[Syllabus]

SECOND DIVISION

[G.R. No. 107383. February 20, 1996.]

CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION
MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional
Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her
from private respondent’s clinic without the latter’s knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a
driver and private respondent’s secretary, forcibly opened the drawers and cabinet in her husband’s clinic
and took 157 documents consisting of private correspondence between Dr. Martin and his alleged
paramours, greetings cards, cancelled checks, diaries, Dr. Martin’s passport, and photographs. The
documents and papers were seized for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the documents and papers and for damages
against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial,
rendered judgment for private respondent, Dr. Alfredo Martin, declaring him “the capital/exclusive owner
of the properties described in paragraph 3 of plaintiff’s Complaint or those further described in the Motion
to Return and Suppress” and ordering Cecilia Zulueta and any person acting in her behalf to immediately
return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral
damages and attorney’s fees; and to pay the costs of the suit. The writ of preliminary injunction earlier
issued was made final and petitioner Cecilia Zulueta and her attorneys and representatives were enjoined
from “using or submitting/admitting as evidence” the documents and papers in question. On appeal, the
Court of Appeals affirmed the decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and papers to be properties of private
respondent, ordered petitioner to return them to private respondent and enjoined her from using them in
evidence. In appealing from the decision of the Court of Appeals affirming the trial court’s decision,
petitioner’s only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents
and papers (marked as Annexes A-i to J-7 of respondent’s comment in that case) were admissible in
evidence and, therefore, their use by petitioner’s attorney, Alfonso Felix, Jr., did not constitute malpractice
or gross misconduct. For this reason it is contended that the Court of Appeals erred in affirming the
decision of the trial court instead of dismissing private respondent’s complaint.
Petitioner’s contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among
other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the
documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the
injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note of
the following defense of Atty. Felix, Jr. which it found to be “impressed with merit:” 2
 On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:
xxx xxx xxx

4. When respondent refiled Cecilia’s case for legal separation before the Pasig Regional Trial Court, there was
admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex “A-I to
J-7.” On September 6, 1983, however having appealed the said order to this Court on a petition for certiorari, this
Court issued a restraining order on aforesaid date which order temporarily set aside the order of the trial court.
Hence, during the enforceability of this Court’s order, respondent’s request for petitioner to admit the genuineness
and authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally
admitted the truth and authenticity of the questioned annexes. At that point in time, would it have been malpractice
for respondent to use petitioner’s admission as evidence against him in the legal separation case pending in the
Regional Trial Court of Makati? Respondent submits it is- not malpractice.

Significantly, petitioner’s admission was done not thru his counsel but by Dr. Martin himself under
oath. Such verified admission constitutes an affidavit, and, therefore, receivable in evidence against him.
Petitioner became bound by his admission. For Cecilia to avail herself of her husband’s admission and
use the same in her action for legal separation cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration
that his use of the documents and papers for the purpose of securing Dr. Martin’s admission as to their
genuiness and authenticity did not constitute a violation of the injunctive order of the trial court. By no
means does the decision in that case establish the admissibility of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the documents
and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The TRO
issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial
court’s order was dismissed and, therefore, the prohibition against the further use of the documents and
papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring “the privacy of communication and correspondence [to be] inviolable” 3 is no less
applicable simply because it is the wife (who thinks herself aggrieved by her husband’s infidelity) who is
the party against whom the constitutional provision is to be enforced. The only exception to the prohibition
in the Constitution is if there is a “lawful order [from a] court or when public safety or order requires
otherwise, as prescribed by law.”4 Any violation of this provision renders the evidence obtained
inadmissible “for any purpose in any proceeding.”5
The intimacies between husband and wife do not justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her.
The law insures absolute freedom of communication between the spouses by making it privileged.
Neither husband nor wife may testify for or against the other without the consent of the affected spouse
while the marriage subsists.6 Neither may be examined without the consent of the other as to any
communication received in confidence by one from the other during the marriage, save for specified
exceptions.7 But one thing is freedom of communication; quite another is a compulsion for each one to
share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to
the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
Regalado (Chairman), Romero, and Puno, JJ., concur.
1 163 SCRA 111(1988).
2 Id. at 120-121, 126.
3 1973 CONST., Art. IV, §4(1); 1987 CONST., Art. III, §3(1).
4 Id.
5 1973 CONST., ART. IV, §4(2); 1987 CONST., Art. III, 3 §(2).
6 Rule 130, §22.
7 Rule 130, §24.
ZULUETA V. CA

FACTS:

Cecilia Zulueta is the wife of Dr. Alfredo Martin. On March 26, 1982, she entered the clinic of her
husband, and forcibly opened the drawers and cabinet in the clinic and took documents consisting of
letters between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr.
Martin's passport, and photographs. These documents were used as evidence in a case for legal
separation and for disqualification from the practice of medicine filed by Cecilia.

Dr. Martin moved for recovery of the documents and papers and for damages at RTC of Manila. They
rendered judgment, in his favor and ordered Cecilia to a immediately return the documents and to pay
him P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the
costs of the suit. They were enjoined from "using or submitting/admitting as evidence" the documents
and papers in question. They appealed, but the CA affirmed the decision of the RTC.

In appealing of the decision of CA, Cecilia’s ground is that in Alfredo Martin v. Alfonso Felix, Jr., this Court
ruled that the documents and papers were admissible in evidence and, therefore, their use did not
constitute malpractice or gross misconduct. For this reason it is contended that the Court of Appeals
erred in affirming the decision of the trial court instead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other
things, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence,
Atty. Felix, Jr. committed malpractice or gross misconduct because of the injunctive order of the trial
court.

When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court, there
was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents
Annex "A-1 to J-7." On September 6, 1983, however having appealed the said order to this Court on a
petition for certiorari, this Court issued a restraining order on aforesaid date which order temporarily set
aside the order of the trial court. Hence, during the enforceability of this Court's order, respondent's
request for petitioner to admit the genuineness and authenticity of the subject annexes cannot be looked
upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity of the
questioned annexes, At that point in time, would it have been malpractice for respondent to use
petitioner's admission as evidence against him in the legal separation case pending in the Regional Trial
Court of Makati? Respondent submits it is not malpractice.
Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under oath,
Such verified admission constitutes an affidavit, and, therefore, receivable in evidence against him.
Petitioner became bound by his admission. For Cecilia to avail herself of her husband's admission and use
the same in her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration
that his use of the documents and papers for the purpose of securing Dr. Martin's admission as to their
genuiness and authenticity did not constitute a violation of the injunctive order of the trial court. By no
means does the decision in that case establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the documents
and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The TRO
issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial
court's order was dismissed and, therefore, the prohibition against the further use of the documents and
papers became effective again.

ISSUE:
Whether or not documents obtained by the wife are admissible evidence?

HELD:
The SC ruled that the wife cannot use the said documents and letters as evidences because they were
obtained in violation of her husband’s constitutional right to privacy.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction
declaring "the privacy of communication and correspondence [to be] inviolable" is no less applicable
simply because it is the wife who is the party against whom the constitutional provision is to be enforced.
The only exception to the prohibition in the Constitution is if there is a "lawful order [from a] court or
when public safety or order requires otherwise, as prescribed by law." Any violation of this provision
renders the evidence obtained inadmissible "for any purpose in any proceeding."

The intimacies between husband and wife do not justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged.
Neither husband nor wife may testify for or against the other without the consent of the affected spouse
while the marriage subsists. Neither may be examined without the consent of the other as to any
communication received in confidence by one from the other during the marriage, save for specified
exceptions. But one thing is freedom of communication; quite another is a compulsion for each one to
share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes
to the other.
FELIPE NAVARRO vs THE COURT OF APPEALS

28 11 2010

Read digest here.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 121087 August 26, 1999

FELIPE NAVARRO, petitioner,

vs.
THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated December 14, 1994, which
affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding petitioner
Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10) years of prision mayor,
as minimum, and fourteen (14) years and eight (8) months, and (1) day of reclusion temporal, as maximum, but
increased the death indemnity awarded to the heirs of the victim, Enrique “Ike” Lingan, from P30,000.00 to
P50,000.00.

The information against petitioner alleged —

That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of Quezon,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the
Lucena Integrated National Police, with intent to kill, did then and there willfully, unlawfully and feloniously assault
one Ike Lingan inside the Lucena police headquarters, where authorities are supposed to be engaged in the discharge
of their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter when the said victim
fell, by banging his head against the concrete pavement, as a consequence of which said Ike Lingan suffered
cerebral concussion and shock which directly caused his death.

The evidence show that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique “Ike”
Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went to the
Entertainment City following reports that it was showing the nude dancers. After the three had seated themselves at
a table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip act. As she removed
her brassieres, Jalbuena brought out his camera and took a picture. 2

At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and
demanded to know why he took a picture.3 Jalbuena replied: “Wala kang pakialam, because this is my job.” 4Sioco
pushed Jalbuena towards the table as he warned the latter that he would kill him. 5 When Jalbuena saw that Sioco
was about to pull out his gun, he ran out of the joint followed by his companions. 6

Jalbuena and his companions went to the police station to report the matter. Three of the policeman on duty,
including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his
companions to join them. Jalbuena declined and went to the desk officer, Sgt. Añonuevo, to report the incident. In a
while, Liquin and Sioco arrived on a motorcycle. 7
Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen
minutes.8 Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: “Putang ina,
kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?”9 Petitioner Navarro then pulled out
his firearm and cocked it, and, pressing it on the face of Jalbuena, said “Ano, uutasin na kita?” 10

At this point, Lingan intervened and said to petitioner Navarro: “Huwag namang ganyan pumarito kami para magpa-
blotter, I am here to mediate.” 11 Petitoner Navarro replied: “Walang press, press, mag-sampu pa kayo.”12 He then
turned to Sgt. Añonuevo and told him to make of record the behavior of Jalbuena and Lingan. 13

This angered Lingan, who said: “O, di ilagay mo diyan”14 Petitioner Navarro retorted: “Talagang ilalagay ko.”15 The
two then had a heated exchange.16 Finally, Lingan said: “Masyado kang abusado, alisin mo yang baril mo at
magsuntukan na lang tayo.”17 Petitioner Navarro replied: “Ah, ganoon?”18

As Lingan was about turn away, petitioner Navarro hit him with the handle of the pistol above the left eyebrow.
Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave him a fist blow
on the forehead which floored him.19

Petitioner Navarro turned to Jalbuena and said: “Kita mo yan ha, buhay kang testigo, si Ike Lingan and
naghamon.”20 He said to Sgt. Añonuevo: “Ilagay mo diyan sa blotter sa harap ni Alex Sioco at Dante Liquin, na si
Ike Lingan ang naghamon.”21 He then poked his gun at the right temple of Jalbuena and made him sign his name on
the blotter.22 Jalbuena could not affix his signature. His right hand was trembling and he simply wrote his name in
print.23

Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan to
the Quezon Memorial Hospital. The station manager of DWTI, Boy, Casañada, arrived and, learning that Lingan
had been taken to the hospital, proceeded there. But Lingan died from his injuries. 24

Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the
deceased.25 The following is an excerpt from the tape recording:

Lingan: Pare, you are abusing yourself.

Navarro: Who is that abusing?

Lingan: I’m here to mediate. Do not include me in the problem. I’m out of the problem.

xxx xxx xxx

Navarro: Wala sa akin yan. Ang kaso lang . . .

Lingan: Kalaban mo ang media, pare, Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just came here
to ayusin things. Do not say bad things against me. I’m the number one loko sa media. I’m the best media man. . . .

Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing loko ka!

Lingan: I’m brave also.

Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-tatrabaho lang ako
ng ayon sa serbisyo ko.

Lingan: You are challenging me and him. . . .

Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong maganda.
Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh.

Lingan: Pati ako kalaban ninyo.

Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!

Lingan: You are wrong. Bakit kalaban nyo ang press?

