IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, PETITIONER, VS. JUDGE JAIME SALAZAR (PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF QUEZON CITY

Thirty-four years after it wrote history into our criminal
jurisprudence, People vs. Hernandez^[1]
once more takes center stage as the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its applicability.  To be
sure, the intervening period saw a number of similar cases^[2]
that took issue with the ruling — all with a marked lack of success — but none, it would seem, where
season and circumstance had more effectively conspired to attract wide public attention and excite impassioned
debate, even among laymen; none,
certainly, which has seen quite the kind and range of arguments that are now brought to bear on
the same question.

The facts are not in dispute.  In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by
Director Alfredo Lim of the National Bureau of Investigation on the strength of
a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal Case No. 90-10941. 
The warrant had issued on an information signed and earlier that day
filed by a panel of prosecutors
composed of Senior State Prosecutor Aurelio C. Trampe,
State Prosecutor Ferdinand R. Abesamis and Assistant
City Prosecutor Eulogio Mananquil,
Jr., charging Senator Enrile, the spouses Rebecco and Erlinda PanIilio, and Gregorio Honasan
with the crime of rebellion with murder and multiple frustrated murder
allegedly committed during the period of the failed coup attempt from November
29 to December 10, 1990.  Senator Enrile was taken
to and held overnight at the NBI headquarters on Taft
Avenue, Manila, without bail,
none having been recommended in the
information and none fixed in the arrest warrant.  The following morning, February 28, 1990, he was brought to Camp Tomas Karingal in Quezon
City where he was given over to the custody of the
Superintendent of the Northern Police District, Brig. Gen. Edgardo
Dula Torres.^[3]

On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas
corpus herein (which was
followed by a supplemental petition filed on March 2, 1990), alleging that he
was deprived of his constitutional rights in being, or having been:

(a)  held to answer for a
criminal offense which  does not exist in
the statute books;

(b) charged with a criminal offense in an information for which
no complaint was initially filed or preliminary investigation was conducted,
hence was denied due process;

(c)  denied his right to
bail; and

(d) arrested and detained on the strength of a warrant
issued  without the judge who issued it
first having personally determined the existence of probable cause.^[4]

The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for
hearing on March 6, 1990.^[5]
On March 5, 1990, the
Solicitor General filed a consolidated return^[6]
for the respondents in this case and in
G.R. No. 92164,^[7]
which had been contemporaneously but separately filed by two of Senator Enrile’s co-accused, the spouses Rebecco
and Erlinda Panlilio, and raised
similar questions.  Said return urged
that the petitioners’ case does not fall within the Hernandez ruling
because — and this is putting it very simply — the information in Hernandez
charged murders and other common crimes committed as a necessary means for the commission
of rebellion, whereas the information against Sen. Enrile
et al. charged murder and frustrated murder
committed on the occasion, but
not in furtherance, of rebellion. 
Stated otherwise, the Solicitor General would distinguish between the
complex crime (“delito complejo“)
arising from an offense being a necessary means for committing another, which
is referred to in the second clause of Article 48, Revised Penal Code, and is
the subject of the Hernandez ruling, and the compound crime (“delito compuesto“) arising
from a single act constituting two or more grave or less grave offenses
referred to in the first clause of the same paragraph, with which Hernandez was not
concerned and to which, therefore, it should not apply.

The parties were heard in oral argument, as scheduled, on March
6, 1990, after which the Court issued its Resolution of the same date^[8]
granting Senator Enrile and the Panlilio
Spouses provisional liberty conditioned upon their filing, within 24 hours from
notice, cash or surety bonds of P100,000.00 (for Senator Enrile)
and P200,000.00 (for the Panlilios), respectively. 
The Resolution stated that it was issued without prejudice to a more
extended resolution on the matter of the provisional liberty of the petitioners
and stressed that it was not passing upon the legal issues raised in both
cases.  Four Members of the Court^[9]
voted against granting bail to Senator Enrile, and two^[10]
against granting bail to the Panlilios.

The Court now addresses those issues insofar as they are raised
and litigated in Senator Enrile’s petition, G.R. No.
92163.

