JOSE W. DIOKNO, BENIGNO S. AQUINO, JR., AND LORENZO M. TAÑADA, PETITIONERS, VS. JUAN PONCE ENRILE, IN HIS CAPACITY AS SECRETARY OF NATIONAL DEFENSE, AND RAFAEL G. ZAGALA, IN HIS…

It is primarily the constitutional right to counsel,^[1]
as reinforced by statute^[2]
on which this mandamus proceeding is based, the crucial allegation being
that petitioner Lorenzo M. Tañada, a highly-respected member of the Philippine
Bar and former Senator as counsel, was denied the right “to visit and
confer”^[3]
with his clients, the other petitioners, Jose W. Diokno and Benigno S. Aquino,
Jr., then both under detention. His efforts
to do so failed notwithstanding the request made to respondent Brigadier
General Rafael G. Zagala, then the Commanding Officer in Fort Bonifacio, and as
such “having custody of petitioners Diokno and Aquino.”^[4]
In accordance with the suggestion coming from such respondent, petitioner
Tañada, “wrote a letter addressed to respondent Juan Ponce Enrile, in his
capa­city as Secretary of National Defense, reiterating to him the previous
requests addressed to respondent Zagala and asking for final word from him. It was also requested that should petitioner
Tañada be allowed to visit and confer with petitioners Diokno and Aquino,
petitioner Tañada be permitted to confer with them in ‘private without the
presence of any officer from the Armed Forces of the Philippines or any third
person for that matter, and without any listening devices or similar
instruments.’ It was made clear in that letter that ‘the presence of these
nullifies the confi­dential nature of consultations between lawyer and client,
as it would prevent them from fully communicating with each other.'”^[5]
Again such request “to visit and confer with petitioners Diokno and Aquino
was denied. The reason proffered was
that ‘it is the considered view of this Office and of the Armed Forces
authorities that it would be to the best interests of everyone concerned if
contacts, such as the one you are requesting for, are minimized pending final
disposition of their cases.’ “^[6]
Hence this petition for mandamus.

As could be expected, there was in the answer a reiteration of
the stand of then Secretary Ponce Enrile. There was in addition, as an annex to such answer, a true copy of
General Order No. 16 ordering “the Secretary of National Defense, in his
capacity as Chairman of the Executive Committee of the National Security
Council, to immediately organize by utilizing the Armed Forces of the
Philippines as the nucleus of the structure, a national command that shall be
responsible for the administration of detainees from the time of their arrest
to the final disposition of their cases, and in the prosecution thereof, the
Secretary of National Defense is hereby authorized to utilize the existing
facilities and resources of the government and to promulgate rules and
regulations pertaining thereto.”^[7]
After which came this paragraph in the answer: “Pursuant to and in
implementation of General Order No. 16, the Secretary of National Defense has
promul­gated rules and regulations for the orderly administration of persons
arrested and detained under Proclamation No. 1081 and general orders. Among such rules and regulations is that
limiting visits of detainees to the immediate members of their families. Visits by people other than the immediate
members of the families of detainees, especially those held to protect the national
security, have to be approved by the Secretary of National Defense.”^[8]
It was then submitted that the denial of counsel’s request to visit his
clients, the other petitioners, “is in accord with General Order No. 16
and the above quoted implementing rule and regulation.”^[9]

The case was then heard and, with the submission of memoranda,
submitted for decision. In the
deliberations that followed, the Court clearly was of one mind, some members
stressing that at no time is the right to counsel more important than during
emergency periods where either the privilege of the writ of habeas corpus is
suspended or martial law declared. For
manifestly, it is of the essence to avoid possible injustice, the power of
preventive detention being recognized, to leave unimpeded the opportunity for a
detained person consult counsel so that he could be informed as to his legal
rights under the circumstances. There
was, however, equally a recognition that rules and regulations, if reasonable
in character and not arbitrary, may be issued by then respondent Secretary,
acting for the President, as long as they did not render nugatory the right to
counsel, neces­sarily implicit in which, is the need for confidentially and
secrecy.

With the release, however, on September 11, 1974 of petitioner
Jose W. Diokno^[10]
with petitioner Benigno S. Aquino, Jr. after being released from custody on May
8, 1980 to enable him to proceed to the Baylor Medical Center in Dallas, Texas
for medical treatment and his continued stay abroad resulting in a petition for
habeas corpus filed on his behalf by his mother being dismissed for being moot
and academic,^[11]
it becomes quite apparent why there is no need to rule on the constitutional
question raised.

WHEREFORE, this petition for mandamus is dismissed
for being moot and academic.

Makasiar, Aquino, Fernandez, De Castro, Melencio-Herrera,
Ericta, Plana, and Escolin, JJ., concur.

Barredo and Concepcion,
Jr., JJ., on leave.

Teehankee, Guerrero, and
Abad Santos, JJ., no part.

^[1]
According to Article IV, Section 19 of the Constitution: “In all criminal
prosecutions, the accused * * shall enjoy the right to be heard by himself and
counsel, * * *.”

^[2]
According to Section 1 of Rep. Act No. 857 (1953): “Any public officer or
employee who shall obstruct, prohibit, or otherwise prevent an attorney
entitled to practice in the courts of the Philippines from visiting and
conferring privately with a person arrested, at any hour of the day or, in
urgent cases, of the night, said visit and conferences being reques­ted by the
person arrested or by another acting in his behalf, shall be punished by
arresto mayor.”

^[3]
Petition, The Facts, par. 15.

^[4]
Ibid, pars. 17-20.

^[5]
Ibid, par. 21

^[6]
Ibid, par. 23.

^[7]
Answer, Annex 1.

^[8]
Answer, par. 9, 8.

^[9]
Ibid, par. 10, 9.

^[10]
L-35539, September 17, 1974, 59 SCRA 183.

^[11]
G. R. No. L-46909, January 8, 1981.