Navarro: Pulis ito! Aba!

Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.

Navarro: Mayabang ka ah!

(Sounds of a scuffle)

Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko daw ang baril
ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis
tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare,
hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan.

Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able to
duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on the
concrete.26

In giving credence to the evidence for the prosecution, the trial court stated:

After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the defense, this court
finds that the evidence for the prosecution is the more credible, concrete and sufficient to create that moral certainty
in the mind of the court that accused herein is criminally responsible.

The defense’s evidence which consists of outright denial could not under the circumstance overturn the strength of
the prosecution’s evidence.

This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any motive to make false
accusation, distort the truth, testify falsehood or cause accusation of one who had neither brought him harm or
injury.

Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms the detailed
account given by Stanley Jalbuena on how Lingan sustained head injuries.

Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the defense that the
head injuries of deceased Lingan were caused by the latter’s falling down on the concrete pavement head first.

The Court of Appeals affirmed:

We are far from being convinced by appellant’s aforesaid disquisition. We have carefully evaluated the conflicting
versions of the incident as presented by both parties, and we find the trial court’s factual conclusions to have better
and stronger evidentiary support.
In the first place, the mere fact that Jalbuena was himself a victim of appellant’s aggression does not impair the
probative worth of his positive and logical account of the incident in question. In fact, far from proving his
innocence, appellant’s unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly betrays
his violent character or disposition and his capacity to harm others. Apparently, the same motivation that led him
into assailing Jalbuena must have provoked him into also attacking Lingan who had interceded for Jalbuena and
humiliated him and further challenged to a fist fight.1âwphi1.nêt

xxx xxx xxx

On the other hand, appellant’s explanation as how Lingan was injured is too tenuous and illogical to be accepted. It
is in fact contradicted by the number, nature and location of Lingan’s injuries as shown in the post-mortem report
(Exh. D). According to the defense, Lingan fell two times when he was outbalanced in the course of boxing the
appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between his left and right
eyebrows, and contusion in the right temporal region of the head (Exh. E.). Certainly, these injuries could not have
been resulted from Lingan’s accidental fall.

Hence, this appeal. Petitioner Navarro contends:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW AND
WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A FINDING
BASED ON SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS MANIFESTLY
MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS
JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY
EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE RECORD.

The appeal is without merit.

First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a biased
witness, having a grudge against him. The testimony of a witness who has an interest in the conviction of the
accused is not, for this reason alone, unreliable.27 Trial courts, which have the opportunity observe the facial
expressions, gestures, and tones of voice of a witness while testifying, are competent to determine whether his or her
testimony should be given credence.28 In the instant case, petitioner Navarro has not shown that the trial court erred
in according weight to the testimony of Jalbuena.

Indeed, Jalbuena’s testimony is confirmed by the voice recording had made. It may be asked whether the tape is
admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law
provides:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or
spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept,
or record such communication or spoken word by using a device commonly known as dictaphone or dictagraph of
dectectaphone or walkie-talkie or tape-recorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding
sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof,
of any communication or spoken word secured either before or after the effective date of this Act in the manner
prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof,
either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other
person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation
or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

xxx xxx xxx

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the
same or any part thereof, or any information therein contained obtained or secured by any person in violation of the
preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or
administrative hearing or investigation.

Thus, the law prohibits the overhearing, intercepting, or recording of private communications. 29 Since the exchange
between petitioner Navarro and Lingan was not private, its tape recording is not prohibited.

Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of a
witness (1) that he personally recorded the conversations; (2) that the tape played in the court was the one he
recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong. 30 In the instant case,
Jalbuena testified that he personally made the voice recording; 31 that the tape played in the court was the one he
recorded;32 and that the speakers on the tape were petitioner Navarro and Lingan. 33 A sufficient foundation was thus
laid for the authentication of the tape presented by the prosecution.

Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between petitioner
Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2) that some form
of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst of it.

Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued the medical
certificate,34 dated February 5, 1990, containing the following findings:

Post Mortem Findings:

= Dried blood, forehead & face

= No blood oozed from the ears, nose & mouth

= Swelling, 3 cm x 2 cm, temporal region, head, right

= Lacerated wound, 2 cm in length, 1-2 in depth, lateral eyebrow, Left

= Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow

= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left

= Cyanosis of the tips of fingers & toes

CAUSE OF DEATH:

= CEREBRAL CONCUSSION & SHOCK

= BLOW ON THE HEAD

Dr. Yamamato testified:

Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of blood from
the forehead?

A It may be due to a blow on the forehead or it bumped to a hard object, sir.

Q Could a metal like a butt of a gun have caused this wound No. 1.?
A It is possible, sir.

Q And in the alternative, could have it been caused by bumping on a concrete floor?

A Possible, sir.

FISCAL:

What could have been the cause of the contusion and swelling under your findings No. 2 doctor?

WITNESS:

It may be caused by bumping to a hard object, sir.

Q Could a butt of a gun have caused it doctor?

A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is small, sir.

Q How about this findings No. 4?

A By a bump or contact of the body to a hard object, sir.

Q And findings No. 5 what could have caused it?

A Same cause, sir.

Q This findings No. 6 what could have caused this wound?

A Same thing sir.

Q How about the last finding, cyanosis of tips of fingers and toes, what could have caused it doctor?

WITNESS:

It indicates there was cardiac failure, sir.

FISCAL:

In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral concussion
and Shock, will you explain it?

A Cerebral concussion means in Tagalog “naalog ang utak” or jarring of the brain, sir.

Q What could have been the cause of jarring of the brain?

A It could have been caused by a blow of a hard object, sir.

Q What about the shock, what could have caused it?

A It was due to peripheral circulatory failure, sir.

Q Could any one of both caused the death of the victim?

A Yes, sir.

Q Could cerebral concussion alone have caused the death of the deceased?

A May be, sir.

FISCAL:

Which of these two more likely, to cause death?

WITNESS:

Shock, sir.

Q Please explain further the meaning of the medical term shock?

A It is caused by peripheral circulatory failure as I have said earlier sir.

xxx xxx xxx

FISCAL:

Could a bumping or pushing of one’s head against a concrete floor have caused shock?

WITNESS:

Possible, sir.

How about striking with a butt of a gun, could it cause shock?

A Possible, sir.35

The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle of his
pistol above the left eyebrow and struck him on the forehead with his fist.

Third. It is argued that the mitigating circumstances of sufficient provocation or threat on the part of the offended
party immediately preceding the act should have been appreciated in favor of petitioner Navarro. Provocation is
defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating
anyone.36 The provocation must be sufficient and should immediately precede the act. 37 To be sufficient, it must be
adequate to excite a person to commit the wrong, which must accordingly be proportionate in gravity. 38 And it must
immediately precede the act so much so that there is no interval between the provocation by the offended party and
the commission of the crime by the accused.39

In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted sufficient
provocation. In People v. Macaso,40 we appreciated this mitigating circumstance in favor of the accused, a
policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words. Hence, this mitigating
circumstance should be considered in favor of petitioner Navarro.

Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that
committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after the
scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this mitigating
circumstance should be taken into account in determining the penalty that should be imposed on petitioner Navarro.
The allowance of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred by
any person committing a felony although the wrongful act done be different from that which he
intended.41 In People v. Castro,42 the mitigating circumstance of lack of intent to commit so grave a wrong as that
committed was appreciated in favor of the accused while finding him guilty of homicide.

However, the aggravating circumstance of commission of a crime in a place where the public authorities are
engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this case
was committed right in the police station where policemen were discharging their public functions. 43

The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty under
Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances and one
aggravating circumstances, the penalty should be fixed in its minimum period.44 Applying the Indeterminate
Sentence Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum of which is within
the range of the penalty next lower degree, i.e., prision mayor, and the maximum of which is reclusion temporal in
its minimum period.45

The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with the
current jurisprudence.46

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner Felipe
Navarro is hereby SENTENCED to suffer a prison terms of 18 years of prision mayor, as minimum, to 14 years and
8 months of reclusion temporal, as maximum.

SO ORDERED.1âwphi1.nêt

Bellosillo, Quisumbing and Buena, JJ., concur.

Felipe Navarro vs Court of Appeals

28112010

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Aggravating Circumstance – Crime Committed in Places where Official duties are discharged

Enrique Lingan and Stanley Jalbuena, both radio reporters went to a police station to report for
a blotter. During the course, a heated argument arose between police officer Navarro and the
two reporters. Navarro then poked his cocked firearm on the face of Jalbuena. Lingan
interfered, this then irked Navarro and then and there hit Lingan with the handle of his pistol
above the left eyebrow. This caused Lingan to fall on the floor bloddied.

ISSUE: Whether or not there is an aggravating circumstance against Navarro due to the fact that
he committed such crime in the police station?

HELD: A police station is a place wherein public authorities such as policemen are engaged in
the discharge of their duties. Since Navarro, who is a cop, committed the crime inside the police
station, an aggravating circumstance is appreciated against him.

IGLESIA NI CRISTO VS. COURT OF APPEALS [259 SCRA 529; G.R. NO. 119673; 26 JUL 1996]
Sunday, February 08, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: Petitioner has a television program entitled "Ang Iglesia ni Cristo" aired on Channel 2
every Saturday and on Channel 13 every Sunday. The program presents and propagates
petitioner's religious beliefs, doctrines and practices often times in comparative studies with
other religions. Petitioner submitted to the respondent Board of Review for Moving Pictures
and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The
Board classified the series as "X" or not for public viewing on the ground that they "offend
and constitute an attack against other religions which is expressly prohibited by law." On
November 28, 1992, it appealed to the Office of the President the classification of its TV
Series No. 128 which allowed it through a letter of former Executive Secretary Edelmiro A.
Amante, Sr., addressed for Henrietta S. Mendez reversing the decision of the respondent
Board. According to the letter the episode in is protected by the constitutional guarantee of
free speech and expression and no indication that the episode poses any clear and present
danger. Petitioner also filed Civil Case. Petitioner alleged that the respondent Board acted
without jurisdiction or with grave abuse of discretion in requiring petitioner to submit the
VTR tapes of its TV program and in x-rating them. It cited its TV Program Series Nos. 115,
119, 121 and 128. In their Answer, respondent Board invoked its power under PD No.
19861 in relation to Article 201 of the Revised Penal Code. The Iglesia ni Cristo insists on
the literal translation of the bible and says that our (Catholic) veneration of the Virgin Mary
is not to be condoned because nowhere it is found in the bible. The board contended that it
outrages Catholic and Protestant's beliefs. RTC ruled in favor of petitioners. CA however
reversed it hence this petition.

Issue: Whether or Not the "ang iglesia ni cristo" program is not constitutionally protected
as a form of religious exercise and expression.

Held: Yes. Any act that restrains speech is accompanied with presumption of invalidity. It is
the burden of the respondent Board to overthrow this presumption. If it fails to discharge
this burden, its act of censorship will be struck down. This is true in this case. So-called
"attacks" are mere criticisms of some of the deeply held dogmas and tenets of other
religions. RTC’s ruling clearly suppresses petitioner's freedom of speech and interferes with
its right to free exercise of religion. “attack” is different from “offend” any race or religion.
The respondent Board may disagree with the criticisms of other religions by petitioner but
that gives it no excuse to interdict such criticisms, however, unclean they may be. Under
our constitutional scheme, it is not the task of the State to favor any religion by protecting it
against an attack by another religion. Religious dogmas and beliefs are often at war and to
preserve peace among their followers, especially the fanatics, the establishment clause of
freedom of religion prohibits the State from leaning towards any religion. Respondent board
cannot censor the speech of petitioner Iglesia ni Cristo simply because it attacks other
religions, even if said religion happens to be the most numerous church in our country. The
basis of freedom of religion is freedom of thought and it is best served by encouraging the
marketplace of dueling ideas. It is only where it is unavoidably necessary to prevent an
immediate and grave danger to the security and welfare of the community that infringement
of religious freedom may be justified, and only to the smallest extent necessary to avoid the
danger. There is no showing whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior restraint on speech,
including religious speech, cannot be justified by hypothetical fears but only by the showing
of a substantive and imminent evil. It is inappropriate to apply the clear and present danger
test to the case at bar because the issue involves the content of speech and not the time,
place or manner of speech. Allegedly, unless the speech is first allowed, its impact cannot
be measured, and the causal connection between the speech and the evil apprehended
cannot be established. The determination of the question as to whether or not such
vilification, exaggeration or fabrication falls within or lies outside the boundaries of
protected speech or expression is a judicial function which cannot be arrogated by an
administrative body such as a Board of Censors." A system of prior restraint may only be
validly administered by judges and not left to administrative agencies.