The parties oral and written pleas
presented the Court with the following options:

(a)   abandon Hernandez and adopt the
minority view expressed in the main dissent of Justice Montemayor
in said case that rebellion cannot  absorb more serious crimes, and that
under Article 48 of the Revised Penal Code rebellion may properly be complexed with common offenses, so-called; this option was
suggested by the Solicitor General in oral argument although it
is not offered in his written
pleadings;

(b)   hold Fernandez applicable only to
offenses committed in furtherance, or as a necessary means for the commission, of
rebellion, but not to acts committed in the course of a rebellion which also constitute “common”
crimes of grave or less grave character;

(c)  maintain Hernandez
as applying to make rebellion absorb all other offenses committed in its
course, whether or not necessary to its commission or in furtherance thereof.

On the first option, eleven (11) Members of the Court voted against abandoning Hernandez.  Two (2) Members felt that the doctrine
should be re-examined.10-A In the
view of the majority, the ruling remains good law, its substantive and logical bases have withstood all
subsequent challenges and no new ones are presented here persuasive
enough to warrant a complete reversal.  This
view is reinforced by the fact that not too long ago, the incumbent President, exercising her powers under the 1986 Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former
regime which precisely sought to nullify or neutralize Hernandez by enacting a new
provision (Art. 142-A) into the Revised Penal Code to the effect that
“(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts
which constitute offenses upon which graver penalties are imposed by law are
committed, the penalty for the most serious offense in its maximum period shall
be imposed upon the offender.”^[11] In thus acting, the President in
effect by legislative fiat reinstated Hernandez as binding doctrine with
the effect of law.  The Court can do no
less than accord it the same recognition, absent any sufficiently powerful
reason against so doing.

On the second option, the Court unanimously voted to reject the
theory that Hernandez is, or should be, limited in its application to offenses committed
as a necessary means for the commission of rebellion and that the ruling should
not be interpreted as prohibiting the compelling of rebellion with other
common crimes committed on the occasion, but not in furtherance, thereof. 
While four Members of the Court felt that the proponents’ arguments were not entirely devoid of merit, the
consensus was that they were not sufficient to overcome what appears to be the
real thrust of Hernandez to rule out the complexing
of rebellion with any other offense committed in its course under either of the
aforecited clauses of Article 48, as is made clear by
the following excerpt from the majority opinion in that case:

“There is one other reason — and a fundamental one at that —
why Article 48 of our Penal Code cannot be applied in the case at bar.  If
murder were not complexed with rebellion, and the two
crimes were punished separately (assuming that this could be done), the
following penalties would be imposable upon the movant,
namely:  (1) for the crime of rebellion,
a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances
present, but never exceeding 12 years of prision
mayor; and (2) for the crime of murder, reclusion temporal in its maximum period to death,
depending upon the modifying circumstances present.  In other words, in the absence of aggravating
circumstances, the extreme penalty could not be imposed upon him.  However, under Article
48 said penalty would
have to be meted out to him, even in the absence of a single aggravating
circumstance.  Thus, said provision,
if construed in conformity with the theory of the prosecution, would be unfavorable
to the movant.

“Upon the other hand, said Article 48 was enacted for the
purpose of favoring the culprit, not of sentencing him to a penalty more
severe than that which would be proper if the several acts performed by him
were punished separately.  In the words
of Rodriguez Navarro:

‘La unificacion de penas en los casos de concurso de delitos a que hace
referencia este articulo (75 del Codigo de 1932),
esta basado francamente en el principio pro
reo.’  (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.)

“We are aware of the fact that this observation refers to
Article 71 (later 75) of the
Spanish Penal code (the counterpart of our Article 48), as amended in 1908 and
then in 1932, reading:

‘Las disposiciones del articulo
anterior no son aplicables en el caso
de que un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro.

‘En estos casos
solo se impondra la pena correspondiente al delito mas grave en su grado maximo,
hasta el limite que represente la suma de las que
pudieran imponerse, penando separadamente los delitos.

