G.R. No. L-33964. December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG, RODOLFO DEL ROSARIO, AND BAYANI ALCALA, PETITIONERS, VS. BRIGADIER-GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPP…
CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the
Liberal Party of the Philippines was holding a public meeting at Plaza Miranda,
Manila, for the presentation of its candidates in the general elections
scheduled for November 8, 1971, two (2) hand grenades were thrown, one after
the other, at the platform where said candidates and other persons were. As a consequence, eight (8) persons were
killed and many more injured, including practically all of the aforementioned
candidates, some of whom sustained extensive, as well as serious, injuries
which could have been fatal had it not been for the timely medical assistance
given to them.
On August 23, soon after noontime, the President of the Philippines
announced the issuance of Proclamation No. 889, dated August 21, 1971, reading as follows:
“WHEREAS, on the basis of carefully evaluated information, it
is definitely established that lawless elements in the country, which are moved
by common or similar ideological conviction, design and goal and enjoying the
active moral and material support of a foreign power and being guided and
directed by a well trained, determined and ruthless group of men and taking
advantage of our constitutional liberties to promote and attain their ends,
have entered into a conspiracy and have in fact joined and banded their forces
together for the avowed purpose of actually staging, undertaking and waging an
armed insurrection and rebellion in order to forcibly seize political 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 and economic precepts are based on the Marxist-Leninist-Maoist
teachings and beliefs;
“WHEREAS, these lawless elements, acting in concert through
front organizations that are seemingly innocent and harmless, 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 infiltrating almost every segment of our society
in their ceaseless determination to erode and weaken the political, social,
economic and moral foundations of our existing government and to influence
many peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations 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, these lawless elements have created a state of
lawlessness and disorder affecting public safety and the security of the State,
the latest manifestation of which has been the dastardly attack on the Liberal
Party rally in Manila on August 21, 1971, which has resulted in the death and
serious injury of scores of persons;
“WHEREAS, public safety requires that immediate and effective
action be taken in order to maintain peace and order, secure the safety of the
people and preserve the authority of the State;
“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 suspend the privilege of the writ
of habeas corpus for the persons presently detained, as well as
all others who may be hereafter similarly detained for the crimes of
insurrection or rebellion, and all other crimes and offenses committed by them
in furtherance or on the occasion thereof, or incident thereto, or in connection
therewith.”
Presently, petitions for writs of habeas corpus were filed, in
the above-entitled cases, by the following persons, who, having been arrested
without a warrant therefor and then detained, upon
the authority of said proclamation, assail its validity, as well as that of
their detention, namely:
1.
TEODOSIO LANSANG, RODOLFO DEL
ROSARIO and BAYANI ALCALA, the petitioners in Case No. L-33964 – filed on
August 24, 1971 who, on August 22, 1971, between 8 a.m. and 6 p.m., were
“invited” by agents of the Philippine Constabulary – which is under
the command of respondent Brig. Gen. Eduardo M. Garcia to go and did go to the
headquarters of the Philippine Constabulary, at Camp Crame,
Quezon City, for interrogation, and, thereafter,
detained;
2.
ROGELIO V. ARIENDA, the petitioner
in Case No. L-33965 – filed, also, on August 24, 1971 – who was picked up in his residence, at
No. 5 Road 3, Urduja
Village, Quezon City, by members of the Metrocom and then detained;
3.
Soon after the filing of the
petition in Case No. L-33965 – or on August 28, 1971 – the same was amended to
include VICENTE ILAO and JUAN CARANDANG, as petitioners therein, although,
apart from stating that these additional petitioners are temporarily residing
with the original petitioner, Rogelio V. Arienda, the
amended petition alleges nothing whatsoever as regards the circumstances under
which said Vicente Ilao and Juan Carandang
are said to be illegally deprived of their liberty;
4.
LUZVIMINDO DAVID, petitioner in
Case No. L-33973 -filed on August
25, 1971 – who was similarly arrested in his residence, at No.
131-B Kamias Road, Quezon City, and detained by the
Constabulary
5.
Felicidad
G. Prudente, who filed the petition in Case No.
L-33982 – on August 27, 1971 – upon the ground that her father, Dr. NEMESIO E.
PRUDENTE, had, on August 22, 1971, at about 8 p.m., been apprehended by
Constabulary agents in his house, at St. Ignatius Village, Quezon
City, and then detained at the Camp Crame stockade, Quezon City;
6.
ANGELO DE LOS REYES, who was
allowed – on August 30, 1971
– to intervene as one of the petitioners in Cases Nos. L-3364, L-33965 and
L-33973, he having been arrested by members of the Constabulary on August 22,
1971, between 6:30 and 7:30 p.m., in his residence, at 86 Don Manuel Street,
Sta. Mesa Heights, Quezon City, and brought to Camp Crame, Quezon City, where he is
detained and restrained of liberty;
7.
VICTOR FELIPE, who was similarly
allowed to intervene as one of the petitioners in said three (3) cases, upon
the ground that, on August 23, 1971, at about 8 a.m., he was, likewise,
apprehended at Sta. Rosa, Laguna, by members of the Philippine Constabulary and
brought, first to the Constabulary headquarters at Canlubang,
Laguna, and, then, to Camp Crame, Quezon
City, where he is detained and restrained of liberty;
8.
TERESITO SISON, who was, also,
allowed to intervene as one of the petitioners in the same three (3) cases, he
having been arrested in his residence, at 318 Lakandula
St., Angeles City, on August 22, 1971, between 6 and 7 p.m., and taken to the
PC offices at Sto. Domingo, Angeles City, then to
Camp Olivas, San Fernando, Pampanga,
and eventually to Camp Crame, Quezon
City, where he is restrained and deprived of liberty;
9.
GERARDO TOMAS, alias Gerry Tomas,
a 17-year old second year college student of St. Louis University, Baguio City, on whose behalf, Domingo E. de Lara – in his
capacity as Chairman, Committee on Legal Assistance, Philippine Bar Association
– filed on September 3, 1971, the petition in Case No. L-34004, upon the ground
that said Gerardo Tomas had, on August 23, 1971, at about 6 a.m., been arrested
by Constabulary agents, while on his way to school in the City of Baguio, then brought to the Constabulary premises therein
at Camp Holmes, and, thereafter, taken, on August 24, 1971, to Camp Olivas, Pampanga, and thence, on
August 25, 1971, to the Constabulary headquarters at Camp Crame,
Quezon City, where he is detained;
10.
REYNALDO RIMANDO, petitioner in
Case No. L-34013 – filed on September 7, 1971 – a 19-year old student of the
U.P. College in Baguio City – who, while allegedly on
his way home, at Lukban Road, Baguio,
on August 23, 1971, at about 1 a.m., was joined by three (3) men who brought
him to the Burnham Park, thence, to Camp Olivas at
San Fernando, Pampanga, and, thereafter, to Camp Crame, Quezon City, where he is
detained;
11.
Sgt. FILOMENO M. DE CASTRO and his
wife, Mrs. BARCELISA C, DE CASTRO, on whose behalf Carlos C. Rabago – as President of the Conference Delegates
Association of the Philippines (CONDA) – filed the petition in Case No. L-34039
– on September 14, 1971 – against Gen. Eduardo M. Garcia, alleging that, on
August 27, 1971, at about 3 p.m., Mrs. De Castro was arrested, while at Liamzon Subdivision, Rosario, Pasig,
Rizal, by agents of the Constabulary, and taken to
the PC headquarters at Camp Crame, where, later, that
same afternoon, her husband was brought, also, by PC agents and both are detained;
12.
ANTOLIN ORETA, JR., who filed the
petition in Case No. L-34265 – on October 26, 1971 – against said Gen. Garcia,
as Chief of the Constabulary, and Col. Prospero Olivas,
Chief of the Central Intelligence Service (CIS), Philippine Constabulary,
alleging that, upon invitation from said CIS, he went, on October 20, 1971, to
Camp Aguinaldo, Quezon
City, to see Gen. Manuel Yan, Chief of Staff of the
Armed Forces of the Philippines, who referred petitioner to Col. Laroya of the CIS; that the latter, in turn, referred him
to CIS Investigator Atty. Berlin Castillo and another CIS agent, whose name is
unknown to the petitioner; and that, after being interrogated by the two (2),
petitioner was detained illegally; and
13.
GARY OLIVAR, petitioner in Case
No. L-34339 – filed on November
10, 1971 – who was apprehended, by agents of the Constabulary, in
the evening of November 8, 1971,
in Quezon City,
and then detained at Camp Crame, in the same City.
Upon the filing of the aforementioned cases, the respondents were
forthwith required to answer the petitions therein, which they did. The return and answer in L-33964 – which was,
mutatis mutandis, reproduced substantially or by reference in
the other cases, except L-34265 -alleges, inter alia,
that the petitioners had been apprehended and detained “on reasonable
belief” that they had “participated in the crime of insurrection or
rebellion”; that “their continued detention is justified due to the
suspension of the privilege of the writ of habeas corpus pursuant to Proclamation
No. 889 of the President of the Philippines”; that there is “a state
of insurrection or rebellion” in this country, and that “public
safety and the security of the State required the suspension of the privilege
of the writ of habeas corpus,” as “declared by the President of the
Philippines in Proclamation No. 889”; that in making said declaration,
the “President of the Philippines acted on relevant facts gathered thru
the coordinated efforts of the various intelligence agents of our government
but (of) which the Chief Executive could not at the moment give a full account
and disclosure without risking revelation of highly classified state secrets
vital to its safety and security”; that the determination thus made by the
President is “final and conclusive upon the courts and upon all other
persons” and “partake(s) of the nature of political question(s) which
cannot be the subject of judicial inquiry,” pursuant to Barcelon v. Baker, 5 Phil. 87, and Montenegro v, Castañeda, 91 Phil. 882; that petitioners “are under
detention pending investigation and evaluation of culpabilities on the
reasonable belief” that they “have committed, and are still
committing, individually or in conspiracy with others, engaged in armed
struggle, insurgency and other subversive activities for the overthrow of the
Government”; that petitioners cannot raise, in these proceedings for habeas corpus, “the
question of their guilt or innocence”; that the “Chief of Constabulary
had petitioners taken into custody on the basis of the existence of evidence
sufficient to afford a reasonable ground to believe that petitioners come
within the coverage of persons to whom the privilege of the writ of habeas
corpus has been suspended”; that the “continuing detention of
the petitioners is an urgent bona fide precautionary and preventive measure
demanded by the necessities of public safety, public welfare and public
interest”; that the President of the Philippines has “undertaken
concrete and abundant steps to insure that the constitutional rights and
privileges of the petitioners as well as of the other persons in current
confinement pursuant to Proclamation 889 remain unimpaired and
unhampered”; and that “opportunities or occasions for abuses by
peace officers in the implementation of the proclamation have been greatly
minimized, if not completely curtailed, by various safeguards contained in
directives issued by proper authority.”
These safeguards are set forth in:
1.
A letter of the President t9 the
Secretary of National Defense, dated August 21, 1971, directing, inter alia, in connection with the arrest or detention of
suspects pursuant to Proclamation No. 889, that, except when caught in flagrante delicto,
no arrest shall be made without warrant authorized in writing by
the Secretary of National Defense; that such authority shall not be granted
unless, “on the basis of records and other evidences,” it appears
satisfactorily, in accordance with Rule 113; section 6(b), of the Rules of
Court, that the person to be arrested is probably guilty of the acts mentioned
in the proclamation; that, if such person will be charged with a crime subject
to an afflictive penalty under the Anti-Subversion Act,” the
authorization for his arrest shall not be issued unless supported by signed
intelligence reports citing at least one reliable witness to the same overt
act; that no unnecessary or unreasonable force shall be used in effecting
arrests; and that arrested persons shall not be subject to greater restraint
than is necessary for their detention;
2.