EBRALINAG VS. DIVISION SUPERINTENDENT OF CEBU [219 SCRA 256 ; G.R. NO. 95770; 1 MAR
1993]
Saturday, February 07, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: Two special civil actions for certiorari, Mandamus and Prohibition were filed and
consolidated for raising same issue. Petitioners allege that the public respondents acted
without or in excess of their jurisdiction and with grave abuse of discretion. Respondents
ordered expulsion of 68 HS and GS students of Bantayan, Pinamungajan, Caracar, Taburan
and Asturias in Cebu. Public school authorities expelled these students for refusing to salute
the flag, sing the national anthem and recite the “Panatang Makabayan” required by
RA1265. They are Jehovah’s Witnesses believing that by doing these is religious
worship/devotion akin to idolatry against their teachings. They contend that to compel
transcends constitutional limits and invades protection against official control and religious
freedom. The respondents relied on the precedence of Gerona et al v. Secretary of
Education. Gerona doctrine provides that we are a system of separation of the church and
state and the flag is devoid of religious significance and it doesn’t involve any religious
ceremony. The freedom of religious belief guaranteed by the Constitution does not mean
exception from non-discriminatory laws like the saluting of flag and singing national
anthem. This exemption disrupts school discipline and demoralizes the teachings of civic
consciousness and duties of citizenship.

Issue: Whether or Not religious freedom has been violated.

Held: Religious freedom is a fundamental right of highest priority. The 2 fold aspect of right
to religious worship is: 1.) Freedom to believe which is an absolute act within the realm of
thought. 2.) Freedom to act on one’s belief regulated and translated to external acts. The
only limitation to religious freedom is the existence of grave and present danger to public
safety, morals, health and interests where State has right to prevent. The expulsion of the
petitioners from the school is not justified.

The 30 yr old previous GERONA decision of expelling and dismissing students and teachers
who refuse to obey RA1265 is violates exercise of freedom of speech and religious
profession and worship. Jehovah’s Witnesses may be exempted from observing the flag
ceremony but this right does not give them the right to disrupt such ceremonies. In the
case at bar, the Students expelled were only standing quietly during ceremonies. By
observing the ceremonies quietly, it doesn’t present any danger so evil and imminent to
justify their expulsion. What the petitioner’s request is exemption from flag ceremonies and
not exclusion from public schools. The expulsion of the students by reason of their religious
beliefs is also a violation of a citizen’s right to free education. The non-observance of the
flag ceremony does not totally constitute ignorance of patriotism and civic consciousness.
Love for country and admiration for national heroes, civic consciousness and form of
government are part of the school curricula. Therefore, expulsion due to religious beliefs is
unjustified.

Petition for Certiorari and Prohibition is GRANTED. Expulsion is ANNULLED.

Human Rights:

UMIL VS. RAMOS [187 SCRA 311; G.R. NO. 81567; 3 OCT 1991]
Wednesday, February 04, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: On 1 February 1988, military agents were dispatched to the St. Agnes Hospital,
Roosevelt Avenue, Quezon City, to verify a confidential information which was received by
their office, about a "sparrow man" (NPA member) who had been admitted to the said
hospital with a gunshot wound. That the wounded man in the said hospital was among the
five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or
on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St.,
Bagong Barrio, Caloocan City. The wounded man's name was listed by the hospital
management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City
Homes, Biñan, Laguna however it was disclosed later that the true name of the wounded
man was Rolando Dural. In view of this verification, Rolando Dural was transferred to the
Regional Medical Servicesof the CAPCOM, for security reasons. While confined thereat, he
was positively identified by the eyewitnesses as the one who murdered the 2 CAPCOM
mobile patrols.

Issue: Whether or Not Rolando was lawfully arrested.

Held: Rolando Dural was arrested for being a member of the NPA, an outlawed subversive
organization. Subversion being a continuing offense, the arrest without warrant is justified
as it can be said that he was committing as offense when arrested. The crimes rebellion,
subversion, conspiracy or proposal to commit such crimes, and crimes or offenses
committed in furtherance therefore in connection therewith constitute direct assaults
against the state and are in the nature of continuing crimes.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 70748 October 21, 1985

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LAURENTE C. ILAGAN, ANTONIO
B. ARELLANO, and MARCOS D. RISONAR, JR., Integrated Bar of the Philippines [IBP]; Free Legal
Assistance Group [FLAG] and Movement of Attorneys For Brotherhood, Integrity and Nationalism,
Inc., [MABINI], petitioners,
vs.
HON. JUAN PONCE ENRILE, Minister of National Defense; LT. GEN. FIDEL V. RAMOS, Acting
Chief of Staff, Armed Forces of the Philippines; BRIG. GEN. DIONISIO TAN-GATUE, PC-INP
Regional Commander for Region XI, Camp Catitipan, Davao City, respondents.

Roberto Concepcion, Jose B.L. Reyes, Raul S. Goco, Joker Arroyo, Haydee Yorac, Fulgencio S.
Factoran, Francisco I. Chavez , Lorenzo M. Tañada, Wigberto Tañada and Martiniano Vivo for
petitioners.

The Solicitor General for respondents.

MELENCIO-HERRERA, J.:

This is a petition for Habeas Corpus filed by the Integrated Bar of the Philippines (IBP), the Free Legal
Assistance Group (FLAG); and the Movement of Attorneys for Brotherhood, Integrity and Nationalism
(MABINI) on behalf of Attorneys Laurente C. Ilagan, Antonio B. Arellano, and Marcos Risonar, Jr.

The facts follow:

On May 10, 1985, Attorney Laurente C. Ilagan was arrested in Davao City by elements of the PC-INP and
detained at Camp Catitipan on the basis of a Mission Order allegedly issued by the Ministry of National
Defense. On that same day, fifteen lawyers from the IBP Davao Chapter visited Atty. Ilagan. One of the
visiting lawyers, Atty. Antonio Arellano, was also arrested and detained on the basis of an unsigned
Mission Order. On May 13, 1985, the military sent word to the IBP Davao Chapter that Attorney Marcos
Risonar would likewise be arrested. The latter went to Camp Catitipan to verify his arrest papers and was
detained on the basis of a Mission Order signed by General Echavarria, Regional Unified Commander.

This petition for habeas corpus was then filed by and on behalf of the three arrested lawyers hereinafter
referred to as the detained attorneys on the ground that their arrests were illegal and violative of the
Constitution, since arrests cannot be made on the basis of Mission Orders. and that there appears to be a
military campaign to harass lawyers involved in national security cases.

On May 16, 1985, the Court issued the Writ, required a Return, and set the petition for hearing on May
23, 1985.

In their Return, respondents contended that the detained attorneys were arrested on the basis of a PDA
issued by the President on January 25, 1985; that the Writ of habeas corpus is suspended as to them by
virtue of Proclamation No. 2045-A; and that pursuant to the ruling in Garcia-Padilla vs. Ponce Enrile, et
al, 1 Courts lack the authority to inquire into the cause and validity of detention of persons held pursuant
to the suspension. Respondents further expounded on the state of rebellion in Davao City on the basis of
seized subversive documents, implying that the detained attorneys played active roles in organizing mass
actions of the Communist Party of the Philippines and the National Democratic Front. Respondents then
prayed for the denial of the petition.

During the hearing on May 23, 1985, the detained attorneys narrated to the Court the circumstances of
their arrest and detention. Counsel for the respondents, on the other hand, presented evidence of
subversive activities in Davao, but due to lack of evidence linking the detained attorneys with the alleged
subversive activities, the Court, on the same day resolved to order the temporary release of the detained
attorneys on the recognizance of the principal counsel of petitioner's, namely, retired Chief Justice
Roberto Concepcion and retired Associate Justice J.B.L. Reyes. The Court further resolved to give
petitioners ten days within which to file a traverse to the Return of the Writ and the respondents ten days
to file a Reply thereto.

The next day, or on May 24, 1985, petitioners filed a Manifestation and Motion stating that the detained
attorneys had not yet been released and praying that they be released to the custody of the principal
counsel of petioners at the Supreme Court.

On May 27, 1985, respondents filed an Urgent Motion for Reconsideration of this Court's Order of
Release reiterating that the suspension of the Writ of Habeas Corpus has the effect of ousting the Court
of its jurisdiction to hear the case, and attached thereto classified documents consisting of the Report of
respondent Brig. Gen. Tan-Gatue stating that the detained attorneys "were arrested not on the basis of
their 'lawyering' but for specific acts of rebellion and economic sabotage as well as for their leadership in
the CPP" ... "even to the extent of attending CPP and NPA rites and using their profession as lawyers as
cover-up for their activities in furtherance of CPP goals and objectives;" and that the detained attorneys
were involved in the Welgang Bayan in Davao City, a mass action "with demands for the armed
overthrow of the government." Sworn statements of several persons also implicated the detained
attorneys in alleged subversive activities. Respondents added that, while there is a Court Order directing
release, they, too, are under orders, pursuant to the PDA, to hold in custody the detained attorneys until
ordered released by the President or by his duly authorized representative, and that the PDA, when
issued, constitutes authority to preventively detain them for a period not exceeding one year.

On May 28, 1985, respondents filed an Urgent Manifestation/Motion stating that an Information for
Rebellion was filed on May 27, 1985 against the detained attorneys before the Regional Trial Court of
Davao City, Branch X, docketed as Criminal Case No. 12,349; that a Warrant of Arrest had been issued
against them; and praying that this Petition be dismissed for having been rendered moot and academic.

On May 30, 1985, petitioners filed an Opposition to respondents' Urgent Motion/Manifestation contending
that since the detained attorneys were not given the benefit of preliminary investigation, they were denied
their constitutional right to due process; consequently, the Information for Rebellion filed against them is
void. Respondents, on the other hand, filed on the same day a Comment to petitioners' Manifestation and
Motion reiterating their prayer for the dismissal of the petition on the ground of mootness by virtue of the
proceedings before the Regional Trial Court of Davao.

On June 3, 1985, petitioners filed a consolidated Comment and Traverse contending that the "Welgang
Bayans" were in legitimate exercise of the constitutional right of expression and assembly to petition the
government for redress of grievances; that the detained attorneys' participation was limited to serving in
the legal panel and the negotiating panels; that Proclamation No. 2045 is unconstitutional because there
exists no factual or legal basis for the suspension of the Writ of Habeas Corpus as provided for in the
Constitution; that the evidence presented by respondents against the detained attorneys are of a doubtful
and flimsy nature; and that the PDA is unconstitutional because it violates Section 3, Article IV, of the
Constitution prohibiting unreasonable searches and seizures.

On July 1, 1985, petitioners filed a Manifestation and Motion praying that the Court immediately resolve
the issues raised as the case affects not only the detained attorneys but the entire legal profession and
the administration of justice as well.

Finally, after two extensions granted by the Court, on July 8, 1985, respondents filed a Consolidated
Reply, reiterating first, the validity of Proclamation No. 2045, as amended by Proclamation No. 2045-A
and of the PDA issued against petitioners as an incident to the suspension of the privilege of the Writ
of habeas corpus: secondly, the ruling in Garcia-Padilla vs. Ponce Enrile, et al.; 2 and thirdly, its prayer for
the dismissal of the petition on the ground of mootness by virtue of the filing of an Information for
Rebellion against the detained attorneys before the Regional Trial Court of Davao City .