‘Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado.’
(Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163)

and that our Article 48 does not contain
the qualification inserted in said amendment, restricting the imposition of the
penalty for the graver offense in its maximum period to the case when it does
not exceed the sum total of the penalties imposable if the acts charged were
dealt with separately.  The absence of
said limitation in our Penal Code does not, to our mind, affect substantially
the spirit of said Article 48.  Indeed,
if one act constitutes two or more offenses, there can be no reason to inflict
a punishment graver than that prescribed for each one of said offenses put together.  In directing that the penalty for the graver
offense be, in such case, imposed in its maximum period, Article 48 could have
had no other purpose than to prescribe a penalty lower than the
aggregate of the penalties for each offense, if imposed separately. 
The reason for this benevolent spirit of Article 48 is readily
discernible.  When two or more crimes are
the result of a single act, the offender is deemed less perverse than
when he commits said crimes thru separate and distinct acts.  Instead of sentencing him for each crime independently from the
other, he must suffer the maximum of the penalty for the more serious one, on
the assumption that it is less grave than the sum total of the separate
penalties for each offense.”^[12]

The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a
means necessary to its commission or as an unintended effect of an activity that constitutes rebellion.

This, however, does not write finis to the case.  Petitioner’s guilt or innocence is not here
inquired into, much less adjudged.  That
is for the trial court to do at the proper time.  The Court’s ruling merely provides a take-off
point for the disposition of other questions relevant to the petitioner’s
complaints about the denial of his rights and to the propriety of the recourse
he has taken.

The Court rules further (by a vote of 11 to 3) that the information
filed against the petitioner does in fact charge an offense.  Disregarding the objectionable phrasing that
would complex rebellion with murder and multiple frustrated murder, that indictment is to be read as charging simple
rebellion.  Thus, in Hernandez,
the Court said:

“In conclusion, we hold that, under the allegations of the
amended information against defendant-appellant Amado
V. Hernandez, the murders, arsons and robberies described therein are mere
ingredients of the crime of rebellion allegedly committed by said
defendants, as means “necessary”
(4) for the perpetration of said offense of rebellion; that the crime charged
in the aforementioned amended information is, therefore, simple
rebellion, not the complex crime of rebellion with multiple murder, arsons and
robberies; that the maximum penalty imposable under such charge cannot exceed
twelve (12) years of prision mayor and
a fine of P2H, HHH; and that, in conformity with the policy of this court in
dealing with accused persons amenable to a similar punishment, said defendant
may be allowed bail.”^[13]

The plaint of petitioner’s counsel that
he is charged with a crime that does not exist in the statute books, while
technically correct so far as the Court has ruled that rebellion may not be complexed with other offenses committed on the occasion
thereof, must therefore be dismissed as a mere flight of rhetoric.  Read in the context of Hernandez, the
information does indeed charge the petitioner with a crime defined and punished
by the Revised Penal Code:  simple
rebellion.

Was the petitioner charged without a complaint having been
initially filed and/or
preliminary investigation conducted?  The record shows otherwise, that a complaint
against petitioner for simple rebellion was filed by the Director of the National Bureau of
Investigation, and that on the strength of said complaint a preliminary
investigation was conducted by the respondent prosecutors, culminating in the filing of the questioned information.^[14] There is nothing inherently
irregular or contrary to law in filing against a respondent an indictment for an offense different from what is charged in the
initiatory complaint, if warranted by the evidence developed during the
preliminary investigation.

It is also contended that the respondent Judge issued the warrant
for petitioner’s arrest without first personally determining the
existence of probable cause by examining under oath or affirmation the
complainant and his witnesses, in violation of Art. III, sec.
2, of the Constitution.^[15] This Court has already ruled, however, that
it is not the unavoidable duty of the judge to make such a personal
examination, it being sufficient that he follows established procedure by personally
evaluating the report and the supporting documents submitted by the prosecutor.^[16] Petitioner claims that the warrant of arrest issued barely one hour and twenty minutes after the case was raffled
off to the respondent Judge, which
hardly gave the latter sufficient time to personally go over the
voluminous records of the preliminary investigation.^[17] Merely because said respondent had what some might consider only a relatively brief period within which to
comply with that duty, gives no reason to assume that he had
not, or could not have, so
complied; nor does that single circumstance suffice to overcome the legal
presumption that official duty has been
regularly performed.

