courts to hear and decide.  The judicial power of the courts being
unlimited and unqualified, it extends over all situations that call for the
ascertainment and protection of the rights of any party allegedly violated,
even when the alleged violator is the highest official of the land or the
government itself.  It is, therefore,
evident that the Court’s jurisdiction to take cognizance of and to decide the
instant petitions on their merits is beyond challenge.

In this connection, however, it must be borne in mind that in the
form of government envisaged by the framers of the Constitution and adopted by
our people, the Court’s indisputable and plenary authority to decide does not
necessarily impose upon it the duty to interpose its fiat as the only means of
settling the conflicting claims of the parties before it.  It is ingrained in the distribution of powers
in the fundamental law that hand in hand with the vesting of the judicial power
upon the Court, the Constitution has coevally conferred upon it the discretion
to determine, in consideration of the constitutional prerogatives granted to
the other Departments, when to refrain from imposing judicial solutions and
instead defer to the judgment of the latter. 
It is in the very nature of republican governments that certain matters
are left in the residual power of the people themselves to resolve, either
directly at the polls or thru their elected representatives in the political
Departments of the government.  And these
reserved matters are easily distinguishable by their very nature, when one
studiously considers the basic functions and responsibilities entrusted by the
charter to each of the great Departments of the government.  To cite an obvious example, the protection,
defense and preservation of the state against internal or external aggression
threatening its very existence is far from being within the ambit of judicial
responsibility.  The distinct role then
of the Supreme Court of being the final arbiter in the determination of
constitutional controversies does not have to be asserted in such contemplated
situations, thereby to give way to the ultimate prerogative of the people
articulated thru suffrage or thru the acts of their political representatives
they have elected for the purpose.

Indeed, these fundamental considerations are the ones that lie at
the base of what is known in American constitutional law as the political
question doctrine, which in that jurisdiction is unquestionably deemed to be
part and parcel of the rule of law, exactly like its apparently more attractive
or popular opposite, judicial activism, which is the fullest exertion of
judicial power, upon the theory that unless the courts intervene injustice
might prevail.  It has been invoked and
applied by this Court in varied forms and modes of projection in several
momentous instances in the past;13 and it is the main support of the
stand of the Solicitor General on the issue of jurisdiction in the cases at
bar.  It is also referred to as the
doctrine of judicial self-restraint or abstention.  But as the nomenclatures themselves imply,
activism and self-restraint are both subjective attitudes, not inherent
imperatives.  The choice of alternatives
in any particular eventuality is naturally dictated by what in the Court’s
considered opinion is what the Constitution envisions should be done in order
to accomplish the objectives of government and of nationhood.  And perhaps it may be added here to avoid
confusion of concepts, that We are not losing sight of the traditional approach
based on the doctrine of separation of powers. 
In truth, We perceive that even under such mode of rationalization, the
existence of power is secondary, respect for the acts of a co-ordinate,
co-equal and co-independent Department being the general rule, particularly
when the issue is not encroachment of delimited areas of functions but alleged
abuse of a Department’s own basic prerogatives.

In the final analysis, therefore, We need not indulge in any
further discussion as to whether or not the Court has jurisdiction over the
merits of the instant petitions.  It is
definite that it has.  Rather, the real
question before Us is whether or not the Court should act on them.  Stated differently, do We have here that
appropriate occasion for activism on the part of the Court, or, do the
imperatives of the situation demand, in the light of the reservations in the fundamental
law just discussed, that We defer to the political decision of the
Executive?  After mature deliberation,
and taking all relevant circumstances into account, We are convinced that the
Court should abstain in regard to what is in all probability the most important
issue raised in them, namely, whether or not the Court should inquire into the
constitutional sufficiency of Proclamation 1081 by receiving evidence tending
to belie the factual premises thereof. It is Our considered view that under the
Constitution, the discretion to determine ultimately whether or not the
Philippines or any part thereof should be placed under martial law and for how
long is lodged exclusively in the Executive, and for this reason, it is best
that We defer to his judgment as regards the existence of the grounds therefor,
since, after all, it is not expected that the Supreme Court should share with
him the delicate constitutional responsibility of defending the safety,
security, tranquility and territorial integrity of the nation in the face of a
rebellion or invasion.  This is not
abdication of judicial power, much less a violation of Our oaths “to
support and defend the Constitution”; rather, this is deference to an act
of the Executive which, in Our well-considered view, the Constitution
contemplates the Court should refrain from reviewing or interfering with.  To Our mind, the following considerations, inter
alia, impel no other conclusion:

1

It has been said that martial law has no generally accepted
definition, much less a precise meaning. 
But as We see it, no matter how variously it has been described, a
common element is plainly recognizable in whatever has been said about it — it
does not involve executive power alone. 
To be more exact, martial law is state power which involves the totality
of government authority, irrespective of the Department or official by whom it
is administered.  This is because, as
admitted by all, martial law is every government’s substitute for the established
governmental machinery rendered inoperative by the emergency that brings it
forth, in order to maintain whatever legal and social order is possible during
the period of emergency, while the government is engaged in battle with the
enemy.  Otherwise, with the breakdown of
the regular government authority or the inability of the usual offices and
officials to perform their functions without endangering the safety of all
concerned, anarchy and chaos are bound to prevail and protection of life and
property would be nil.  What is worse,
the confusion and disorder would detract the defense efforts.  It is indispensable therefore that some kind
of government must go on, and martial law appears to be the logical
alternative.  Hence, from the point of
view of safeguarding the people against possible governmental abuses, it is not
the declaration of martial law and who actually administers it that is of
supreme importance.  Someone has of
necessity to be in command as surrogate of the whole embattled government.  It is what is actually done by the administrator
affecting individual rights and liberties that must pass constitutional
standards, even as these are correspondingly adjusted to suit the necessities
of the situation.  But this is not to say
that redress of constitutional offenses would immediately and necessarily be
available, for even the procedure for securing redress, its form and time must
depend on what such necessities will permit. 
Viewed in depth, this is all that can be visualized as contemplated in
the supposedly fundamental principle invoked by petitioners to the effect that
necessity and necessity alone is the justification and the measure of the
powers that may be exercised under martial law.

2

In countries where there is no constitutional provision
sanctioning the imposition of martial law, the power to declare or proclaim the
same is nevertheless conceded to be the most vital inherent prerogative of the
state because it is axiomatic that the right of the state to defend itself
against disintegration or subjugation by another cannot be less than an
individual’s natural right of self-defense. 
The resulting repression or restraint of individual rights is therefore
justified as the natural contribution that the individual owes to the state, so
that the government under which he lives may survive.  After all, such subordination to the general
interest is supposed to be temporary, coincident only with the requirements of
the emergency.

At the same time, under the general practice in those countries,
it is considered as nothing but logical that the declaration or proclamation
should be made by the Executive.  So it
is that none of the cases cited by petitioners, including those of Hearon vs.
Calus, 183, S.E. 24 and Allen vs. Oklahoma City, 52 Pac. Rep. 2nd
Series, pp. 1054-1059, may be deemed as a binding precedent sustaining
definitely that it is in the power of the courts to declare an Executive’s
proclamation or declaration of martial law in case of rebellion or insurrection
to be unconstitutional and unauthorized. 
Our own research has not yielded any jurisprudence upholding the
contention of petitioners on this point. 
What is clear and incontrovertible from all the cases cited by both
parties is that the power of the Executive to proclaim martial law in case of
rebellion has never been challenged, not to say outlawed.  It has always been assumed, even if the
extent of the authority that may be exercised under it has been subjected to
the applicable provision of the constitution, with some courts holding that the
enforceability of the fundamental law within the area of the martial law regime
is unqualified, and the others maintaining that such enforceability must be
commensurate with the demands of the emergency situation.  In other words, there is actually no
authoritative jurisprudential rule for Us to follow in respect to the specific
question of whether or not the Executive’s determination of the necessity to
impose martial law during a rebellion is reviewable by the judiciary.  If We have to go via the precedential route,
the most that We can find is that the legality of an Executive’s exercise of
the power to proclaim martial law has never been passed upon by any court in a
categorical manner so as to leave no room for doubt or speculation.

3

In the Philippines.  We do not have to resort to assumptions
regarding any inherent power of the government to proclaim a state of martial
law.  What is an implied inherent
prerogative of the government in other countries is explicitly conferred by our
people to the government in unequivocal terms in the fundamental law.  More importantly in this connection, it is to
the Executive that the authority is specifically granted “in cases of
invasion, insurrection or rebellion, when public safety requires it”, to
“place the Philippines
or any part thereof under Martial Law”. 
To be sure, petitioners admit that much. 
But they insist on trying to show that the factual premises of the
Proclamation are not entirely true and are, in any event, constitutionally
insufficient.  They urge the Court to
pass on the merits of this particular proposition of fact and of law in their
petitions and to order thereafter the nullification and setting aside thereof.

We do not believe the Court should interfere.

The pertinent constitutional provision is explicit and unequivocal.  It reads as follows:

“(2)  The President shall be commander-in-chief of
all armed forces of the Philippines
and, whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion, insurrection, or
rebellion.  In case of invasion,
insurrection, or rebellion, or imminent danger thereof, when the public safety
requires it, he may suspend the privileges of the writ of habeas corpus,
or place the Philippines
or any part thereof under martial law.” (Section 10(2), Article VII, 1935
Constitution.)

“SEC. 12.  The Prime
Minister shall be commander-in-chief of all armed forces of the Philippines
and, whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion, insurrection, or
rebellion.  In case of invasion,
insurrection, or rebellion, or imminent danger thereof, when the public safety
requires it, he may suspend the privilege of the writ of habeas corpus,
or place the Philippines
of any part thereof under martial law.” (Section 12, Article IX, 1973
Constitution.)

Except for the reference to the Prime Minister in the New
Constitution instead of to the President as in the Old, the wording of the
provision has remained unaltered ipssissimis verbis.  Accordingly, the two Constitutions cannot
vary in meaning; they should be construed and applied in the light of exactly
the same considerations.  In this sense
at least, petitioners’ invocation of the 1935 Constitution has not been
rendered academic by the enforcement of the new charter.  For the purposes of these cases, We will in
the main consider their arguments as if there has been no Javellana decision.

Now, since in those countries where martial law is an
extra-constitutional concept, the Executive’s proclamation thereof, as observed
above, has never been considered as offensive to the fundamental law, whether
written or unwritten, and, in fact, not even challenged, what reason can there
be that here in the Philippines, wherein the Constitution directly and definitely
commits the power to the Executive, another rule should obtain?  Are we Filipinos so incapable of electing an
Executive we can trust not to unceremoniously cast aside his constitutionally
worded oath solemnly and emphatically imposing upon him the duty “to
defend and protect the Constitution”? 
Or is the Court to be persuaded by possible partisan prejudice or the
subjective rationalization informing personal ambitions?

Reserving for further discussion the effect of Lansang upon the
compelling force of the opinions in Barcelon vs. Baker, 5 Phil. 87 and
Montenegro vs. Castaneda, 91 Phil. 862, relative to the issue at hand,
We cannot lightly disregard the ponderous reasons discussed in said opinions
supporting the view that the Executive’s choice of means in dealing with a
rebellion should be conclusive.  In
Barcelon, this Court said:

“Thus the question is squarely presented whether or not the
judicial department of the Government may investigate the facts upon which the
legislative and executive branches of the Government acted in providing for the
suspension and in actually suspending the privilege of the writ of habeas
corpus in said provinces.  Has the
Governor-General, with the consent of the Commission, the right to suspend the
privilege of the writ of habeas corpus? 
If so, did the Governor-General suspend the writ of habeas corpus
in the Provinces of Cavite and Batangas in accordance with such authority?

A paragraph of section 5 of the act of Congress of July 1, 1902, provides:

‘That the privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion, insurrection, or invasion the
public safety may require it, in either of which events the same may be
suspended by the President, or by the Governor-General with the approval of the
Philippine Commission, whenever during such period the necessity for such
suspension shall exist.’

This provision of the act of Congress is the only provision giving
the Governor-General and the Philippine Commission authority to suspend the
privilege of the writ of habeas corpus. 
No question has been raised with reference to the authority of Congress
to confer this authority upon the President or the Governor-General of these Islands,
with the approval of the Philippine Commission.

This provision of the act of Congress makes two conditions
necessary in order that the President or the Governor-General with the approval
of the Philippine Commission may suspend the privilege of the writ of habeas
corpus. They are as follows:

(1)   When there exists rebellion, insurrection, or
invasion; and

(2)   When public safety may require it.

In other words, in order that the privilege of the writ of habeas
corpus may be suspended, there must exist rebellion, insurrection, or
invasion, and the public safety must require it.  This fact is admitted, but the question is,
Who shall determine whether there exists a state of rebellion, insurrection, or
invasion, and that by reason thereof the public safety requires the suspension
of the privilege of the writ of habeas corpus?

It has been argued and admitted that the Governor-General, with the
approval of the Philippine Commission, has discretion, when insurrection,
rebellion, or invasion actually exist, to decide whether the public safety
requires the suspension of the privilege of the writ of habeas corpus;
but the fact whether insurrection, rebellion, or invasion does actually exist
is an open question, which the judicial department of the Government may
inquire into and that the conclusions of the legislative and executive
departments (the Philippine Commission and the Governor-General) of the
Government are not conclusive upon that question.

In other words, it is contended that the judicial department of the
Government may consider an application for the writ of habeas corpus,
even though the privileges of the same have been suspended, in the manner
provided by law, for the purposes of taking proof upon the question whether
there actually exists a state of insurrection, rebellion, or invasion.

The applicants here admit that if a state of rebellion,
insurrection, or invasion exists, and the public safety is in danger, then the
President, or Governor-General with the approval of the Philippine Commission,
may suspend the privilege of the writ of habeas corpus.

Inasmuch as the President, or Governor-General with the approval of
the Philippine Commission, can suspend the privilege of the writ of habeas
corpus only under the conditions mentioned in the said statute, it becomes
their duty to make an investigation of the existing conditions in the
Archipelago, or any part thereof, to ascertain whether there actually exists a
state of rebellion, insurrection, or invasion, and that the public safety
requires the suspension of the privilege of the writ of habeas corpus.  When this investigation is concluded, the
President, or the Governor-General with the consent of the Philippine
Commission, declares that there exist these conditions, and that the public
safety requires the suspension of the privilege of the writ of habeas corpus
can the judicial department of the Government investigate the same facts and
declare that no such conditions exist?

The act of Congress, above quoted, wisely provides for the
investigation by two departments of the Government — the legislative and
executive — of the existing conditions, and joint action by the two before the
privilege of the writ of habeas corpus can be suspended in these Islands.

If the investigation and findings of the President, or the
Governor-General with the approval of the Philippine Commission, are not
conclusive and final as against the judicial department of the Government, then
every officer whose duty it is to maintain order and protect the lives and
property of the people may refuse to act, and apply to the judicial department of
the Government for another investigation and conclusion concerning the same
conditions, to the end that they may be protected against civil actions
resulting from illegal acts.

Owing to conditions at times, a state of insurrection, rebellion,
or invasion may arise suddenly and may jeopardize the very existence of the
State.  Suppose, for example, that one of
the thickly populated Governments situated near this Archipelago, anxious to
extend its power and territory, should suddenly decide to invade these Islands,
and should, without warning, appear in one of the remote harbors with a
powerful fleet and at once begin to land troops.  The governor or military commander of the
particular district or province notifies the Governor-General by telegraph of
this landing of troops and that the people of the district are in collusion
with such invasion.  Might not the
Governor-General and the Commission accept this telegram as sufficient evidence
and proof of the facts communicated and at once take steps, even to the extent
of suspending the privilege of the writ of habeas corpus, as might
appear to them to be necessary to repel such invasion?  It seems that all men interested in the
maintenance and stability of the Government would answer this question in the
affirmative.

But suppose someone, who has been arrested in the district upon the
ground that his detention would assist in restoring order and in repelling the
invasion, applies for the writ of habeas corpus, alleging that no
invasion actually exists; may the judicial department of the Government call
the officers actually engaged in the field before it and away from their posts
of duty for the purpose of explaining and furnishing proof to it concerning the
existence or non-existence of the facts proclaimed to exist by the legislative
and executive branches of the State?  If
so, then the courts may effectually tie the hands of the executive, whose
special duty it is to enforce the laws and maintain order, until the invaders have
actually accomplished their purpose.  The
interpretation contended for here by the applicants, so pregnant with
detrimental results, could not have been intended by the Congress of the United
States when it enacted the law.

It is the duty of the legislative branch of the Government to make such
laws and regulations as will effectually conserve peace and good order and
protect the lives and property of the citizens of the State.  It is the duty of the Governor-General to
take such steps as he deems wise and necessary for the purpose of enforcing
such laws.  Every delay and hindrance and
obstacle which prevents a strict enforcement of laws under the conditions
mentioned necessarily tends to jeopardize public interests and the safety of
the whole people.  If the judicial
department of the Government, or any officer in the Government, has a right to
contest the orders of the President or of the Governor-General under the
conditions above supposed, before complying with such orders, then the hands of
the President or the Governor-General may be tied until the very object of the
rebels or insurrectos or invaders has been accomplished.  But it is urged that the President, or the
Governor-General with the approval of the Philippine Commission, might be
mistaken as to the actual conditions; that the legislative department — the
Philippine Commission — might, by resolution, declare after investigation, that
a state of rebellion, insurrection, or invasion exists, and that the public
safety requires the suspension of the privilege of the writ of habeas corpus,
when, as a matter of fact, no such conditions actually existed; that the
President, or Governor-General acting upon the authority of the Philippine
Commission, might by proclamation suspend the privilege of the writ of habeas
corpus without there actually existing the conditions mentioned in the act
of Congress.  In other words, the
applicants allege in their argument in support of their application for the
writ of habeas corpus, that the legislative and executive branches of
the Government might reach a wrong conclusion from their investigations of the
actual conditions, or might, through a desire to oppress and harass the people,
declare that a state of rebellion, insurrection, or invasion existed and that
public safety required the suspension of the privilege of the writ of habeas
corpus when actually and in fact no such conditions did exist.  We can not assume that the legislative and
executive branches will act or take any action based upon such motives.

Moreover it can not be assumed that the legislative and executive
branches of the Government, with all the machinery which those branches have at
their command for examining into the conditions in any part of the Archipelago,
will fail to obtain all existing information concerning actual conditions.  It is the duty of the executive branch of the
Government to constantly inform the legislative branch of the Government of the
condition of the Union as to the prevalence of peace or
disorder.  The executive branch of the
Government, through its numerous branches of the civil and military, ramifies
every portion of the Archipelago, and is enabled thereby to obtain information
from every quarter and corner of the State. 
Can the judicial department of the Government, with its very limited
machinery for the purpose of investigating general conditions, be any more sure
of ascertaining the true conditions throughout the Archipelago, or in any
particular district, than the other branches of the Government?  We think not.” (At p. 91-96.)

* * *

“The same general question presented here was presented to the
Supreme Court of the United States
in the case of Martin vs. Mott, in January, 1821.  An act of Congress of 1795 provided —

‘That whenever the United States shall be invaded or be in imminent
danger of invasion from any foreign nation or Indian tribe, it shall be lawful
for the President of the United States to call forth such number of the militia
of the State or States most convenient to the place of danger or scene of
action, as he may judge necessary to repel such invasion, and to issue his
orders for that purpose to such officer or officers of the militia as he shall
think proper.’