As contended by respondents, the petition herein has been rendered moot and academic by virtue of the
filing of an Information against them for Rebellion, a capital offense, before the Regional Trial Court of
Davao City and the issuance of a Warrant of Arrest against them. 3 The function of the special proceeding
of habeas corpus is to inquire into the legality of one's detention. Now that the detained attorneys'
incarceration is by virtue of a judicial order in relation to criminal cases subsequently filed against them
before the Regional Trial Couravao City, the remedy of habeas corpus no longer lies. The Writ had
served its purpose. 4

SEC. 4. When writ not allowed or discharge authorized.-If it appears the person alleged to be restrained
of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a
judgment, or order of a court of record, and that the court or judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after
the writ is allowed, the person shall not be discharged by reason of any informality or defect in the
process, judgment or order. Nor shall anything in this rule be held to authorize to discharge of a person
charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under
lawful judgment. (Rule 102)
If the detained attorneys question their detention because of improper arrest, or that no preliminary
investigati•n has been conducted, the remedy is not a petition for a Writ of Habeas Corpus but a Motion
before the trial court to quash the Warrant of Arrest, and /or the Information on grounds provided by the
Rules or to ask for an investigation / reinvestigation of the case. 5 Habeas corpus would not lie after the
Warrant of commitment was issued by the Court on the basis of the Information filed against the
accused. 6 So is it explicitly provided for by Section. 14, Rule of 102 of the Rules of Court, reading:

SEC. 14. When person lawfully imprisoned recommitted and when let to bail.- If it appears that the
prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with
an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully
imprisoned or restrained on a charge of having committed an offense not so punishable, he may be
recommitted to imprisonment or admitted to bail in the discretion of the court or judge. . . .

But petitioners submit that because of the absence of a preliminary investigation, the Information for
Rebellion filed against the detained attorneys is void and the Court below could not have acquired
jurisdiction over them, and consequently, they are entitled to release.

On the other hand, respondents contend that a preliminary investigation was unnecessary since the
detained attorneys were lawfully arrested without a warrant.

Pursuant to the 1985 Rules on Criminal Procedure, no Information for an offense cognizable by the
Regional Trial Court shall be filed without a preliminary investigation having been first conducted, except
as provided for in Section 7 of Rule 112. 7 The Information filed by the City Fiscal before the Regional
Trial Court of the City of Davao fell within the exception. Thus, the Verification reads:

VERIFICATION

I HEREBY CERTIFY that I am filing this Information in pursuance with Rule 112, Section 7 of the 1985
Rules on criminal Procedure, wherein after examining the affidavits of the government witnesses and
other documents attached to the records, I found sufficient ground to hold respondents for trial.

(SGD.) EMMANUEL E. GALICIA

City Fiscal

Section 7, Rule 112, of the 1985 Rules on Criminal Procedure above referred to provides:

SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully arrested without a
warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by
the offended party, peace officer or fiscal without preliminary investigation having been first conducted on
the basis of the affidavit of the offended party or arrested officer or person.

However, before the filing of such complaint or information, the person arrested may ask for a preliminary
investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions
of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of
non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen
(15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first conducted, the
accused may within five (5) days from the time he learns of the filing of the information, ask for a
preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in
this Rule.
Section 5, Rule 113 of the same Rules enumerates the instances when an arrest without warrant is
lawful.

SEC. 5. Arrest without warrant; when lawful.—A peace officer or a private person may, without a warrant,
arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.

In cases falling under paragraphs [al and [b] hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance
with Rule 112, Section 7. (Rule 113)

Paragraphs (a) and (b) refer to cases when a suspect is caught in flagrante delicto or immediately
thereafter, while paragraph (c) refers to escaping prisoners. As to whether the detained attorneys fall
under either of the first two instances enumerated is a question of fact, which will need the presentation of
evidence and is more properly within the province of the trial Court.

The question of absence of a proper preliminary investigation is also better inquired into by the Court
below. When so raised, this Court, speaking through Mr. Justice Claudio Teehankee, has held that the
trial Court is called upon "not to dismiss the information but hold the case in abeyance and conduct its
own investigation or require the fiscal to hold a reinvestigation. 8 As stressed in People vs. Casiano, 1
SCRA 478 [1961], this is the proper procedure since the "absence of such investigation did not impair the
validity of the Information or otherwise render it defective. Much less did it affect the jurisdiction of the
Court of First Instance". 9 The right to a preliminary investigation, being waivable, does not argue against
the validity of the proceedings, the most that could have been done being to remand the case in order
that such investigation could be conducted. 10

... The proper forum before which absence of preliminary investigation should be ventilated is the Court of
First Instance, not this Court. Reason is not wanting for this view. Absence of preliminary investigation
does not go to the jurisdiction of the court but merely to the regularity of the proceedings. It could even be
waived. Indeed, it is frequently waived. These are matters to be inquired into by the trial court, not an
appellate Court. 11

The Nolasco case, which petitioners invoke, 12 wherein this Court ordered the release of two of the
accused, is not on all fours with the case at bar as, in that case, the accused were charged only with
Illegal Possession of Subversive documents under Presidential Decree No. 33, which is punishable
by prision correccional in its minimum period, and the trial Court had granted bail; whereas in this case,
petitioners are charged with the capital offense of Rebellion, and the trial Court has not allowed bail.

WHEREFORE, this petition for Habeas Corpus is hereby dismissed for having become moot and
academic. Petitioners are now detained by virtue of a Warrant of Arrest issued by the Regional Trial Court
of Davao City in relation to the criminal case for Rebellion filed against them before said Court.

SO ORDERED.
Makasiar, C.J., Plana, Escolin Relova, Gutierrez, Jr., De la Fuente Cuevas and Alampay, JJ., concur.

Aquino, J., concur in the result

Separate Opinions

I wish to express my views on other aspects of this case with which the majority does not concur.

It is to be noted that in the Warrant of Arrest issued by the Executive Judge of the Regional Trial Court of
Davao City "no bail" has been indicated. Neither was bail recommended by the City Fiscal. However,
pursuant to Presidential Decree No. 1834, even as amended by Presidential Decree No. 1974 (May 2,
1985), the crime of Rebellion is still punishable by "reclusion perpetua to death." Presidential Decree No.
1974 did not reduce the penalty for Rebellion under Article 135 of the Revised Penal Code, as amended
by Presidential Decree No. 1834, but merely "tempered" the penalties for "conspiracy or proposal or
inciting to commit such crimes," limiting the amended provisions to Articles 136, 138, 141, 142, 142-B,
143, 144, 146, and 147, but not to Article 135 of the Revised Penal Code.

Considering, therefore, that the detained attorneys are not entitled to bail as a matter of right before the
prosecution is heard on its evidence, and observing fealty to the Constitutional mandate that "all persons,
except those charged with capital offenses, when evidence of guilt is strong, shall before conviction, be
bailable by sufficient sureties" (Section 18, Article IV, 1973 Constitution), the Regional Trial Court of
Davao City, Branch X, should be directed in Criminal Case No. 12,349, to determine whether the
evidence of guilt against the detained attorneys is strong, and considering the gravity of the offense
charged, it should likewise be required to hear the case to completion with deliberate speed so that their
guilt or innocence may be determined without delay.

Furthermore, pending resolution by this Court of the crucial issues raised in Garcia-Padilla and
in Integrated Bar of the Philippines, et al vs. Min. Juan Ponce Enrile, et al. (G.R. No. 66610) consolidated
with National Bar Association of the Philippines, et all vs. Min. Juan Ponce Enrile, et al. (G.R. No. 66706),
it is my view that individuals against whom PDA's have been issued should be furnished with the original,
or the duplicate original, or a certified true copy issued by the official having official custody of the PDA, at
the time of apprehension. Pursuant to the Rules and Regulations Implementing Presidential Decree No.
1877, as amended by Presidential Decree No. 1877-A, the PDA's should also be enforced within 24
hours in the Metro Manila area or within 48 hours outside Metro Manila, upon receipt by the unit
concerned. In this case, although the record does not show such date of receipt, the fact is that the PDA
was issued on January 25, 1985 but the detained attorneys were arrested only on May 10 and 13, 1985,
respectively. The four-month gap can give room for doubt as to its authenticity and whether, in fact, the
detained attorneys posed "any appreciable danger to national security and public order. "

The paramount consideration should be that the Constitutional "right of the people to be secure in their
persons ... against unreasonable searches and seizures of whatever nature and for any purpose shall not
be violated" (Section 3, Article IV, 1973 Constitution). Until the issue of the validity of the PDA is finally
resolved, PDA's applied for on the basis of militancy alone in national security cases, of insufficient
surveillance, or unsupported deductions and inferences, contravene the Constitutional mandate that "no
warrant of arrest shall issue except upon probable cause to be determined by the Judge, or such other
responsible officer as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce" (ibid.). Adherence to Constitutional mandates could
ease the current discontent and growing insurgency gripping the nation today. The objective should be to
fight for the hearts and minds of the people by observing the rule of law.

Lastly I venture to invite attention, particularized for this case, that the Constitution provides for the
vesting of judicial power not only in this Court but also in inferior Courts established by law. While this
Court can reverse and modify, on appeal or certiorari, actuations of inferior Courts, the latter, as wielders
of judicial power, can not only invoke, but also be entitled to, "procedural due process". Without a hearing,
howsoever formal, the involved Regional Trial Court branch in Davao City should not be deprived of
jurisdiction, substantial or even initial, over persons it has ordered, or confirmed as, arrested.

TEEHANKEE, J., dissenting

More than four (4) agonizing months * after this Court issued its near-unanimous Resolution 1 of May 23,
1985, after hearing the parties in oral argument in the morning, ordering the immediate release of the
three petitioners-detainees, Attys. Laurente C. Ilagan, Antonio B. Arellano and Marcos D. Risonar, Jr., on
the recognizance of their principal counsel, retired Chief Justice Roberto Concepcion, Chairman,
Integrated Bar of the Philippines national legal aid committee, and retired Justice Jose B. L. Reyes,
President Emeritus of the Integrated Bar of the Philippines, as well as the president and officers of their
own IBP Davao chapter, which release it had expressly ordered to be "immediately executory", this Court
has now refused to enforce its own release order. Repeated motions for enforcement of this Court's
"immediately executory" order of release as against respondents' "brazen disrespect and contemptous
disregard" 2 thereof were filed in vain. It has instead dismissed the petition for habeas corpus for having
become "moot and academic, " because of the arbitrary filing of precipitate, vindictive and
oppressive charges against them for the capital crime of rebellion without hearing or preliminary
investigation and in gross violation of their constitutional right and rudimentary requirements of due
process and fair play.

I. Antecedent Facts.—The three lawyers, Attys. Ilagan, Arellano and Risonar, Jr., FLAG (Free Legal
Assistance Group) human rights lawyers of Davao City, were illegally arrested and brought to the military
stockade at Camp Catitipan, Davao City one after the other on May 10, 11 and 13, 1985, upon mission
orders issued by the prime mover and initiator of the operations, respondent General Dionisio S. Tan-
Guate, Jr. (hereinafter referred to as respondent general). The mission orders (which are military orders
for carrying out a specific mission or military operations) are not warrants of arrest, much less Preventive
Detention Actions (PDA's). The orders did not state what were the offenses allegedly committed, although
indicating that they were being issued pursuant to a PDA, which was never shown nor produced by
respondent general until a xerox copy thereof dated as early as January 25, 1985 was submitted with the
respondents' return to the writ. No copy thereof was given the petitioners nor were they given any reason
for which the three lawyers were taken into military custody.