Petitioner finally claims that he was denied the right to
bail.  In the light of the Court’s
reaffirmation of Hernandez as applicable to petitioner’s case, and of
the logical and necessary
corollary that the information against him should be considered as charging
only the crime of simple rebellion, which is bailable
before conviction, that must now be accepted as a correct proposition.  But the
question remains:  Given the facts
from which this case arose, was a
petition for habeas corpus in this Court the appropriate vehicle for asserting a right to bail or
vindicating its denial?

The criminal case before the respondent Judge was the normal
venue for invoking the petitioner’s right to have provisional liberty pending
trial and judgment.  The original
jurisdiction to grant or deny bail rested with said respondent.  The correct
course was for petitioner to invoke
that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se or by reason
of the weakness of the evidence against
him.  Only after that remedy was denied
by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of
Appeals if appropriate relief was also available there.

Even acceptance of petitioner’s premise that going by the Hernandez
ruling, the information charges a non-existent crime or, contrarily, theorizing on the same basis that it charges more than one offense,
would not excuse or justify his improper choice of remedies.  Under either hypothesis, the obvious recourse
would have been a motion to quash brought in the criminal action before the
respondent Judge.^[18]

There thus seems to be no question that all the grounds upon
which petitioner has founded the present petition, whether these went into the
substance of what is charged in the information or imputed error or omission on
the part of the prosecuting panel or of the respondent Judge in dealing with
the charges against
him, were originally justiciable in the criminal case
before said Judge and should have been brought up there instead of directly to this Court.

There was and is no reason to assume that the resolution of any of
these questions was beyond the ability or competence of the respondent Judge —
indeed such an assumption would be demeaning and less than fair to our trial
courts; none whatever to hold them to be of such complexity or transcendental importance as to disqualify every
court, except this Court, from deciding them; none, in short that would justify
by-passing established judicial processes designed to orderly move litigation
through the hierarchy of our courts. 
Parenthetically, this is the reason behind the vote of four Members of
the Court against the grant of bail to petitioner:  the view that the trial court should not thus
be precipitately ousted of its original jurisdiction to grant or deny bail and,
if it erred in that matter, denied an opportunity to correct its error. 
It makes no difference that the respondent Judge here issued a warrant
of arrest fixing no bail.  Immemorial practice
sanctions simply following the prosecutor’s recommendation regarding bail,
though it may be perceived as the better course for the judge motu proprio to set
a bail hearing where a capital offense is charged.^[19]
It is, in any event, incumbent
on the accused as to whom no bail has been recommended or fixed to claim the
right to a bail hearing and thereby put to proof the strength or weakness of
the evidence against him.

It is apropos to point out that the present petition has triggered a rush to this Court of other parties
in a similar situation, all apparently taking their cue from it, distrustful or
contemptuous of the efficacy of seeking recourse in the regular manner just
outlined.  The proliferation of such
pleas has only contributed to the delay that the petitioner may have hoped to
avoid by coming directly to this Court.

Not only because popular interest seems focused on the outcome of
the present petition, but also because to wash the Court’s hands off it on
jurisdictional grounds would only compound the delay that it has already gone
through, the Court now decides the same on the merits.  But in so doing, the Court cannot express too
strongly the view that said petition interdicted the ordered and orderly
progression of proceedings that should have started with the trial court and
reached this Court only if the relief applied for was denied by the former and, in
a proper case, by the Court of Appeals on review.

Let
it be made
very clear that hereafter the Court will no longer countenance, but will give
short shrift to, pleas like the present, that clearly short-circuit the
judicial process and burden it with the resolution of issues properly within
the original competence of the lower courts.

What has thus far been stated is equally applicable to and
decisive of the petition of the Panlilio spouses
(G.R. No. 92164) which is virtually identical to that of petitioner Enrile in factual milieu and is therefore determinable on the same principles already
set forth.  Said spouses have uncontestedly pleaded^[20] that warrants of arrest issued against them
as co-accused of petitioner Enrile in Criminal Case
No. 90-10941, that when they appeared before NBI Director Alfredo Lim in the
afternoon of March 1, 1990,
they were taken into custody and detained without bail on the strength of said
warrants in violation — they claim — of their constitutional rights.