Communications of the Chief of the
Constabulary, dated August 23, 27 and 30, 1971, to all units of his command,
stating that the privilege of the writ is suspended for no other persons than
those specified in the proclamation; that the same does not involve martial law;
that precautionary measures should be taken to forestall violence that may be
precipitated by improper behavior of military personnel; that authority to
cause arrest under the proclamation will be exercised only by the Metrocom, CMA, CIS, and “officers occupying positions
in the provinces down to provincial commanders”; that there shall be no
indiscriminate or mass arrests; that arrested persons shall not be harmed and
shall be accorded fair and humane treatment; and that members of the detainee’s
immediate family shall be allowed to visit him twice a week;
3.
A memorandum of the Department of
National Defense, dated September 2, 1971, directing the Chief of the
Constabulary to establish appropriate Complaints and Action Bodies/Groups to
prevent and/or check any abuses in connection with the suspension of the
privilege of the writ; and
4.
Executive Order No. 333, dated August 26, 1971, creating a
Presidential Administrative Assistance Committee to hear complaints regarding
abuses committed in connection with the implementation of Proclamation No. 889.
Respondents in L-33965 further alleged that therein petitioners
Vicente Ilao and Juan Carangdang
had been released from custody on August
31, 1971, “after it had been found that the evidence against
them was insufficient.”
In L-34265, the “Answer and Return” filed by
respondents therein traversed some allegations of fact and conclusions of law
made in the petition therein and averred that Antolin
Oreta, Jr., the petitioner therein, had been and is
detained “on the basis of a reasonable ground to believe that he has
committed overt acts in furtherance of rebellion or insurrection against the
government” and, accordingly, “comes within the class of persons as
to whom the privilege of the writ of habeas corpus has been suspended
by Proclamation No. 889, as amended,” the validity of which is not
contested by him.
On August 30, 1971,
the President issued Proclamation No. 889-A, amending Proclamation No. 889, so
as to read as follows:
“WHEREAS, on the basis of carefully evaluated information, it
is definitely established that lawless elements in the country, which are moved
by common or similar ideological conviction, design and goal and enjoying the
active moral and material support of a foreign power and being guided and
directed by a well–trained, determined and ruthless group of men and
taking advantage of our constitutional liberties to promote and attain their
ends, have entered into a conspiracy and have in fact joined and banded their
forces together for the avowed purpose of [actually] staging; undertaking,
[and] waging and are actually engaged in an armed insurrection and
rebellion in order to forcibly seize political 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
and economic precepts are based on the Marxist-Leninist-Maoist teachings and
beliefs;
“WHEREAS, these lawless elements, acting in concert through
front organizations that are seemingly innocent and harmless, 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 infiltrating almost every segment of our society in their
ceaseless determination to erode and weaken the political, social, economic and
moral foundations of our existing government and to influence many peasant,
labor, professional, intellectual, student and mass media organizations to commit
acts of violence and depredations 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, these lawless elements, by their acts of
rebellion and insurrection, have created a state of lawlessness and
disorder affecting public safety and the security of the State, the latest manifestation
of which has been the dastardly attack on the Liberal Party rally in Manila on
August 21, 1971, which has resulted in the death and serious injury of scores
of persons;
“WHEREAS, public safety requires that immediate and effective
action be taken in order to maintain peace and order, secure the safety of the
people and preserve the authority of the State;
“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 suspend the privilege of the writ
of habeas corpus for the persons presently detained, as well as
all others who may be hereafter similarly detained for the crimes of insurrection
or rebellion[,] and [all] other [crimes and offenses] overt acts committed
by them in furtherance [or on the occasion] thereof [.]. [or incident thereto,
or in connection therewith. ]”[1]
On September 1, 1971,
Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly heard and then the
parties therein were allowed to file memoranda, which were submitted froth
September 3 to September 9, 1971.
Soon thereafter, or on September
18, 1971, Proclamation No. 889 was further amended by Proclamation
No. 889-B, lifting the suspension of the privilege of the writ of habeas
corpus in the following provinces, sub-provinces and cities of the Philippines,
namely:
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On September 25, 1971,
the President issued Proclamation No. 889-C, restoring the privilege of the
writ in the following provinces and cities:
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On October 4, 1971,
the suspension of the privilege was further lifted by Proclamation No. 889-D,
in the following places:
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As a consequence, the privilege of the writ of habeas corpus
still suspended in the following eighteen (18) provinces, two (2) sub-provinces
and eighteen (18) cities, to wit:
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The first major question that the Court had to consider was whether
it would adhere to the view taken in Barcelon v.
Baker1
and reiterated in Montenegro v. Castañeda,2 pursuant to which, “the
authority to decide whether the exigency has arisen requiring suspension (of
the privilege of the writ of habeas corpus) belongs to the
President and his ‘decision is final and conclusive’ upon the courts and upon
all other persons.” Indeed, had said question been decided in the
affirmative, the main issue in all of these cases, except L-34339, would have
been settled, and, since the other issues were relatively of minor importance,
said cases could have been readily disposed of.
Upon mature deliberation, a majority of the Members of the Court had,
however, reached, although tentatively, a consensus to the contrary, and
decided that the Court had authority to and should inquire into the existence
of the factual bases required by the Constitution for the suspension of the
privilege of the writ; but before proceeding to do so, the Court deemed it
necessary to hear the parties on the nature and extent of the inquiry to be
undertaken, none of them having previously expressed their views thereon. Accordingly, on October 5, 1971, the Court issued, in L-33964, L-33965,
L-33973 and L-33982, a resolution stating in part that –
“x x x a
majority of the Court having tentatively arrived at a consensus that it may
inquire in order to satisfy itself of the existence of the factual bases for
the issuance of Presidential Proclamations Nos. 889 and 889-A (suspending the
privilege of the writ of habeas corpus for all persons detained
or to be detained for the crimes of rebellion or insurrection throughout, the
Philippines, which area has lately been reduced to some eighteen provinces ,
two subprovinces and eighteen cities with the partial
lifting of the suspension of the privilege effected by Presidential
Proclamations Nos. 889-B, 889-C and 889-D) and thus determine the constitutional
sufficiency of such bases in the light of the requirements of Article III, sec.
1, par. 14, and Article VII, sec. 10, par. 2, of the Philippine Constitution;
and considering that the members of the Court are not agreed on the precise
scope and nature of the inquiry to be “made in the premise even as all of
them are agreed that the Presidential findings are entitled to great respect,
the Court RESOLVED that these cases be set for rehearing on October 8, 1971 at
9:30 A.M.
“xxx xxx xxx xxx.”
On October 8, 1971, said four cases were, therefore, heard, once
again, but, this time, jointly with cases Nos. L-34004, L-34013, and L-34039,
and the parties were then granted a period to file memoranda, in amplification
of their respective oral arguments, which memoranda were submitted from October
12 to October 21, 1971.
Respondents having
expressed, during the oral arguments, on September 1 and October 8, 1971,
their willingness to impart to the Court classified information relevant to
these cases, subject to appropriate security measures, the Court met at closed
doors, on October 28 and 29, 1971, and, in the presence of three (3) attorneys
for the petitioners, chosen by the latter, namely, Senator Jose W. Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor General and
two (2) members of his staff, was briefed, by Gen. Manuel Yan,
Chief of Staff of the Armed Forces of the Philippines, Gen. Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo Tanabe, Col. Tagumpay Nañadiego, Judge Advocate General, JAGS (GSC), and other
ranking officers of said Armed Forces, on said classified information, most of
which was contained in reports and other documents already attached to the
records. During the proceedings, the
members of the Court, and, occasionally, counsel for the petitioners,
propounded pertinent questions to said officers of the Armed Forces. Both parties were then granted a period of
time within which to submit their respective observations, which were filed on
November 3, 1971, and complemented by some documents attached to the records on
November 6, 1971, and a summary, submitted on November 15, 1971, of the
aforesaid classified information.
In the meantime, cases Nos. L-34265 (Oreta)
and L-34339 (Olivar) had been filed and the parties
therein were heard in oral argument on November 4 and 16, 1971, respectively.
On November 15, 1971, the Solicitor General filed
manifestations-motions stating that on November 13, 1971, the following
petitioners were:
(a) released from custody:
(1)
Teodosio Lansang – G. R. No. L-33964
(2)
Bayani Alcala – “
“ L-33964
(3)
Rogelio Arienda –
“ “ L-33965
(4)
Nemesio Prudente – “
“ L-33982
(5)
Gerardo Tomas – “
“ L-34004
(6)
Reynaldo Rimando – “ “
L-34013
(7)
Filomeno M. de Castro – “ “
L-34039
(8)
Barcelisa de Castro – “ “
L-34039
(9)
Antolin Oreta, Jr. – “
“ L-34265
(b) charged, together with other persons named in
the criminal complaint filed therefor, with a
violation of Republic Act No. 1700 (Anti-Subversion Act), in the City Fiscal’s Office of Quezon City:
(1)
Angelo de los Reyes – G. R. No. L-33982*
(2)
Teresito Sison – “
“ L-33982*
(c) accused, together with many others named in
the criminal complaint filed therefor, of a violation
of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the Court of
First Instance of Rizal:
(1)
Rodolfo del Rosario –
G. R. No. L-33969**
(2)
Luzvimindo David –
“ “ L-33973
(3) Victor Felipe – “
“ L-33982*
and continue under detention pursuant to
Proclamation No. 889, as amended, and praying that the petitions in G. R. Nos.
L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be dismissed, without
prejudice to the resolution of the remaining cases. Copy of the criminal
complaint filed, as above stated, with the Court of First Instance of Rizal and docketed therein as Criminal Case No. Q-1623 of
said court – which was appended to said manifestations-motions of the
respondents as Annex 2 thereof – shows that Gary Olivar,
the petitioner in L-34339, is one of the defendants in said case.
Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L-33973, in his comment
dated November 23, 1971, urged the Court to rule on the merits of the petition
in all of these cases, particularly on the constitutionality of Presidential
Proclamation No. 889, as amended, upon the ground that he is still detained and
that the main issue is one of public interest, involving as it does th civil liberties of the people. Angelo de los
Reyes, one of the petitioners n L-33964, L-33965 and L-33973, Nemesio E. Prudente and Gerardo
Tomas, for whose respective benefit the petitions in L-33982 and L-34004 have
been filed, maintained that the issue in these cases is not moot, not even for
the detainees who have been released, for, as long as the privilege of the writ
remains suspended, they are in danger of being arrested and detained again
without just cause or valid reason: In
his reply, dated and filed on November 29, 1971, the Solicitor General insisted
that the release of the above-named petitioners rendered their respective
petitions moot and academic.
I
Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of the
proclamation suspending the privilege of the writ of habeas corpus. In this connection, it should be noted that,
as originally formulated, Proclamation No. 889 was contested upon the ground
that it did not comply with the pertinent constitutional provisions, namely,
paragraph (14) of section 1, Article III of our Constitution, reading:
“The 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.”
and paragraph (2), section 10, Article
VII of the same instrument, which provides that:
“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.”
Regardless of whether or not the
President may suspend the privilege of the writ of habeas corpus
in case of “imminent danger” of invasion, insurrection or rebellion –
which is one of the grounds stated in said paragraph (2), section 10 of Art.