The first lawyer, Atty. Ilagan, was picked up at 10:45 a.m. on May 10th while taking a snack with some
friends at a place in front of his office at C.M. Recto St. His military arrestors denied his request to be
allowed to go to his office "a few meters away" so he could give instructions to his associates about a
case scheduled for hearing that afternoon. 3 The second lawyer, Atty, Arellano, a law professor at the
Ateneo de Davao law school, was one of fifteen IBP Davao Chapter lawyers who insisted on visiting Atty.
Ilagan at the military camp on May 11th despite the military custodians' initial refusals that no visitors
could be allowed "unless first cleared by R-2 (intelligence) or Gen. Tan-Guates aide." After the visit, he
was told that he was under arrest under the mission order which was merely shown to him and he was no
longer all owed to leave the camp. As he told the Court: "I just (went) to visit my colleague, a member of
the IBP, to render legal assistance as I'm supposed to do as an officer of the Court. I came to visit, I came
to render legal assistance. I was arrested and detained." 4 On May 13th, the third lawyer, Atty. Risonar,
Jr.. having received word from the military that he was wanted, presented himself at Camp Catitipan. He
was not shown even the mission order, much less a PDA or warrant of arrest. He was so shaken up by
the traumatic experience of being himself wanted and arrested by the military (not having been given
even a traffic violation ticket in his whole life) instead of his accustomed role of helping hapless persons
who have come across their path and assisting as a member of the Human Rights Committee "not only
political detainees, but workers, students, teachers and urban community" that he almost broke down at
the hearing and had to be asked to take firm hold of himself. 5

After the filing of the petition at bar and the issuance of the writ of habeas corpus to produce in court the
persons of the three lawyers at the scheduled May 23rd hearing, they were transferred at 10 p.m. of the
night of May 20th to the Metro-Discom stockade in Davao City and herded with a fourth person in a
cramped cell, "a very small cell good only for 2 people. " The next day, they were picked up by "2 PC
jeeps loaded with fully armed men" and in the words of Atty. Arellano, "in the presence of the detainees in
the stockade, ... many of whom are my clients and in the presence of their visitors, ... and in the presence
of our wives, ... we were handcuffed like ordinary criminals, and we were transported from that stockade
up to the airport and from the airport we were brought to Manila and then we were brought to Camp
Bicutan." 6 They have been since detained there, their lives shattered, uprooted from their homes and
families, and deprived of their livelihood and their families left to fend for themselves.

The Integrated Bar of the Philippines and other petitioners complain in their verified petition that
"(B)eyond the harassment and the illegal arrest and detention of these three advocates, are grave
implications for the craft. Their arrest appears to be a prelude to a campaign to ultimately deprive the
accused in national security cases of the services of counsel in violation of the Constitution," citing "a
readily discernible pattern from events in the recent past" including the killings of FLAG Atty. Zorro C.
Aguilar and newsman Jacobo Amatong who gave an antemortem statement "that it was the military that
shot them" in Dipolog City on September 23, 1984 and the killing of Atty. Romraflo R. Taojo in his own
home in Tagum, Davao del Norte on April 2, 1985, who had been allegedly warned by the military about
the nature of the cases he was handling. The petition further cited the case of petitioner MABINI trustee
and co-founder Atty. Jojo Binay who was successful in having several criminal cases against his client Dr.
Nemesio Prudente dropped, but in April this year "found himself a co-respondent with his client Dr.
Prudente in a new subversion charge filed by the military with the provincial fiscal of Rizal. " Also cited
were the cases of Attys. Romeo Astudillo and Alberto Benesa both former IBP Abra chapter presidents
and Abra FLAG chairman and member, respectively, who in the same month of April this year "were
arrested by the military, charged with subversion, and presently confined at the Constabulary stockade in
Bangued, Abra, Since 1979, they were the only human rights lawyers in Bangued, Abra. Since their
arrest, there are no lawyers anymore handling such cases." 7 Between the two of them, they reportedly
handled a total of about 120 subversion cases and "not one of their clients was even convicted due to
'lack of evidence.' " 8

The petition quoted respondent general's press statement issued on May 10th that ... the arrest of Ilagan,
'who had lately been engaged in human rights lawyering for suspected persons detained for subversion,
rebellion and other charges' was 'long overdue' (Business Day, May 13, 1985, p. 11)" 9 and the exertion of
pressure upon other Davao human rights lawyers in this wise:

The tension mounted when another lawyer Silvestre Bello III, BAYAN national organizing committee
member, got word from Jesus Dureza President of the Integrated Bar of the Philippines, Davao del Sur
chapter, that Estares was 'inviting' Bello to Camp Catitipan. Bello, in an earlier interview, said they were
assured by Estares that in case they would be slapped with a PDA, they would not be picked up like what
happened to Ilagan but instead just 'be invited' to Camp Catitipan as in Arellano case.

Estares, on the other hard, told Business Day they were just 'inviting' Bello to 'visit his friends,' PC-INP
regional commander, Dionisio Tan- Gatue also told newsmen in a phone interview that he was just
inviting Bello to visit him. Tan-Gatue however, declined to comment on whether or not there will be more
arrests in the next few days. 'Just wait and see,' he said. (Business Day, May 13, 1985)

10
"The aforesaid report has been confirmed by the IBP Davao Chapter."

The petition, noting that "(T)hese trends are ominous for members of the Bar especially those who are
engaged inpro bono publico work who have incurred the ire of the military," 11 invoked the writ of habeas
corpus as the great writ of liberty on behalf of the three lawyers. IBP President Emeritus J.B.L. Reyes
made this eloquent plea against this Damocles' sword wielded by the military in that its value is not that it
falls but that it hangs, and it hangs over every lawyer at the present time, engaged or not in the defense
of anybody":

That is why, if Your Honors please, we have here all the representatives of the Bar organizations because
they are all threatened under this method that is being adopted by the military, that anybody who thus ran
against their Ideas of what a citizen should do, becomes ipso facto suspect and ipso facto rebel or a
subversive. And that is the reason why we've come to this Court, because with all this publicity. Even if
only 3 or 5 lawyers are arrested all the others will be afraid. If Your Honors will recall that we are arguing
the constitutionality of this PDA, we happened to quote from the United States Supreme Court, that the
value of the Sword of Damocles is not that it falls but that it hangs, and it hangs over every lawyer at the
present time, engaged or not in the defense of anybody How do we know how many more lawyers will be
in the future arrested. 12

Or as then Associate (now Chief) Justice Makasiar in 1980 stressed before the Philconsa against the
proposal then to return the administrative supervision of inferior courts from the Supreme Court to the
Ministry of Justice: "The warning has been issued that a tyrant, who wants complete and absolute control
over the people, will first seduce and eliminate the lawyers and thereafter destroy the courts. This tragedy
must be averted." 12-a

Respondents' return made the startling charge that the three lawyers (all practitioners of long good
standing since 1971, 1977 and 1976, family men and without any derogatory record) "have been arrested
and detained because of evidence that they are members of the Communist Party of the Philippines or its
partner, the National Democratic Front, and have been active in organizing mass actions intended to
further the communist cause," and "(I)n truth, the PDA against the three lawyers was issued as early as
January 25, 1985, shortly after the series ofwelgas conducted late in 1984. But, with the President's
knowledge and concurrence, the military in Region 11 tried to withhold its implementation precisely in the
hope that the need for such action would pass, forestalling a possible misinterpretation of the
government's motive in making the arrest. The situation in Southern Mindanao has, however, deteriorated
compelling the government to act swiftly, arrest the communist leaders behind thewelga and stem the tide
of mass disturbance sweeping the area." 13 Ironically, while the state attorneys specifically pleaded that
there is evidence that the three lawyers are communists, yet they invoke the Garcia Padilla ruling that
"the Court may not inquire into it" 14 and that "because of the suspension of the writ of habeas corpus, the
Courts have no authority to look into this evidence" 15 which led then Chief Justice Fernando to ask in
exasperation:

CHIEF JUSTICE

Q But what is the connection between them? You can always, your pleading is quite extensive, but until
now according to you there is evidence but you are not at liberty to reveal that evidence. What good will it
do to the Court then? What is their [the lawyers] connection with the acts that are rebellious in character
or subversive? That perhaps will give the possibility [for] their continued detention? 16

Still, at the hearing of May 23rd, it was clearly stressed that notwithstanding that the PDA had been
secured since January 25, 1985 by respondent general, supposedly "on the basis of evidence and
verified reports," when questioned why no information had been filed against them "considering that as
early as January 25, 1985 there had been [allegedly] evidence that they had committed subversion, "
respondents assured the Court that the detained lawyers would be "entitled to a hearing ... when the time
comes that we file charges [which] will be decided by the prosecuting officer of the government" (upon
interpellation of Mr. Justice Relova and reply of Assistant Solicitor General Eduardo G.
Montenegro). 17 Respondents' counsel had at the hearing claimed that "these three lawyers companeros
of mine are active members of the Communist Party of the Philippines, [as] witnesses we have captured
NPA's." He said that these statements given by former NPA's were shown him by military officers, but
when questioned as to whether these states were "newly prepared also or long existing, " he was
specifically warned against swallowing hook, line and sinker" the assertions of such professional
witnessesand of the imperative necessity of conducting an independent investigation, thus:

JUSTICE CUEVAS:

Q What (did) your evidence consist of ?

ASST. SOLGEN:

A Statements given by former members of the New People Army in Davao Your Honor, there are NPA's
who surrendered and then subsequently . . .

JUSTICE CUEVAS:

Q And these evidences were in your possession long prior to the arrest and detention of these 3 lawyers?

ASST. SOLGEN:

A In our possession, Your Honor no, sir, because I saw them only when we were preparing the return,
Your Honor.

JUSTICE CUEVAS:

Q From whom did they come from, if you know.

ASST. SOLGEN:

A I was shown that by these Military Officers.

JUSTICE CUEVAS:

Q Newly prepared also or long existing?

ASST. SOLGEN:

A Your Honor please, I . . . .

JUSTICE CUEVAS:

Q You answer positively because I'll ask them, when they were turned over to you were they newly
prepared also? When were they prepared?

ASST. SOLGEN:

A I do not remember the date now but I was reading it. Anyway, Your Honor, the reason why we did not
attach this to our return is this, that most of those . . . .

JUSTICE CUEVAS:

Q That is very very material, simply because there is rebellion in the count I do not think it warrants the
picking up of anybody?
ASST. SOLGEN:

A Yes, Your honor.

JUSTICE CUEVAS:

Q That is following up under your theory?

ASST. SOLGEN.

A Yes, Your Honor, because the surrendered NPA's who gave those statements, at least 3 of them, have
not yet been surfaced by the Government. Their Identity are still not to be divulged because the Military is
not through yet in its investigation with respect to these people. So they are not to be mentioned.

JUSTICE CUEVAS:

Q My theory because I had been a Fiscal also, Mr. Assistant Solicitor General as you know, there are
people who are, who had the appetite of giving any kind of affidavit. In fact, I had prosecuted an accused
who is even willing to testify that he witnessed the shooting of Rizal in Luneta?

ASST. SOLGEN:

A That may be true, Your Honor.

JUSTICE CUEVAS:

Q You should not swallow 'hook, line, and sinker,' that is our apprehension in particular?

ASST. SOLGEN:

A Yes, Your Honor. May I continue, Your Honor. Now, Atty. Ilagan, in particular

JUSTICE TEEHANKEE:

Q This is an appropriate time I believe, what Justice Cuevas has mentioned was that, in other words, you
brought these affidavits?

ASST. SOLGEN:

A Yes, Your Honor.

JUSTICE TEEHANKEE:

Q But you have to check them out?

ASST. SOLGEN:

A Yes, Your Honor.

JUSTICE TEEHANKEE:
Q Check the background of these people and check out their assertions as against an independent
investigation. As if they say on such and such a date Attorney Ilagan was in the mountains; you have to
check that out, you can't just swallow on its own. There are so many of these professional witnesses?

ASST. SOLGEN:

A That may be true, Your Honor, there are professional witnesses, Your Honor.