In this case (Martin vs. Mott) the question was presented to
the court whether or not the President’s action in calling out the militia was
conclusive against the courts.  The
Supreme Court of the United States,
in answering this question, said:

‘The power thus confided by Congress to the President is,
doubtless, of a very high and delicate nature. 
A free people are naturally jealous of the exercise of military power;
and the power to call the militia into actual service is certainly felt to be
one of no ordinary magnitude.  But it is
not a power which can be executed without corresponding responsibility.  It is, in its terms, a limited power,
confined to cases of actual invasion, or of imminent danger of invasion.  If it be a limited power, the question
arises, By whom is the exigency to be adjudged of and decided?  Is the President the sole and exclusive judge
whether the exigency has arisen, or is it to be considered as an open question,
upon which every officer to whom the orders of the President are addressed, may
decide for himself, and equally open to be contested by every militiaman who
shall refuse to obey the orders of the President?  We are all of the opinion that the authority
to decide whether the exigency has arisen belongs exclusively to the President
and his decision is conclusive upon all other persons.  We think that this construction necessarily
results from the nature of the power itself and from the manifest object
contemplated by the act of Congress.  The
power itself is to be exercised upon sudden emergencies, upon great occasions
of state and under circumstances which may be vital to the existence of the Union.
. . .  If a superior officer has a right
to contest the orders of the President, upon his own doubts as to the exigency
having arisen, it must be equally the right of every inferior officer and
soldier . . .  Such a course would be
subversive of all discipline and expose the best disposed officer to the
chances of erroneous litigation. 
Besides, in many instances, the evidence upon which the President might
decide that there is imminent danger of invasion might be of a nature not
constituting strict technical proof, or the disclosure of the evidence might
reveal important secrets of state which the public interest and even safety
might imperiously demand to be kept in concealment.

‘Whenever the statute gives a discretionary power to any person, to
be exercised by him upon his own opinion of certain facts, it is a sound rule
of construction that the statute constitutes him the sole and exclusive judge
of the existence of those facts.  And in
the present case we are all of opinion, that such is the true construction of
the act of 1795.  It is no answer that
such power may be abused, for there is no power which is not susceptible of
abuse.’ (Martin vs. Mott, 12 Wheat., 19 (25 U.S); Vanderheyden vs.
Young, 11 Johns., N.Y., 150.)

Justice Joseph Story, for many years a member of the Supreme Court
of the United States,
in discussing the question who may suspend the privilege of the writ of habeas
corpus, under the Constitution of the United
States, said:

‘It would seem, as the power is given to Congress to suspend the
writ of habeas corpus in cases of rebellion, insurrection, or invasion,
that the right to judge whether the exigency has arisen must conclusively
belong to that body.’ (Story on the Constitution, 5th ed., sec. 1342.)

Justice James Ket, for many years a justice of the supreme court of
the State of New York, in discussing the same question, cites the case of
Martin vs. Mott, and says:

‘In that case it was decided and settled by the Supreme Court of
the United States that it belonged exclusively to the President to judge when
the exigency arises in which he had authority, under the Constitution, to call
forth the militia, and that his decision was conclusive upon all other persons.’
(Kent’s Commentaries, 14th ed., vol. 1, bottom p. 323.)

John Randolph Tucker, for many years a professor of constitutional
and international law in Washington
and Lee University,
in discussing this question, said:

‘By an act passed in 1795 Congress gave to the President power to
call out the militia for certain purposes, and by subsequent acts, in 1807,
power was given to him to be exercised whenever he should deem it necessary,
for the purposes stated in the Constitution; and the Supreme Court (United
States) has decided that this executive discretion in making the call (for
State militia) could not be judicially questioned.’ (Tucker on the
Constitution, Vol. II, p. 581.)

John Norton Pomeroy, an eminent law writer upon constitutional
questions said:

‘In Martin vs. Mott it was decided that under the authority
given to the President by the statute of 1795, calling forth the militia under
certain circumstances, the power is exclusively vested in him to determine
whether those circumstances exist; and when he has determined by issuing his
call, no court can question his decision.’ (Pomeroy’s Constitutional Law, sec.
476.)

Henry Campbell Black, a well-known writer on the Constitution,
says:

‘By an early act of Congress it was provided that in case of an insurrection
in any State against the government thereof it shall be lawful for the
President of the United States, on application of the legislature of such
State, or of the executive (when the legislature can not be convened), to call
forth such a number of the militia of any other State or States as may be
applied for, as he may judge sufficient to suppress such insurrection.  By this act the power of deciding whether the
exigency has arisen upon which the Government of the United
States is bound to interfere is given to the
President.’ (Black’s Constitutional Law, p. 102.)

Judge Thomas M. Cooley, in discussing the right of the judicial
department of the Government to interfere with the discretionary action of the
other departments of the Government, in his work on constitutional law, said:

‘Congress may confer upon the President the power to call them (the
militia) forth, and this makes him the exclusive judge whether the exigency has
arisen for the exercise of the authority and renders one who refuses to obey
the call liable to punishment under military law.’ (Cooley’s Principles of
Constitutional Law, p. 100.)

But it may be argued by those who contend for the contrary
doctrine, to wit, that the acts of the Governor-General, with the approval of
the Philippine Commission, are not conclusive upon the courts and that none of
the foregoing citations are exactly in point, that none of these cases or
authors treat of a case exactly like the one presented.  We are fortunate, however, in being able to
cite, in answer to that contention, the case of Henry William Boyle, where
exactly the same question was presented to the supreme court of the State of Idaho,
which the applicants present here and where the courts held the doctrine of the
cases applied.  In the case of Boyle, he
had been arrested after the privilege of the writ of habeas corpus had been
suspended.  He applied for a writ of habeas
corpus to the supreme court of Idaho,
alleging, among other things, in his application:

First. That ‘no insurrection, riot, or rebellion now exists in Shoshone
County;’ and

Second. That ‘the Governor has no authority to proclaim martial law
or suspend the writ of habeas corpus.’

In reply to this contention on the part of the applicant, Boyle,
the court said:

‘Counsel have argued ably and ingeniously upon the question as to
whether the authority to suspend the writ of habeas corpus rests with
the legislative and executive powers of the Government, but, from our views of
this case, that question cuts no figure. 
We are of the opinion that whenever, for the purpose of putting down
insurrection or rebellion, the exigencies of the case demand it, with the
successful accomplishment of this end in view, it is entirely competent for the
executive or for the military officer in command, if there be such, either to
suspend the writ or disregard it if issued. 
The statutes of this State (Idaho) make it the duty of the governor,
whenever such a state or condition exists as the proclamation of the governor
shows does exist in Shoshone County, to proclaim such locality in a state of
insurrection and to call in the aid of the military of the State or of the
Federal Government to suppress such insurrection and reestablish permanently
the ascendancy of the law.  It would be
an absurdity to say that the action of the executive, under such circumstances,
may be negative and set at naught by the judiciary or that the action of the
executive may be interfered with or impugned by the judiciary.  If the courts are to be made a sanctuary, a
seat of refuge whereunto malefactors may fall for protection from punishment
justly due for the commission of crime they will soon cease to be that
palladium of the rights of the citizen so ably described by counsel.

‘On application for a writ of habeas corpus, the truth of
recitals of alleged facts in a proclamation issued by the governor proclaiming
a certain county to be in a state of insurrection and rebellion will not be
inquired into or reviewed.  The action of
the governor in declaring Shoshone County to be in state of insurrection and
rebellion, and his action in calling to his aid the military forces of the
United States for the purpose of restoring good order and the supremacy of the
law, has the effect to put in force, to a limited extent, martial law in said county.  Such action is not in violation of the
Constitution, but in harmony with it, being necessary for the preservation of
government.  In such case the Government
may, like an individual acting in self-defense, take those steps necessary to
preserve its existence.  If hundreds of
men can assemble themselves and destroy property and kill and injure citizens,
thus defeating the ends of government, and the Government is unable to take all
lawful and necessary steps to restore law and maintain order, the State will
then be impotent if not entirely destroyed, and anarchy placed in its stead.

‘It having been demonstrated to the satisfaction of the governor,
after some six or seven years of experience, that the execution of the laws in
Shoshone County through the ordinary and established means and methods was
rendered practicably impossible, it became his duty to adopt the means
prescribed by the statute for establishing in said county the supremacy of the
law and insuring the punishment of those by whose unlawful and criminal acts
such a condition of things has been brought about; and it is not the province
of the courts to interfere, delay, or place obstructions in the path of duty
prescribed by law for the executive, but rather to render him all the aid and
assistance in their power, in his efforts to bring about the consummation most
devoutly prayed for by every good, law-abiding citizen in the State.’ (In re
Boyle, 45 L.R.A., 1899, 832.);.)” (At pp. 99-104.)

These observations are followed on pages
104 to 115 by a compilation of decided cases centrally holding that
“whenever the Constitution or a statute gives a discretionary power to any
person, to be exercised by him upon his own opinion of certain facts, such
person is to be considered the sole and exclusive judge of the existence of
those facts.” For the sake of brevity, We shall not quote the discussion
anymore.  We are confident there can be
no dissent insofar as the general proposition stated is concerned.

Notably, in the unanimous decision of this Court in Montenegro,
these views are totally adopted in a very brief passage thus:

“B.     In his second
proposition appellant insists there is no state of invasion, insurrection,
rebellion or imminent danger thereof. 
‘There are’ he admits ‘intermittent sorties and lightning attacks by
organized bands in different places’; but, he argues, ‘such sorties are
occasional, localized and transitory. 
And the proclamation speaks no more than of overt acts of insurrection
and rebellion, not of cases of invasion, insurrection or rebellion or imminent
danger thereof.’ On this subject is noted that the President concluded from the
facts recited in the proclamation, and others connected therewith, that ‘there
is actual danger of rebellion which may extend throughout the country.’ Such
official declaration implying much more than imminent danger of rebellion amply
justifies the suspension of the writ.

To the petitioner’s unpracticed eye the repeated encounters between
dissident elements and military troops may seem sporadic, isolated, or
casual.  But the officers charged with
the Nation’s security, analyzed the extent and pattern of such violent clashes
and arrived at the conclusion that they are warp and woof of a general scheme
to overthrow this government vi et armis, by force and arms.

And we agree with the Solicitor General that in the light of the
views of the United States Supreme Court thru Marshall, Taney and Story quoted
with approval in Barcelon vs. Baker (5 Phil., 87, pp. 98 and 100) the
authority to decide whether the exigency has arisen requiring suspension
belongs to the President and ‘his decision is final and conclusive’ upon the
courts and upon all other persons.

Indeed as Justice Johnson said in that decision, whereas the
Executive branch of the Government is enabled thru its civil and military
branches to obtain information about peace and order from every quarter and
corner of the nation, the judicial department, with its very limited machinery
can not be in better position to ascertain or evaluate the conditions
prevailing in the Archipelago.” (At pp. 886-887.)

There are actually many more judicial precedents and opinions of
knowledgeable and authoritative text writers, that can be copied here,
maintaining with inexorable logic why the Executive is incomparably best
equipped and prepared to cope with internal and external aggression and that,
indeed, the protection of the country against such contingencies is his sole
responsibility not supposed to be shared by the Judiciary.  But the proposition appears to Us so plain
and ineluctable that to summon all of them to Our assistance could only open Us
to the suspicion that the Philippine Supreme Court has to depend on borrowed
thinking to resolve the most critical issues between individual rights, on the
one hand, and state power exerted as a matter of self-defense against rebellion
and subversion imperiling the country’s own survival, on the other.  Empathically, We don’t have to.  Thank God We have enough native genius and
indigenous means and resources to cope with the most delicate problems of
statehood.  Let others listen to and
abide by the platitudinous and elegantly phrased dicta in Milligan, supra,
Duncan and White,14 they who are in and of the
wealthiest and mightiest power in the world, that only actual military combat
and related operations can justify martial law, but We, who are in and of a
small and weak developing nation, let us hearken and follow the home-spun
advice of our barrio folks cautioning everyone thus:

“Kung ang bahay mo ay pawid at
kawayan, pagdilim ng ulap at lumalakas na ang hangin, magsara ka na ng bintana
at suhayan mo and iyong bahay.” (When your house is made of nipa and
bamboo, and you see the clouds darkening and the winds start blowing, it is
time for you to close your windows and strengthen the support of your house.)

This could explain why under the
Constitution, martial law can be declared not only in case of actual rebellion,
but even only when there is imminent danger thereof.  And that is why the open court rule
established in Milligan and reiterated in Duncan
and White is not controlling in this jurisdiction.

Besides, inasmuch as our people have included in the Constitution
an express commitment of the power to the President, why do We have to resort
to the pronouncements of other courts of other countries wherein said power is
only implied?  Regardless of what other
courts believe their Executive may do in emergencies, our task is not to
slavishly adopt what those courts have said, for there is no evidence that such
was the intent of our constitutional fathers. 
Rather, We should determine for Ourselves what is best for our own
circumstances in the Philippines,
even if We have to give due consideration to the experience other peoples have
gone through under more or less similar crises in the past.

In any event, regardless of their weight insofar as the
suspension of the privilege of the writ of habeas corpus is concerned,
We consider the reasons given in the above-quoted opinions in Barcelon and Montenegro
of particular relevance when it comes to the imposition of martial law.

– 4 –

It may be that the existence or non-existence or imminence of a
rebellion of the magnitude that would justify the imposition of martial law is
an objective fact capable of judicial notice, for a rebellion that is not of
general knowledge to the public cannot conceivably be dangerous to public
safety.  But precisely because it is
capable of judicial notice, no inquiry is needed to determine the propriety of
the Executive’s action.

Again, while the existence of a rebellion may be widely known,
its real extent and the dangers it may actually pose to the public safety are
not always easily perceptible to the unpracticed eye.  In the present day practices of rebellion,
its inseparable subversion aspect has proven to be more effective and important
than “the rising (of persons) publicly and taking arms against the
Government” by which the Revised Penal Code characterizes rebellion as a
crime under its sanction (Art. 134, Revised Penal Code).  Subversion is such a covert kind of
anti-government activity that it is very difficult even for army intelligence
to determine its exact area of influence and effect, not to mention the details
of its forces and resources.  By
subversion, the rebels can extend their field of action unnoticed even up to
the highest levels of the government, where no one can always be certain of the
political complexion of the man next to him, and this does not exclude the
courts.  Arms, ammunitions and all kinds
of war equipment travel and are transferred in deep secrecy to strategic
locations, which can be one’s neighborhood without him having any idea of what
is going on.  There are so many insidious
ways in which subversives act, in fact too many to enumerate, but the point
that immediately suggests itself is that they are mostly incapable of being
proven in court, so how are We to make a judicial inquiry about them that can
satisfy our judicial conscience?

The Constitution definitely commits it to the Executive to determine
the factual bases and to forthwith act as promptly as possible to meet the
emergencies of rebellion and invasion which may be crucial to the life of the
nation.  He must do this with unwavering
conviction, or any hesitancy or indecision on his part will surely detract from
the needed precision in his choice of the means he would employ to repel the
aggression.  The apprehension that his
decision might be held by the Supreme Court to be a transgression of the fundamental
law he has sworn to “defend and preserve” would deter him from acting
when precisely it is most urgent and critical that he should act, since the
enemy is about to strike the mortal blow. 
Different men can honestly and reasonably vary in assessing the
evidentiary value of the same circumstance, and the prospect of being
considered as a constitutional felon rather than a saviour of the country
should the Justices disagree with him, would put the Executive in an unenviable
predicament, certainly unwise and imprudent for any Constitution to contemplate
he should be in.  But what is worse is
that the Court is not equipped in any way with the means to adequately
appreciate the insidious practices of subversion, not to say that it cannot do
it with more or at least equal accuracy as the Executive.  Besides, the Court would then be acting
already with considerable hindsight considerations which can imperceptibly
influence its judgment in overriding the Executive’s finding.

More than ever before, when rebellion was purely a surface
action, and viewing the matter from all angles, it appears ineludible that the
Court should refrain from interfering with the Executive’s delicate
decision.  After all, the sacred rights
of individuals enshrined in the Bill of Rights and the other constitutional
processes ever valuable to the people, but which admittedly cannot, by the way,
be more important than the very survival of the nation, are not necessarily
swept away by a state of martial law, for, as already pointed out earlier, the
validity of the Proclamation is one thing, the administration of the government
under it is something else that has to be done with the closest adherence to
the fundamental law that the obvious necessities of the situation will
permit.  As We see it, it is in this
sense that the Constitution is the supreme law equally in times of peace and of
war and for all classes of men, if We must refer again to petitioners’ reliance
on Milligan.  At the same time, let us
not overlook, in connection with this favorite authority of petitioners, that
the Federal Supreme Court’s postulation therein, that it was “happily
proved by the result of the great effort to throw off (the) just
authority” of the United States during the Civil War that the constitution
of that country contains within itself all that is necessary for its
preservation, is not factually accurate, for all the world knows that if the
American Union survived the ordeal of possible disintegration and is the great
nation that she is today, it was not because President Lincoln confined himself
strictly to the powers vested in the presidency by the constitution, but
because he was wise enough to resort to inherent extra constitutional state
prerogatives, exercisable by the Executive alone, which President Marcos did
not have to do, considering that our Constitution expressly confers upon him
the authority to utilize such state power in defense of the nation.

— 5 —

The historical development of the powers of the Philippine
Executive unmistakably points to the same direction.  Practically all the constitutions that came
into being during the revolutionary period before the turn of the last century,
of which the Malolos Constitution is typical, either entrusted executive power
to a commission or made the Executive largely dependent on the legislature.  When the Americans ended their military
occupation, after subduing the Aguinaldo forces of independence, they had their
own version of governmental powers.  In
the Philippine Bill of 1902, nothing was mentioned about martial law, and the
power of the Governor General to suspend the privilege of the writ of habeas
corpus was conditioned on, among other things, the concurrence of the
Philippine Commission of which, notably, the Governor General was the
head.  When in 1905, the Governor General
suspended the Privilege in the provinces of Cavite
and Batangas, the case of Barcelon vs. Baker, supra, arose.  Over the dissent of Justice Willard who
invoked Milligan, the Supreme Court held that the proclamation ordering such
suspension was not reviewable by the Judiciary.