VII of the Constitution, but not mentioned in paragraph (14), section 1 of its
Bill of Rights – petitioners maintained that Proclamation No. 889 did not
declare the existence of actual “invasion, insurrection or
rebellion or imminent danger thereof,” and that, consequently, said
Proclamation was invalid. This contention
was predicated upon the fact that, although the first “whereas” in
Proclamation No. 889 stated that “lawless elements” had
“entered into a conspiracy and have in fact joined and
banded their forces together for the avowed purpose of actually staging,
undertaking and waging an armed insurrection and rebellion, “the actuality
so alleged refers to the existence, not of an uprising that
constitutes the essence of a rebellion or insurrection, but of the conspiracy
and the intent to rise in arms.
Whatever may be the merit of this claim, the same has been rendered
moot and academic by Proclamation No. 889-A, issued nine (9) days after the
promulgation of the original proclamation, or on August 30, 1971. Indeed, said Proclamation No. 889-A amended, inter
alia, the first “whereas” of the
original proclamation by postulating that said lawless elements “have
entered into a conspiracy and have in fact joined and banded their forces
together for the avowed purpose of staging, undertaking, waging and are
actually engaged in an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly constituted
government, and supplant our existing political, social, economic and legal
order with an entirely new one x x x.” Moreover, the third “whereas” in the
original proclamation was, likewise, amended by alleging therein that said
lawless elements, “by their acts of rebellion and insurrection,” have
created a state of lawlessness and disorder affecting public safety and the
security of the State. In other words,
apart from adverting to the existence of an actual conspiracy and of the
intent to rise in arms to overthrow the government, Proclamation. No.
889-A asserts that the lawless elements “are actually engaged in an
armed insurrection and rebellion” to accomplish their purpose.
It may not be amiss to note, at this juncture, that the very
tenor of the original proclamation and, particularly, the circumstances under
which it had been issued, clearly suggest the intent to aver that there was and
is, actually, a state of rebellion in the Philippines, although the language of
said proclamation was hardly a felicitous one, it having, in effect, stressed
the actuality of the intent to rise in arms, rather than of the factual
existence of the rebellion itself. The
pleadings, the oral arguments and the memoranda of respondents herein have
consistently and abundantly emphasized – to justify the suspension of the
privilege of the writ of habeas corpus – the acts of violence and
subversion committed prior to August 21, 1971, by the lawless elements above
referred to, and the conditions obtaining at the time of the issuance of the
original proclamation. In short, We hold
that Proclamation No. 889-A has superseded the original proclamation and that
the flaws attributed thereto are purely formal in nature.
II
Let us now consider the substantive validity of the proclamation,
as amended. Pursuant to the above-quoted
provisions of the Constitution, two (2) conditions must concur for the valid
exercise of the authority to suspend the privilege of the writ, to wit: (a) there must be “invasion,
insurrection, or rebellion” or – pursuant to paragraph (2), section 10 of
Art. VII of the Constitution – “imminent danger thereof,” and (b)
“public safety” must require the suspension of the privilege. The Presidential Proclamation under consideration
declares that there has been and there is actually a state of rebellion and
that1
“public safety requires that immediate and effective action be taken in
order to maintain peace and order, secure the safety of the people and preserve
the authority of the State.”
Are these findings conclusive upon the Court? Respondents maintain that they are, upon the
authority of Barcelon v. Baker2 and Montenegro v. Castañeda.3
Upon the other hand, petitioners press the negative view and urge a
re-examination of the position taken in said two (2) cases, as well as a
reversal thereof.
The weight of Barcelon v. Baker, as a
precedent, is diluted by two (2) factors, namely: (a) it relied heavily upon Martin v. Mott4
involving the U.S. President’s power to call out the militia, which – he
being the commander-in-chief of all the armed forces – may be exercised to
suppress or prevent any lawless violence, even without invasion, insurrection
or rebellion, or imminent danger thereof, and is, accordingly, much broader
than his authority to suspend the privilege of the writ of habeas corpus,
jeopardizing as the latter does individual liberty; and (b) the privilege had
been suspended by the American Governor-General, whose act, as representative
of the Sovereign, affecting the freedom of its subjects, can
hardly be equated with that of, the President of the Philippines dealing with
the freedom of the Filipino people, in whom sovereignty resides, and from
whom all government authority emanates.
The pertinent ruling in the Montenegro case was based mainly upon the Barcelon case, and, hence, cannot have more weight than the
same. Moreover, in the Barcelon case, the Court held that it could go into
the question: “Did the
Governor-General” – acting under the authority vested in him by the
Congress of the United States, to suspend the privilege of the writ of habeas
corpus under certain conditions – “act in conformance with such
authority?” In other words, it did determine whether or not the
Chief Executive had acted in accordance with law. Similarly, in the Montenegro case, the Court
held that petitioner therein had “failed to overcome the presumption of
correctness which the judiciary accords to acts of the Executive x x x.” In short, the Court considered
the question whether or not there ally was a rebellion, as stated in the
proclamation therein contested.
Incidentally, even the American jurisprudence is neither explicit
nor clear on the point under consideration.
Although some cases1 purport to deny the judicial power
to “review” the findings made in the proclamations assailed in said
cases, the tenor of the opinions therein given, considered as a whole, strongly
suggests the court’s conviction that the conditions essential for the validity
of said proclamations or orders were, in fact, present therein, just as the
opposite view taken in other cases2 had a backdrop permeated or
characterized by the belief that said conditions were absent. Hence, the dictum of Chief Justice Taney to
the effect that “(e)very case must depend on its own circumstances.”3
One of the important, if not dominant, factors, in connection therewith, was
intimated in Sterling v. Constantin,4 in which the Supreme Court of the
United States, speaking through Chief Justice Hughes, declared that:
“x x x. When there is a substantial showing that
the exertion of state power has overridden private rights secured by that
Constitution, the subject is necessarily one for judicial inquiry in an
appropriate proceeding directed against the individuals charged with the transgression. To such a case the Federal judicial power
extends (Art. 3, sec. 2) and, so extending, the court has all the authority
appropriate to its exercise. x x x.”5
In our resolution of October 5, 1971, We stated that “a
majority of the Court” had “tentatively arrived at a consensus
that it may inquire in order to satisfy itself of the existence of the
factual bases for the issuance of Presidential Proclamations Nos. 889 and
889-A x x x and thus determine
the constitutional sufficiency of such bases in the light of the
requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par. 2,
of the Philippine Constitution x x x.” Upon further deliberation, the members of the
Court are now unanimous in the conviction that it has the authority to
inquire into the existence of said factual bases in order to determine the
constitutional sufficiency thereof.
Indeed, the grant of power to suspend the privilege is neither
absolute nor unqualified. The authority
conferred by the constitution, both under the Bill of Rights and under the
Executive Department, is limited and conditional. The precept in the Bill of Rights establishes
a general rule, as well as an exception thereto. What is more, it postulates the former in the
negative, evidently to stress its importance, by providing that
“(t)he privilege of the writ of habeas corpus shall not
be suspended x x x.”
It is only by way of exception that it permits the suspension of the
privilege “in cases of invasion, insurrection, or rebellion”- or,
under Art. VII of the Constitution, “imminent danger thereof” –
“when the public safety requires it, in any of which events the same may
be suspended wherever during such period the necessity for such suspension
shall exist.”1 Far from being full and plenary,
the authority to suspend the privilege of the writ is thus circumscribed,
confined and restricted, not only by the prescribed setting or the conditions
essential to its existence, but, also, as regards the time when and the place
where it may be exercised. These factors
and the aforementioned setting or conditions mark, establish and define the
extent, the, confines and the limits of said power, beyond which it does not
exist. And, like the limitations and
restrictions imposed by the Fundamental Law upon the legislative department,
adherence thereto and compliance therewith may, within proper bounds, be inquired
into by courts of justice. Otherwise,
the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could
not have intended to engage in such a wasteful exercise in futility.
Much less may the assumption be indulged in when we bear in mind
that our political system is essentially democratic and republican in character
and that the suspension of the privilege affects the most fundamental element
of that system, namely, individual freedom.
Indeed, such freedom includes and connotes, as well as demands, the
right of every single member of our citizenry to freely discuss and dissent
from, as well as criticize and denounce, the views, the policies and the
practices of the government and the party in power that he deems unwise,
improper or inimical to the commonweal, regardless of whether his own opinion
is objectively correct or not. The untrammelled enjoyment and exercise of such right – which,
under certain conditions; may be a civic duty of the highest order – is vital
to the democratic system and essential to its successful operation and
wholesome growth arid development.
Manifestly, however, the liberty guaranteed and protected by our
Basic Law is one enjoyed and exercised, not in derogation thereof, but
consistently therewith, and, hence, within the framework of the social order
established by the Constitution and the context of the Rule of Law. Accordingly, when individual freedom is used
to destroy that social order, by means of force and violence, in
defiance of the Rule of Law – such as by rising publicly and taking arms
against the government to overthrow the same, thereby committing the crime of
rebellion – there emerges a circumstance that may warrant a limited withdrawal
of the aforementioned guarantee or protection, by suspending the privilege of
the writ of habeas corpus, when public safety requires it. Although we must be forewarned against
mistaking mere dissent – no matter how emphatix or
intemperate it may be – for dissidence amounting to rebellion or insurrection,
the Court cannot hesitate, much less refuse – when the existence of such
rebellion or insurrection has been fairly established or cannot reasonably be
denied – to uphold the finding of the Executive thereon, without, in effect,
encroaching upon a power vested in him by the Supreme Law of the land and depriving
him, to this extent, of such power, and, therefore, without violating the
Constitution and jeopardizing the very Rule of Law the Court is called upon to
epitomize.
As heretofore adverted to, for the valid suspension of the privilege
of the writ: (a) there must be
“invasion, insurrection or rebellion” or pursuant to paragraph (2),
section 10 of Art. VII of the Constitution – “imminent danger thereof”;
and (b) public safety must require the aforementioned suspension. The President declared in Proclamation No.
889, as amended, that both conditions are present.
As regards the first condition, our jurisprudence1
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 out-break
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
v. Castañeda.1
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.2
The fifties saw a comparative lull in Communist activities,
insofar as peace and order were concerned.
Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the
Anti-Subversion Act, was approved, upon the ground – stated in the very
preamble of said statute – that
“x x x 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;
“x x x the
continued existence and activities of the Communist Party of the Philippines
constitutes a clear, present and grave danger to the
security of the Philippines3; and
“x x x 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
x x x.”
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 cases 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.”1
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 alias:
“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 …
“xxx xxx xxx.
“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 situations are favorable to taking the road of armed
revolution …”1
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 may 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 engaged in rebellion against the
Government of the Philippines.
In fact, the thrust of petitioners’ argument is that the New
People’s Army proper is too small, compared with the size of the armed forces
of the Government, that the Communist rebellion or insurrection cannot so
endanger public safety as to require the suspension of the privilege of the
writ of habeas corpus.
This argument does not negate, however, the existence of a rebellion,
which, from the constitutional and statutory viewpoint, need not be widespread
or attain the magnitude of a civil war.
This is apparent from the very provision of the Revised Penal Code
defining the crime of, rebellion,1 which may be limited in its scope
to “any part” of the Philippines, and, also, from paragraph (14) of
section 1, Article III of the Constitution, authorizing the suspension of the
privilege of the writ “wherever” – in case of rebellion – “the
necessity for such suspension shall exist.” In fact, the case of Barcelon v. Baker referred to a proclamation suspending the
privilege in the provinces of Cavite and Batangas only. The
case of In re Boyle2 involved a valid proclamation
suspending the privilege in a smaller area – a county of the state of Idaho.