JUSTICE TEEHANKEE:

Q There are, you know that and we all know that.

ASST. SOLGEN:

A Yes there are. Now, may I continue, Your Honor.

CHIEF JUSTICE FERNANDO:

A Yes, but please you must go directly. 18

CHIEF JUSTICE FERNANDO:

Q We've heard that before but again [what is] the connection of these people?

SOLICITOR ABAD:

A Well, the position of the Military is that ....

CHIEF JUSTICE FERNANDO:

Q They are human rights lawyers, they have been defending several persons accused of crimes of . . . .
and they had been doing as members of the Bar. Now they are picked up and apprehended, at least
justify that.

SOLICITOR ABAD:

A Well, I appreciate that, Your Honor please, anyone belonging to the middle forces who campaign in the
open to organize the populace for support to the revolution must really have some front, because when it
comes to a revolution .

CHIEF JUSTICE FERNANDO:

Q But again you say they are the front of these people, where is the evidence to substantiate this
conclusion? They are all naked assertions thus far?

JUSTICE TEEHANKEE:

Q Mr. Counsel, your theory seems that anybody who joins in a protest or a
demonstration against grievances and abuses as perceived by them is a . . . . joining this middle force is
a communist already?
SOLICITOR ABAD:

A That is certainly not our theory, Your Honor, that is not the theory of the Government. 19

After the hearing, and as already indicated, the Court ordered the immediate release of the three lawyers-
detainees on recognizance of their principal counsel per its Resolution of May 23rd, which it expressly
ordered to be "immediately executory. " But the camp commander at Camp Bagong Diwa did not honor
the Court's release order, saying that "it had to be verified from higher authorities." So, petitioners filed
their manifestation and motionon May 24th, reporting the non-release and praying that the immediate
release of the three lawyers on recognizance of their principal counsel be effected in the premises of the
Supreme Court, as had been done in previous past cases.

On the next day thereafter, May 25th, respondents filed an urgent motion for reconsideration, invoking
anew the Garcia-Padilla ruling 20 that the courts could not entertain petitions for habeas corpus of persons
detained under Presidential Commitment Orders (now supplanted by PDA's),

Without awaiting this Court's action on their aforesaid motion for reconsideration, respondents,
particularly respondent general, somehow got th City Fiscal of Davao City to precipitately file on May 27,
1985, without any preliminary investigation, an information against the three petitioners' lawyers for the
capital crime of rebellion with the Regional Trial Court of Davao, Branch X. 21 The said trial court grossly
disregarding the deference that all inferior courts should accord this Court as the highest court of the land
(since the military's equally gross disregard of this Court's May 23rd order for the release of petitioners-
lawyers was a matter of public notice, having been prominently reported in all national and local
newspapers) just as precipitately issued a warrant of arrest with no bail against said petitioners-lawyers.
Respondents then filed on May 28th their Urgent Manifestation/Motion, annexing copies of the
information and warrant of arrest, praying for the dismissal of the habeas corpus petition at bar on the
ground that it has become moot and academic.

In their required comment on the state's action, petitioners' lawyers stated that the fiscal misinvoked
section 7, Rule 112 which allows the filing of an information without preliminary investigation "when the
person is lawfully arrested without a warrant," i.e. in flagrante delicto (which is not the case here). They
asserted petitioners' constitutional right to due process and the right to a preliminary investigation as
granted by statute and expressly assured to them in open court at the May 23rd hearing. They
denounced the "cabal among military authorities and the prosecution arm of the government" with the
contumacious cooperation of the trial court to deprive them of due process and to circumvent this Court's
release order, as follows:

3.1. Preliminary investigation is instituted to secure the innocent against hasty, malicious and oppressive
prosecution and to protect him from an open and public accusation of crime, from the trouble, expense
and anxiety of public trial, and also to protect the state from useless and expensive trials. The right to
preliminary investigation is a statutory grant and to withhold it would be to transgress constitutional due
process. Salonga v. Hon. Ernani Cruz Paño, G.R. No. 59254, February 18, 1985, citing Trocio v. Manta,
118 SCRA 241; Hashim v. Boncam, 71 Phil. 216; People v. Oandasa, 25 SCRA 277.

3.2. Petitioners having been deprived of their constitutional right to due process by the Fiscal of Davao,
therefore, the information for rebellion filed against them is void.

3.3. The information filed by the Fiscal of Davao being void, the Regional Trial Court of Davao has
acquired no jurisdiction over the case of rebellion filed against petitioner. Therefore, all orders, warrants,
processes, and issuances of the Court relative to the case, including the warrant for their arrest, are
issued without authority and therefore null and void.

3.4. What becomes evident in the face of these developments is a cabal among military authorities and
the prosecution arm of the government to bend and short circuit rules in order to deprive petitioners of
their right to due process guaranteed by the Constitution, and to circumvent the order of this Court for
their release. It is deplorable that the Regional Trial Court of Davao has lent itself to this conspiracy to
undermine the Constitution and the authority of this Court.

3.5. All proceedings and orders in connection with the case of rebellion against petitioners being of no
legal effect these cannot have the consequence of rendering the case moot and academic. 22

II. The merits of the petition.—I have gone to great lengths to restate hereinabove the antecedent facts as
established by the pleadings and annexes of record and the hearing held by the Court on May 23rd. I
submit that on the basis of these established facts, the "sacred constitutional rights [and] also the right to
'due process' which is fundamental fairness " as imperatively stressed by the majority decision in the
recent case of Galman vs. Hon. P.J. Pamaran 23 have been grossly denied the three lawyers detainees.
This Court's "immediately executory"release order of May 23rd (issued over four months ago) should be
forthwith honored and complied with. Far from having rendered the petition as moot and academic, all
the railroaded proceedings and orders charging the three petitioners-lawyers with instant
rebellion in gross disregard of the pendency of this case and of the assurance given in open court that the
petitioners-lawyers would be entitled to a hearing and a preliminary investigation in obedience to
the constitutional mandate that "no person shall be deprived of life, liberty or property without due process
of law" and "no person shall be held to answer for a criminal offense without due process of law,
" 24should be declared null and void. They were patently void, having been issued without jurisdiction
under the well-settled rule that "a violation of a constitutional right divests the court of jurisdiction; and as
a consequence its judgment [or order] is null and void and confers no rights. " 25 At the very least, all
proceedings in the instant rebellion case before the Davao trial court should be suspended and
enjoined until the petitioners-lawyers are granted their right to a preliminary investigation and the
opportunity to confront their accusers and disprove the charges; meanwhile, it is but part of due process
that they be set free as ordered by the Court and be enabled to prepare their defense. The petition under
the great writ of habeas corpus to set them at liberty should accordingly be granted for the following
fundamental reasons and considerations:

1. Basic Right to Due Process.—The Bill of Rights expressly mandates that ... no search warrant or
warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, 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 ." 26This plainly means that generally no person may be held to answer
for a criminal offense without a preliminary investigation. The right to a preliminary investigation is
statutorily granted for serious offenses and to deny it violates the right to due process guaranteed by the
Constitution. 27 Preliminary investigation has been instituted precisely to secure the innocent against
hasty, malicious and oppressive prosecution. Moreover, the instant rebellion case filed against the
petitioners manifestly falls under three recognized exceptions to the general rule that criminal prosecution
may not be blocked by court prohibition or injunction, namely, "l. for the orderly administration of justice;
2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner; ...; and 4. to
afford adequate protection to constitutional rights. .... 28

2. Petitioners-lawyers denied due process.—The blitzkrieg filing of precipitate, vindictive and oppressive
charges against petitioners-lawyers for the capital crime of rebellion without hearing and preliminary
investigation deprived them their right to due process and the rudimentary requirements of fair play. As
the majority, quoting former Chief Justice Enrique M. Fernando, emphasized in the recent case of
Galman vs. Pamaran, supra, 29 "due process ... is responsiveness to the supremacy of reason, obedience
to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the
due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason
and result in sheer oppression. Due process is thus hostile to any official action marred by lack of
reasonableness. Correctly, it has been Identified as freedom from arbitrariness. It is the embodiment of
the sporting Idea of fair play ... It exacts fealty 'to those strivings for justice' and judges the act of
officialdom of whatever branch 'in the light of reason drawn from considerations of fairness that reflect
(democratic) traditions of legal and political thought.' ... It is not a narrow or 'technical conception with
fixed content unrelated to time, place and circumstances,' ... decisions based on such a clause requiring a
'close and perceptive inquiry into fundamental principles of our society.' ... Questions of due process are
not to be treated narrowly or pedantically in slavery to form or phrases. .... " 29-a

3. Right to preliminary investigation.-The May 23rd hearing brought out the importance of preliminary
investigation to prevent hasty and baseless prosecution, since respondents could not cite concrete
evidence of specific criminal acts committed by respondents. Respondent general secured the PDA on
January 25, 1985 on the basis of affidavits of surrendered NPA's supposedly incriminating the petitioners,
which was issued "on the basis of evidence and verified reports that the (petitioners-lawyers) have
committed subversion and/or acts inimical to public safety, national security and public
order." 30 Respondents would cavalierly tag the petitioners-lawyers as having gone "beyond purview of
lawyering, but even to the extent of attending CPP and NPA rites, and using their profession as lawyers
as cover-up for their activities in furtherance of CPP goals and objectives, "as per the affidavit executed
under date of January 22, 1985 by the Davao intelligence chief Lt. Col. Nelson J. Estares. 31 As pointed
out by petitioners in their verified traverse, this affidavit has no probative value. It is not based on the
affiant's direct knowledge but offers hearsay, on his alleged interviews with surrendered NPA's and "to the
best of [this] knowledge and ability." It would have been a simple matter for the alleged witnesses to have
executed their own affidavits. In turn, petitioners have categorically denied that they are members of the
CCP or NDF. Attys. Ilagan and Arellano said in open court that they are chairman and secretary-general,
respectively, of BAYAN-Mindanao, affiliated with the national organization of BAYAN (Bagong Alyansang
Makabayan) with former Senators Lorenzo M. Tañada and Ambrosio Padilla as chairman and vice-
chairman, respectively, and among whose national leaders is former Manila Times publisher Joaquin
"Chino" P. Roces. But strangely enough, while the aforesaid documents were executed in January, 1985
to secure the PDA for subversion against petitioners, the instant charge filed without hearing by the fiscal
apparently based on the same affidavits is now for rebellion which would involve the petitioners rising in
arms. The whole point is that petitioners' lawyers have squarely presented to this case the undeniable
and undisputed facts that they have been denied their right to preliminary investigation and to show the
utter falsity of the charge of instant rebellion against them. Such right was assured them in open court by
the State's attorneys. It is this Court which must grant petitioners this right, and uphold their right to due
process. The obiter dictum cited by the majority decision from the case of Medina vs. Orozco 32 that "the
proper forum before which absence of preliminary investigation should be ventilated is the Court of First
Instance, not this Court" has no application. There, this Court found that not only was a preliminary
investigation made, but also a subsequent reinvestigation upon his motion, after which the case against
the accused proceeded to trial.