With a little touch of irony, in 1916, when the United States
Congress, with the avowed intent of granting greater political autonomy to the
Philippines, enacted the Jones Law, it removed the need for legislative
concurrence in regards to the suspension of the Privilege, because the
legislature was to be in Filipino hands, and in addition to preserving such
power of suspension, granted the Governor-General the sole authority to declare
martial law, subject only to revocation by the President of the United
States.  Without forgetting that at that
time, the Governor-General being then an American, those powers served as
weapons of the colonizer to consolidate its hold on the subject people, such
plenitude of power in the Executive was to appear later to the Filipino leaders
as something that should be adopted in our fundamental law.  So it was that in the Constitutional
Convention of 1934, the first the Philippines ever held in peace time, the
delegates, drawing heavily from the experience of the country during the
autonomous period of the Jones Law, and perchance persuaded in no small measure
by the personality of President Manuel L. Quezon, lost no time in adopting the
concept of a strong executive.  Their decision
was studied and deliberate.  Indeed, it
is the unanimous observation of all students of our Constitution, that under
it, we have in the Philippines
the strongest executive in the world. 
Fully aware of this feature and appearing rather elated by the apparent
success of the delegates to reconcile the possible evils of dictatorship with
the need of an executive who “will not only know how to govern, but will
actually govern”, President Claro M. Recto of the Convention remarked in
his valedictory address adjourning the Assembly as follows:

“During the debate on the Executive Power it was the almost
unanimous opinion that we had invested the Executive with rather extraordinary
prerogatives.  There is much truth in
this assertion.  But it is because we
cannot be insensible to the events that are transpiring around us, events
which, when all is said and done, are nothing but history repeating
itself.  In fact, we have seen how
dictatorships, whether black or red, capitalistic or proletarian, fascistic or
communistic, ancient or modern, have served as the last refuge of peoples when
their parliaments fail and they are already powerless to save themselves from
misgovernment and chaos.  Learning our
lesson from the truth of history, and determined to spare our people the evils
of dictatorship and anarchy, we have thought it prudent to establish an
executive power which, subject to the fiscalization of the Assembly, and of
public opinion, will not only know how to govern, but will actually govern,
with a firm and steady hand, unembarrassed by vexations, interferences by other
departments, or by unholy alliances with this and that social group.  Thus, possessed with the necessary gifts of
honesty and competence, this Executive will be able to give his people an orderly
and progressive government, without need of usurping or abdicating powers, and
cunning subterfuges will not avail to extenuate his failures before the bar of
public opinion.” (“The Philippine Constitution — Sources, Making,
Meaning, and Application” published by the Philippine Lawyers’ Association,
p. 540.)

Of particular relevance to the present discussion is the fact
that when an attempt was made by a few delegates led by Delegate Salvador
Araneta of Manila to subject the Executive’s power to suspend the privilege of
the writ of habeas corpus to concurrence or review by the National
Assembly and the Supreme Court, the effort did not prosper, thereby strongly
indicating, if it did not make it indubitably definite, that the intent of the
framers of the fundamental law is that the Executive should be the sole judge
of the circumstances warranting the exercise of the power thus granted.  In any event, the only evidence of any
thinking within the convention advocating the revocation of the Barcelon
doctrine of which together with Milligan, they were or ought to have been
aware, what with the best known lawyers in the Philippines in their midst,
collapsed with the rejection of the Araneta proposal.

It was in the light of this historical development of the
Executive Power that in 1951, the Supreme Court decided unanimously the case of
Montenegro vs. Castañeda, supra, reiterating the doctrine of
conclusiveness of the Executive’s findings in the Barcelon case.

For all that it may be worthy of mention here, if only because
practically the same Filipino minds, led by President Jose P. Laurel, were
largely responsible for its formulation, the Constitution of the Second
Philippine Republic born under aegis of the Japanese occupation of the
Philippines during the Second World War, provided also for a strong executive.  On this point, President Laurel himself had
the following to say:

“The fundamental reason and necessity for the creation of a
political center of gravity under the Republic is that, in any form of
government — and this is especially true in an emergency, in a national crisis
— there must be a man responsible for the security of the state, there must be
a man with adequate powers, to face any given situation and meet the problems
of the nation.  There must be no shifting
of responsibility; there must be no evasion of responsibility; and if a
government is to be a real government and a scientific government there must be
no two centers of gravity but one.  (2
O.G. [J.M.A.], 873 [1943].)” (The Philippine Presidency by Irene R.
Cortes, p. 14.)

The foregoing is a logical follow-up of what Laurel
had said in the 1934 Convention thus:

“x x x A strong executive he is intended to be, because a
strong executive we shall need, especially in the early years of our
independent, or semi-independent existence. 
A weak executive is synonymous with a weak government.  He shall not be a ‘monarch’ or a dictator in
time of profound and Octavian peace, but he virtually so becomes in an
extraordinary emergency; and whatever may be his position, he bulwarks,
normally, the fortifications of a strong constitutional government, but
abnormally, in extreme cases, he is suddenly ushered in as a Minerva,
full-grown and in full panoply of war, to occupy the vantage ground as the
ready protector and defender of the life and honor of his nation.” (Italics
supplied.) (The Philippine Constitution, published by the Phil. Lawyers
Association, Vol. I, 1969 Ed., p. 183.)

Thus, it is not surprising at all that without changing one word
in the provision granting to the Executive the power to cope with the
emergencies under discussion, the 1971 Convention fortified thru related
provisions in the transitory portion of the Constitution the applicability of
the Barcelon and Montenegro concepts of the Executive’s power, as applied to
the imposition of martial law, thereby weakening pro tanto as will
be seen in the following pages, the impact of Our Lansang doctrine, for the
purposes of the precise issue now before Us.

At this juncture, it may be pointed out that the power granted to
the Executive to place the country or any part thereof under martial law is
independent of the legislative grant to him of emergency powers authorized
under the following provision of the 1935 Constitution:

“Sec. 26.  In times of
war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may
prescribe, to promulgate rules and regulations to carry out a declared national
policy.” (Art VI, sec. 26, 1935 Constitution.)

This provision is copied verbatim in the 1973 Charter except for
the reference to the Prime Minister instead of to the President and the
addition of the following sentence indicating more emphatically the temporary
nature of the delegation:

“Unless sooner withdrawn by resolution of the National
Assembly, such powers shall cease upon its next adjournment.” (Section 15,
Article VIII, 1973 Constitution of the Philippines.)

The point that immediately surges to the mind upon a reading of
this provision is that in times of war or other national emergency it is
definitely to the Executive that the people thru the fundamental law entrust
the running of the government, either by delegation of the legislative power to
him thru an express enactment of the Legislature to that effect or by direct
authorization from the Constitution itself to utilize all the powers of
government should he find it necessary to place the country or any part thereof
under martial law.  Additional evidence
of such clear intent is the fact that in the course of the deliberations in the
Constitutional Convention of 1934 of the proposal to incorporate the above
provision in the charter, Delegate Wenceslao Vinzons of Camarines Norte moved
to delete the same for fear that the concentration of powers in one man may
facilitate the emergence of a dictatorship. 
He said in part:

“The power to promulgate rules and regulations in times of
emergency or war is not recognized in any constitution except, perhaps, the
Constitution of Denmark, which provides that in case of special urgency the
King may, when the Reichstag is not in session, issue laws of temporary
application. Such laws, however, shall not be contrary to the Constitution, and
they shall be submitted to the Reichstag in its next session.  So, even in a kingdom like Denmark,
the powers of the King are limited in times of emergency.

“Under the Constitution we are drafting now, there is
absolutely no limit except when the National Assembly specifies at the
inception of the grant of power.

“I want to warn, Mr. President, of a future condition in our
Republic when we shall no longer be under the tutelage of any foreign power,
when we shall have to work for our own destiny. 
I want to say that I am not very positive in stating here that we shall
have a dictatorship because the structure of the government that we are
creating permits its establishment, but the power to promulgate rules and
regulations will give rise to a strong man who may, in a desire to gratify his
personal ambitions, seize the reins of government.” (Page 391, Volume
Five, The Philippine Constitution, Its Origins, Making, Meaning, and
Application, a publication of the Philippine Lawyers Association, 1972.)

Despite such eloquent warning, the
assembly voted down his motion.

It is now contended that instead of declaring martial law,
President Marcos should have sought from Congress the approval of an emergency
powers act similar to Commonwealth Acts 600 and 671 passed respectively on
August 19, 1940, long before the Japanese invasion, and December 16, 1941, when
the Nippon Army was already on its way to Manila from Lingayen and other
landing points in the North.

To start with, Congress was not unaware of the worsening
conditions of peace and order and of, at least, evident insurgency, what with
the numerous easily verifiable reports of open rebellious activities in
different parts of the country and the series of rallies and demonstrations,
often bloody, in Manila itself and other centers of population, including those
that reached not only the portals but even the session hall of the legislature,
but the legislators seemed not to be sufficiently alarmed or they either were
indifferent or did not know what to do under the circumstances.  Instead of taking immediate measures to
alleviate the conditions denounced and decried by the rebels and the activists,
they debated and argued long on palliatives without coming out with anything
substantial, much less satisfactory in the eyes of those who were seditiously
shouting for reforms.  In any event, in
the face of the inability of Congress to meet the situation, and prompted by
his appraisal of a critical situation that urgently called for immediate
action, the only alternative open to the President was to resort to the other
constitutional source of extraordinary powers, the Constitution itself.

It is significant to note that Commonwealth Act 671 granted the
President practically all the powers of government.  It provided as follows:

“Sec. 1.  The existence
of war between the United States
and other countries of Europe and Asia,
which involves the Philippines,
makes it necessary to invest the President with extraordinary powers in order
to meet the resulting emergency.

“Sec. 2.  Pursuant to
the provisions of Article VI, section 16, of the Constitution, the President is
hereby authorized, during the existence of the emergency, to promulgate such
rules and regulations as he may deem necessary to carry out the national policy
declared in section 1 hereof.  Accordingly,
he is, among other things, empowered (a) to transfer the seat of the Government
or any of its subdivisions, branches, departments, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth
including the determination of the order of precedence of the heads of the
Executive Departments; (c) to create new subdivisions, branches, departments,
offices, agencies or instrumentalities of government and to abolish any of
those already existing; (d) to continue in force laws and appropriations which
would lapse or otherwise become inoperative, and to modify or suspend the
operation or application of those of an administrative character; (e) to impose
new taxes or to increase, reduce, suspend, or abolish those in existence; (f)
to raise funds through the issuance of bonds or otherwise, and authorize the
expenditure of the proceeds thereof; (g) to authorize the National, provincial,
city or municipal governments to incur in overdrafts for purposes that he may
approve; (h) to declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other powers as he may deem
necessary to enable the Government to fulfill its responsibilities and to
maintain and enforce its authority.

“Sec. 3.  The President
of the Philippines
shall as soon as practicable upon the convening of the Congress of the Philippines
report thereto all the rules and regulations promulgated by him under the
powers herein granted.

“Sec. 4.  This act shall
take effect upon its approval, and the rules and regulations promulgated
hereunder shall be in force and effect until the Congress of the Philippines
shall otherwise provide.”

From this extensive grant of immense
powers, it may be deduced that the difference between martial law and the
delegation of legislative power could be just a matter of procedure in that the
investment of authority in the former is by the Constitution while in the
latter it is by the Legislature.  The
resulting constitutional situation is the same in both — government by the
Executive.  It can be said that even the
primacy of military assistance in the discharge of government responsibilities
would be covered by the exercise of the delegated authority from Congress.

What is most important, however, is that the Constitution does
not prohibit the declaration of martial law just because of the authority given
to the Legislative to invest the Executive with extraordinary powers.  It is not to be supposed that in the face of
the inability or refusal of the Legislature to act, the people should be left helpless
and without a government to cope with the emergency of an internal or external
aggression.  Much less is it logical to
maintain that it is the Supreme Court that is called upon to decide what
measures should be taken in the premises. 
Indeed, the fundamental law looks to the Executive to make the choice of
the means not only to repel the aggression but, as a necessary consequence, to
undertake such curative measures and reforms as are immediately available and
feasible to prevent the recurrence of the causes of the emergency.

Petitioners are capitalizing on the pronouncements of this Court
in Lansang.  We feel, however, that such
excessive reliance is not altogether well placed.

The exact import of the Lansang doctrine is that it is within the
constitutional prerogative of the Supreme Court to inquire into the veracity of
the factual bases recited by the Executive in a proclamation ordering the
suspension of the privilege of the writ of habeas corpus, for the
purpose of determining whether or not the Executive acted arbitrarily in
concluding from the evidence before him that there was indeed a rebellion and
that public necessity, as contemplated in the Constitution, required such
suspension.  In other words, We held
therein that the issue of legality or illegality of a proclamation suspending
the Privilege is a justiciable one, in regard to which the Court could make
independent findings based on the evidence on which the President himself
acted.  Actually, however, no real
hearing was held for the purpose in that case.  What might perhaps be considered as such a
hearing was what took place on October 28 and 29, 1971, when, because of the
willingness expressed by the respondents therein to impart to the Court
classified information relevant to the cases, subject to appropriate security
measures, the Court met behind closed doors, and in the presence of three
attorneys representing the petitioners therein and the Solicitor General, it
was briefed by the Chief of Staff of the Armed Forces and other ranking
military officials on said classified information, after which the parties were
granted time to file their respective memoranda of observations on the matters
revealed in the briefing, which they did. 
(See 42 SCRA, at pp. 466-467).  In
the present cases there has been no such hearing, not even a briefing wherein
petitioners were represented.  And it is
gravely doubtful whether any move in that direction would prosper, considering
there are not enough members of the Court, who believe in the juridical relevance
thereof, to constitute the required majority for a binding action to order such
a hearing or even just a similar briefing as before.

Be that as it may, the important point is that Lansang case
referred to the extent of the powers of the Court in regard to a proclamation
suspending the Privilege whereas what is before Us now is a proclamation
imposing martial law.  We hold that the
powers of the Executive involved in the two proclamations are not of the same
constitutional level and the prerogatives of the Court relative to habeas
corpus are distinct from those in the perspective of martial law.

To start with, it is too evident to admit of dispute that the
aforequoted constitutional provision touching on the three powers of the
Executive, the calling of the armed forces, the suspension of the privilege and
the imposition of martial law contemplates varying and ascending degrees of
lawlessness and public disorder.  While
it is true that textually any of the three courses of action mentioned may be
taken by the Executive on the occasion of an invasion, insurrection or
rebellion, the degree of resulting repression of individual rights under each
of them varies so substantially that it cannot be doubted that the constitution
contemplates that the determination as to which of them should be taken should
depend on the degree of gravity of the prevailing situation.  In other words, it is the actual magnitude of
the rebellion to be suppressed and the degree and extent of danger to public
safety resulting therefrom that determines whether it should be the first, the
second or the third that should be taken, in order that there may be a direct
proportion between the degree of gravity of the crisis and the restraint of
individual rights and liberties.  When
the situation is not very serious but is nevertheless beyond the control of the
regular peace authorities of the place affected, then the armed forces can be
called.  Should the conditions
deteriorate in such a way as to involve a considerable segment of the population,
thereby making it difficult to maintain order and to differentiate the loyal
from the disloyal among the people, without detaining some of them, either
preventively or for their delivery to the proper authorities after the
emergency or as soon as it eases, then the privilege of the writ of habeas
corpus may also be suspended.  But
the moment the situation assumes very serious proportions, to the extent that
there is a breakdown of the regular government machinery either because the
officials cannot physically function or their functioning would endanger public
safety, martial law may be imposed. 
There is thus a marked gradation of the circumstances constituting
rebellion and danger to public safety in the provision, and it is to be
supposed that the measure to be adopted by the Executive should be that which
the situation demands.

The calling of the armed forces is done by the Executive in his
capacity as Commander-in-Chief.  The
power thus exercised is purely executive and does not cause any disturbance in
the constitutional order in the government. 
In the case of suspension of the Privilege, individual rights guaranteed
by the Bill of Rights are restrained, but otherwise the regular constitutional
machinery and the powers and functions of the different officials of the
government, including the courts, remain unaffected.  Moreover, the suspension of the Privilege,
although premised on the demand of public safety, need not be necessarily
predicated on the requirements of national security as should be the case with
martial law.  Again, the power exercised
in suspension is executive power and nothing more.  But when martial law is proclaimed, there is,
as already observed earlier, a surrogation of the regular government machinery
by the constitutionally designated administrator with the aid of the
military.  What is exercised in this
instance is not executive power alone but state power which involves the
totality of government authority, but without an actual military takeover, if
only because the civilian President remains at the head.

In this connection, it is very important to note that whereas the
Bill of Rights explicitly prohibits the suspension of the Privilege of the writ
of habeas corpus except under the detailed circumstances prescribed
therein, including the limitations as to the time and place when and where it
may stay suspended, there is no similar injunction in regard to the imposition
of martial law.  In other words, the
grant of the power to declare martial law in the Executive portion of the
Constitution is not countered, unlike in the case of habeas corpus, by a
prohibition in the Bill of Rights, the sanctuary of individual liberties.

Invoking Lansang, petitioners argue that if an order of
suspension of the Privilege which involves less repression of constitutional
processes than martial law is reviewable by the courts, with more reason should
the imposition of martial law, whose effect upon the constitutional rights and
processes is more pervasive, be subject to a judicial test of constitutionality.  Viewing it from the angle of individual
rights, the argument sounds plausible, but when it is considered that the
framers of the Bill of Rights never bothered to put the same or any similar
brakes to the imposition of martial law as that which they placed in regard to
suspension, it can be readily seen that because of the gravity of the crisis
predicating the extreme remedy of martial law, the constitution itself makes
the invocation of individual rights subordinate to the national interest involved
in the defense of the state against the internal aggression that confronts
it.  From this consideration, it follows
that whatever standard of constitutionality was established by the Court in
Lansang relative to Suspension is not necessarily the measure of the powers the
Court can exercise over the Executive’s proclamation of martial law.  What the Constitution purposely and with good
reason differentiates, the Court may not equate.

At any rate, We do not believe this is the proper occasion for
the Court to alter or modify what We said in Lansang.  All that We say here is that Lansang does not
reach the martial law powers of the Executive, if only because that case
involved exclusively the question of legality of the detention, during the
Suspension, of some individuals, the petitioners therein, whereas here We are
dealing with the deprivation of liberty of petitioners as a direct consequence
of martial law, and in effect the real question before Us now is the legality
of the martial law regime itself, which, as already demonstrated, occupies a
different, level in the constitutional order of Executive power, specially when
considered from the point of view of the Bill of Rights.

But even if We must refer to the considerations of the Court in
formulating Lansang, We cannot disregard the impact of contemporary
constitutional developments related thereto. 
The Constitutional Convention of 1971 had barely started its relevant
deliberations when Lansang was decided. 
It is to be assumed that the delegates were well informed about its
import.  Indeed, they must have focused
their attention thereto when martial law was proclaimed in September of 1972,
if only because some of the delegates were apprehended and detained and had
forthwith filed the petitions now pending before Us.  The delegates knew or ought to have known
that under the existing Constitution, the Bill of Rights made no mention of the
possible imposition of martial law in the section prohibiting the suspension of
the privilege of the writ of habeas corpus.  Instead of seeing to it that in the charter
they were drafting the prohibition as to habeas corpus should be
extended to the declaration of martial law, in order to make the contingency
thereof as difficult as in the case of the former, they evidently found more
reason to concur in the construction pursued by President Marcos of the
prerogatives which the Constitution empowers him to utilize during a rebellion
or invasion.  Accordingly, to erase
further doubts on the matter, the Convention enacted the transitory provision
earlier referred to making the Proclamation, among others, part of the law of
the land, which provision, We deem, at this point, not as a fiat placing the
Proclamation definitely beyond the pale of unconstitutionality, but as a contemporary
authoritative construction of the current charter by the body precisely called
to examine it carefully and determine its defects that should be corrected, to
the end that the rights of the people may be best safeguarded.  Verily, such construction is entitled to due
respect from Us, particularly because it has been in effect, if not directly,
approved by the people, not only in the referendum of January 10-15, 1973
assailed by petitioners but in the other one held by secret ballot on July
27-28, 1973 under the supervision of the Commission on Elections.  And in the light of such construction, Our
considered view is that Lansang is not controlling on the issues regarding
martial law involved in these cases.