The magnitude of the rebellion has a bearing on the second
condition essential to the validity of the suspension of the privilege –
namely, that the suspension be required by public safety. Before delving, however, into the factual
bases of the presidential findings thereon, let us consider the’ precise nature
of the Court’s function in passing upon the validity of Proclamation No. 889,
as amended.
Article VII of the Constitution vests in the Executive the power
to suspend the privilege of the writ of habeas corpus under
specified conditions. Pursuant to the
principle of separation of powers underlying our system of government, the
Executive is supreme within his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is
more, it goes hand in hand with the system of checks and balances, under which
the Executive is supreme, as regards the suspension of the privilege, but only if
and when he acts within the sphere allotted to him by the Basic
Law, and the authority to determine whether or not he has so acted is vested in
the Judicial Department, which, in this respect, is, in turn,
constitutionally supreme.
In the exercise of such authority, the function of the Court is
merely to check – not to supplant3 – the Executive, or to ascertain
merely whether he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine
the wisdom of his act. To be sure, the
power of the Court to determine ‘the validity of the contested proclamation is
far from being identical to, or even comparable with, its power over ordinary
civil or criminal cases elevated thereto by ordinary appeal from inferior
courts, in which cases the appellate court has all of the powers of the
court of origin.
Under the principle of separation of powers and the system of
checks and balances, the judicial authority to review decisions of
administrative bodies or agencies is much more limited, as regards findings of
fact made in said decisions. Under the
English law, the reviewing court determines only whether there is some
evidentiary basis for the contested administrative finding; no
quantitative examination of the supporting evidence is undertaken. The administrative finding can be interfered
with only if there is no evidence whatsoever in support thereof,
and said finding is, accordingly, arbitrary, capricious and obviously
unauthorized. This view has been adopted
by some American courts. It has,
likewise, been adhered to in a number of Philippine cases. Other cases, in both jurisdictions,
have applied the “substantial evidence” rule, which has been
construed to mean “more than a mere scintilla” or “relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion,”1 even if other minds equally
reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of
administrative determinations involving the exercise of quasi-judicial
functions calling for or entailing the reception of evidence. It does not and cannot be applied, in its
aforesaid form, in testing the validity of an act of Congress or of the
Executive, such as the suspension of the privilege of the writ of habeas
corpus, for, as a general rule, neither body takes evidence – in the
sense in which the term is used in judicial proceedings – before enacting a
legislation or suspending the writ.
Referring to the test of the validity of a statute, the Supreme Court of
the United States, speaking through Mr. Justice Roberts, expressed, in the
leading case of Nebbia v. New York,2
the view that:
“x x x If
the laws passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to
that effect renders a court functus officio… With the wisdom of the policy adopted, with
the adequacy or practicability of the law enacted to forward it, the courts are
both incompetent and unauthorized to deal …”
Relying upon this view, it is urged by the Solicitor General –
“x x x
that judicial inquiry into the basis of the questioned proclamation can go no
further than to satisfy the Court not that the President’s decision is correct
and that public safety was endangered by the rebellion and justified the
suspension of the writ, but that in suspending the writ, the ‘President did not
act arbitrarily.”
No cogent reason has been submitted to warrant the rejection of
such test. Indeed, the co-equality of
coordinate branches of the Government, under our constitutional system, seems
to demand that the test of the validity of acts of Congress and of those of the
Executive be, mutatis mutandis, fundamentally the same. Hence, counsel for petitioner Rogelio Arienda admits that the proper standard is not correctness,
but arbitrariness.
Did public ‘safety require the suspension of the privilege of the
writ of habeas corpus decreed in Proclamation No. 889, as
amended? Petitioners submit a negative
answer upon the ground: (a) that there
is no rebellion; (b) that, prior to and at the time of the suspension of the
privilege, the Government was functioning normally, as were the courts; (c)
that no untoward incident, confirmatory of an alleged July August Plan, has
actually taken place after August 21, 1971; (d) that the President’s alleged
apprehension, because of said plan, is nonexistent and unjustified; and (e)
that the Communist forces in the Philippines are too small and weak to
jeopardize public safety to such extent as to require the suspension of the
privilege of the writ of habeas corpus.
As above indicated, however, the existence of a rebellion is
obvious, so much so that counsel for several petitioners herein have admitted
it.
With respect to the normal operation of government, including
courts, prior to and at the time of the suspension of the privilege, suffice it
to say that, if the conditions were such that courts of justice no longer
functioned a suspension of the privilege would have been unnecessary, there
being no courts to issue the writ of habeas corpus. Indeed, petitioners’ reference to the normal
operation of courts as a factor indicative of the illegality of the contested
act of the Executive stems, perhaps, from the fact that this circumstance was
adverted to in some American cases to justify the invalidation therein decreed
of said act of the. Executive Said cases
involved, however, the conviction by military courts of members of the civilian
population charged with common crimes.
It was manifestly, illegal for military courts to assume jurisdiction
over civilians so charged, when civil courts were functioning normally.
Then, too, the alleged absence of any untoward incident after
August 21, 1971, does not necessarily bear out petitioners’ view. What is more, it may have been due precisely
to the suspension of the privilege. To
be sure, one of its logical effects is to compel those connected with the
insurrection or rebellion to go into hiding.
In fact, most of them could not be located by the authorities, after
August 21, 1971.
The alleged July-August Plan to terrorize Manila is branded as
incredible, upon the theory that, according to Professor Egbal
Ahmad of Cornell University, “guerrilla use of terror x x x is sociological and
psychologically selective,” and that the indiscriminate resort to
terrorism is bound to boomerang, for it tends to alienate the people’s sympathy
and to deprive the dissidents of much needed mass support. The fact, however, is that the violence;,
used in some demonstrations held in Manila in 1970 and 1971 tended to terrorize
the bulk of its inhabitants. It would
have been highly imprudent, therefore, for the Executive to discard the
possibility of a resort to terrorism, on a much bigger scale, under the
July-August Plan.
We will now address our attention to petitioners’ theory to the
effect that the New People’s Army of the Communist Party of the Philippines is
too small to pose a danger to public safety of such magnitude as to require the
suspension of the privilege of the writ of habeas corpus. The flaw in petitioners’ stand becomes
apparent when we consider that it assumes that the Armed Forces of the
Philippines have no other task than to fight the. New People’s Army, and that the latter is the
only threat – and a minor one – to our security. Such assumption is manifestly erroneous.
The records before Us show that, on or before August 21, 1971,
the Executive had information and reports – subsequently confirmed, in many
respects, by the above-mentioned Report of the Senate Ad-Hoc Committee of Seven1 –
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 MAWASA 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 substation 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.
Petitioners, similarly, fail to take into account that – as per
said information and reports – 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 (73) 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 – as reported – have also proven that petitioners’
counsel have underestimated 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) NPA casualties; that in an
encounter at Botolan, Zambales,
one (1) 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 Higa-onan tribes , in their settlement
in Magsaysay, Misamis
Oriental, and offered them books, pamphlets and bronchures
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 discharge 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 forces be spread thin over a wide
area.
Considering that the President was in possession of the above
data – except those related to events that happened after August 21, 1971 –
when the Plaza Miranda bombing took place, the Court is not prepared to hold
that the Executive had acted arbitrarily or gravely abused his discretion when
he then concluded that public safety and national security required the suspension
of the privilege of the writ, particularly if the NPA were to strike
simultaneously with violent demonstrations staged by the two hundred
forty-five (245) KM chapters, all over the Philippines, with the assistance and
cooperation of the dozens of, CPP front organizations; and the bombing of water
mains and conduits, as well as electric power plants and installations – a
possibility which, no matter how remote, he was bound to forestall, and a
danger he was under obligation to anticipate and arrest.
He had consulted his advisers and sought their views. He had reason to feel that the situation was
critical – as, indeed, it was – and demanded immediate action. This he took believing in good faith that
public Safety required it. And, in the
light of the circumstances adverted to above, he had substantial grounds to
entertain such belief.
Petitioners insist that, nevertheless, the President had no
authority to suspend the privilege in the entire Philippines, even if he may
have been justified in doing so in some provinces or cities thereof. At the time of the issuance of Proclamation
No. 889, he could not be reasonably certain, however, about the places to be
excluded from the operation of the proclamation. He needed some time to find out how it worked,
and as he did So, he caused the suspension to be gradually lifted, first, on
September 18, 1971, in twenty-seven (27) provinces, three (3) sub-provinces and
twenty-six (26) cities; then, on September 25, 1971, in other fourteen (14)
provinces and thirteen (13) cities; and, still later, on October 4, 1971, in
seven (7) additional provinces and four (4) cities, or a total of forty-eight
(48) provinces, three (3) sub-provinces and forty-three (43) cities, within a
period of forty-five (45) days from August 21, 1971.
Neither should We overlook the significance of another fact. The President could have declared a general
suspension of the privilege. Instead,
Proclamation No. 889 limited the suspension to persons detained
“for crimes of insurrection or rebellion, and all other crimes and
offenses committed by them in furtherance or on the occasion thereof,
or incident thereto, or in connection therewith.” Even
this was further limited by Proclamation No. 889-A, which withdrew from the
coverage of the suspension persons detained for other crimes and offenses
committed “on the occasion” of the insurrection or rebellion, or
“incident thereto, or in connection therewith.” In fact, the
petitioners in L-33964, L-33982 and L-34004 concede that the President had
acted in good faith.
In case of invasion, insurrection or rebellion or imminent danger
thereof, the President has, under the Constitution, three (3) courses of
action open to him, namely: (a) to call
out the armed forces; (b) to suspend the privilege of the writ of habeas
corpus; and (c) to place the Philippines or any part thereof under
martial law. He had; already, called out
the armed, forces, which measure, however, proved inadequate to attain the
desired result. Of the two (2) other
alternatives, the suspension of the privileges the least harsh.
In view of the foregoing, it does not appear that the President
has acted arbitrarily in issuing Proclamation No. 889, as amended, nor that the
same is unconstitutional.
III
The next question for determination is whether petitioners herein
are covered by said Proclamation, as amended, In other words, do petitioners
herein belong to the class of persons as to whom the privilege of the writ of habeas
corpus has been suspended?
In this connection, it appears that Bayani
Alcala, one of the petitioners in L-33964, Gerardo
Tomas, petitioner in L-34004, and Reynaldo Rimando,
petitioner in L-34013, were, on November 13, 1971, released
“permanently” – meaning, perhaps, without any intention to prosecute
them – upon the ground that, although there was reasonable ground to believe
that they had committed an offense related to subversion, the evidence against
them is insufficient to warrant their prosecution; that Teodosio
Lansang, one of the petitioners in L-33964, Rogelio Arienda, petitioner in L-33965, Nemesio
Prudente, petitioner in L-33982, Filomeno
de Castro and Barcelisa C. de Castro, for whose
benefit the petition in L-34039 was filed, and Antolin
Oreta, Jr., petitioner in L-34265, were, on said
date, “temporarily released”; that Rodolfo del Rosario, one of the
petitioners in L-33964, Victor Felipe, an intervenor
in L-33964, L-33965 and L-33973, as well as Luzvimindo
David, petitioner in L-33973, and Gary Olivar,
petitioner in L-34339, are still under detention and, hence, deprived of their
liberty, they – together with over forty (40) other persons, who are at large –
having been accused, in the Court of First Instance of Rizal,
of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act); and
that Angelo de los Reyes and Teresito
Sison, intervenors in said
L-33964, L-33965 and L-33973, are, likewise, still detained and have been
charged – together with over fifteen (15) other persons, who are, also, at
large – with another violation of said Act, in a criminal complaint filed with
the City Fiscal’s Office of Quezon
City.