4. Professional witnesses of military not checked out.-As shown above, supra, 33 as admitted by the State
attorneys, there are so many professional witnesses presented by the military in such cases, whose
statements should not be "swallowed hook, line and sinker." The ex-parte affidavits of the alleged
surrendered NPAs could be checked out as against their background and an independent investigation
only in a preliminary investigation. Such affidavits and statements have been found to be completely
worthless in other cases. In the habeas corpus case of Aristedes Sarmiento, he and his wife were
charged with subversion on March 31, 1983, as ranking leaders of the NPA, after they had been "invited"
and detained at the military camp in Gumaca, Quezon on October 9, 1982. After the prosecution rested
its case, the trial court granted the defense' motion for dismissal of the charges for utter "worthlessness of
evidence." The trial court ruled that "(I)ndeed, there is nothing that the Armed Forces of the Philippines or
any of the law enforcement agencies of the Government could offer to prove any connection of the
Sarmiento couple with any subversive organization, even with the New People's Army, if ever it is to be
considered such, and much more as leaders thereof." This led to an apparently unheeded call from the
now Chief Justice that "The military establishment should inquire into whether the President was deceived
into issuing the PCO and who initiated the arrest of the couple without supporting evidence." In
petitioners' verified traverse, they point out that respondents' "star witness" against petitioners is one
Calixto Alegado III, an alleged former NPA who is now a member of the Philippine Constabulary. They
state that Calixto Alegado Ill is precisely one of those professional witnesses unworthy of credence who
has testified in a number of national security cases and who should be checked out in an independent
investigation as assured by the State attorneys at the May 23rd hearing, thus: "In Criminal Case No. 9198
before the Regional Trial Court of Davao entitled People of the Philippines v. Carlito Gaspar, Alegado
testified that he witnessed the accused therein giving lectures for the CPP/NPA at dates when the
accused Carlito Gaspar was either in Manila or out of the country, more specifically in Australia and Latin
America. On the basis of this affiant's testimony together with other supposed former CPP/NPA members,
the Regional Trial Court found Alegado not worthy of belief and acquitted Gaspar. It is significant to point
out here that the counsel of Carlito Gaspar in that case is petitioner Atty. Laurente Ilagan." 34

5. Protective mantle of this Court.—The unlawful arrest and detention of the petitioners-lawyers has
completely uprooted their lives. This Court must extend them its protective mantle as officers of the
courts, because of the strong indications, supra, 35 of "ominous trends" for lawyers "who are engaged in
pro bono publico work who have incurred the ire of the military," such as in the case of Abra, where there
are no more lawyers handling subversion cases because the only two human rights lawyers handling
such cases have been charged with subversion and locked up in the stockade. As formulated by Justice
J.B.L. Reyes in response to a question of Mr. Justice Gutierrez why the lawyers were picked out for
criminal charges (when there were non-lawyers who also led the welga), "(Y)es, precisely they pick the
lawyers because I suppose they figure out that in fact the lawyers are actually social leaders in their
respective communities. That is why, if Your Honors please, we are pleading this Court for the
prosecution because after all the lawyers are officers of the Court and if the Court will not protect them,
who will? Certainly not the military. We certainly hope that a lawyer will not, in the long run, will not be
asking the NPA for protection, because nobody else wants to protect them." 36

6. People's right of assembly.-The people's right to freedom of expression and to peaceably assemble
and petition the government for redress of grievances are fundamental constitutional rights. Mass
demonstrations popularly termed as welgang bayan constitute a legitimate exercise of these basic
constitutional rights. Indeed, as the Court stressed in Jose B. L. Reyes vs. Ramon Bagatsing 37 "The sole
justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public
morals, public health, or any other legitimate public interest." The Court therein reminded the police (and
the military for that matter) of their duty to extend protection to the demonstrators/participants "staying at
a discreet distance, but ever ready and alert to perform their duty." It further admonished that should any
disorderly conduct or incidents occur, whether provoked or otherwise, such incidents of disorderly
conduct by individual members of a crowd should not be seized "as an excuse to characterize the
assembly as seditious and tumultuous rising against the authorities" and render illusory the right of
peaceable assembly. 38

. The military must overcome their allergy if not aversion to such welgas. Acting AFP Chief of Staff Lt.
Gen. Fidel V. Ramos recently, correctly urged those involved in law enforcement and criminal justice
system to "keep themselves up-to-date on the [changing] law and jurisprudence and the intricacies of
implementation" adding that "as law enforcers they must be convinced by heart that they enforce the law
and never violate it. 39

Petitioners candidly state in their verified traverse that "(T)he possibility that the Communist Party of the
Philippines and the National Democratic Front may have participated in or used the events for their own
purposes may be assumed for purposes of argument. It is not fair inference from this assumption that all
those who participated in any significant degree in the strikes and the activities held in connection
therewith are members of the Communist Party of the Philippines or the National Democratic
Front," 40 but they rightfully submit that "(T)o conclude that persons who participate in such mass activities
are communists or subversives and to restrain them in their freedom as a consequence is the worst form
of witch-hunting violative of all principles of fair play and due process." 41

In the Philippine Blooming Mills case 42 this Court set aside the industrial court's decision dismissing from
employment the workers' labor union's eight officers for having led and carried out a "temporary stoppage
of work" to hold a mass demonstration at Malacañang of all the workers on March 4, 1969 in protest
against alleged abuses of the Pasig police. It held that such dismissal was violative of the
workers' legitimate exercise of their constitutional rights of free expression, peaceable assembly and
petition for redress of grievance, thus:

... Recognition and protection of such freedoms are imperative on all public officers including the
courts (as well asprivate citizens and corporations ... when even a law enacted by Congress must yield to
the untrammelled enjoyment of these human rights. There is no time limit to the exercise of these
freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the printing of one
article or the staging of one demonstration. It is a continuing immunity, to be invoked and exercised when
exigent and expedient whenever there are errors to be rectified, abuses to be denounced, inhumanities to
be condemned. Otherwise, these guarantees in the Bill of Rights would be vitiated by a rule on procedure
prescribing the period for appeal. The battle then would be reduced to a race for time.

7. Preservation of liberties and motives.—Good faith must be presumed as well on the part of
respondents as of petitioners-lawyers. The good motive but misplaced overzealousness of the military,
particularly as headed by respondent general in the Davao area, may be noted, obsessed as they are
with keeping peace and order. But it seems appropriate and timely to cite the pointed reminder of the late
Mr. Justice William Douglas as reproduced in the PBM case, as follows:

The challenge to our liberties comes frequently not from those who consciously seek to destroy our
system of government, but from men of goodwill-good men who allow their proper concerns to blind
them to the fact that what they propose to accomplish involves an impairment of liberty.

... The Motives of these men are often commendable. What we must remember, however, is
that preservation of liberties does not depend on motives. A suppression of liberty has the same effect
whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is
constant alertness of the infractions of the guarantees of liberty contained in our Constitution. Each
surrender of liberty to the demands of the moment makes easier another larger surrender. The battle over
the Bill of Rights is a never ending one.

... The liberties of any person are the liberties of all of us.

43
... In short, the liberties of none are safe unless the liberties of all are protected.

The record of the May 23rd hearing highlights the imperative importance of the injunction that no matter
how worthy the motive may be, the authorities, civilian or military, should not suppress the people's
liberties, and push the aggrieved citizen in despair towards the NPA or the communists; and respect their
constitutional rights as otherwise there would be no difference as against the outlaws or rebels. For as
Brandeis called it, "Crime is contagious. If the government becomes the lawbreaker it breeds contempt for
the law; it invites every man to become a law unto himself; it invites anarchy." The record again
underscores the utter lack of evidence to support the unlawful arrest and detention of the three
petitioners-lawyers, thus:

JUSTICE TEEHANKEE:

Q All right, I will ask one more question on that. Since it was organized, this Mindanao Chapter, in April
you already had a PDA in January. Did you not or the Military exercise strict surveillance daily over the
activities of these people? So that you can catch them with the goods?

SOLICITOR ABAD

A Well, it is not that simple, if Your Honor please, because rebellion is not a crime committed (with) not
exactly with bouncing checks or similar crimes.
JUSTICE TEEHANKEE

Q True, that's very true, but ...?

SOLICITOR ABAD

A So precisely a good rebel is one who is not caught, he was able to lose himself in the populace. How
can we expect let's say a member of a front organization of the NPA will carry an Id, if Your Honor please.

JUSTICE TEEHANKEE

Q But you have to look into the record of the individual.

SOLICITOR ABAD

A I think they have, Your Honor.

JUSTICE TEEHANKEE

Q You have to look into the record of these individuals here, lawyers, members of the Bar of good
standing, without any derogatory record, is it within the ordinary course of human conduct that they would
prostitute their profession, pervert it and serve as fronts?

SOLICITOR ABAD

A Horacio Morales, Your Honor, was a Government Executive, in the same manner as Atty. Ocampo was
a good journalist, but they admitted they have turned to the communist side. We cannot say that a
background of a man is sufficient guarantee that he is not going to join the rebellion.

JUSTICE TEEHANKEE

Q As far as Morales is concerned he gave up on reforms, he was desperate; that is why he says there is
no other way...

SOLICITOR ABAD

A Well, that's what I mean, if Your Honor please, an individual supplace (sic) society, the old society ...

JUSTICE TEEHANKEE

Q Society (should) not push the aggrieved citizen towards the NPA or the communist party as a last
resort. And therefore, we must observe their Constitutional rights. Otherwise, there is no difference?

SOLICITOR ABAD

A There were 3 million people who were unable to use the streets of Davao, if Your Honor please, its their
constitutional rights to travel to bring their sick to the hospitals and were violated by these ...

JUSTICE MAKASIAR
Q Compañero, your position is that history is replete with examples of traitors and quislings from high
society or high Government circles. But the question is, while you affirm the fact that the communist is not
necessarily open or overt, he is usually engaged in covert activities. Now what are the examples of these
covert activities of these people? What is your evidence?

SOLICITOR ABAD

A Well, I read from a very authoritative document of the Communist Party of the Philippines

JUSTICE TEEHANKEE

Q That's begging the question?

JUSTICE MAKASIAR

Q And they deny? The communist party they accept membership... the Alyansa?

SOLICITOR ABAD

A Financial support, telling over the populace into supporting the rebellion; driving them away from the
Government: giving financial support; harboring them in their homes. While these are not armed
assistance given to the rebel, if Your Honor please, but its the duty also of the government to ...

JUSTICE MAKASIAR

Q ... the various dates of harboring them in their homes; the financial contributions made by them on such
and such a date, how much? Those are the particulars to support the conclusion that they had
contributed, they were harboring them?

SOLICITOR ABAD

A Well, as I said we have the evidence, the only problem is we are not prepared to produce now the
evidence. 43-a

Indeed, in their Urgent Motion for Reconsideration of the Court's May 23rd release order, respondents,
"having obtained clearance for the declassification of the needed materials" submitted their "evidence, "
consisting of hearsay military reports (rather than the direct affidavits of credible witnesses) and
the affidavit of a discredited and perjured professional witness, an alleged NPA, now a member of the
Philippine Constabulary, supra. 43-b No concrete evidence whatever has been submitted therein against
petitioners-lawyers, other than to recklessly red brush their legitimate organization (BAYAN-Mindanao) as
communist-led or infiltrated front organizations and to characterize the series of welgas or strikes in
Mindanao as implementation of the NDF program of activities to organize and mobilize the "middle
forces" of society, supra. 43-c

8. Basic concepts and principles of freedom-The PBM case, citing numerous precedents, restated basic
concepts and principles which, to my mind, underlie and are determinative of the issues at bar, as follows:

(1) In a democracy, the preservation and enhancement of the dignity and worth of the human
personality is the central coreas well as the cardinal article of faith of our civilization. The inviolable
character of man as an individual must be 'protectedto the largest possible extent in his thoughts and in
his beliefs as the citadel of his person. 44
(2) The Bill of Rights is designed to preserve the Ideals of liberty, equality and security 'against the
assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and
the scorn and derision of those who have no patience with general principles. 45

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw
'certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights
to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to a vote; they depend on the outcome of no elections. 46 Laski
proclaimed that 'the happiness of the individual not the well-being of the State, was the criterion on by
which its behaviour was to be judged. His interests, not its power, set the limits to the authority it was
entitled to exercise. 47

(3) The freedoms of expression and of assembly as well as the right to petition are included among the
immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the
Ideas that we abhor or hate more than the Ideas we cherish; or as Socrates insinuated, not only to protect
the minority who want to talk, but also to benefit the majority who refuse to listen. 48 And as Justice
Douglas cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are not
safe unless the liberties of all are protected. 49

(4) The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment.
Thru these freedoms the citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public affairs as well as in the
discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the
appropriate governmental officers or agencies for redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and employees.