It may be that in the light of contemporary events, the act of rebellion has lost that
quintessentially quixotic quality that justifies
the relative leniency with which it is regarded and punished by law,
that present-day rebels are less impelled by love of country than by lust for
power and have become no better than mere terrorists to whom nothing, not even
the sanctity of human life, is allowed to stand in the way of their
ambitions.  Nothing so underscores this aberration as the rash of seemingly
senseless killings, bombings, kidnappings and assorted mayhem so much in the
news these days, as often perpetrated against innocent civilians as against the military, but by and large
attributable to, or even claimed by so-called rebels to be part of, an ongoing
rebellion.

It is enough to give anyone pause — and the Court is no
exception — that not even the crowded streets of our capital City seem safe
from such unsettling violence that is disruptive of the public peace and
stymies every effort at national economic recovery.  There is an apparent
need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered at
absorbed thereby, so that it cannot be conveniently utilized as the umbrella
for every sort of illegal activity undertaken in its name.  The Court has no power to effect such
change, for can only interpret the law as it stands at any given time, and what
is needed lies beyond interpretation. 
Hopefully, Congress will perceive the need for promptly seizing the
initiative in this matter, which is properly within its province.

WHEREFORE, the Court reiterates that based on the doctrine
enunciated in People vs. Hernandez, the questioned information filed against petitioners
Juan Ponce Enrile and the spouses Rebecco
and Erlinda Panlilio must
be read as charging simple rebellion only, hence said petitioners are entitled
to bail, before final conviction,
as a matter of right.  The Court’s earlier grant of bail to
petitioners being merely provisional in character, the proceedings in both
cases are ordered REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners.  Once bail is fixed by said respondent for any
of the petitioners, the corresponding bail bond filed with this
Court shall become functus oficio.  No
pronouncement as to costs.

SO ORDERED.

Cruz, Paras, Gancayco,
and Regalado, JJ., concur.

Fernan, C.J., see separate dissenting and
concurring opinion.

Melencio-Herrera and Feliciano, JJ., see separate opinion.

Gutierrez, Jr., J., see concurring opinion.

Padilla, J., see dissenting opinion.

Bidin, J., see
concurring and dissenting opinion.

Sarmiento, J., see
concurring and dissenting in part.

Cortes
and Grino-Aquino, J., on leave.

Medialdea, J., concurring in G.R. No.
92164; no part in G.R. No. 92163.

^[1]
99 Phil. 515 (1956)

^[2]
People vs. Lava, 28 SCRA 72
(1956); People vs. Geronimo, 100 Phil. 90 (1956); People vs. Romagosa, 103 Phil. 20 (1958); and People vs.
Rodriguez, 107 Phil. 659 (1960)

^[3]
Rollo, G.R. No. 92163, pp. 32-34

^[4]
Rollo, G.R. No. 92163, pp. 34 et seq.

^[5]
Rollo, G.R. No. 92163, p. 26

^[6]
Rollo, G.R.
No. 92163, pp. 305-359

^[7] Originally a petition for certiorari
and prohibition which the Court, upon motion of the petitioners, resolved to
treat as a petition for habeas corpus; Rollo,
G.R. No. 92164, pp. 128-129

^[8]
Rollo, G.R. No. 92163, pp. 407-411

^[9]
Fernan, C.J., and Narvasa, Cortes and Grino-Aquino,
JJ.

^[10]
Fernan, C.J. and Narvasa,
J.

10-A Two Members are on
leave.

^[11]
Executive
Order No. 187 issued June 5, 1987

^[12]
People vs. Hernandez, supra at 541-543

^[13]
Id.
at 551

^[14]
Rollo,
G.R. No. 92163, pp. 78-79 and 73-76

^[15]
supra, footnote
4

^[16]
Soliven vs. Makasiar,
167 SCRA 394

^[17]
Rollo, G.R. No. 92163, pp.
46-47

^[18]
Sec. 2, Rule 117, Rules of
Court

^[19]
Ocampo vs. Bernabe,
77 Phil. 55

^[20]
Rollo, G.R. No. 92164, pp. 124-125

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