Perhaps, it may not be amiss to add here that although the
records of the Constitutional Convention of 1934 do not reveal the actual
reasons for the rejection of the amendment proposed by Delegate Vicente J.
Francisco to include in the Bill of Rights provision regarding habeas corpus
the reference made to imminent danger of invasion, insurrection or rebellion in
the enumeration of the powers of the Executive relative to the same subject, it
is quite possible that in the mind of the convention it was not absolutely
necessary to suspend the Privilege when the danger is only imminent unless the
element of public safety involved already requires the imposition of martial
law.  Relatedly, Delegate Araneta who as
earlier mentioned, proposed to subject the suspension of the Privilege to
legislative or judicial concurrence or review, and who appeared to be the most
bothered, among the delegates, about the exertion of executive power during the
emergencies contemplated, never said a word against the manner in which the
Executive was being granted the authority to impose martial law, much less
proposed any restriction upon it the way he did with the suspension of the
Privilege.  This goes to show that the
feeling in the assembly was to regard martial law differently from the
suspension and to recognize that its imposition should not be trammeled nor
shackled by any provision of the Bill of Rights.

— 6 —

There are insurmountable pragmatic obstacles to the theory of
justiciability sustained by petitioners.

The most important of this is that there is no known or
recognized procedure which can be adopted in the proposed inquiry into the
factual bases of the Executive’s proclamation to insure that the degree of
judicious and fair hearing and determination of facts might be
approximated.  Admittedly, the ordinary
rules of pleading, practice and evidence are out of the question.  The relevant elemental facts are scattered
throughout the length and breadth of the country, and there is no conceivable
judicial camera that can catch the whole picture with adequate fidelity to the
truth.  Perhaps judicial notice can help,
but the elements of public safety are not properly susceptible of judicial
notice when it comes to covert subversive activities.  The problems of demonstration are manifold,
and when it is borne in mind that, in the very nature of things and under
universally accepted norms of state protection, there is a wall, impenetrable
even to the judiciary, behind which the state rightfully keeps away from other
Departments matters affecting national security, one will realize the futility
of believing that the Court can, assuming it were, by some curious way of
reasoning, legally required to do so, properly perform its judicial attributes
when it comes to determining in the face of an apparently nationwide rebellion,
whether or not martial law should be proclaimed by the Executive, instead of
resorting to the lesser remedies of calling the armed forces or suspending the
Privilege.  Besides, for the Court to be
able to decide whether or not the action of the Executive is arbitrary, it
must, in justice to both parties, and to him in particular, act in the light of
the same evidence from which he drew his conclusion.  How can such evidence be all gathered and
presented to the Court?

Some members of the Court are of the firm conviction that it is
Our constitutional duty to indulge in the suggested inquiry, so We can be
assured in Our own conscience, and for the protection of the people, whether or
not President Marcos has acted arbitrarily. 
But prescinding from the difficulties of demonstration just discussed,
from what evidence is the Court going to draw its own conclusions in the cases
at bar, when We have not even been told what evidence the President had before
him, except those that may be inferred from the whereases of the Proclamation
which are disputed by petitioners?  On
the other hand, how can We have all the evidence before Us, when in the very
nature thereof We cannot have access to them, since they must be kept under the
forbidding covers of national security regulations?  Even the standing ordinary rules of evidence
provide in this respect thus:

“SEC. 21.  Privileged
communication.  —

xx     xx     xx    
xx     xx     xx

(e)     A public officer
cannot be examined during his term of office or afterwards, as to
communications made to him in official confidence, when the court finds that
the public interest would suffer by the disclosure.” (Rule 130, Revised
Rules of Court of the Philippines).

The inevitable conclusion is that the
Constitution must have intended that the decision of the Executive should be
his alone.

If We should hold that the matter before Us is justiciable, the
practical result would be that even if the Court should now decide in the style
of Lansang that the President did not act arbitrarily in issuing the
Proclamation, We would have to be ready to entertain future petitions, one
after the other, filed by whosoever may be minded to allege, for his own
purpose, that conditions have so improved as to warrant the lifting of martial
law.  Accordingly, every now and then the
Court would have to hear the parties and evaluate their respective
evidence.  The Government would have to
appear and prove all over again the justifications for its action.  The consequence would be that instead of
devoting his time to the defense of the nation, the President would be
preparing himself for the court battle. 
It is ridiculous to think that the members of the Constitutional Convention
had conceived placing such difficulties in the way of the Executive which make
of his function of defending the state a continuous running battle in two
separate fronts, one with the enemy and another with the courts.  It is suggested that the Court can summarily
dismiss any such future petitions in cavalier fashion by simply holding on to
the finding We would make in these cases. 
But new allegations and arguments are bound to be made, and it is
definitely improper for Us to just summarily uphold the Executive everytime a
case comes up.

What is more absurd is that the Supreme Court is not the only
court in which a petition to lift may be filed. 
Imagine if petitions were filed in two or three Courts of First
Instance, what would happen?  In this
connection, We are in no position to enjoin the lower courts to entertain such
petitions because they may refer to the proposed lifting of martial law only in
the respective provinces where the courts are, and We cannot hold, precisely
because of Our own characterization of the nature of the issue as justiciable,
or more simply, that the Proclamation is subject to the review of factual bases
by the court, that any of said courts is without jurisdiction to entertain the
petition.  Stated otherwise, every court
would then be open to pass on the reasonability or arbitrariness of the
President’s refusal or failure to lift martial law.  We do not mean to insinuate that the lower
court judges may not be prepared for the purpose, but the spectacle alone of
several of such petitions pending in various courts, without visualizing
anymore the potentiality of one judge or another upholding the proponent, is
something that will not only foreseeably complicate our international relations
but will also detract from our image as a people trained in the field of government.  All of these considerations suggest again
that it is best that the Judiciary abstain from assuming a role not clearly
indicated in the Constitution to pertain to it.

-C-

THE SUPREME COURT ABSTAINS
FROM REVIEWING PROCLAMATION 1081, BECAUSE, IN THE LIGHT OF THE CONSIDERATIONS
HEREIN DISCUSSED, IT IS CONVINCED THAT THE CONSTITUTION CONTEMPLATES THAT THE
DECLARATION OF MARTIAL LAW SHOULD BE THE RESPONSIBILITY SOLELY OF THE
EXECUTIVE, BUT SHOULD ANY OCCASION OF OPEN DEFIANCE AND MANIFEST DISREGARD OF
THE PERTINENT CONSTITUTIONAL PROVISION ARISE, THE COURT IS NOT POWERLESS TO
“SUPPORT AND DEFEND” THE CONSTITUTION.

The greatest fear entertained by those who would sustain the
Court’s authority to review the action of the President is that there might be
occasions when an Executive drunk with power might without rhyme or reason
impose martial law upon the helpless people, using the very Constitution itself
as his weapon of oppression to establish here a real dictatorship or
totalitarian government.  The view is that
it is only the Supreme Court that can prevent such a dismal eventuality by
holding that it has the final authority and inescapable duty to define the
constitutional boundaries of the powers of the Executive and to determine in
every case properly brought before it whether or not any such power has been
abused beyond the limits set down by the fundamental law, and that unless We
hold here that the Court can determine the constitutional sufficiency of
Proclamation 1081 in fact and in law, the Filipino people would have no
protection against such an abusive Executive.

We here declare emphatically that such apprehension is definitely
unfounded.  Precisely, in this decision,
We are holding that the Court has the jurisdiction, the power and the authority
to pass on any challenge to an Executive’s declaration of martial law alleged
in a proper case affecting private or individual rights to be unwarranted by
the Constitution.  In these cases,
however, we do not see any need for the interposition of our authority.  Instead what appears clear to Us, in the
light of the considerations We have discussed above, and so We hold, is that
the Solicitor General is eminently correct in contending that in the circumstantial
and constitutional milieu of the impugned Proclamation, We should abstain from
conducting the suggested inquiry to determine their constitutional sufficiency.

In the way We see the martial law provision of the Constitution,
only two hypotheses can be considered relative to the Constitutional problem
before Us.  Either the Executive acts in
conformity with the provision or he does not. 
In other words, either he imposes martial law because there is actually
a rebellion endangering the public safety or he does it for his own personal
desire to grab power, notwithstanding the absence of the factual grounds
required by the fundamental law.  In the
latter case, the Court would have the constitutional power and duty to declare
the proclamation issued null and void. 
But to do this it does not have to conduct a judicial inquiry by the
reception of evidence.  It should be
guided solely by facts that are of judicial notice.  Thus, if the predicative recitals of the
proclamation are confirmed by facts of general public knowledge, obviously any
further inquiry would be superfluous.  On
the other hand, in the contrary hypothesis, that is, it is publicly and
generally known that there is no rebellion of the nature and extent
contemplated in the Constitution, no amount of evidence offered by the
Executive can judicially create such a rebellion.  Indeed, as observed elsewhere in this
opinion, a rebellion that does not come to the judicial notice of the Court
cannot warrant the imposition of martial law, particularly in reference to one
imposed over the whole country.  But once
it is known to the Court by judicial notice that there is a rebellion, it would
constitute an undue interference with the constitutional duties and
prerogatives of the Executive for the Court to indulge in an inquiry as to the
constitutional sufficiency of his decision. 
Whether or not public safety requires the drastic action of imposing
martial law already involves the exercise of judgment, which as far as We can
see is committed to the responsibility of the Executive as the protector and
defender of the nation.  Our considered
view is that in such circumstances, the Constitution rather expects the Court
to defer to his decision.  Under this
concept of the powers of the Court relative to the exercise by the Executive of
his martial law prerogatives, the Court does not relinquish its authority as
guardian of the Constitution and the Executive, guided solely by his own sense
of responsibility under his solemn oath “to defend and preserve” the
Constitution, can proceed with his task of saving the integrity of the
government and the nation, without any fear that the Court would reverse his
judgment.

To be sure, it could have sufficed for Us to point out, in answer
to the contention about possible abuse, that it is axiomatic in constitutional
law that the possibility that an official might abuse the powers conferred upon
him by law or by the Charter does not mean that the power does not exist or
should not be granted.  This Court
affirmed this principle not only in Barcelon vs. Baker, quoted supra,
which was the precursor perhaps of the extreme of judicial self-restraint or
abstention in this jurisdiction but even in Angara vs. Electoral Commission,
63 Phil. 139, reputedly the vanguard of judicial activism in the
Philippines.  Justice Laurel postulated
reassuringly on this point in Angara thus:  “The possibility of abuse is not an
argument against the concession of power as there is no power that is not
susceptible of abuse” (at p. 177). 
And We could have complemented this ratiocination with the observation
that it is most unlikely that the Filipino people would be penalized by Divine
Providence with the imposition upon them of an Executive with the frightening
characteristics ominously portrayed by those who advocate that the Court,
assuming its own immunity from being abusive, arbitrary or improvident, should
not recognize any constitutionally envisioned deference to the other
Departments of the Government, particularly the Executive.

We can feel, however, that the people need further
reassurance.  On this score, it is
opportune to recall that in Avelino vs. Cuenco, 83 Phil. 68, in spite of
the fact that in the Resolution of March 4, 1949, this Court refused to
intervene in the controversy between the parties as to whether or not there was
a valid election of a new President of the Senate, upon the ground that the
issue involved was purely political, in the subsequent Resolution of March 14,
1949, upon realizing that a critical situation, detrimental to the national
interest, subsisted as a consequence of its abstention, the Court reversed
itself and assumed the power to state categorically the correct solution to the
conflict based on its interpretation of the pertinent provisions of the
Constitution.

Again, in January, 1962, in the space of several hours, 350 appointments
to different positions in the government, including Justices of the Supreme
Court and of the Court of Appeals and judges of the lower courts, fiscals,
officers of the Army, directors of bureaus, Governor of the Central Bank, and
others were sent by the President then to the Commission on Appointments on
December 29, 1961, the day preceding his last half-day in office, December 30,
1961.  Upon the said appointments being
impugned in the Supreme Court, the Court, aghast by the number of and the speed
in the making of said appointments, the fact that they were made under
circumstances that betrayed not only lack of proper and deliberate
consideration of the qualifications of the appointees but also an evident
intent to deprive the succeeding President from filling the vacancies that had
been left vacant even after the results showing the defeat of the incumbent
President had already been publicly known and conceded, the departure from long
established practices in their preparation as well as the other undesirable
circumstances that surrounded the same, promptly struck them down as the
product of an improvident exercise of power, obnoxious to the precepts
underlying the principled government conceived in the Constituion.15
The violation of the spirit and intent of the Constitution appeared manifest to
the Court on the basis of facts which were mainly if not all of judicial notice
and, therefore, needed no further demonstration in an inquiry or investigation
by the Court.  Under more or less a
similar setting of circumstances, which occurred in the latter part of the term
of the President whose tenure expired on December 30, 1965, the Supreme Court
reiterated the above ruling in Guevara vs. Inocentes, 16 SCRA 379.

Thus everyone can see that when situations arise which on their
faces and without the need of inquiry or investigation reveal an unquestionable
and palpable transgression of the Constitution, the Supreme Court has never
been without means to uphold the Constitution, the policy of judicial self-restraint
implicit therein notwithstanding.  The
precedents just related relate to peaceful controversies, and, of course, the
alleged violation of the Constitution by the Executive in the exercise of a
power granted to him to meet the exigencies of rebellion and the dangers to
public safety it entails has to be considered from a different
perspective.  Even then, the Supreme
Court would not be powerless to act. 
Until all of its members are incarcerated or killed and there are not
enough of them to constitute a quorum, the Court would always be there ready to
strike down a proclamation of martial law as unconstitutional, whenever from
the facts manifest and generally known to the people and to it, and without its
having conducted any inquiry by the reception of evidence, it should appear
that the declaration is made without any rational basis whatsoever and is
predicated only on the distorted motives of the Executive.  For as long, however, as the recitals or
grounds given in a proclamation accord substantially with facts of judicial
notice, either because they are of public knowledge or are by their nature
capable of unquestionable demonstration, We have no reason to interfere with
the discharge by the Executive of a responsibility imposed upon him by the Constitution
and in which there is no indication therein that the Court should share.  But when, as just stated, it is generally
known or it is of public knowledge that there is no rebellion or, there being
one, that it poses no conceivable danger to the public safety, and, God forbid,
martial law is proclaimed, the Court, even without the need of any kind of
judicial inquiry into the facts alleged in the proclamation, will certainly act
and declare the pretentious Executive a constitutional outlaw, with the result
that the regular government established by the Constitution may continue in the
hands of those who are constitutionally called upon to succeed him, unless he
overcomes the legitimate government by force. 
In truth, such is the only way the Supreme Court should act in
discharging its duty to uphold the Constitution by the use of the judicial
power, if it is to give to the Executive or the Legislature, as the case may
be, the due regard that the Constitution contemplates should be accorded to
them in consideration of their own functions and responsibilities implicit in
the principle of separation of powers embodied therein.

II

THE CONSTITUTION IS MERELY IN A STATE OF ANAESTHESIA,
SINCE A MAJOR SURGERY IS NEEDED TO SAVE THE NATION’S LIFE.

The foregoing discussion covers, as must have been noted, the
resolution not only of the issue of jurisdiction raised by the respondents but
also of the corollary question of the application of the Lansang doctrine.  Not only that, from what has been said, it is
obvious that since it is to the President that the Constitution has committed
the discretion to impose martial law, it follows that he alone should have the
discretion and the prerogative to declare when it should cease or be
lifted.  Exactly the same considerations
compelling the conclusion that the Court may not review the constitutional
sufficiency of his proclamation of martial law make it ineludible to conclude
that the people have also left it to the Executive to decide when conditions
would permit the full restoration of the regular constitutional processes.  With characteristic perceptive insight, in
his thesis to be cited infra, Justice Guillermo S. Santos of the Court
of Appeals, discourses on this point as follows:

“44. When Martial Rule is
Terminated –

In both England
and the United States
martial rule terminates ipso facto upon the cessation of the
public emergency that called it forth. 
To this proposition there has been no dissent.  Martial rule must cease when the public
safety no longer require its further exercise.

“45. Who Terminates Martial Rule
–

Since the declaration of martial rule has been committed to the
judgment of the President, it follows that its termination is to be fixed by
the same authority.  (Barcelon vs.
Baker, 1905, 5 Phil. 87.) Again, to this view there cannot be any valid
objection.  It would seem only natural
that since the President has been expressly authorized to declare martial rule
no other authority should be permitted to terminate it.” (Martial Law,
Nature, Principles and Administration by Guillermo S. Santos, p. 75.)

Needless to say, it is our Constitution
that controls in the cases at bar, not the American theory.  In fact, when President Laurel proclaimed
martial law during the Second World War, he expressly provided, to avoid any
doubt about the matter, thus:

“8.     The proclamation
of martial law being an emergency measure demanded by imperative necessity, it
shall continue as long as the need for it exists and shall terminate upon
proclamation of the President of the Republic of the Philippines.”

In the interest of truth and to set Our perspective aright, it
may not be said that under Proclamation 1081 and the manner in which it has
implemented, there has been a total suspension, much less an abrogation of the
Constitution.  Even textually, the
ensuing orders issued by the President have left virtually unaltered the
established constitutional order in all levels of government and society except
those that have to be adjusted and subjected to potential changes demanded by
the necessities of the situation and the attainment of the objectives of the
declaration.  Repeatedly and
emphatically, the President has solemnly reassured the people that there is no
military takeover and that the declared principle in the Constitution that
“Civilian authority is at all times supreme over the military”
(Section 8, Article II, 1973 Charter) shall be rigorously observed.  And earlier in this opinion, We have already
discussed how he restored the security of tenure of the members of the Court
and how the judicial power has been retained by the courts, except in those
cases involving matters affecting national security and public order and safety
which the situation demands should be dealt with by the executive arms of the
government.

When President Lincoln proclaimed martial law in Kentucky
in 1864, he did not completely overhaul the existing machinery, he let it
continue insofar as it did not obstruct the military operations and related
activities.  He ordered thus:

“Whereas many citizens of the State of Kentucky have joined
the forces of the insurgents, and such insurgents have, on several occasions,
entered the said State of Kentucky in large force, and, not without aid and
comfort furnished by disaffected and disloyal citizens of the United States
residing therein, have not only disturbed the public peace, but have overborne
the civil authorities and made flagrant civil war, destroying property and life
in various parts of the State:  And
whereas it has been made known to the President of the United States by the
officers commanding the national armies, that combinations have been formed in
the said State of Kentucky with a purpose of inciting rebel forces to renew the
said operations of civil war within the said State, and thereby to embarrass
the United States armies now operating in the said States of Virginia and
Georgia, and even to endanger their safety: 
x x ‘The martial law herein proclaimed, and the things in that respect
herein ordered, will not be deemed or taken to interfere with the holding of
lawful elections, or with the proceedings of the constitutional legislature of
Kentucky, or with the administration of justice in the courts of law existing
therein between citizens of the United States in suits or proceedings which do
not affect the military operations or the constituted authorities of the
government of the United States.” (Martial Law, Nature, Principles and
Administration by Guillermo S. Santos, pp. 97-98.)

Incidentally, there is here a clear repudiation
of the open court theory, and what is more, even the holding of regular
elections and legislative sessions were not suppressed.16
Accordingly, the undeniable fact that the Philippine Congress was in session,
albeit about to adjourn, when martial law was declared on September 21, 1972 is
not necessarily an argument against the exercise by the President of the power
to make such a declaration.