With respect to Vicente Ilao and Juan Carandang – petitioners in L-33965 – who were released as
early as August 31, 1971, as well as to petitioners Nemesio
Prudente, Teodosio Lansang, Rogelio Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa C.
de Castro, Reynaldo Rimando, Gerardo Tomas and Bayani Alcala, who were released
on November 13, 1971, and are no longer deprived of their liberty, their
respective petitions have, thereby, become moot and academic, as far as their
prayer for release is concerned, and should, accordingly, be dismissed, despite
the opposition thereto of counsel for Nemesio Prudente and Gerardo Tomas, who maintain that, as long as
the privilege of the writ remains suspended, these petitioners might be
arrested and detained again, without just cause, and that, accordingly, the
issue raised in their respective petitions is not moot. In any event, the common constitutional and
legal issues raised, in these cases have, in fact, been decided in this joint
decision.
Must we order the release of Rodolfo del Rosario, one of the
petitioners in L-33964, Angelo de los Reyes, Victor
Felipe and Teresito Sison, intervenors in L-33964, L-33965 and L-33973, Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, who are still detained? The suspension of the privilege of the writ
was decreed by Proclamation No. 889, as amended, for persons detained “for
the crimes of insurrection or rebellion and other overt acts committed by them
in furtherance thereof.”
The records show that petitioners Luzvimindo
David, Rodolfo del Rosario, Victor Felipe, Angelo de los
Reyes, Teresito Sison and
Gary Olivar are accused in Criminal Case No. Q-1623
of the Court of First Instance of Rizal with a
violation of the Anti-Subversion Act and that the similar charge against
petitioners Angelo de los Reyes and Teresito Sison in a criminal
complaint, originally filed with the City Fiscal of Quezon
City, has, also, been filed with said court.
Do the offenses so charged constitute one of the crimes or overt acts
mentioned in Proclamation No. 889, as amended?
In the Complaint in said Criminal Case No. 1623, it is alleged:
“That in or about the year 1968 and for sometime prior thereto
and thereafter up to and including August 21, 1971, in the city of Quezon, Philippines, and elsewhere in the Philippines,
within the jurisdiction of this Honorable Court, the above-named accused
knowingly, wilfully and by overt acts became officers
and/or ranking leaders of the Communist Party of the Philippines, a subversive
association .as defined by Republic Act No. 1700, which is an organized
conspiracy to overthrow the government of the Republic of the Philippines by
force, violence, deceit, subversion and other illegal means, for the
purpose of establishing in the Philippines a communist totalitarian regime
subject to alien domination and control;
“That all the above-named accused, as such officers and/or ranking
leaders of the Communist Party of the Philippines conspiring, confederating
and mutually helping one another, did then and there knowingly, wilfully, feloniously and by overt acts committed
subversive acts all intended to overthrow the government of the Republic of the
Philippines, as follows:
1.
By rising publicly and taking
arms against the government, engaging in war against the forces of the
government, destroying property or committing serious violence, exacting
contributions or diverting public funds or property from the lawful purpose
for which they have been appropriated;
2.
By engaging in subversion thru
expansion and recruitment activities not only of the Communist Party of the
Philippines but also of the united front organizations of the Communist Party
of the Philippines as the Kabataang Makabayan (KM), Movement for a Democratic Philippines
(MDP), Samahang Demokratikong
Kabataan (SDK), Students’ Alliance for National
Democracy (STAND), MASAKA Olalia-faction, Student
Cultural Association of the University of the Philippines (SCAUP), KASAMA, Pagkakaisa ng Magbubukid
ng Pilipinas (PMP) and many
others; thru agitation promoted by rallies, demonstrations and strikes some of
them violent in nature, intended to create social discontent, discredit those
in power and weaken the people’s confidence in the government; thru consistent
propaganda by publications, writing, posters, leaflets or similar means;
speeches, teach-ins, messages, lectures or other similar means; and thru the
media as the TV, radio or newspapers, all intended to promote the Communist
pattern of subversion;
3.
Thru urban guerrilla warfare
characterized by assassinations, bombings, sabotage, kidnapping and arson,
intended to, advertise the movement, build up its morale and prestige, discredit
and demoralize the authorities to use harsh and repressive measures, demoralize
the people and weaken their confidence in the government and to weaken the will
of the government to resist.
“That the following aggravating circumstances, attended the commission
of the offense:
a.
That the offense was committed in
contempt of and with insult to the public authorities;
b.
That some of the overt acts were
committed in the Palace of the Chief Executive;
c.
That craft, fraud, or disguise was
employed;
d.
That the offense was committed
with the aid of armed men;
e.
That the offense was committed
with the aid of persons under fifteen (15) years old.”
Identical allegations are made in the complaint filed with the
City Fiscal of Quezon City, except that the second
paragraph thereof is slightly more elaborate than that of the complaint filed
with the CFI, although substantially the same.1
In both complaints, the acts imputed to the defendants herein
constitute rebellion and subversion, or – in the language of the proclamation
– “other overt acts committed x x x in furtherance” of said rebellion, both of which are
covered by the proclamation suspending the privilege of the writ. It is clear, therefore, that the crimes for
which the detained petitioners are held and deprived of their liberty are among
those for which the privilege of the writ of habeas corpus has
been suspended.
Up to this point, the Members of the Court are unanimous on the
legal principles enunciated.
After finding that Proclamation No. 889, as amended, is not invalid
and that petitioners Luzvimindo David, Victor Felipe,
Gary Olivar, Angelo de los
Reyes, Rodolfo del Rosario and Teresito Sison are detained for and actually accused of an offense
for which the privilege of the writ has been suspended by said proclamation,
our next step would have been the following:
The Court, or a commissioner designated by it, would have received
evidence on whether – as stated in respondents’ “Answer and Return”
– said petitioners had been apprehended and detained “on reasonable
belief” that they had “participated in the crime of insurrection or
rebellion.”
It so happened, however, that on November 13, 1971 – or two (2)
days before the proceedings relative to the briefing held on October 28 and 29,
1971, had been completed by the filing1 of a summary of the matters then
taken up the aforementioned criminal complaints were filed against said
petitioners. What is more the
preliminary examination and/or investigation of the charges contained in said
complaints has already begun. The next
question, therefore, is: Shall We now
order, in the cases .at hand, the release of said petitioners herein, despite
the formal and substantial validity of the proclamation suspending the
privilege, despite the fact that they are actually charged with offenses
covered by said proclamation and despite the aforementioned criminal complaints
against them and the preliminary examinations and/or investigations being
conducted therein?
The Members of the Court, with the exception of Mr. Justice Fernando,
are of the opinion, and, so hold, that, instead of this Court or its
commissioner taking the evidence adverted to above, it is best to let said
preliminary examination and/or investigation be completed, so that petitioners’
release could be ordered by the court of first instance, should it find that
there is no probable cause against them, or a warrant for their arrest could be
issued, should a probable cause be established against them. Such course of action is more favorable to
the petitioners, inasmuch as a preliminary examination or investigation
requires a greater quantum of proof than that needed to establish that the
Executive had not acted arbitrarily in causing the petitioners to be
apprehended and detained upon the ground that they had participated in the
commission of the crime of insurrection or rebellion. And, it is mainly for this reason that the
Court has opted to allow the Court of First Instance of Rizal
to proceed with the determination of the existence of probable cause, although
ordinarily the Court would have merely determined the existence of substantial
evidence of petitioners’ connection with the crime of rebellion. Besides, the latter alternative would require
the reception of evidence by this Court and thus duplicate the proceedings now
taking place in the court of first instance.
What is more, since the evidence involved in both proceedings would be
substantially the same and the presentation of such evidence cannot be made
simultaneously, each proceeding would tend to delay the other.
Mr. Justice Fernando is of the opinion – in line with the view of
Mr. Justice Tuason, in Nava v. Gatmaitan,2 to
the effect that “x x x
if and when formal complaint is presented, the court steps in and the executive
steps out. The detention ceases to
be an executive and becomes a judicial concern x x x” – that the filing of the above-mentioned complaints
against the six (6) detained petitioners herein, has the effect of the
Executive giving up his authority to continue holding them pursuant to
Proclamation No. 889, as amended, even if he did not so intend, and to place
them fully under the authority of courts of justice, just like any other
person, who, as such, cannot be deprived of his liberty without lawful warrant,
which has not, as yet, been issued against anyone of them, and that,
accordingly, We should order their immediate release. Despite the humanitarian and libertarian
spirit, with which this view has been espoused, the other Members of the Court
are unable to accept it because:
(a)
If the proclamation suspending the
privilege of the writ of habeas corpus is valid – and We so hold
it to be – and the detainee is covered by the proclamation, the filing of a
complaint or information against him does not affect the suspension of said
privilege, and, consequently, his release may not be ordered by Us;
(b)
Inasmuch as the filing of a formal
complaint or information does not detract from the validity and efficacy of the
suspension of the privilege, it would be more reasonable to construe the filing
of said formal charges with the court of first instance as an expression of the
President’s belief that there are sufficient evidence to convict the petitioners
so charged and that they should not be released, therefore, unless and until
said court – after conducting the corresponding preliminary examination and/or
investigation – shall find that the prosecution has not established the
existence of a probable cause.
Otherwise, the Executive would have released said accused, as were the
other petitioners herein;
(c)
From a long-range viewpoint, this
interpretation – of the act of the President in having said formal charges
filed – is, We believe, more beneficial to the detainees than that favored by
Mr. justice Fernando. His view –
particularly the theory that the detainees should be released immediately,
without bail, even before the completion of said preliminary examination and/or
investigation – would tend to induce the Executive to refrain from filing
formal charges as long as it may be possible.
Manifestly, We should encourage the early filing of said charges, so
that courts of justice could assume jurisdiction over the detainees and extend
to them effective protection.
Although some of the petitioners in these cases pray that the
Court decide whether the constitutional right to bail is affected by the
suspension of the privilege of the writ of habeas corpus, We do
not deem it proper to pass upon such question, the same not having been
sufficiently discussed by the parties herein.
Besides, there is no point in settling said question with respect to
petitioners herein who have been released.
Neither is it necessary to express our view thereon, as regards those
still detained, inasmuch as their release without bail might still be decreed
by the court of first instance, should it hold that there is no probable cause
against them. At any rate, should an
actual issue-on the right to bail arise later, the same may be brought up in appropriate
proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act arbitrarily in issuing
Proclamation No. 889, as amended, and that, accordingly, the same is not
unconstitutional;
2. Dismissing the petitions in L-33964, L-33965, L-33982, L734004,
L-34013, L-34039 and L-34265, insofar as petitioners Teodosio
Lansang, Bayani Alcala, Rogelio Arienda, Vicente Ilao, Juan Carandang, Nemesio E. Prudente, Gerardo
Tomas, Reynaldo Rimando, Filomeno
M. de Castro, Barcelisa C. de Castro and Antolin Oreta, Jr. are concerned;
3. The Court of First Instance .of Rizal is
hereby directed to act with utmost dispatch in conducting the preliminary
examination and/or investigation of the charges for violation of the
Anti-Subversion Act filed against herein petitioners Luzvimindo
David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito
Sison, and to issue the corresponding – warrants of
arrest, if probable cause is found to exist against them, or otherwise, to
order their release; and
4. Should there be undue delay, for any reason whatsoever, either in the
completion of the aforementioned preliminary examination, and/or
investigation, or in the issuance of the proper orders or resolutions in
connection therewith, the parties may by motion seek in these proceedings the
proper relief.
5. Without special pronouncement as to costs.
IT IS SO ORDERED.
Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Villamor, and Makasiar, JJ., concur.