President Laurel’s own declaration of martial law during the
Japanese occupation did not involve a total blackout of constitutional
government.  It reads in its pertinent
portions thus:

“x x x

“4.     All existing laws
shall continue in force and effect until amended or repealed by the President,
and all the existing civil agencies of an executive character shall continue
exercising their powers and performing their functions and duties, unless they
are inconsistent with the terms of this Proclamation or incompatible with the
expeditious and effective enforcement of martial law herein declared.

“5.     It shall be the duty
of the Military Governors to suppress treason, sedition, disorder and violence;
and to cause to be punished all disturbances of public peace and all offenders
against the criminal laws; and also to protect persons in their legitimate
rights.  To this end and until otherwise
decreed, the existing courts of justice shall assume jurisdiction and try
offenders without unnecessary delay and in a summary manner, in accordance with
such procedural rules as may be prescribed by the Minister of Justice.  The decisions of courts of justice of the
different categories in criminal cases within their original jurisdiction shall
be final and unappealable:  Provided,
however, That no sentence of death shall be carried into effect without the
approval of the President.

“6.     The existing courts of
justice shall continue to be invested with, and shall exercise, the same
jurisdiction in civil actions and special proceedings as are now provided in
existing laws, unless otherwise directed by the President of the Republic of the
Philippines.”

Proclamation 1081 is in no sense any more constitutionally
offensive.  In fact, in ordering
detention of persons, the Proclamation pointedly limits arrests and detention
only to those “presently detained, as well as all others who may hereafter
be similarly detained for the crimes of insurrection or rebellion, and all
other crimes and offenses committed in furtherance or on the occasion thereof,
or incident thereto, or in connection therewith, for crimes against national
security and the laws of nations, crimes against public order, crimes involving
usurpation of authority, rank, title and improper use of names, uniforms and
insignia, crimes committed by public officers, and for such other crimes as
will be enumerated in orders that I shall subsequently promulgate, as well as
crimes as a consequence of any violation of any decree, order or regulation
promulgated by me personally or promulgated upon my direction.”

Indeed, even in the affected areas, the Constitution has not been
really suspended much less discarded.  As
contemplated in the fundamental law itself, it is merely in a state of anaesthesia,
to the end that the much needed major surgery to save the nation’s life may be
successfully undertaken.

III

THE IMPOSITION OF MARTIAL LAW AUTOMATICALLY
CARRIES WITH IT THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS.  IN ANY EVENT, THE
PRESIDENTIAL ORDER OF ARREST AND DETENTION CANNOT BE ASSAILED AS DEPRIVATION OF
LIBERTY WITHOUT DUE PROCESS.

The next issue to consider is that which refers to the arrest and
continued detention and other restraints of the liberties of petitioners, and
their main contention in this respect is that the proclamation of martial law
does not carry with it the suspension of the privilege of the writ of habeas
corpus, hence petitioners are entitled to immediate release from their
constraints.

We do not believe such contention needs extended exposition or
elaboration in order to be overruled. 
The primary and fundamental purpose of martial law is to maintain order
and to insure the success of the battle against the enemy by the most
expeditious and efficient means without loss of time and with the minimum of
effort.  This is self-evident.  The arrest and detention of those
contributing to the disorder and especially of those helping or otherwise
giving aid and comfort to the enemy are indispensable, if martial law is to
mean anything at all.  This is but
logical.  To fight the enemy, to maintain
order amidst riotous chaos and military operations, and to see to it that the
ordinary constitutional processes for the prosecution of law-breakers are three
functions that cannot humanly be undertaken at the same time by the same
authorities with any fair hope of success in any of them.  To quote from Malcolm and Laurel, “Martial
law and the privilege of that writ (of habeas corpus) are wholly
incompatible with each other.” (Malcolm and Laurel, Philippine
Constitutional Law, p. 210).  It simply
is not too much for the state to expect the people to tolerate or suffer
inconveniences and deprivations in the national interest, principally the
security and integrity of the country.

Mere suspension of the Privilege may be ordered, as discussed
earlier, when the situation has not reached very critical proportions
imperilling the very existence of the nation, as long as public safety demands
it.  It is, therefore, absurd to contend,
that when martial law, which is precisely the ultimate remedy against the
gravest emergencies of internal or external aggression, is proclaimed, there is
no suspension of the Privilege unless this is separately and distinctly
ordered.  Considering that both powers
spring from the same basic causes, it stands to reason that the graver sanction
includes the lesser.  It is claimed that
President Laurel treated the two matters separately in his aforequoted
proclamation.  We do not believe that the
precedent cited controls.  It only proves
that to avoid any doubt, what President Laurel did may be adopted.  There can be no denying the point that
without suspension of the Privilege, martial law would certainly be
ineffective.  Since martial law involves
the totality of government authority, it may he assumed that by ordering the
arrest and detention of petitioners and the other persons mentioned in the
Proclamation, until ordered released by him, the President has by the tenor of
such order virtually suspended the Privilege. Relatedly, as pointed out by the
Solicitor General, no less than petitioner Diokno himself postulated in a
lecture at the U.P. Law Center that:

“There are only, as far as I know, two instances where persons
may be detained without warrant but with due process.  The first is in cases of martial law or when
the writ of habeas corpus is suspended.  In those cases, it is not that their
detention is legal, it is that we cannot inquire into the legality of their
detention.  Because martial law means
actually the suspension of law and the substitution of the will of our
Congress.  The second instance is that
which is provided for in Rule 113, section 6 of the Rules of Court and Section
37 of the Revised Charter of the City of Manila.  Essentially it consists of cases where the
crime is committed right in the presence of the person who is making the arrest
or detention.” (Trial Problems in City & Municipal Courts, 1970 p.
267, U.P. Law Center Judicial Conference Series.)

In his well documented and very carefully prepared and
comprehensive thesis on Martial Law, Nature, Principles and Administration,
Published by Central Lawbook Publishing Co. Inc. in 1972, Justice Guillermo S.
Santos of the Court of Appeals and formerly of the Judge Advocate General’s
Service, Armed Forces of the Philippines,
makes these pointed observations:

“Whether the existence of martial law and the suspension of
the privilege of the writ of habeas corpus ‘are one and the same thing’,
or ‘the former includes the latter and much more,’ had been the subject of ‘an
angry war of pamphlets between Professors Parsons and Parker of the Harvard Law
School at the outbreak of the Civil War.’ (Fairman, p. 43; Wiener, p. 9.) It
has also been a difficult question to decide in some jurisdictions whether the
suspension of the privilege of the writ amounted to a declaration of martial
law.  (Winthrop, pp. 820 & 828,
citing Ex parte Field, 9 Am. L.R. 507; Bouvier’s Law Dictionary,
3rd Francis Rawis Ed., 1914, p. 2105, citing 1 Halleck, Int. Law 549.)

“In the face of the constitutional provisions (Art. III, Sec.
1, Clause [14] and fn 9, supra.) in our jurisdiction, there seems to be no room
for doubt that the two are different. 
While the grounds for the suspension of the privilege of the writ and
the proclamation of martial law are the same, there can be no question that
suspension of the writ means what it says, that during the suspension of the
privilege, the writ, if issued, will be to no avail; but martial law has more
than just this effect.  The only question
which apparently remains to be determined herein, is, whether the declaration
of martial law ipso facto carries with it the suspension of the
privilege of the writ, or whether a declaration of martial law must necessarily
include a declaration suspending the privilege of the writ in order to consider
the same inoperative.  But it appears
that the former is the better view, (Malcolm and Laurel, Philippine
Constitutional Law, p. 310) although in United States it has been held that
qualified martial rule may exist where the writ has, in legal contemplation,
not been suspended, (Fairman, p. 44) and that the status of martial law does
not of itself suspend the writ. 
(Military Law (Domestic Disturbances), Basic Field Manual, War
Department, [US] fn. 19 & 15, p. 17 [1945].)” (See pp. 41-42.)

Of course, We are not bound by the rule
in other jurisdictions.

Former Dean Vicente G. Sinco of the College of Law of the
University of the Philippines, of which he became later on President, a noted
authority on constitutional law from whom many of us have learned the subject,
likewise sustains the view that the proclamation of martial law automatically
suspends the privilege of the writ of habeas corpus.  (V. Sinco, Phil. Political Law, p. 259, 11th
Ed., 1962)

Now, as to the constitutional propriety of detaining persons on
suspicion of conspiracy with the enemy without the need of the regular judicial
process, We have also the authoritative support of no less than what a
distinguished member of this Court, considered as one of the best informed in
American constitutional law, Mr. Justice Enrique Fernando, and the principal
counsel of petitioners, former Senator Tañada, himself an authority, on the
subject, had to say on the point in their joint authorship, used as textbook in
many law schools, entitled Constitution of the Philippines, to wit:

“Once martial law has been declared, arrest may be necessary
not so much for punishment but by way of precaution to stop disorder.  As long as such arrests are made in good
faith and in the honest belief they are needed to maintain order, the
President as Commander-in-Chief, cannot thereafter, when he is out of
office, be subjected to an action on the ground that he had no reasonable
ground for his belief.  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.” (Emphasis
supplied. (Constitution of the Philippines by Tañada & Fernando, Vol. 2.
pp. 523-525.)

The authority cited by Justice Fernando and Senator Tañada says:

‘The plaintiff’s position, stated in a few words, is that the
action of the governor, sanctioned to the extent that it was by the decision of
the Supreme Court, was the action of the state and therefore within the 14th
Amendment; but that, if that action was unconstitutional, the governor got no
protection from personal liability for his unconstitutional interference with
the plaintiffs rights.  It is admitted,
as it must be, that the governor’s declaration that a state of insurrection
existed is conclusive of that fact.  It
seems to be admitted also that the arrest alone would not necessarily have
given a right to bring this suit.  Luther
vs. Borden, 7 How. 1, 45, 46, 12 L. ed. 581, 600, 601.  But it is said that a detention for so many
days, alleged to be without probable cause, at a time when the courts were
open, without an attempt to bring the plaintiff before them, makes a case on
which he has a right to have a jury pass.

“We shall not consider all of the questions that the facts
suggest, but shall confine ourselves to stating what we regard as a sufficient
answer to the complaint, without implying that there are not others equally
good.  Of course, the plaintiff’s
position is that he has been deprived of his liberty without due process of
law.  But it is familiar that what is due
process of law depends on circumstances. 
It varies with the subject-matter and the necessities of the
situation.  Thus, summary proceedings suffice
for taxes, and executive decisions for exclusion from the country.  Den ex dem. Murray
vs. Hoboken Land
& Improve. Co. 18 How. 272, 15 L. ed.
372; United States
vs. Ju Toy, 198 U.S.
253, 263, 49 L. ed. 1040, 1044, 25 Sup. Ct. Rep. 644.  What, then, are the circumstances of this
case?  By agreement the record of the
proceedings upon habeas corpus was made part of the complaint, but that
did not make the averments of the petition for the writ averments of the
complaint.  The facts that we are to
assume are that a state of insurrection existed and that the governor, without
sufficient reason, but in good faith, in the course of putting the insurrection
down, held the plaintiff until he thought that he safely could release him.

“It would seem to be admitted by the plaintiff that he was
president of the Western Federation of Miners, and that, whoever was to blame,
trouble was apprehended with the members of that organization.  We mention these facts not as material, but
simply to put in more definite form the nature of the occasion on which the
governor felt called upon to act.  In such
a situation we must assume that he had a right, under the state Constitution
and laws, to call out troops, as was held by the supreme court of the
state.  The Constitution is supplemented
by an act providing that ‘when an invasion of or insurrection in the state is
made or threatened, the governor shall order the national guard to repel or
suppress the same.  Laws of 1897, chap.
83, art. 7, & 2, p. 204.  That means
that he 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.  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.  If we
suppose a governor with a very long term of office, it may be that a case could
be imagined in which the length of the imprisonment would raise a different
question.  But there is nothing in the
duration of the plaintiff’s detention or in the allegations of the complaint
that would warrant submitting the judgment of the governor to revision by a
jury.  It is not alleged that his
judgment was not honest, if that be material, or that the plaintiff was
detained after fears of the insurrection were at an end.

No doubt there are cases where the expert on the spot may be called
upon to justify his conduct later in court, notwithstanding the fact that he
had sole command at the time and acted to the best of his knowledge.  That is the position of the captain of a
ship.  But, even in that case, great
weight is given to his determination, and the matter is to be judged on the
facts as they appeared then, and not merely in the light of the event.  Lawrence
vs. Minturn, 17 How. 100, 110, 15 L. ed. 58, 62; The Star of Hope, 9
Wall, 203, 19 L. ed. 638; The Germanic (Oceanic Steam Nay. Co.
vs. Aitken) 196 U.S.
589, 594, 595, 49 L. Ed. 610, 613, 25 Sup. Ct. Rep. 317.) 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 vs. Sanders, 99 U.S.
441, 446, 25 L. ed. 327, 328.” (Moyer vs. Peabody,
212 U.S.
416, 417).

Relatedly, in the decision of the Supreme Court of Colorado
dealing with the same detention of Charles II Moyer by order of the state
governor, it was held:

“By the reply it is alleged that, notwithstanding the
proclamation and determination of the Governor that a state of insurrection
existed in the country of San Miguel, that as a matter of fact these conditions
did not exist at the time of such proclamation or the arrest of the petitioner,
or at any other time.  By S 5, art. 4, of
our Constitution, the governor is the commander in chief of the military forces
of the state, except when they are called into actual service of the United
States; and he is thereby empowered to call
out the militia to suppress insurrection. 
It must therefore become his duty to determine as a fact when conditions
exist in a given locality which demand that, in the discharge of his duties as
chief executive of the state, he shall employ the militia to suppress.  This being true, the recitals in the
proclamation to the effect that a state of insurrection existed in the county
of San Miguel cannot
be controverted.  Otherwise, the
legality of the orders of the executive would not depend upon his judgment, but
the judgment of another coordinate branch of the state government . . .

“. . . lf, then, the military may resort to the extreme of
taking human life in order to suppress insurrection, it is impossible to
imagine upon what hypothesis it can be successfully claimed that the
milder means of seizing the persons of those participating in the
insurrection or aiding and abetting it may not be resorted to.  This is but a lawful means to the end to be
accomplished.  The power and authority of
the militia in such circumstances are not unlike that of the police of a city,
or the sheriff of a county, aided by his deputies or possee comitatus in
suppressing a riot.  Certainly such
officials would be justified in arresting the rioters and placing them in jail
without warrant, and detaining them there until the riot was suppressed.  Hallett, J., in Re Application of Sherman
Parker (no opinion for publication).  lf,
as contended by counsel for petitioner, the military, as soon as a rioter or
insurrectionist is arrested, must turn him over to the civil authorities of the
county, the arrest might, and in many instances would, amount to a mere farce.  He could be released on bail, and left free
to again join the rioters or engage in aiding and abetting their action, and,
if again arrested, the same process would have to be repeated, and thus the
action of the military would be rendered a nullity.  Again, if it be conceded that, on the arrest
of a rioter by the military, he must at once be turned over to the custody of
the civil officers of the county, then the military, in seizing armed
insurrectionists and depriving them of their arms, would be required to
forthwith return them to the hands of those who were employing them in acts of
violence; or be subject to an action of replevin for their recovery, whereby
immediate possession of such arms would be obtained by the rioters, who would
thus again be equipped to continue their lawless conduct.  To deny the right of the militia to detain
those whom they arrest while engaged in suppressing acts of violence and until
order is restored would lead to the most absurd results.  The arrest and detention of an
insurrectionist, either actually engaged in acts of violence or in aiding and
abetting others to commit such acts, violates none of his constitutional
rights.  He is not tried by any military
court, or denied the right of trial by jury; neither is he punished for
violation of the law, nor held without due process of law.  His arrest and detention in such
circumstances are merely to prevent him from taking part or aiding in a
continuation of the conditions which the governor, in the discharge of his
official duties and in the exercise of authority conferred by law, is
endeavoring to suppress.  When this end
is reached, he could no longer be restrained of his liberty by the military,
but must be, just as respondents have indicated in their return to the writ,
turned over to the usual civil authorities of the county, to be dealt with in
the ordinary course of justice, and tried for such offenses against the law as
he may have committed.  It is true that
petitioner is not held by virtue of any warrant, but if his arrest and
detention are authorized by law, he cannot complain because those steps have
not been taken which are ordinarily required before a citizen can be arrested
and detained.

“…The same power which determines the existence of an
insurrection must also decide when the insurrection has been suppressed.” (Emphasis
added.) (Re Moyer, 35 Colo. 159, 85 Pac. 190 [1904].)

It is evident, therefore, that regardless
of whether or not the privilege of the writ of habeas corpus is
expressly suspended during martial law, arrest, detention and other restraints
of liberty of individuals may not be assailed as violative of the due process
clause.  The Presidential orders to such
effect constitute substantive and procedural due process at the same time and
may therefore be invoked as valid defenses against any remedy or prayer for
release.  Given the validity of the declaration
of martial law, the sole tests of legality of constraints otherwise frowned
upon in normal times by the fundamental law are substantial relevance and
reasonableness.  In the very nature of
things, and absent any obvious showing of palpable bad faith, the Executive
should enjoy respectful deference in the determination of his grounds.  As a rule, the Courts are not supposed to
make any inquiry into the matter.

We accordingly hold that, as well demonstrated by the Solicitor
General, a proclamation of martial law automatically results in the suspension
of the privilege of the writ of habeas corpus and, therefore, the
arrest, detention and restraints upon petitioners are authorized by the
Constitution.  In any event, the
Presidential order of arrest and detention constitute due process and is,
therefore, a valid defense to any allegation of illegality of the constraints
upon petitioners.  We further hold that
the duration of such constraints may be co-extensive with martial law unless
otherwise ordered by the Executive.

IV

THE EFFECT OF THE APPROVAL AND RATIFICATION
OF THE NEW CONSTITUTION ON THE INSTANT PETITIONS

All that remains now for resolution is the question of what
effect did the approval and ratification of the New Constitution have upon the
instant petitions?

When petitioners came to this Court in September and October 1972
to impugn the legality of their arrest and detention by virtue of Proclamation
1081 and General Order No. 2, their common fundamental theory was that said
proclamation and order were violative of the Constitution of the Philippines of
1935, not only because, according to them, there was no justification for its
placing the country under martial law but also because, even assuming its
propriety, there was allegedly no legal basis for the apprehension and
detention of petitioners without any warrant of arrest and without even any
charges being filed against them.  Thus,
in his return of the writ of habeas corpus issued by the Court, as well
as in his oral argument at the hearings, the Solicitor General limited himself
to barely invoking the provision of the said Constitution empowering the
President to proclaim martial law, even as he denied the allegation that there
was no factual basis therefor, and simply contended that the arrest and
detention of petitioners were made pursuant to orders validly issued under the
powers of the President flowing from the proclamation.

— A —

As already noted, however, even before these cases could be
submitted for decision, on November 30, 1972, the Constitutional Convention of
1971 approved a draft constitution designed to supersede the Constitution of
1935 and on January 17, 1973, thru Proclamation 1102, the President declared
that draft constitution to have been ratified by the people in the referendum
of January 10-15, 1973, and, as also stated earlier, said proclamation became
the subject of two series of cases in this Court which ultimately ended with
the decision of March 31, 1973 adjudging that “there is no further
judicial obstacle to the New Constitution being considered in force and
effect.” And among the salient and pertinent provisions of the New
Constitution or the Constitution of 1973 as the new charter may distinctively
be referred to, is that of Section 3 (2) of Article XVII textually reproduced
earlier above.