Ruiz Castro and Barredo, JJ., concur fully
in a separate opinion.
Fernando, J., concurs and
dissents only as to the answer to the fourth question, the effect of which is
to preclude the release of the petitioner still retained for reasons explained
in his brief separate opinion.
[1]
Words in bracket ([]) are those appearing in the original Proclamation No.
889, but which were eliminated in the amended Proclamation No. 889-A; words
emphasized (_) have been added by Proclamation No. 889-A.
1
5 Phil. 87.
2
91 Phil. 882, 887.
*
Should be L-33964, L-33965 and L-33973.
**
Should be L-33964.
1
As stated in the proclamation involved in Montenegro
v. Castañeda, 91 Phil. 882.
2
5 Phil. 87.
3
91 Phil. 882.
4
6 L. ed. 537.
1 In re Boyle, 57 Pac 706; Moyer v. Peabody,
212 US 78; Ex Parte Field, 5 Blatchf. 63, cited
in USCA Const. Part. 1, p. 463; Luther v. Borden, 7 How 1, 12 L. ed.
581; In re Kalanianaole, 10 Hawaii 29, cited in
California Law Review, May, 1942, fn. 40, pp. 382-383; Ex Parte
MacDonald, 143 Pac 947.
2 In re Burrus, 136 US 500;
Sterling v. Constantin, 287 US 375; Patten v.
Miller, 8 S.E. (2d) 757; Miller v. Rivers, 31 F. Supp. 540; Hearon v. Calus, 183 S.E.
13; In re Green, 16 Pac (2d) 582; Allen v. Oklahoma City, 52 Pac (2d)
1054; Joyner v. Browning, 30 F. Supp. 512; U.S. v. Phillips, 33
F. Supp. 261.
3 Mitchell v. Harmony, 14 L. ed. 75, 84. See also, U.S.
v. Russell, 20 L. ed. 474, 475.
4 287 U.S.
375, 385.
5 Northern P.R. Co. v. North Dakota, 236 U.S.
585; Merchants’ Nat. Bank v. Richmond, 256 U.S. 635; First Nat. Bank v.
Hartford, 273 U.S. 548; Fiske v. Kansas, 274
U.S. 380.
1 Which were, seemingly, taken from the seventh
paragraph of Section 3, and Section 21 of the Jones Law (Act of Congress of
the U.S. of August 29, 1916). The only
provision thereon in the U.S. Constitution is found in Section 9(2) of Art. 1
thereof – on the Legislative Power – which provides that ”the privilege of the
writ of habeas corpus shall not be suspended, unless in cases of
rebellion or invasion the public safety may require it.”
1 People v. Evangelista, 57 Phil. 375; People v.
Evangelista, et al., 57 Phil. 354; People v. Capadocia,
57 Phil 364; People v. Feleo, 57 Phil. 451;
People v. Nabong, 57 Phil. 455.
1 91 Phil. 882.
See also, Nava v. Gatmaitan, Hernandez v.
Montesa, and Angeles v. Abaya,
90 Phil. 172.
2 People v. Nava, L-4907, June 29, 1963; In re Jesus Lava v.
Gonzales, L-23048, July 31, 1964;
People v. Nava, L-5796, August
29, 1966; People v. Lava, L-4974, May 16, 1969.
3 Emphasis ours.
1 See page 22 thereof.
1 Emphasis supplied.
1 “ART. 134.
Rebellion or insurrection.
– How committed. – The
crime of rebellion or insurrection is committed by rising publicly and taking
arms against the Government for the purpose of removing from the allegiance to
said Government or its laws, the territory of the Philippine Islands or any
part thereof, of any body of land, naval or other armed forces, or of depriving
the Chief Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives.”
2 57 Pac. 706.
3 Schwartz, An Introduction to American
Administrative Law, 2nd ed., 190-191.
1 Consolidated Edison Co. v. National Labor
Relations Board, 305 U.S.
197.
2 291 U.S.
502.
1 Although not by some conclusions therein made.
1 Said paragraph reads:
“That all the above named accused, as
such officers and/or ranking leaders of the Communist Party of the Philippines
conspiring, confederating and mutually helping one another, did then and there
knowingly, wilfully, feloniously and by overt acts
committed subversive acts all intended to overthrow the government of the
Republic of the Philippines, or the government of any of its political
subdivisions by force, violence, deceit, subversive or other illegal means, for
the purpose of placing such government or political subdivision under the
control and domination of any alien power, as follows:
“x x x x x x x x x.”
1 On November
15, 1971.
2 90 Phil. 172, 204.
Emphasis ours. Justice Tuason was speaking for himself only, not for the Court,
which was divided.
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CONCURRING AND DISSENTING OPINION
FERNANDO, J.:
The decision of the Court penned by the Chief Justice easily
ranks with his many landmark opinions in Constitutional Law and is in the
tradition of the great judicial pronouncements from this Tribunal. Skillful in its analysis, impressive as to
its learning, comprehensive in its scope, and compelling in its logic, it
exerts considerable persuasive force.
There is much in it therefore to which concurrence is easily
yielded. I find it difficult however to
accept the conclusion that the six petitioners still under detention should not
be set free. It is for me a source of
deep regret that having gone quite far in manifesting the utmost sympathy for
and conformity with the claims of civil liberties, it did not go farther. Candor induces the admission though that the
situation realistically viewed may not justify going all the way. Nonetheless the deeply-rooted conviction as
to the undoubted primacy of constitutional rights, even under circumstances the
least propitious, precludes me from, joining my brethren in that portion of the
decision reached. Nor should I let this
opportunity pass without acknowledging the fairness, even the generosity, in
the appraisal of my position in the opinion of the Chief Justice.
1. The function of judicial
review fitly characterized as both delicate and awesome is never more so than
when the judiciary is called upon to pass on the validity of an act of the
President arising from the exercise of a power granted admittedly to cope with
an emergency or crisis situation. More
specifically, with reference to the petitions before us, the question that
calls for prior consideration is whether the suspension of the privilege of the
writ of habeas corpus is tainted by constitutional infirmity. What the President did attested to an
executive determination of the existence of the conditions that warranted such
a move. For one of the mandatory
provisions of the Bill of Rights[1]
is that no such suspension is allowable, except in cases of invasion,
insurrection or rebellion, when the public safety requires, and, even then,
only in such places and for such period of time as may be necessary.[2]
There is the further provision that the constitutional official so empowered to
take such a step is, the President.[3]
The exceptional character of the situation is thus underscored. The presumption would seem to be that if such
a step were taken, there must have been a conviction on the part of the
Executive that he could not, in the fulfillment of the responsibility entrusted
to him, avoid doing so. That decision is
his to make; it is not for the judiciary.
It is therefore-encased in the armor of what must have been a careful
study on his part, in the light of relevant information which as Commander-in-Chief
he is furnished, ordinarily beyond the ken of the courts. When it is considered further that the
Constitution does admit that the sphere of individual freedom contracts and the
scope of governmental authority expands during times of emergency, it becomes
manifest why an even greater degree of caution and circumspection must be
exercised by the judiciary when, on this matter, it is called upon to discharge
the function of judicial review.
2. Not that the judiciary
has any choice on the matter. That view
would indict itself for unorthodoxy if it maintains that the existence of
rebellion suffices to call for the disregard of the applicable constitutional
guarantees. Its implication would be
that the Constitution ceases to be operative in times of danger to national
safety and security. Well has the
American Supreme Court in the leading case of Ex-parte
Milligan,[4]
stated: “The Constitution is a law
for rulers and for people equally in war and in peace and covers with the
shield of its protection all classes of men at all times and under all
circumstances.” This ringing affirmation should at the very least give
pause to those troubled by the continuing respect that must be accorded civil
liberties under crisis conditions. The
fact that the Constitution provides for only one situation where a provision of
the Bill of Rights may be suspended, emphasizes the holding in the above-cited
Milligan case that the framers of the Constitution “limited the suspension
to one great right and left the rest to remain forever inviolable.” While
perhaps at times likely to give rise to difficulties in the disposition of
cases during a troubled era where a suspension has been decreed, such a view is
to be taken into careful consideration.
3. For it is a truism that
the Constitution is paramount, and the Supreme Court has no choice but to apply
its provisions in the determination of actual cases and controversies before
it. Nor is this all. The protection of the citizen and the
maintenance of his constitutional rights is one of the highest duties and
privileges of the judiciary.[5]
The exercise thereof according to Justice Laurel requires that it gives effect
to the supreme law to the extent in clear cases of setting aside legislative
and executive action.[6]
The supreme mandates of the Constitution are not to be loosely brushed aside.[7]
Otherwise, the Bill of Rights might be emasculated into mere expressions of
sentiment.[8]
Speaking of this Court, Justice Abad Santos once
pertinently observed: “This court
owes its own existence to that great instrument and derives all its powers therefrom. In the
exercise of its powers and jurisdiction, this court is bound by the provisions
of the Constitution.”[9]
Justice Tuason would thus apply the constitutional
rights with undeviating rigidity:
“To the plea that the security of the State would be jeopardized by
the release of the defendants on bail, the answer is that the existence of
danger is never a justification for courts to tamper with the fundamental
rights expressly granted by the Constitution.
These rights are immutable, inflexible, yielding to no pressure of
convenience, expediency, or the so-called ‘judicial statesmanship.’ The
Legislature itself can not infringe them, and no court conscious of its
responsibilities and limitations would do so.
If the Bill of Rights are incompatible with stable government and a
menace to the Nation, let the Constitution be amended, or abolished. It is trite to say that, while the Constitution
stands, the courts of justice as the repository of civil liberty are bound to
protect and maintain undiluted individual rights.”[10]
It is in that context, to my mind, that the petitions before us
should be appraised, for in terms of physical, as distinguished from
intellectual, liberty, the privilege of the writ of habeas corpus occupies a
place, second to none. As was stressed
in Gumabon v. Director of Prisons:[11]
“Rightly then could Chafee refer to the writ ‘as the most important human
rights provision’ in the fundamental law.” Care is to be taken then lest
in the inquiry that must be undertaken to determine whether the constitutional
requisites testifying a suspension are present, the effects thereof as to the
other civil liberties are not fully taken into account. It affords no justification to say that such a
move was prompted by the best motives and loftiest of intentions. Much less can there be acceptance of the
view, as contended by one of the counsel for respondents, that between the
safety of the overwhelming majority of Filipinos and the claims of the petitioners
to liberty, the former must prevail.
That is to indulge in the vice of oversimplification. Our fundamental postulate is that the state
exists to assure individual rights, to protect which governments are instituted
deriving their just powers from the consent of the governed. “The cardinal
article of faith of our civilization,” according to Frankfurter, “is
the inviolable character of the individual.”[12]
4. With all the admitted
difficulty then that the function of judicial review presents in passing upon
the executive determination of suspending the privilege of the writ, there is
still no way of evading such a responsibility, except on the pain of judicial
abdication. It may not admit of doubt
that on this matter this Court, unlike the President, cannot lay claim to the
experience and the requisite knowledge that would instill confidence in its
decisions. That is no warrant for an
unquestioning and uncritical acceptance of what was done. It cannot simply fold its hands and evince an
attitude of unconcern. It has to decide
the case. This it does by applying the
law to the facts as found, as it would in ordinary cases. If petitioners then can make out a case of an
unlawful deprivation of liberty, they are entitled to the writ prayed for. If the suspension of the privilege be the
justification, they could, as they did, challenge its validity. To repeat, this Court, even if denied the
fullness of information and the conceded grasp of the Executive still must
adjudicate the matter as best it can. It
has to act not by virtue of its competence but by the force of its commission,
a function authenticated by history.[13]
That would be to live up to its solemn trust, to paraphrase Cardozo,
of preserving the great ideals of liberty and equally against the erosion of
possible encroachments, whether minute or extensive.[14]
Even if there be no showing then of constitutional infirmity, at least one
other branch of the government, that to which such an awesome duty has been
conferred, has had the opportunity of reflecting on the matter with detachment,
with objectivity, and with full awareness of the commands of the Constitution
as well as the realities of the situation.