In view of the comprehensive or all-inclusive tenor of the
constitutional injunction contained in said provision, referring as it does to
“all proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President”, there can be no doubt that
Proclamation 1081 and General Order No. 2, herein assailed by petitioners, are
among those enjoined to be “part of the law of the land.” The
question that arises then is, did their having been made part of the law of the
land by no less than an express mandate of the fundamental law preclude further
controversy as to their validity and efficacy?

In pondering over this question, it is important to bear in mind
the circumstances that attended the framing and final approval of the draft
constitution by the Convention.  As
already noted, two actuations of the President of indubitable transcendental
import overtook the deliberation of the constituent assembly, namely, the
issuance by him of Proclamation 1081 placing the Philippines
under martial law and his exercise, under said proclamation, of non-executive
powers, inclusive of general legislative authority.  As to be expected in a country, like the
Philippines, long accustomed to strict constitutionalism and the superiority of
civilian authority over the military, soon enough, these two actuations spawned
constitutional controversies of serious dimensions, so much so that several
cases involving them, including the instant ones, are now pending in the
Supreme Court.  Surely, the members of
the Convention were well aware of these developments.  In other words, the delegates in convention
assembled were living witnesses of the manner in which, for the first time in
our constitutional history, the martial law clause of the charter was being
actually implemented and they knew the grave constitutional issues such
implementation had provoked.

Indeed, no constituent assembly could have been better
circumstanced to formulate the fundamental law of the land.  The Convention had a full and first-hand view
of the controversial operation of the most important part of the charter it was
called to improve upon — its martial law clause.  Verily, no other aspect of the constitution
could have commanded more the most serious attention of the delegates.  They knew or ought to have known that the
placing of the country or any part thereof under martial law could possibly
affect the continued operation therein of the constitution or at least, the
enforceability of particular provisions thereof.  Therefore, if the Convention felt that what
was being done by the President as witnessed by them was not within the
contemplation of the existing fundamental law or that it was inconsistent with
the underlying principles of democracy and constitutionalism to which the
nation has been irrevocably committed since its birth and which were to remain
as the foundations of the new charter, the delegates would have considered it
to be their bounden duty to our people and to the future generations of
Filipinos, to manifest their conviction by providing appropriate safeguards
against any repetition thereof in the constitution they were drafting.  And so, when it is considered that as finally
approved, the New Constitution reproduces in exactly the same terms or verbatim
the martial law clause of the 1935 charter, the ineludible conclusion is that
our new constitutional fathers did not see anything repugnant to the concept of
the old constitution in what the President has done or was doing.  As We see it, this attitude of the Convention
constitutes an authoritative contemporary construction of the provision in
controversy, and considering that the President’s manner of implementing
martial law has been sanctioned by the people not only in the referendum of
January 10-15, 1973 but also in that of July 27-28, 1973, reliance on such
attitude in determining the meaning and intent of said provision cannot be out
of place.

In the light of these considerations, We do not see in the
transitory provision under discussion any idea of ratification or validation of
something void or unauthorized.  Rather,
what We perceive in it are revelations of what lay in the core of the martial
law clause of the 1935 Constitution as it was conceived and formulated by its
wise and farsighted framers.  It would be
unreasonable, illogical and unworthy of the 1971 delegates to impute to them an
intent to merely ratify, confirm or validate the President’s acts, on the
assumption that they were originally unauthorized by the charter, for that
would imply that they were concerned only about straightening out the present
situation, when it is just as important to insure that future acts of the
President are not tainted with illegality. 
We cannot entertain any thought that the delegates were not sufficiently
apprised on the implications of their acts. 
Indeed, the New Constitution has not imparted ex propio vigore
any element of validity to the acts in question, it has only expressed in black
and white what the Old Constitution did not deem necessary to lay down with
precision in respect to them.  Viewed
this way, what the transitory provision under discussion means is that both the
acts of the President before as well as those after ratification of the New
Constitution are valid ? not validated — and, as just stated, what reinforces
this construction and places the said acts beyond possible attacks for
unconstitutionality are the results of the two referendums of January and July,
1973.

Withal, having absolute faith in the high sense of duty and the
patriotic courage of the members of the Convention, We also reject the
suggestion that they were in any way impeded, under the circumstances then
obtaining, from freely expressing themselves. 
We cannot for a moment entertain the thought that any other Filipino can
ever have less courage and love of country and concern for the future of our
people than the members of this Court who are presently called upon to make
momentous decisions affecting no less than the legality and legitimacy of the
very Government admittedly in effective control of the whole territory of the
nation, regardless of possible personal consequences to themselves.

The fact of the matter is that Proclamation 1081 did not make
mention of the Convention at all.  On the
contrary, judicial notice may be taken of the increased funds appropriated by
the President so as to enable it to proceed with its deliberations, unbothered
by any apprehension regarding the inadequacy of the funds which the Congress
had appropriated for it, and which were then fast dwindling, without any certainty
of further congressional appropriations. 
Indeed, when Delegate Kalaw of the First District of Rizal proposed in a
formal resolution that the sessions be suspended until after the lifting of
martial law, the assembly voted overwhelmingly to turn down the proposal.  There is no evidence at all that any form of
undue pressure was brought to bear upon the delegates in any respect related to
their constituent functions.  It has not
been shown that the arrest and detention of a number of delegates, some of whom
are petitioners herein, was in any way connected with or caused by their
actuations related to their constituent functions.  What General Order No. 2 asserts is that the
President ordered the “Secretary of National Defense to forthwith arrest
or cause the arrest and take into custody the individuals named in the attached
list (among them, the said delegates) and to hold them until otherwise so
ordered by me or my duly designated representative” for their “being
active participants or for having given aid and comfort in the conspiracy to
seize political and state power in the country and to take over the Government
by force, the extent of which has now assumed the proportion of an actual war
against our people and our legitimate Government and in order to prevent them
from further committing acts that are inimical or injurious to our people, the
Government and our national interest, and to hold said individuals until
otherwise so ordered by me or by my duly designated representative.” Even
then, said delegates were allowed to cast their votes in the assembly when the
final draft was submitted for approval of the members of the Convention.  Thus, it can be safely asserted that the
freedom of the Convention to act and to perform whatever was incumbent upon it
as a constituent body suffered no substantial diminution or constraint on
account of the proclamation of martial law.

To reiterate then, Section 3 (2), Article XVII of the New
Constitution enjoins that “all proclamations, orders, decrees, instructions
and acts promulgated, issued or done by the incumbent President shall be part
of the law of the land and shall remain valid, legal, binding and effective
even after the lifting of martial law or the ratification of this Constitution,
unless modified, revoked, or superseded by subsequent proclamations, orders,
decrees, instructions or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular National
Assembly.” Notably, the provision does not only make all such
proclamations, orders, decrees, etc. “part of the law of the land”,
in which case, it would have been perhaps possible to argue, that they had just
been accorded the status of legislative enactments, ordinarily subject to possible
attack on constitutional grounds.  The
provision actually goes further.  It
expressly ordains that the proclamations, orders, etc. referred to should
“remain valid, legal, binding, and effective” . . . until revoked,
modified, repealed or superseded in the manners therein stipulated.  What is more, the provision refers to and
contemplates not only proclamations, orders, decrees, instructions and acts of
executive character, but even those essentially legislative, as may be gathered
from the nature of the proclamations, decrees, orders, etc. already existing at
the time of the approval of the draft constitution and of the acceptance
thereof by the people.  Accordingly, and
because there is no doubt that Proclamation 1081 and General Order No. 2,
herein challenged, are among the proclamations and orders contemplated in said
provision, the Court has no alternative but to hold, as it hereby holds, in
consonance with the authoritative construction by the Constitutional Convention
of the fundamental law of the land, that Proclamation 1081 of President Marcos
placing the Philippines under martial law as well as General Order No. 2,
pursuant to which petitioners are either in custody or restrained of their
freedoms “until otherwise so ordered by (the President) or (his) duly
designated representative” are valid, legal, binding and effective, and
consequently, the continued detention of petitioner Aquino as well as the
constraints on the freedoms of the other petitioners resulting from the
conditions under which they were released from custody are legal and
constitutional.  We feel We are confirmed
in this conclusion by the results of the referendum of July 27-28, 1973 in which 18,052,016 voters gave
their affirmative approval to the following question:

“Under the constitution the President, if he so desires, can
continue in office beyond 1973.

Do you want President Marcos to continue beyond 1973 and finish the
reforms he has initiated under Martial Law?”

We hasten to add, to avoid misunderstanding or confusion of
concepts, that it is not because of the fiat or force of the New Constitution
itself that the transitory provision is being relied upon for the purposes of
the instant petitions.  At this point,
and without prejudice to looking into the matter insofar as other issues and
other cases affecting martial law and the order issued under it are concerned,
all that We say is that the said provision constitutes an authoritative
contemporary construction of the martial law clause of the Constitution giving
light regarding the emergency powers that the Executive may exercise after its
proclamation.

— B —

But petitioner Diokno17 would dillute the force of this
conclusion by trying to find fault with the dispositive portion of the decision
of this Court in the Ratification Cases. 
He contends that actually, six justices rendered opinions expressly
holding that the New Constitution has not been validly ratified in accordance
with Article XV of the 1935 Constitution and that the said dispositive, portion
“is not consistent with their findings, which were also the findings of
the majority of the Court.” Otherwise stated, the position of petitioner
Diokno is that the decision in the Ratification Cases has no binding legal
force as regards the question of whether or not the New Constitution is indeed
in force and effect.  This is practically
an attempt to make the Court resolve the same points which counsels for the
petitioners in the Ratification Cases submitted to the Court on the last day
for the finality of the decision therein, but without asking for either the
reconsideration or modification thereof, because they merely wanted to record
for posterity their own construction of the judgment of the Court.18

Without in any way attempting to reopen the issues already
resolved by the Court in that decision, but for the sake of erasing any doubt
as to the true import of Our judgment therein, and in order that those who
would peruse the same may not be led astray by counsel’s misconstruction
thereof, the writer feels it is here opportune to say a few words relative to
petitioner’s observations, considering specially that Our discussion above is
predicated on the premise that the New Constitution is in full force and
effect.

To start with, it is evident that the phrase in question saying
that “there is no further judicial obstacle to the New Constitution being
considered in force and effect” was in actual fact approved specifically
by the members of the Court as the juridical result of their variant separate
opinions.  In fact, even those who dissented,
except Justice Zaldivar, accepted by their silence the accuracy of said
conclusion.19
Had any of the other justices, particularly, Chief Justice Makalintal and
Justice Castro felt that their joint opinion did not justify such a judgment
they would have certainly objected to its tenor, as Justice Zaldivar did.  (See footnote 11).  Surely, it is not for anyone to say now that
the Court misstated its judgment.

In the particular case of Counsels Tañada and Arroyo, while it is
true that on the last day for the finality of that decision, they filed a
“Constancia”, separately from the Manifestation to the same effect of
the other counsel, discussing extensively the alleged inconsistency between the
collective result of the opinions of the majority of the Court and the
dispositive portion of the judgment, like the other counsel, however, they did
not make any prayer for relief, stating that their only purpose is “to
save our people from being misled and confused, in order to place things in
their proper perspective, and in order to keep faith with the 1935 Constitution
. . . so that when history passes judgment upon the real worth and meaning of
the historic Resolution of this Honorable Court promulgated on March 31, 1973,
it may have all the facts before it,” for which reason, the majority of
the Court, over the dissent of Justices Zaldivar, Antonio, Esguerra and the
writer, did not consider it necessary to act, believing it was not exactly the
occasion to disabuse the minds of counsels about the judicial integrity of the
Court’s actuation embodied in the resolution. 
In a sense, therefore, said counsels should be deemed to be in estoppel
to raise the same points now as arguments for any affirmative relief, something
which they did not ask for when it was more appropriate to do so.

In the second place, laying aside the division of views among the
members of the Court on the question of whether or not there has been
compliance with the provisions of Article XV of the 1935 Constitution, the
vital and decisive fact is that the majority of the Court held that the
question of whether or not the New Constitution is already in force and effect
is a political question and the Court must perforce defer to the judgment of
the political departments of the government or of the people in that
respect.  It is true some of the Justices
could not find sufficient basis for determining whether or not the people have
accepted the New Constitution, but, on that point, four Justices, Justices
Makasiar, Antonio, Esguerra and the writer, did vote categorically in the
affirmative, while two Justices, then Chief Justice Concepcion and Justice
Zaldivar, voted in the negative.  And in
the joint opinion of now Chief Justice Makalintal and Justice Castro, it is
crystal clear that the reference therein to their inability to accurately
appraise the people’s verdict was merely casual, the thrust of their position
being that what is decisive is the President’s own attitude regarding the
situation, that is, whether he would take the report of the Katipunan ng mga
Barangay to the effect that the people have approved and ratified the New
Constitution as definitive and final or he would prefer to submit the new
charter to the same kind of election which used to be held for the ratification
of constitutional amendments, his decision either way not being subject to
judicial inquiry.  Stated differently,
our distinguished colleagues were of the view that whether or not the New
Constitution may be held to have been duly ratified pursuant to Article XV of
the 1935 Constitution and even their own negative conclusion in such respect,
have no bearing on the issue of the enforceability of the New Constitution on
the basis of its having been accepted by the people, and that although they
were not possessed of sufficient knowledge to determine this particular fact,
the President’s own finding thereon is conclusive upon the Court, since,
according to them, such a decision is political and outside the pale of
judicial review.  To quote their own
words:

“However, a finding that the ratification of the draft
Constitution by the Citizens Assemblies, as certified by the President in
Proclamation No. 1102, was not in accordance with the constitutional and
statutory procedure laid down for the purpose does not quite resolve the questions
raised in these cases.  Such a finding,
in our opinion, is not a matter which is essentially justiciable, that is,
within the power of this Court to inquire into. 
It imports nothing more than a simple reading and application of the
pertinent provisions of the 1935 Constitution, of the Election Code and of
other related laws and official acts.  No
question of wisdom or of policy is involved. 
But from this finding it does not necessarily follow that this Court may
justifiably declare that the Constitution has not become effective, and for
that reason give due course to these petitions or grant the writs herein prayed
for.  The effectivity of the Constitution
in the final analysis, is the basic and ultimate question posed by these cases,
to resolve which considerations other than judicial, and therefore beyond the
competence of this Court, are relevant and unavoidable.

xxx       xxx       xxx

“If indeed it be accepted that the Citizens Assemblies had
ratified the 1973 Constitution and that such ratification as well as the
establishment of the government thereunder formed part of a revolution, albeit
peaceful, then the issue of whether or not that Constitution has become
effective and, as a necessary corollary, whether or not the government
legitimately functions under it instead of under the 1935 Constitution, is
political and therefore non-judicial in nature. 
Under such a postulate what the people did in the Citizens Assemblies
should be taken as an exercise of the ultimate sovereign power.  If they had risen up in arms and by force
deposed the then existing government and set up a new government in its place,
there could not be the least doubt that their act would be political and not
subject to judicial review but only to the judgment of the same body politic
that is the people.  This concept of what
is a political act, in the context just set forth, is based on realities.  If a new government gains authority and
dominance through force, it can be effectively challenged only by a stronger
force; no judicial dictum can prevail against it.  We do not see that the situation would be any
different, as far as the doctrine of judicial review is concerned, if no force
had been resorted to and the people, in defiance of the existing Constitution
but peacefully because of the absence of any appreciable opposition, ordained a
new Constitution and succeeded in having the government operate under it.  Against such a reality there can be no
adequate judicial relief; and so courts forbear to take cognizance of the
question but leave it to be decided through political means.

xxx       xxx       xxx

“But then the President, pursuant to such recommendation, did
proclaim that the Constitution had been ratified and had come into effect.  The more relevant consideration, therefore,
as far as we can see, should be as to what the President had in mind in
convening the Citizens Assemblies, submitting the Constitution to them and
proclaiming that the favorable expression of their view was an act of
ratification. In this respect subjective factors, which defy judicial analysis
and adjudication, are necessarily involved.

“In positing the problem within an identifiable frame of
reference we find no need to consider whether or not the regime established by
President Marcos since he declared martial law and under which the new
Constitution was submitted to the Citizens Assemblies was a revolutionary
one.  The pivotal question is rather
whether or not the effectivity of the said Constitution by virtue of
Presidential Proclamation No. 1102, upon the recommendation of the Katipunan ng
mga Barangay, was intended to be definite and irrevocable, regardless of
non-compliance with the pertinent constitutional and statutory provisions
prescribing the procedure for ratification. 
We must confess that after considering all the available evidence and
all the relevant circumstances we have found no reasonably reliable answer to
the question.

xxx       xxx       xxx

“In the light of this seeming ambivalence, the choice of what
course of action to pursue belongs to the President.  We have earlier made reference to subjective
factors on which this Court, to our mind, is in no position to pass
judgment.  Among them is the President’s
own assessment of the will of the people as expressed through the Citizens
Assemblies and of the importance of the 1973 Constitution to the successful
implementation of the social and economic reforms he has started or
envisioned.  If he should decide that
there is no turning back, that what the people recommended through the Citizens
Assemblies, as they were reported to him, demanded that the action he took
pursuant thereto be final and irrevocable, then judicial review is out of the
question.

“In articulating our view that the procedure of ratification that
was followed was not in accordance with the 1935 Constitution and related
statutes, we have discharged our sworn duty as we conceive it to be.  The President should now perhaps decide, if
he has not already decided, whether adherence to such procedure is weighty
enough a consideration, if only to dispel any cloud of doubt that may now and
in the future shroud the nation’s Charter.

“In the deliberation of this Court one of the issues
formulated for resolution is whether or not the new Constitution, since its
submission to the Citizens Assemblies, has found acceptance among the people,
such issue being related to the political question theory propounded by the
respondents.  We have not tarried on the
point at all since we find no reliable basis on which to form a judgment.  Under a regime of martial law, with the free
expression of opinions through the usual media vehicles restricted, we have no
means of knowing, to the point of judicial certainty, whether the people have
accepted the Constitution.  In any event,
we do not find the issue decisive insofar as our vote in these cases is
concerned.  To interpret the Constitution
— that is judicial.  That the
Constitution should be deemed in effect because of popular acquiescence — that
is political, and therefore beyond the domain of judicial review.” (Javellana
vs. The Executive Secretary — 50 SCRA 161-162; 164; 166-167; 170-171)20

It only remains for the writer to reiterate here a few
considerations already touched in the separate opinions in the Ratification
Cases which in his considered view may well be taken into account by those who
would read again the judgment of the Court therein.

-1-

Having come to the conclusion that the question of whether or not
the New Constitution is legally in force and effect is political and outside
the domain of judicial review, it was not strange that the Court should simply
rule that there should be no further judicial obstacle to the enforcement of
the charter, should that be, as it appeared to be, the intent of those actually
in authority in the government.  It is
implicit in the political-question doctrine that the Court’s opinion as to the
correctness of the legal postures involved is of no moment, for the simple
reason that the remedy against any error therein lies either with the sovereign
people at the polls or with the political department concerned in the discharge
of its own responsibility under the fundamental law of the land, and not with
the Court.  Even if it were otherwise
desirable, if only for the benefit of those interested in the settlement of the
specific legal problem posed, any categorical ruling thereon would transcend
the bounds of judicial propriety.  For
the Court to hold it is without power to decide and in the same breath to
actually decide is an intolerable incongruity, hence any pronouncement or
holding made under the circumstances could have no more force that an obiter
dictum, no matter how rich in erudition and precedential support.  Consequently, to say that the New
Constitution may be considered by those in authority to be in force and effect
because such is the mandate expressed by the people in the form announced by
the President is but a proper manner of expressing the Court’s abstention from
wresting the power to decide from those in whom such prerogative is
constitutionally lodged.  This is neither
to dodge a constitutional duty nor to refrain from getting involved in a
controversy of transcendental implications — it is plain adherence to a
principle considered paramount in republican democracies wherein the
political-question doctrine is deeply imbedded as an inextricable part of the
rule of law.  It is an unpardonable
misconception of the doctrine for anyone to believe that for the Supreme Court
to bow to the perceptible or audible voice of the sovereign people in
appropriate instances is in any sense a departure from or a disregard of law as
applied to political situations, for the very rule that enjoins judicial
interference in political questions is no less a legal principle than any other
that can be conceived.  Indeed, just as,
in law, judicial decisions rendered within the ambit of the courts’ authority
deserve the respect of the people, by the same token, the people’s verdict on
what inherently is theirs to decide must be accorded due deference by the
judiciary.  Otherwise, judges would be
more powerful than the people by whom they have been given no more prerogative
than to act solely within the boundaries of the judicial sphere.  Withal, a court may err in finding that a
given situation calls for its abstention, in the same way it may commit
mistakes of judgment about any other matter it decides, still its decision,
conceding its honesty, cannot be faulted as an assault on the rule of law.  Thus, in a broad sense, it may be said that
it is a necessary corollary of the truth that the administration of justice in courts
presided by human beings cannot be perfect that even the honest mistake of a
judge is a law.

The writer further submits that, as pointed out in his separate
opinion in the Ratification Cases, those who vehemently insist that the
referendum of January 10-15, 1973 was not the kind of election contemplated in
Article XV of the 1935 Constitution seem to overlook that the said provision
refers only to the mode of ratifying amendments thereto and makes no mention at
all of how a new constitution designed to supersede it is to be submitted for
approval by the people.  Indeed, the
writer would readily agree, as was already made clear in the aforementioned
opinion, that if what were submitted to the people in the January, 1973
referendum had been merely an amendment or a bundle of amendments to the 1935
Constitution, the results thereof could not constitute a valid ratification
thereof.  But since it was a whole
integral charter that the Citizens’ Assemblies had before them in that
referendum, it is evident that the ratification clause invoked cannot be
controlling.

That a new constitution is not contemplated is indicated in the
text of the provision itself.  It
says:  “Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes
cast . . . .” How can it be ever conceived that the 1973 Constitution which is
an entire charter in itself, differing substantially in its entirety and
radically in most of its provisions, from the 1935 Constitution be part of the
latter?  In other words, the mode of
ratification prescribed in Article XV is only for amendments that can be made
part of the whole constitution, obviously not to an entire charter precisely
purported to supersede it.

And it is but logical that a constitution cannot and should not
attempt to bind future generations as to how they would do away with it in
favor of one suitable to their more recent needs and aspirations.  It is true that in Tolentino vs. Comelec,
41 SCRA 702, this Court, thru the writer, held that:

“In our discussion of the issue of jurisdiction, We have
already made it clear that the Convention came into being by a call of a joint
session of Congress pursuant to Section 1 of Article XV of the Constitution,
already quoted earlier in this opinion. 
We reiterate also that as to matters not related to its internal
operation and the performance of its assigned mission to propose amendments to
the Constitution, the Convention and its officers and members are all subject
to all the provisions of the existing Constitution.  Now, We hold that even as to its latter task
of proposing amendments to the Constitution, it is subject to the provisions of
Section 1 of Article XV.  This must be
so, because it is plain to Us that the framers of the Constitution took care
that the process of amending the same should not be undertaken with the same
ease and facility in changing an ordinary legislation.  Constitution making is the most valued power,
second to none, of the people in a constitutional democracy such as the one our
founding fathers have chosen for this nation, and which we of the succeeding
generations generally cherish.  And
because the Constitution affects the lives, fortunes, future and every other
conceivable aspect of the lives of all the people within the country and those
subject to its sovereignty, every degree of care is taken in preparing and
drafting it.  A constitution worthy of
the people for which it is intended must not be prepared in haste without
adequate deliberation and study.  It is
obvious that correspondingly, any amendment of the Constitution itself, must
perforce be conceived and prepared with as much care and deliberation.  From the very nature of things, the drafters
of an original constitution, as already observed earlier, operate without any
limitations, restraints or inhibitions save those that they may impose upon
themselves.  This is not necessarily true
of subsequent conventions called to amend the original constitution.  Generally, the framers of the latter see to
it that their handiwork is not lightly treated and as easily mutilated or
changed, not only for reasons purely personal but more importantly, because
written constitutions are supposed to be designed so as to last for some time,
if not for ages, or for, at least, so long as they can be adopted to the needs
and exigencies of the people, hence, they must be insulated against precipitate
and hasty actions motivated by more or less passing political moods or
fancies.  Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less
stringent, made so by the people themselves, in regard to the process of their
amendment.  And when such limitations or
conditions are so incorporated in the original constitution, it does not lie in
the delegates of any subsequent convention to claim that they may ignore and
disregard such conditions because they are as powerful and omnipotent as their
original counterparts.” (At Page 724-726)

But this passage should not be
understood, as it was not meant to be understood, to refer to the people’s
inalienable right to cast aside the whole constitution itself when they find it
to be in their best interests to do so. 
It was so indicated already in the resolution denying the motion for
reconsideration:

“This is not to say that the people may not, in the exercise
of their inherent revolutionary powers, amend the Constitution or promulgate an
entirely new one otherwise, but as long as any amendment is formulated and
submitted under the aegis of the present Charter, any proposal for such
amendment which is not in conformity with the letter, spirit and intent of the
provision of the Charter for effecting amendments cannot receive the sanction
of this Court.” (Resolution of Motion for Reconsideration, Tolentino vs.
Comelec, G.R. No. L-34150, February
4, 1971).

For it is rather absurd to think that in
approving a new fundamental law with which they would replace the existing one,
they have to adhere to the mandates of the latter, under pain of getting stuck
with it, should they fail.  One can
easily visualize how the evil forces which dominated the electoral process
during the old society would have gone into play in order to stifle the urge
for change, had the mode of ratification in the manner of past plebiscites been
the one observed in the submission of the New Constitution.  To reiterate what the writer said in the
Ratification Cases:

“Consider that in the present case
what is involved is not just an amendment of a particular provision of an
existing Constitution; here, it is, as I have discussed earlier above, an
entirely new Constitution that is being proposed.  This important circumstance makes a great
deal of difference.

No less than counsel Tolentino for herein
respondents Puyat and Roy, who was himself the petitioner in the case I have
just referred to, is now inviting Our attention to the exact language of
Article XV and suggesting that the said Article may be strictly applied to
proposed amendments but may hardly govern the ratification of a new
Constitution.  It is particularly
stressed that the Article specifically refers to nothing else but
“amendments to this Constitution” which if ratified “shall be
valid as part of this Constitution.” Indeed, how can a whole new
constitution be by any manner of reasoning an amendment to any other
constitution and how can it, if ratified, form part of such other constitution?
x x x

“It is not strange at all to think that the amending clause of
a constitution should be confined in its application only to proposed changes
in any part of the same constitution itself, for the very fact that a new
constitution is being adopted implies a general intent to put aside the whole
of the old one, and what would be really incongruous is the idea that in such
an eventuality, the new Constitution would subject its going into effect to any
provision of the constitution it is to supersede, to use the language precisely
of Section 6, Article XVII, the effectivity clause, of the New
Constitution.  My understanding is that
generally, constitutions are selfborn, they very rarely, if at all, come into
being, by virtue of any provision of another constitution.  This must be the reason why every
constitution has its own effectivity clause, so that if, the Constitutional
Convention had only anticipated the idea of the referendum and provided for
such a method to be used in the ratification of the New Constitution, I would
have had serious doubts as to whether Article XV could have had priority of
application.” (Javellana vs. The Executive Secretary — 50 SCRA 197-198).

Since in the withdrawal motion of petitioner Diokno, the whole
thrust of this posture relative to the alleged non-enforceability of the
Constitution of 1973 revolves around supposed non-compliance in its
ratification, with Article XV of the 1935 Charter, and inasmuch as it is
evident that the letter and intent of that invoked provision do not warrant, as
has just been explained, the application thereof to the New Constitution, for
the simple reason that the same is not in fact and in law as well as in form
and in intent a mere amendment to the Old Constitution, but an integrally new
charter which cannot conceivably be made just a part thereof, one cannot but
view said motion to withdraw as having been designed for no other purpose than
to serve as a vehicle for the ventilation of petitioner’s political rather than
legal outlook which deserves scant consideration in the determination of the
merits of the case at bar.

In any event, that a constitution need not be ratified in the
manner prescribed by its predecessor and that the possible invalidity or the
mode of its ratification does not affect its enforceability, as long as the
fact of its approval by the people or their acquiescence thereto is reasonably
shown, is amply demonstrated in the scholarly dissertation made by our learned
colleague, Mr. Justice Felix V. Makasiar, in his separate opinion in the
Ratification Cases, which carried the concurrence of Justices Antonio, Esguerra
and the writer.  And that what took place
in the Philippines in January, 1973 is not an unprecedented practice peculiar
to our country, is likewise plainly shown therein, since it appears that no
less than the Constitution of the United States of America, the nation whose
close adherence to constitutionalism petitioners would want the Filipinos to
emulate, was also ratified in a way not in conformity with the Articles of
Confederation and Perpetual Union, the Constitution which it replaced, and the
reason for it was only because those in authority felt that it was impossible to
secure ratification, if the amendment clause of the Articles were to be
observed, and so they resorted to extra-constitutional means to accomplish
their purpose of having a new constitution. 
Following is the pertinent portion of Mr. Justice Makasiar’s illuminating
disquisition based on actual historical facts rather than on theoretical and
philosophical hypotheses on which petitioners would seem to rely:

“The classic example of an illegal submission that did not
impair the validity of the ratification or adoption of a new Constitution is
the case of the Federal Constitution of the United
States. 
It should be recalled that the thirteen (13) original states of the
American Union — which succeeded in liberating themselves from England after
the revolution which began on April 19, 1775 with the skirmish at Lexington,
Massachusetts and ended with the surrender of General Cornwallis at Yorktown,
Virginia, on October 19, 1781 (Encyclopedia Brit., Vol. 1, 1933 Ed., p. 776) —
adopted their Articles of Confederation and Perpetual Union, that was written
from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II,
1966 Ed., p. 525).  About six years
thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal
Constitutional Convention “for the sole and express purpose of revising
the articles of confederation . . .” (Appendix I, The Federalist,
Modern Library ed., p. 577, italics supplied).

“The Convention convened at Philadelphia
on May 14, 1787.  Article XIII of the Articles of Confederation
and Perpetual Union stated specifically:

‘The articles of this confederation shall
be inviolably observed by every state, and the union shall be perpetual; nor shall
any alteration at any time hereafter be made in any of them; unless such
alteration be agreed to in a congress of the united states, and be afterwards
confirmed by the legislatures of every state.’ (See the Federalist,
Appendix II, Modern Library Ed., 1937, p. 584; italics supplied).

But the foregoing requirements prescribed by the Articles of
Confederation and Perpetual Union for the alteration and for the ratification
of the Federal Constitution as drafted by the Philadelphia Convention were not
followed.  Fearful that the said Federal
Constitution would not be ratified by the state legislatures as prescribed, the
Philadelphia Convention adopted a resolution requesting the Congress of the
Confederation to pass a resolution providing that the Federal Constitution
should be submitted to elected state conventions and if ratified by the
conventions in nine (9) states, not necessarily in all thirteen (13) states,
the said Constitution shall take effect.

Thus, history Professor Edward Earle Mead of Princeton
University recorded that:

‘It would have been a counsel of perfection to consign the new
Constitution to the tender mercies of the legislatures of each and all of the
13 states.  Experience clearly indicated
that ratification would have had the same chance as the scriptural camel
passing thru the eye of a needle.  It
was therefore determined to recommend to Congress that the new Constitution be
submitted to conventions in the several states specially elected to pass it and
when it should be ratified by nine of the thirteen states . . .’ (The
Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp.
viii-ix, italics supplied).

Historian Samuel Eliot Morison similarly recounted:

‘The Convention, anticipating that the influence of many state
politicians would be Antifederalist, provided for ratification of the
Constitution by popularly elected conventions in each state.  Suspecting that Rhode
Island, at least, would prove recalcitrant, it
declared that the Constitution would go into effect as soon as nine states
ratified.  The convention method had the
further advantage that judges, ministers, and others ineligible to state
legislatures, could be elected to a convention. 
The nine-state provision was, of course, mildly revolutionary.  But the Congress of the Confederation, still
sitting in New York to carry on
federal government until relieved, formally submitted the new constitution to
the states and politely faded out before the first presidential inauguration.’
(The Oxford History of the Am.
People by Samuel Eliot Morison, 1965 ed., p. 312).

And so the American Constitution was ratified by nine (9) states on
June 21, 1788 and by the last four states on May 29, 1790 (12 C.J. p. 679
footnote, 16 C.J.S. 27 — by the state conventions and not by all thirteen (13
state legislatures as required by Article XIII of the Articles of Confederation
and Perpetual Union aforequoted — and in spite of the fact that the Federal
Constitution as originally adopted suffers from two basic infirmities,
namely, the absence of a bill of rights and of a provision affirming the power
of judicial review.

The liberties of the American people were guaranteed by the
subsequent amendments to the Federal Constitution.  The doctrine of judicial review has become
part of American constitutional law only by virtue of a judicial pronouncement
by Chief Justice Marshall in the case of Marbury vs. Madison (1803, 1
Cranch 137).

Until this date, no challenge has been launched against the
validity of the ratification of the American Constitution, nor against the legitimacy
of the government organized and functioning thereunder.

In the 1946 case of Wheeler vs. Board of Trustees (37 SE 2nd
322,  326-330), which enunciated the
principle that the validity of a new or revised Constitution does not depend on
the method of its submission or ratification by the people, but on the fact
of fiat or approval or adoption or acquiescence by the people, which fact of
ratification or adoption or acquiescence is all that is essential, the
Court cited precisely the case of the irregular revision and ratification by
state conventions of the Federal Constitution, thus:

‘No case identical in its facts with the case now under
consideration has been called to our attention, and we have found none, We
think that the principle which we apply in the instant case was very clearly
applied in the creation of the constitution of the United
States. 
The convention created by a resolution of Congress had authority to do
one thing, and one only, to wit, amend the articles of confederation.  This they did not do, but submitted to the
sovereign power, the people, a new constitution.  In this manner was the constitution of the
United States submitted to the people and it became operative as the organic
law of this nation when it had been properly adopted by the people.’

‘Pomeroy’s Constitutional Law, p. 55, discussing the convention
that formulated the constitution of the United States, has this to say:  “The convention proceeded to do, and did
accomplish, what they were not authorized to do by a resolution of Congress
that called them together.  That
resolution plainly contemplated amendments to the articles of confederation, to
be submitted to and passed by the Congress, and afterwards ratified by all the
state legislatures, in the manner pointed out by the existing organic law.  But the convention soon became convinced that
any amendments were powerless to effect a cure; that the disease was too deeply
seated to be reached by such tentative means. 
They saw that the system they were called to improve must be totally
abandoned, and that the national idea must be re-established at the center of
their political society.  It was objected
by some members, that they had no power, no authority, to construct a new
government.  They had no authority, if
their decisions were to be final; and no authority whatever, under the articles
of confederation, to adopt the course they did. 
But they knew that their labors were only to be suggestions: and that
they as well as any private individuals, and any private individuals as well as
they, had a right to propose a plan of government to the people for their
adoption.  They were, in fact, a mere
assemblage of private citizens, and their work had no more binding sanction,
than a constitution drafted by Mr. Hamilton in his office would have had.  The people, by their expressed will,
transformed this suggestion, this proposal, into an organic law, and the people
might have done the same with a constitution submitted to them by a single citizen.’

x x x                 x x x                 x x x

‘x x x When the people adopt a completely revised or new
Constitution, the framing or submission of the instrument is not what gives it
binding force and effect.  The fiat of
the people, and only the fiat of the people, can breathe life into a
constitution.

‘x x x We do not hesitate to say that a court is never justified
in placing by implication a limitation upon the sovereign.  This would be an unauthorized exercise of
sovereign power by the court. (In State vs. Swift, 69 Ind. 505, 519,
the Indiana Supreme Court said:  ‘The
people of a State may form an original constitution, or abrogate an old one and
form a new one, at any time, without any political restriction except the
constitution of the United States; . . .’ (37 SE 327-328, 329, italics
supplied.)

In the 1903 case of Weston vs. Ryan, the Court held:

‘It remains to be said that if we felt at liberty to pass
upon this question, and were compelled to hold that the act of February 23,
1887, is unconstitutional and void, it would not, in our opinion, by any
means follow that the amendment is not a part of our state Constitution.  In the recent case of Taylor vs.
Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia held that
their state Constitution of 1902, having been acknowledged and accepted by the
officers administering the state government, and by the people, and being in
force without opposition, must be regarded as an existing Constitution,
irrespective of the question as to whether or not the convention which
promulgated it had authority so to do without submitting it to a vote of the
people.  In Brittle vs. People,
2 Neb. 198, is a similar holding as to certain provisions of the Nebraska
Constitution of 1886, which were added by the Legislature at the requirement of
Congress, though never submitted to the people for their approval.’ (97 NW 349-350;
italics supplied).

Against the decision in the Wheeler case, supra, confirming the
validity of the ratification and adoption of the American Constitution, in
spite of the fact that such ratification was a clear violation of the
prescription on alteration and ratification of the Articles of Confederation
and Perpetual Union, petitioners in G.R. No. L-36165 dismissed this most
significant historical fact by calling the Federal Constitution of the United
States as a revolutionary one, invoking the opinion expressed in Vol. 16,
Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because
it did not obey the requirement that the Articles of Confederation and
Perpetual Union can be amended only with the consent of all thirteen (13) state
legislatures.  This opinion does not cite
any decided case, but merely refers of the footnotes on the brief historical
account of the United States Constitution on p. 679 of Vol. 12, CJS.  Petitioners, on p. 18 of their main Notes,
refer US to pp. 270-316 of the Oxford History of the American People, 1965
Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and
Perpetual Union in Chapter XVIII captioned `Revolutionary Constitution Making,
1775 1781′ (pp. 270-281).  In Chapter XX
on ‘The Creative Period in Politics, 1785-1788,’ Professor Morison delineates
the genesis of the Federal Constitution, but does not refer to it even
implicitly as a revolutionary constitution (pp. 297-316).  However, the Federal Constitution may be
considered revolutionary from the view point of McIver if the term revolution
is understood in ‘its WIDER sense to embrace decisive changes in the
character of government, even though they do not involve the violent
overthrow of an established order, xx.’ (R.M. Maclver, The Web of Government,
1965 ed., p. 203).