5. Nor is the power of the
judiciary to so inquire, negated as contended by respondents, by reliance on
the doctrine of political questions. The
term has been made applicable to controversies clearly non-judicial and
therefore beyond its jurisdiction or to an issue involved in a case
appropriately subject to its cognizance, as to which there has been a prior
legislative or executive determination to which deference must be paid.[15]
It has likewise been employed loosely to characterize a suit where the party
proceeded against is the President or Congress, or any branch thereof.[16]
If to be delimited with accuracy, “political questions” should refer
to such as would under the Constitution be decided by the people in their
sovereign capacity or in regard to which full discretionary authority is vested
either in the Presidency or Congress. It
is thus beyond the competence of the judiciary to pass upon.[17]
Unless, clearly falling within the above formulation, the decision reached by
the political branches whether in the form of a congressional act or an
executive order could be tested in court.
Where private rights are affected, the judiciary has no choice but to
look into its validity. It is not to be
lost sight of that such a power comes into play if there be an appropriate
proceeding that may be filed only after either coordinate branch has
acted. Even when the Presidency or
Congress possesses plenary power, its improvident exercise or the abuse
thereof, if shown, may give rise to a justiciable
controversy.[18]
For the constitutional grant of authority is not usually unrestricted. There are limits to what may be done and how
it is to be accomplished. Necessarily
then, the courts in the proper exercise of judicial review could inquire into
the question of whether or not either of the two coordinate, branches has adhered
to what is laid down by the Constitution.
The question thus posed is judicial rather than political. So it is in the matter before us as so
clearly explained in the opinion of the Chief Justice.
6. The doctrine announced in
Montenegro V. Castañeda[19]
that such a question is political has thus been laid to rest. It is about time too. It owed its existence to the compulsion
exerted by Barcelon v. Baker, a 1905 decision.[20]
This Court was partly misled by an undue reliance in the latter case on what it
considered to be authoritative pronouncements from such illustrious American
jurists as Marshall, Story, and Taney.
That is to misread what was said by them. This is most evident in the case of Chief
Justice Marshall, whose epochal Marbury v. Madison[21]
was cited. Why that was so is difficult
to understand. For it speaks to the
contrary. It was by virtue of this
decision that the function of judicial review owes its origin notwithstanding
the absence of any explicit provision in the American Constitution empowering
the courts to do so. Thus: “It is emphatically the province and
duty of the judicial department to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict with each other, the
courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and
the constitution apply to a particular case, so that the court must either
decide that case conformably to the law, disregarding the constitution; or
conformably to the constitution, disregarding the law; the court must determine
which of these conflicting rules governs the case. This is of the very essence of judicial
duty. If, then, the courts are to regard
the constitution, and the constitution is superior to any ordinary act of the
legislature, the constitution, and not such ordinary act, must govern the case
to which they both apply.”[22]
Nor is the excerpt from Justice Story, speaking for the United
States Supreme Court, in Martin v. Mott,[23]
as made clear in the opinion of the Chief Justice, an authority directly in
point. There, a militiaman had been
convicted of failing to respond to a call, made under the Act of 1795, to serve
during the War of 1812. His property was
taken to satisfy the judgment. He
brought an action of replevin. The American Constitution empowers its
Congress “to provide for calling forth the Militia” in certain cases,
and Congress did provide that in those cases the President should have
authority to make the call. All that
Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American
President to decide whether the exigency has arisen. In stating that such power was exclusive and
thus had a conclusive effect, he relied on the language employed, impressed
with such a character. The
constitutional provision on the suspension of the privilege of the writ is, as
shown, anything but that.[24]
Chief Justice Taney, in Luther v. Borden,[25]
likewise had to deal with a situation involving the calling out of the
militia. As a matter of fact, an eminent
commentator speaking of the two above decisions had this apt observation: “The common element in these opinions
would seem to be a genuine judicial reluctance to speak in a situation where
the voice of the Court, even if heard, could not have any effect. More than this, both Story and Taney seem to
share the suspicion unusual in them, that under a popular form of government there
are certain questions that the political branches must be trusted to answer
with finality.”[26]
What was said next is even more pertinent.
Thus: “It would be dangerous
and misleading to push the principles of these cases too far, especially the
doctrine of ‘political questions’ as implied in Luther v. Borden. Given the opportunity to afford a grievously
injured citizen relief from a palpably unwarranted use of presidential or
military power, especially when the question at issue falls in the penumbra
between the ‘political’ and the ‘justiciable‘, the
Court will act as if it had never heard of this doctrine and its underlying
assumption that there are some powers against which the judiciary simply cannot
be expected to act as the last line of defense.”[27]
It would thus seem evident that support for the hitherto prevailing Montenegro
ruling was rather frail. Happily, with
our decision, it is no longer capable of the mischief to which it does lend
itself of an undue diminution of judicial power to the prejudice of
constitutional rights.
7. With such presidential
determination of the existence of the conditions required by the Constitution
to justify a suspension of the privilege of the writ no longer conclusive on
the other branches, this Court may thus legitimately inquire into its validity. The question before us, ‘it bears repeating,
is whether or not Proclamation No. 889 as it now stands, not as it was
originally issued, is valid. The
starting point must be a recognition that the power to suspend the privilege of
the writ belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be
respected. The range of permissible
inquiry to be conducted by this Tribunal is necessarily limited then to the
ascertainment of whether or not such a suspension, in the light of the credible
information furnished the President, was arbitrary. Such a test met with the approval of the
chief counsel for petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question
before the judiciary is not the correctness but the reasonableness of the
action taken. One who is not the
Executive but equally knowledgeable may entertain a different view, but the
decision rests with the occupant of the office.
As would be immediately apparent even from a cursory perusal of the data
furnished the President, so impressively summarized in the opinion of the Chief
Justice, the imputation of arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the
area where the suspension operates as well as his instructions attested to a
firm resolve on his part to keep strictly within the bounds of his
authority. Under the circumstances, the
decision reached by the Court that no finding of unconstitutionality is
warranted commends itself for approval.
The most that can be said is that there was a manifestation of
presidential power well-nigh touching the extreme border of his conceded
competence, beyond which a forbidden domain lie’s. The requisite showing of either improvidence
or abuse has not been made.
8. Why the dissent
then. My basic premise is that the
suspension of the privilege of the writ partakes of an executive action which
if valid binds all who are within its operation. The function of enacting a legal norm general
in character appertains to either Congress or the President. Its specific application to particular
individuals, like petitioners here, is however a task incumbent on the
judiciary. What is more, as had just
been explained, its validity may be tested in courts. Even if valid, any one may seek judicial
determination as to whether he is embraced within its terms. After our declaration of the validity of the
Proclamation No. 889 as amended, the next question is its applicability to
petitioners. I am the first to recognize
the meticulous care with which the Chief Justice, after reaching the conclusion
that petitioners are covered by the suspension, saw to it that their
constitutional rights are duly safeguarded in whatever proceedings they would
have thereafter to face. There is thus
an assurance that as far as human foresight can anticipate matters, the
possibility of abuse is minimized.
The matter, for me, could be viewed independently of whether or
not petitioners, by the conduct imputed to them, could be detained further by
virtue of the suspension of the privilege of the writ. For admittedly, a supervening fact, the
Executive’s determination to have them charged according to the ordinary
procedural rules, did present itself.
There was thus introduced an element decisive in its consequences. They are entitled to treatment no different
from that accorded any other individual facing possible criminal charges. The opinion of the Chief Justice is correct
in pointing out that such an approach follows the dictum of Justice Tuason, speaking for himself in Nava v. Gatmaitan,[28]
where a majority of five, lacking just one vote to enable this Court to reach a
binding decision, did arrive at the conclusion that the suspension of the
privilege of the writ does not suspend the right to bail. Thus:
“By the same token, if and when formal complaint is presented, the
court steps in and the executive steps out.
The detention ceases to be an executive and becomes a judicial
concern. Thereupon the corresponding
court assumes its role and the judicial process takes its course to the
exclusion of the executive or the legislative departments. Henceforward, the accused is entitled to
demand all the constitutional safeguards and privileges essential to due
process.”[29]
Parenthetically, it may be observed that the above view reflects the stand
taken by Justice Recto, fortified by Justice Laurel, drawing heavily on
continental juristic thought, both of whom, having retired from the bench and
thereafter having been elected to the Senate, were invited to appear as amici curiae in the Nava case.
It would follow to my way of thinking then that the petitioners
still detained ought not to be further deprived of their liberty in the absence
of a warrant of arrest for whatever offense they may be held to answer, be
issued by a judge after a finding of probable cause. That is to comply with the constitutional
requirement against unreasonable search and seizure.[30]
Moreover, to keep them in confinement after the ordinary processes of the law
are to be availed of, as thereafter decreed by the Executive itself, is to
ignorance the safeguard in the Bill of Rights that no person shall be held to
answer for a criminal offense without due process of law.[31]
That would explain why with full recognition of the sense of realism that
infuses the opinion of the Court, I cannot, from the above standpoint, reach
the same conclusion they did. These six
petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo
David, Gary Olivar, Angelo de los
Reyes and Teresito Sison,
have, for me, become immune from the operation of the proclamation suspending
the privilege of the writ of habeas corpus and are thus entitled to their
liberty. I am reinforced in my
conviction by the well-settled principle of constitutional construction that if
there are two possible modes of interpretation, that one which raises the least
constitutional doubt should be preferred.
Certainly, to my way of thinking, the choice is obvious. That interpretation which would throw the
full mantle of protection afforded by the Constitution to those unfortunate
enough to be caught in the meshes of criminal law is more in keeping with the
high estate accorded constitutional rights.
There is another consideration that strengthens my conviction on
the matter. The language of the
Constitution would seem to imply at the most that the suspension of the
privilege of the writ renders it unavailable for the time being. Still there are authorities sustaining the
view that preventive detention subject to the test of good faith is allowable.[32]
Such a doctrine is no doubt partly traceable to Anglo-American legal history
where as pointed out by Maine: “Substantive law has at first the look
of being gradually secreted in the interstices of procedure.”[33]
The writ of habeas corpus then is more than just an efficacious device or the
most speedy means of obtaining one’s liberty.
It has become a most valuable substantive right. It would thus serve the cause of
constitutional rights better if the Tuason dictum as
to the judicial process supplanting executive rule the moment charges are filed
be accorded acceptance. Thereby the
number of individuals who would have to submit to further detention, that may
well turn out to be unjustified, would be reduced. What is more, greater fidelity is manifested
to the principle that liberty is the rule and restraint the exception.
I am not of course insensible to the observation in the opinion
of the Court that this concept could be an obstacle to the early resumption of
the ordinary judicial process as the Executive might be minded to postpone
resort to it, considering that there would necessarily be an end to the
detention at that early stage of individuals who continue to pose risk to the
safety of the government. It does occur
to me, however, that the presumption should be that the high executive
dignitaries can be trusted to act in accordance with the dictates of good faith
and the command of the Constitution. At
least, such seems to be the case now.
The opinion of the Court is quite explicit as to the measures taken to minimize
the possibility of abuse from officials in the lower category, who in their
zeal or even from less worthy motives might make a mockery of the other
constitutional rights. That is as it
should be. It should continue, to be so
even if there be acceptance of the doctrine enunciated by Justice Tuason. There is,
for me at least, no undue cause for pessimism.
There is to my mind another reinforcement to this approach to the
question before us, perhaps one based more on policy rather than strictly legal
considerations. The petitioners who have
not been released are youth leaders, who for motives best known to them,
perhaps excess of idealism, impatience with existing conditions, even
overweening ambition, clamor for change, apparently oblivious at times that it
could be accomplished through means of which the law does not disapprove. It would be premature at this stage to say
whether or not their activities have incurred for them a penal sanction, which
certainly would be appropriate if their conduct is beyond the pale. Even they should recognize that the existing
order has the right to defend itself against those who would destroy it. Nonetheless as a constitutional democracy can
justifiably pride itself on its allegiance to ways of persuasion rather than
coercion, the most meticulous observance of the free way of life seems to me,
even at this stage, not without its beneficent influence on their future course
of conduct. This is not by any means to
intimate that my brethren view matters differently. Far from it.
Any difference if at all in the positions taken is a question of
emphasis. Rightly, the opinion of the
Chief Justice stresses the importance of the rule of law. It is to be hoped that with a proper
understanding of what has been decided by the Court today, there would be a
diminution of the wholesale condemnation of the present system of government by
some sectors of the youth and perhaps even lead to a much-needed refinement in
the volume and quality of their utterances.
It could even conceivably, not only for them but for others of a less
radical cast of mind, but equally suffering from disenchantment and
disillusion, induce a reassessment and reappraisal of their position, even if
from all appearances their commitment and dedication are plain for all to
see. More than that, such a response
will go a long way towards a keener appreciation of the merits of a
constitutional democracy. For thereby,
it demonstrates that it lives up to its ideals, it strives to act in accordance
with what it professes. Its appeal for
all sectors of society becomes strengthened and vitalized. Nor do I close my eyes to the risk that such
an attitude towards those who constitute a source of danger entails. That for me is not conclusive. With nations, as with ordinary mortals, that
is unavoidable. Repose, in the
often-quoted aphorism of Holmes, is not the destiny of man.
9. One last
observation. It would appear to me that
if there is really a resolve to maintain inviolate constitutional rights for
all, more especially so for those inclined and disposed to differ and to be
vocal, perhaps even intemperate, in their criticism, that serious thought
should be given to the desirability of removing from the President his power to
suspend the privilege of the writ of habeas corpus as well as the power to
declare martial law. Nor would the
government be lacking in authority to cope with the crisis of invasion,
insurrection, or rebellion or lawless violence, as the President as commander-in-chief
can summon the aid of the armed forces to meet the danger posed to public
safety. If the privilege of the writ
cannot be suspended and martial law beyond the power of the President to
declare, there is a greater likelihood as far as the rights of the individual
are concerned, of the Constitution remaining at all times supreme, as it ought
to be, whether it be in peace or in war or under other crisis conditions. As long, however, as such a presidential
prerogative exists, it would not be proper for the courts not to accord recognition
to its exercise, if there be observance of the limitations imposed by the
Constitution. At the most, they can only
through construction nullify what would, amount to an unconstitutional
application. How desirable it would be
then, to my way of thinking, if the Constitution would strip the President of
such power. That would be
constitutionalism triumphant. In terms
of Lincoln’s memorable dilemma, the
government would be neither too strong for the liberties of the people nor too
weak to maintain its existence. This is
a matter though appropriately addressed to the Constitutional Convention.
On the purely legal aspect, however, let me reiterate that my
acceptance of the Tuason dictum in the Nava case did
result in my inability to concur fully with the opinion of the Chief Justice,
which, as pointed out at the outset, is possessed of a high degree of merit.
[1]
Art. III, Constitution.
[2]
According to the Constitution: “The
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.” Art. III, Sec. 1, par. (14).
[3]
On this point, the Constitution reads:
“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.” Art. VII, Sec. 10, par. (2). What is immediately noticeable is that the
existence of an imminent danger of invasion, insurrection, or rebellion was
included in the justification for the suspension.
[4] 4
Wall. 123 (1866).
[5]
Alvarez v. Court, 64 Phil. 33 (1937).
[6]
People v. Vera, 65 Phil. 56, 94-95 (1937).
[7] Pampanga Bus Co. v. Pambusco
Employees Union, 68 Phil. 541 (1939).
[8] Angara v. Electoral Tribunal, 63 Phil.
139, 157 (1936).
[9] Schneckburger v. Moran, 63 Phil. 249, 251-252
(1936).
[10] 90
Phil. 172, at p. 206 (1951).
[11]
L-30026, January 30, 1971,
37 SCRA 420, 423.
[12]
American Communications Asso. v. Douds, 339 US
382, 421 (1951).
[13]
Cf. West Virginia State Board of
Education v. Barnette, 319 US 624 (1943).
[14] Cardozo, The Nature of Judicial Process, 92-93, (1921).
[15]
Cf. Vera v. Avelino, 77 Phil. 192 (1946);
Lopez v. Roxas, L-25716, July 28, 1966, 17 SCRA 756; Gonzales v.
Commission on Elections, L-28196, Nov.
9, 1967, 21 SCRA 774.
[16]
Cf. Planas v. Gil. 67 Phil. 62 (1937); Vera v.
Avelino, 77 Phil. 192 (1946).
[17]
Cf. Tañada v. Cuenco,
103, Phil. 1051 (1957).
[18]
Cf. Morrero v. Bocar,
66 Phil. 429 (1938); Rodriguez v. Quirino,
L-19800, October 28, 1963,
9 SCRA 284.
[19]
91 Phil. 882 (1952).
[20]
5 Phil. 87.
[21]
1 Cranch 137 (1803).
[22] Ibid,
pp. 177-178.
[23]
12 Wheaton 19 (1827).
[24]
Cf. Fairman, The Law of Martial Rule and the National
Emergency, 55 Harvard Law Review, 1253, 1270-1271 (1942).
[25]
7 Howard 1 (1849).
[26] Rossiter, The Supreme Court and the Commander in Chief, pp.
16-17 (1951).
[27] Ibid,
p. 17.
[28]
90 Phil. 172 (1951).
[29] Ibid,
p. 204.
[30]
According to Article III, Section 1, paragraph 3 of the Constitution: “The right of the people to be secure in
their persons, houses, papers, and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon probable
cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to
be seized.”
[31]
Article III, section I, paragraph 15, Constitution.
[32]
Cf. Ex parte Milligan, 4 Wallace 2 (1866); Moyer v.
Peabody, 212 US
78 (1908); Ex parte Simmerman,
132 F2 442 (1942). That was likewise
acknowledged in the opinion of Justice Tuason in the
Nava case.
[33]
Cf. Chafee, Free Speech in the United States,
p. 63 (1941). Holmes and Maitland
entertained a similar view.
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CONCURRING OPINION
CASTRO and BARREDO, JJ.:
While concurring fully in
the opinion of the Court, we nevertheless write separately to answer, from our
own perspective, a point which Mr. Justice Fernando makes in his dissent. His view, as we understand it, is that while
an individual may be detained beyond the maximum detention period fixed by law
when the privilege of the writ of habeas corpus is suspended, such individual
is nevertheless entitled to be released from the very moment a formal complaint
is filed in court against him. The
theory seems to be that from the time the charge is filed, the court acquires,
because the executive officials abdicate, jurisdiction.
This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs. Gatmaitan.[1]
Justice Tuason, in part, said:
“All persons detained for investigation by the executive
department are under executive control.
It is here where the Constitution tells the courts to keep their hands
off – unless the cause of the detention be for an
offense other than rebellion or insurrection, which is another matter.
“By the same token, if and when a formal complaint is
presented, the court steps in and the executive steps out. The detention ceases to be an executive and
becomes a judicial concern …”
But the issue to which the Supreme Court Justices in Nava
individually addressed themselves is radically disparate from that raised in
these cases. There the question was
whether after the detainees had been formally charged in court anti an order
for their arrest had been issued, they were entitled to bait. It was on that question that the Court was
split 5 to 4, and it was the opinion of Justice Tuason,
one of the five, that after the detainees had been accused in court, the
question of release on bail was a matter that the court should decide.
Upon the other hand, the question here presented is whether the
detainees should be released forthwith upon the filing of charges against them in court and cannot thereafter
be re-arrested except only by court order.
This is a totally different question it is our submission that they are
not entitled to be released. The dissent
is, we believe, based on the fallacy that when a formal charge is filed against
a person he is thereby surrendered to the court and the arresting officer is
thereby divested of custody over him.
Except in a metaphorical sense, the detainee is, not delivered or
surrendered at all to the judicial authorities.
What the phrase “delivered to the court” simply means is that
from the time a person is indicted in court, the latter acquires jurisdiction
over the subject-matter.[2] The detainee remains in the custody of the
detaining officer, under the same authority invoked for the detention, until
the court decides whether there is probable cause to order his arrest.
Under ordinary
circumstances, when a person is arrested without a warrant and is charged in
court, he is not released. He is held
until the judicial authority orders either his release
or his confinement. It is no argument
to say that under Article III, section 1 (3) of the Constitution only a court can order the arrest of an
individual. Arrests without warrant are
familiar occurrences, and they have been upheld as constitutional.[3]
What is more, the
privilege of the writ was suspended precisely to authorize the detention of
persons believed to be plotting against the security of the State until the
courts can act on their respective cases.
To require their peremptory release upon the mere filing of charges
against them, without giving the proper court opportunity and time to decide
the question of probable cause, would obviously be to defeat the very basic
purpose of the suspension. We think our
role as judges in the cases at bar is clear.
After finding that the Presidential decree was validly issued, we
should give it effect. To uphold its
validity and then try to dilute its efficacy in the name of personal liberty
is, we believe, actually to doubt the constitutionality of the exercise of the
Presidential prerogative.
Not only that. If the rule were that the detainees must be
released upon the mere filing of charges against them in court, it is unlikely
that the executive officials would have filed the charges because of their awareness
of the continuing danger which in the first place impelled the arrest of the
detainees, and the end result would be to inflict on the latter a much longer
period of deprivation of personal liberty than is warranted.
Whatever our personal
views may be of the power to suspend, the fact remains that the power is there, writ large and indubitable
in the Constitution. It is far too easy
to write anthologies on the side of civil liberties or on the side of
governmental order, depending on one’s inclination or commitment. But that is not our function. Constitutional issues, it has been said, do
not take the form, of right versus wrong, but of right versus right. And the Court’s function, as we see it, is,
fundamentally, to moderate the clash of values, and not to inflate them into
constitutional dimensions.
Where it is possible, we
should avoid passing on a constitutional question. But where there is no escape from the duty of
abstention, our further duty is to decide the question of constitutional
validity on a less heroic plane.
And that is what we have
tried to do in pointing out that the ordinary rules of criminal procedure
provide an adequate answer to Mr. Justice Fernando’s problem. That solution is for the arresting officer to
hold the person detained until the court can act, with the only difference that
where the privilege of the writ of habeas corpus is available, the arresting
officer must release the detainee upon the expiration of the maximum detention time allowed by law, if he has not
delivered the detainee to the court within that period.
To insist on the
procedural aspect of a constitutional problem as a manner of solving it is,
after all, no less to be libertarian. Insistence
on it is, to us, and in point of fact, one of the cornerstones of liberalism.
[1]
90 Phil. 172, 204 (1951).
[2]
Sayo vs.
Chief of Police, 80 Phil. 859 (1948).
[3]
E.g., People vs. Kagui
Malasugui, 63 Phil. 281 (1936).