It is rather ridiculous to refer to the American Constitution as a
revolutionary constitution.  The Articles
of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged as it
was during the war of independence was a revolutionary constitution of the
thirteen (13) states.  In the existing
Federal Constitution of the United States which was adopted seven (7) or nine (9)
years after the thirteen (13) states won their independence and long after
popular support for the government of the Confederation had stabilized was not
a product of a revolution.  The Federal
Constitution was a ‘creation of the brain and purpose of man’ in an era of
peace.  It can only be considered
revolutionary in the sense that it is a radical departure from its predecessor,
the Articles of Confederation and Perpetual Union.

It is equally absurd to affirm that the present Federal
Constitution of the United States
is not the successor to the Articles of Confederation and Perpetual Union.  The fallacy of the statement is so obvious
that no further refutation is needed.” (50 SCRA 209-215).

Moreover, whether a proposal submitted to the people is just an
amendment to an existing constitution within the contemplation of its amendment
clause or is a new charter not comprehended by its language may not be
determined solely by the simple processes of analysis of and comparison between
the contents of one and the other.  Very
much depends on what the constituent assembly, reflecting its understanding of
the desire of the people it represents, actually intends its handiwork to be,
as such intent may be duduced from the face of the document itself.  For the truth is that whatever changes in
form and in substance a constitution may undergo, as long as the same
political, social and economic ideologies as before continue to be the
motivation behind such changes, the result can never be, in a strict sense, a
new constitution at all.  Indeed, in such
circumstance, any alteration or modification of any provision of a
constitution, no matter how extensive, can always be traced as founded on its
own bedrock, thereby proving identity. 
It is therefore the expressed desire of the makers of the charter that
is decisive.  And that is why the New
Constitution has its own effectivity clause which makes no reference howsoever
to Article XV of the past charter.21

Now, how the founding fathers of America must have regarded the
difference between a constitutional amendment, on the one hand, and a new
Constitution, on the other, when they found the Articles of Confederation and
Perpetual Union no longer adequate for the full development of their nation, as
can be deduced from the historical account above, is at least one case in point
— they exercised their right to ratify their new fundamental law in the most
feasible manner, without regard to any constitutional constraints.  And yet, it is the constitution that is reputed
to have stood all tests and was, in fact, the model of many national
constitutions, including our own of 1935, if it cannot be accurately regarded
also as the model of the present one.

With the foregoing considerations in mind, it can be readily seen
how pointless it is to contend, as petitioner Diokno does in his motion to
withdraw, that what he deems as the failure of the January, 1973 referendum to
conform with the requirements of Article XV of the 1935 Constitution detracts
from the enforceability of the New Constitution, in the light of the
President’s assertion contained in Proclamation 1102 that it has been approved
and ratified by the people, coupled with his evident firm and irreversible
resolution to consider it to have been, indeed, duly ratified, and in the face
of the indisputable fact that the whole government effectively in control of
the entire Philippine territory has been operating under it without any visible
resistance on the part any significant sector of the populace.  To allude to the filing of the petitions in
the Plebiscite and the Ratification Cases and the occasional appearances in
some public places of some underground propaganda which, anyway, has not cut
any perceptible impression anywhere, as indicative or evidence of opposition by
the people to the New Constitution would be, to use a commonplace but apt
expression, to mistake the trees for the forest.

It is thus abundantly clear that the passionate and tenacious ratiocination
in petitioner Diokno’s withdrawal motion tending to assail the cogency of our
opinions and their consistency with the judgment in the Ratification Cases, to
the extent of using terms that could signify doubt in the good faith and
intellectual integrity of some members of the Court and of trying to embarrass
the Court itself before the bar of history, does not in fact have any plausible
basis whatsoever.

C O N C L U S I O N

The instant cases are unique. 
To Our knowledge never before has any national tribunal of the highest
authority been called upon to pass on the validity of a martial law order of
the Executive issued in the face of actual or imminent danger of a rebellion —
threatening the very existence of the nation. 
The petitions herein treat of no more than the deprivation of liberty of
the petitioners, but in reality what is involved here is the legitimacy of the
government itself.  No Supreme Court of
any other country in the world, We reiterate, has even been confronted with
such a transcendental issue.

This is, therefore, a decision that affects not the petitioners
alone, but the whole country and all our people.  For this reason, We have endeavored to the
best of our ability to look at all the issues from every conceivable point of
view.  We have gone over all the
jurisprudence cited by the parties, the writings of learned and knowledgeable
authorities they have quoted and whatever We could avail of by Ourselves.  We trust We have not misunderstood any of the
contentions of the parties and their able and learned counsels and that We have
not overlooked any authority relevant to them.  And We must say We perceive no cause to
downgrade their love of and loyalty to our common motherland even if
differences there are between our convictions as to how to earlier attain the
national destiny.  Indeed, We have not
considered as really persuasive any insinuations of motivations born of
political partisanship and personal ambitions.

We do not mean to belittle or depreciate foreign jurisprudence,
but We have deliberately refrained from relying on alien opinions, judicial or
otherwise, in order to stress that the Filipinos can solve their own problems
with their own resources intellectual or otherwise.  Anyway, We doubt if there is enough relevant
parallelism between occurrences in other countries passed upon by the courts
with what is happening here today.

Principally, by this decision, We hold that the power to proclaim
martial law is lodged by the Constitution exclusively in the Executive, but the
grant of judicial power to the Supreme Court also by the Constitution is
plenary and total and, therefore, when it is a matter of judicial notice,
because it is commonly known by the general public or is capable of
unquestionable demonstration, that any particular declaration of martial law is
devoid of any of the constitutionally required bases, the Court has the full
authority and it would not hesitate to strike down any such improvident
proclamation and to adjudge that the legitimate government continue without the
offending Executive, who shall be replaced in accordance with the rules of
succession provided in the existing Constitution and laws.  In the cases at bar, however, the Court, with
the abstention of only one member who has preferred not to emit any opinion on
the issue at this time, holds that the President had good and sufficient
grounds in issuing Proclamation 1081, whether the same is examined in the light
of its own recitals, as some Justices advocate, or of facts of judicial notice
together with those undisputed in the record, in the manner the rest of Us have
actually tested it.  We further hold that
in restraining the liberties of petitioners, the President has not overstepped
the boundaries fixed by the Constitution.

For doctrinal purposes, it is best to add to all the foregoing
that a judicial challenge against the imposition of martial law by the
Executive in the midst of the actualities of a real assault against the
territorial integrity and life of the nation, inevitably calls for the
reconciliation, which We feel We have been able to effectuate here, of two
extremes in the allocation of powers under the Constitution — the resort by the
Executive to the ultimate weapon with which the fundamental law allows him to
defend the state against factual invasion or rebellion threatening the public
safety, on the one hand, and the assertion by the Supreme Court of the
irreducible plenitude of its judicial authority, on the other.  No other conflict of prerogatives of such
total dimensions can conceivably arise from the operation of any other two
parts of the charter.  This decision then
could well be sui generis, hence, whatever has been said here
would not necessarily govern questions related to adverse claims of authority
related to the lower levels of the hierarchy of powers in the Constitution.

We humbly submit this decision to the judgment of all our people,
to history and to the generations of Filipinos still unborn, confident that it
carries all that We know and all that We are. 
As We do this, We are fully aware that in this critical stage of our life
as a nation, our overriding need is unity. 
It is Our fervent hope that by this decision, We have duly performed Our
constitutionally assigned part in the great effort to reduce if not to
eliminate the remaining fundamental causes of internecine strife.

May Divine Providence continue to always keep the Philippines
in the right paths of democracy, freedom and justice for all!

J U D G M E N T

WHEREFORE, the petitions in all the above-entitled cases
are dismissed.  No costs.

A D D E N D U M

The following are my reasons for voting in favor of granting the
motion to withdraw:

It is elementary that the remedy of habeas corpus exists
only against involuntary confinement. 
The moment, therefore, that after initially questioning the legality of
his detention, the petitioner seeks withdrawal of his petition at any stage of
the case before judgment, his detention becomes in law automatically, by his
own act, voluntary or with his express consent, hence, the reason for further
inquiry into the circumstances thereof ceases completely, and the court’s duty
to proceed further and render judgment comes to an end.  By allowing the withdrawal, no interest of
justice would be prejudiced, no juridical harm needing redress could be caused
to anyone.  Accordingly, the petitioner’s
motive for his withdrawal, whether expressed or unarticulated, are absolutely
immaterial, albeit, in the case at bar, petitioner himself suggests that, while
acceding to his request, the members of the Court may express their views
thereon.  (Sur-Rejoinder dated May 21,
1974, p. 3).

In the mind of the writer, the grounds alleged by petitioner
Diokno and his counsel have an apparent tendency to offend the dignity of the
Court and to undermine the respect and faith of the people in its capacity to
administer justice.  What is worse, they
may be false and baseless, as they are emotional and personal.  Unless properly explained, they give the
impression that movant is impeaching the integrity and good faith of some
members of the Court.  In the premises,
said petitioner and counsel could be required to show cause why they should not
be held in contempt of the Court, but there being no formal charge to such
effect in the instant proceedings, and in order not to confuse the discussion
and resolution of the transcendental issues herein, it is preferable, and the
Court has opted, to take up the matter of the possible responsibility for
contempt separately, either motu propio or upon the initiative of
whoever may allege to be aggrieved thereby. 
For the present, it has to be stated, however, that under no circumstances
may any party or counsel vent his personal feelings and emotions in any
pleading or paper filed with the Court, particularly while his case is pending
therein.  Personalities that are directed
towards the occupants of the judicial office naturally mar the legal issues
before them, correspondingly making more difficult their proper and impartial
resolution.  Even if the judges concerned
are actually, as they are supposed to be, unmoved by them, still there can be
no assurance that the litigants and the public in general will be convinced of
their absolute impartiality in their subsequent actuations, and to that extent,
the interests of justice are bound to suffer. 
It is but in keeping with the highest traditions of the judiciary that
such improprieties are not allowed to pass unnoticed and are dealt with by the
court either motu propio or upon corresponding complaint, whether in and
independent proceeding or as an incident within the pending case.  No court worthy of its position should
tolerate them.

But assaults upon the dignity and integrity of the court, are one
thing, and the issues of the case at hand are another.  Regardless of what the judge thinks is the
belief of those concerned about the motivations of the court’s subsequent
resolution of the issues, unless he inhibits himself from further acting in the
case, circumstances permitting, it is his inescapable duty to render judgment,
taking care, of course, that he remains, in fact, objective and impartial.  It is, therefore, of no moment, for the
purposes of disposing of petitioner Diokno’s motion to withdraw, whether or not
the charges leveled by him and his counsel against the Court or any of its
members are founded or unfounded and whether or not the same constitute
actionable misconduct on their part, as participants in the case before Us
and/or as members of the Bar and officers of the Court.  Any possible action for such probable
misconduct has no bearing on the question of whether or not, observing the
usual rules and practices, the Court should dismiss his main petition, the
alleged illegality of his detention having been duly cured by his voluntary
submission thereto.

All these is not to say that I have not given thought to the
imperative necessity of resolving the issues of public interest raised in
petitioner Diokno’s petition.  I can also
see that it is important to the Government that he does not escape the legal
effect of the decision in these cases. 
But if these are the main reasons for denying his motion to withdraw, I
believe that the Government’s apprehensions are rather unfounded.  While I would not say that by his withdrawal,
petitioner impliedly admits the correctness of the stand of the Government,
what with the avalanche of protests against alleged injustice and supposed
legal errors running through his pleadings, I am of the considered view that in
law, he cannot correctly pretend that the rulings of the Court in the other
cases herein in respect to the issues therein that are common with those of his
petition are not binding on him at least by precedential force.  And inasmuch as in the cases not withdrawn,
all the issues of public interest raised in his case will have to be resolved,
I do not see any purpose in insisting that he should remain a petitioner when
he refuses, as a matter of conscience, to await the unfavorable verdict he
foresees in his own case, which he himself anticipates will not set him free
anyway.  Of course, he protests that
nothing he can say can convince the Court, and, on the other hand, perhaps, the
most technically accurate and palpably just decision the court may fashion will
not convince him, but it has to be a strange court that will yield to a
litigant’s point of view just because he sincerely feels he is right, whereas
it is not unusual for a litigant to pretend not to see the correctness and
justice of the court’s judgment unfavorable to his interests.

---

(a)
50 SCRA 30.

^[1]
The Court took no action on the prohibition aspect of G.R. No. L-35540 and
later of G.R. No. L-35573.  Anyway, with
the outcome of the habeas corpus petitions and in the light of the
grounds of this decision, it would be academic to prosecute the same further.

^[2]
Petitioner died at ABM Sison
Hospital on March 2, 1973 of causes unrelated to his
detention.

^[3]
Actually there are only 28 petitioners, as 4 of them appear to have filed
double petitions.

^[4]
Excluding Enrique Voltaire Garcia II who, as mentioned earlier, had died.

^[5]
The writer’s reasons in favor of granting the motion to withdraw are discussed in
the addendum to this decision.  Since the
Court as a body has denied said motion, petitioner Diokno’s case has to be
resolved on its merits.  Accordingly, a
discussion of some of the grounds alleged in the said motion which may have a
bearing in one way of another with the fundamental issues herein involved is in
order.  In view, however, of the release
of Senator Diokno on September 11 1974,
the Court has decided to dismiss his petition for being moot and academic.  But this development does not necessarily
render the discussion of his contentions irrelevant because they can also
support the cases of the other petitioner, hence it seems better to retain said
discussion in this opinion.

^[6]
At best, such a pose could be true only as regards his arrest and detention up
to January 17, 1973, but
not with respect to his continued detention after the New Constitution became
effective.

6a
Villavicencio vs. Lukban, 39
Phil. 778, at p. 790.

7
It is a matter of contemporary history that in a unanimous decision promulgated
on January 8, 1973, in the
case of Sergio Osmena, Jr. vs. Ferdinand E. Marcos, the Presidential
Electoral Tribunal upheld the election of President Marcos in November, 1969
and dismissed the protest of Osmena, ruling as follows:

“In the light of the foregoing, We
are of the opinion and so hold that the result of the revision and appreciation
of the ballots in the pilot provinces, congressional districts and cities
designated by the Protestant as best exemplifying the rampant terrorism and
massive vote-buying, as well as the fraud and other irregularities allegedly
committed by the Protestee, has shown, beyond doubt, that the latter had
obtained a very substantial plurality and/or majority of votes over the
former, regardless of whether We consider that the Protest is limited to the
elections in the provinces, congressional districts and cities specified in
paragraph VIII of the Protest, or includes, also, the result of the elections
in the provinces and municipalities mentioned in paragraph VII of the Protest,
or even if the average reductions suffered by both parties in said pilot
provinces, congressional districts and cities were applied to the entire
Philippines; that it is unnecessary, therefore, to continue the present
proceedings and revise the ballots cast in the provinces and cities specified
in paragraph VIII of the Protest — much less those named in paragraph VII
thereof —other than the pilot provinces and congressional districts designated
by the Protestant, as above-stated; that neither would it serve any useful
purpose to revise the ballots cast in the provinces and cities
counter-protested by the Protestee herein; that, in filing his certificate of
candidacy – for Mayor of Cebu City, in the general elections held in 1971, and
particularly, in assuming said office on January 1, 1972, (as attested to by
his oath of office, copy of which is appended to this decision as Annex H)
after his proclamation as the candidate elected to said office, the Protestant
had abandoned his Protest herein:  that the
Protestant has failed to make out his case; that the Protestee has obtained the
plurality and majority of the votes cast for the office of the President of the
Philippines, in the general elections held in 1969; and that, accordingly, he
was duly elected to said office in the aforementioned elections and properly
proclaimed as such.”

8 Excluding week-end suspension of sessions..

*
See footnote on page 143.

9 Unless expressly stated otherwise, all references to
the Constitution in this discussion are to both the 1935 and 1973 charters,
since, after all the pertinent provisions are practically identical in both.

10 See provisions of both the Old and the New
Constitution infra, quoted on page 103.

The term Executive is used to have a
common reference to the President under the Old Constitution and to the Prime
Minister under the new one.

11 Art. III, see. 1, Old (1935) Constitution Art. IV,
sec. 1, New (1973) Constitution.

12 Art. II, sec. 14. 
In the Nes Constitution, the corresponding provision reads as follows:

“The privilege of the writ
of habeas corpus shall not be suspended except in cases of invasion,
insurrection, rebellion, or imminent danger thereof, when the public safety
requires it.” (Art. IV, sec. 15.)

13 Barcelon vs. Baker, 5 Phil. 87; Severino vs.
Governor-General, 16 Phil. 366; Abueva vs. Wood, 45 Phil. 612;
Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil.
192; Mabanag vs. Lopez Vito, 78 Phil. 1; Cabili vs. Francisco, 88
Phil. 654; Montenegro vs. Castaneda, 91 Phil. 882; Santos vs.
Yatco, 55 O.G. 8641 (Minute Resolution of Nov. 6, 1959); Osmeña vs.
Pendatun, Oct. 28, 1960.

14 Duncan vs.
Kahanamoku and White vs. Steer, 
327 U.S.
304-358.

15 Aytona vs. Castillo, 4 SCRA 1.

16 In the referendum of January 10-15, 1973, the people expressed themselves
against the holding of elections and the immediate convening of the
legislature.  This was virtually
reaffirmed in the referemdum of July
27-28, 1973.

17 It is interesting to note that the other
petitioners have not discussed this issue and do not seemingly join him in his
pose.

18 Which may not be surprising, considering that
Counsel Tañada of petitioner Diokno who signed the motion to withdraw was one
of the leading counsels of the petitioners in the Ratification Cases.

19 In G.R. No. L-36142, Javellana vs. Executive
Secretary and the other Ratification Cases, the writer, joined by Justices
Antonio and Esguerra, was of the view that before allowing the entry of final
judgment and despite the absence of any prayer for relief in the Constancia and
Manifestation mentioned above, it was best for the Court to correct the
representation of counsel regarding the true juridical import of the decision,
but the majority were of the opinion that misconstructions by the interested
parties of the judgment of the Court cannot alter the effect thereof intended
by the Court and evident in its dispositive portion.  The writer was afraid that future occasions
might arise, as it has happened now, when Our silence may be taken advantage
of, even for the sake of propaganda alone. 
On the other hand, Justice Zaldivar stated that “I find merit in
the ‘Constancia’ and manifestation of counsel for the petitioners where they
assert that the sentence.  ‘This being
the vote of the majority, there is no further judicial obstacle to the New
Constitution being considered in force and effect in the dispositive portion of
the resolution is not warranted . . .” and that “This last sentence
of the dispositive portion of the resolution should have been deleted.”

20 The above exposition of the joint opinion is made
in order to explain why the rest of the members of the Court (except Justice
Zaldivar) evidently felt that the view thus expressed by Chief Justice
Makalintal and Justice Castro justified not only the judgment of dismissal but
also the statement that “there is no more judicial obstacle to the New
Constitution being considered in force and effect.”

21 Section 16 of Article XVII of the 1973 Constitution
provides:  “This Constitution shall
take effect immediately upon its ratification by a majority of the votes cast
in a plebiscite called for the purpose and, except as herein provided, shall
supersede the Constitution of nineteen hundred and thirty-five and all
amendments thereto.” Even this expressed desire of the Convention was
disregarded by the people, and it is difficult to see what valid principle
there is that can curtail them from exercising their ultimate sovereign
authority in the manner they deem best under the circumstances.

---

150
Clean
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