(5) While the Bill of Rights also protects property rights, the primacy of human rights over property rights
is recognized. 50Because these freedoms are 'delicate and vulnerable, as well as supremely precious in
our society' and the 'threat of sanctions may deter their exercise almost as potently as the actual
application of sanctions,' they 'need breathing space to survive,' permitting government regulation only
'with narrow specificity. 51

Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human
rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the
power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities,
of the influential and powerful and of oligarchs political economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position
as they are essential to the preservation and vitality of our civil and political institutions; 52 and such
priority 'gives these liberties a sanctity and a sanction not permitting dubious intrusions. 53

xxx xxx xxx

In seeking sanctuary behind their freedom of expression as well as their right of assembly and of petition
against alleged persecution of local officialdom, the employees and laborers of herein private respondent
firm were fighting for their very survival, utilizing only the weapons afforded them, by the Constitution-the
untrammelled enjoyment of their basic human rights. ... Material loss can be repaired or adequately
compensated. The debasement of the human being-broken in morale and brutalized in spirit-can never
be fully evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his
dying day, even as he cries in anguish for retribution, denial of which is like rubbing salt on bruised
tissues. 54
9. The express teaching of the Salonga case.—The express teaching on freedom of expression, based
on numerous precedents, of this Court's unanimous decision (11 members with 3 abstentions) in the case
of Salonga vs. Paño 55 should dispel the apparent misconception on the part of the military, us well as
certain government prosecutors, that militant protests and demonstrations are seditious and subversive of
the government. This Court set forth therein guiding and controlling constitutional principles and precepts
governing constitutionally protected spheres and areas reserved by the Bill of Rights for the individual
"where even the awesome powers of government may not enter at will," as follows: "... if there is any
principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of
free thought-not free thought for those who agree with us but freedom for the thought that we hate;" that
"freedom of expression is a 'preferred' right and therefore stands on a higher level than substantive
economic or other liberties;" that "this must be so because the lessons of history, both political and legal,
illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of
freedom. Protection is especially mandated for political discussions. This Court is particularly concerned
when allegations are made that restraints have been imposed upon mere criticisms of government and
public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the
basis of criminal indictments;" that there must be tolerance of political hyperbole since "debate on public
issues should be uninhibited, robust and wide open and it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials;" that "the constitutional
guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use
of force or of law violation except where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action;" that "political discussion even among those
opposed to the present administration is within the protective clause of freedom of speech and
expression. The same cannot be construed as subversive activities per se or as evidence of membership
in a subversive organization" in the absence of proof that "such discussion was in furtherance of any plan
to overthrow the government through illegal means, " and that "the judge or fiscal, therefore, should not
go on with the prosecution in the hope that some credible evidence might later turn up during trial for this
would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that
the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been
before. It should continue to be so."

10. Peaceful and violent welgas.—The military and the police but adhere to the aforecited basic
democratic concepts and principles and recognize the people's constitutional right of assembly, protest
and petition for redress of grievances and accordingly exercise forbearance and understanding, then
the welgas will not and cannot erupt in violence. As emphasized in the PBM case, there is no time limit in
the exercise of these basic freedoms of free expression, peaceable assembly and petition for redress of
grievances. The right to enjoy them is not exhausted "by . . . . the staging of one demonstration." It is a
continuing immunity, to be exercised whenever there are errors to be rectified, abuses to be denounced,
inhumanities to be condemned. This is borne out by the numerous demonstrations, rallies and welgas in
Manila, Bataan and many other provinces. The Welgang bayan in Bataan against, the nuclear plant which
paralyzed the whole of the province for three days last June were carried out peacefully without any
violence, despite certain critical moments when the provincial commander ordered his forces to advance
thru a blockade manned by some 4,000 people. He later withdrew his orders after a dialogue with the
protestors. The behaviour of both the military and the demonstrators merited commendations from all
sectors. The President himself was quoted as saying that "the official policy of maximum tolerance in
dealing with mass demonstrations paid off during the welgang Bayan in Bataan." 56

In this case, the May 2-3, 1985 welgang bayan which incurred the ire and displeasure of the military was
carried out without any ugly incidents. But the aggressiveness and intolerance of the military and CHDF
forces inEscalante, Negros Occidental turned the welgang bayan there into a bloodbath last September
20th. Some thirty demonstrators, including women, were reported killed when government troops who
were supposed to keep order during the rally opened fire at the massed crowd when some troublemakers
reportedly tried to snatch their firearms. As observed in one editorial, "once government soldiers or police
open fire on a rally crowd, the result would be a virtual massacre for the enforcers are better
armed." 57 "Indeed, the use of combat-ready and trigger-happy troops trained only to shoot-to-kill without
any training in crowd control of demonstrators or rallyists should be restudied. As stated in my separate
opinion in Hildawa vs. Minister of Defense. 58 "The Supreme Court stands as the guarantor of the
constitutional and human rights of all persons within its jurisdiction and cannot abdicate its basic role
under the Constitution that these rights be respected and enforced. The spirit and letter of the
Constitution negates as contrary to the basic precepts of human rights and freedom that a person's life be
snuffedon out without due process in a split second even if he is caught in flagrante delicto-unless it was
called for as an act of self-defense by the law agents using reasonable means to prevent or repel an
unlawful aggression on the part of the deceased."

11. The Stale PDA.-Iwill not deal here with the serious question raised by petitioners as to the validity of
the PDA issued by the President under date of January 25, 1985 for the arrest and detention of the three
petitioners-lawyers for having "committed subversion and/or acts inimical to public safety, national
security and public order." This question is better resolved in the separate case filed by the Integrated Bar
of the Philippines for the declaration of unconstitutionality of the Presidential Decrees authorizing, among
others, the issuance by the President of PDA's without the constitutional requirement that any officer
issuing a warrant of arrest must personally examine the complainant and the witnesses he may
present. 59 Suffice it to state that the PDA against petitioners was already inoperative and stale. It
was issued on January 25, 1985. As respondent general himself states in the return, the military did not
see any need to enforce it until after almost four months later on May 10 to 13 of this year. What is
incomprehensible is that no copy certified or plain of the PDA could be shown to the petitioners upon their
arrest, contrary to existing rules and instructions. A xerox copy of the PDA was first seen by them only
with the filing of the respondents' return, in this case on last May 23rd.

Be that as it may, the PDA should be held to be inoperative and ineffectual. The facts and records as
hereinabove stated patently show that the President was misled into precipitately issuing the same:

A. By the President's own statement, he had declared that "he would issue the controversial Preventive
Detention Action (PDA) orders only when national security would require it and that there is no present
need for him to do it."60 The PDA was issued on January 25, 1985. Under the implementing rules, it
should have been served within forty-eight (48) hours since it covered persons outside Metro Manila (in
Metro Manila, the prescribed period of service is twenty-four [24] hours). The respondent general's own
admission that there was no need to serve it until after almost four months later shows that there was no
necessity for the peremptory issuance of the PDA last January 25th.

B. The issuance of the PDA against the three petitioners lawyers clearly do not fall within the two
exceptions to the general rule provided in section I of P.D. 1877, as amended, that all cases involving
national security offenses "shall be referred to the provincial or city fiscal or to the proper court for
preliminary examination or investigation in accordance with existing laws. " The two exceptions provided
in section 2 of the said P.D. are as follows:

SEC. 2. Only upon proper warrant issued by the Court or other responsible officer as may be authorized
by law, after examination under oath or affirmation of the complainant and his witnesses, shall the person
or persons charged with the above-mentioned crimes be arrested and detained; Provided, however, that
should a military commander or the head of a law enforcement agency ascertain that the person or
persons to be arrested has/have committed, is/are actually committing, or is/are about to commit the
above-mentioned crimes, or would probably escape or commit further acts which would endanger public
order and safety as well as the stability of the state before proper warrant could be obtained, the said
military commander or the head of law enforcement agency may apply to the President of the Philippines
for a preventive detention action against the person or persons ascertained to be participants in the
commission of the crimes referred to in Section I hereof, under the following circumstances:

(a) When resort to judicial processes is not possible or expedient without endangering public order and
safety;
(b) When in the judgement of the President of the Philippines to apply for a judicial warrant may prejudice
peace and order and the safety of the state like when it may jeopardize the continued covert intelligence
counter insurgency operations of the Government, or endanger the lives of intelligence and undercover
agents whose Identities would be revealed by the evidence against the person or persons covered by a
preventive detention action.

There is no question here of judicial process not being possible or expedient. It is obvious from the facts
of record that it would be absurd to say that the. PDA could fall under the second exception that to apply
for a judicial warrant would prejudice public order and the safety of the state. The mere gap of almost four
months between its issuance on January 25th and its actual service on May 10-12 this year speaks for
itself Furthermore, as succinctly stated by petitioners in their verified traverse, "(A)s members of this
Court pointed out in the hearing of May 23, 1985, the alleged PDA was issued as early as January 25,
1985. Petitioners were not hiding. They were regularly discharging their functions as lawyers, including
visiting their clients in military camps. There was more than ample time from the issuance of the alleged
PDA up to the time when petitioners were actually arrested and detained for respondents to place them
under close surveillance so that concrete, credible evidence of their supposed criminal activities and
connection might be established 'to catch them with the goods' so to speak. With the manpower and the
resources at the command of respondents, they have failed to produce that evidence." 61

Indeed, as the ponente, Mme. Justice Herrera, notes in her additional opinion, which failed to gain the
majority's concurrence, "it is my view that individuals against whom PDAs have been issued should be
furnished with the original or the duplicate original or a certified true copy issued by the official having
official custody of the PDA, at the time of apprehension. Pursuant to the Rules and Regulations
Implementing Presidential Decree No. 1877, as amended by Presidential Decree No. 1877-A, the PDAs
should also be enforced within 24 hours in the Metro Manila area or within 48 hours outside Metro Manila,
upon receipt by the unit concerned. In this case, although the record does not show such date of receipt,
the fact is that the PDA was issued on January 25, 1985 but the detained attorneys were arrested only on
May 10 and 13, 1985, respectively. The four-month gap can give room for doubt as to its authenticity and
whether, in fact, the detained attorneys posed 'any appreciable danger to national security and public
order.' " (Italics supplied)

12. Civilian Supremacy.—Art II, section 8 of our Constitution's Declaration of Principles and State Policies
states that "Civilian authority is at all times supreme over the military. " But the military here dragged its
feet and refused to honor this Court's "immediately executory" release order of May 23rd. Without waiting
for the resolution of its motion for reconsideration of the Court's release order, respondent general, who
had secured the PDA, then filed the new charge of rebellion against petitioners and with the deplorable
acquiescence of the city fiscal and the trial judge, the former filed the instant information for the capital
crime of rebellion and the latter in tum issued the warrant of arrest without bail. Respondent general was
quoted as saying that "The Supreme Court won in only one point. And that is, we had to file the the
charges much sooner" 62 as if this Court were an adverse protagonist instead of the final arbiter and the
third department of government vested by the Constitution with the judicial power to determine and
adjudicate all justiciable disputes. The same general is quoted as replying in a letter of April 1, 1985 to
Atty. Jesus G. Dureza, IBP Davao chapter (who was asking why detainees continue to languish in jail
despite court decisions either releasing or acquitting them) that "To begin with, I believe it may be
necessary to review our position on these cases (human rights cases). I express this need because,
despite recent court decisions otherwise, I am morally convinced that some released suspected
communist subversives are guilty." 63This Court's decisions and orders form part of the law of the land It is
a sad day for civilian supremacy when the military do not feel bound by the verdict of the courts and
would place themselves above the courts and require as a condition for executing its judgment that they
be "morally convinced" by the judgment rendered.

To allow such usurpation and denigration of the Court's power of judicial review is to subvert, if not
destroy, the Constitution and the Rule of Law. The survival of a democratic society rests on the Rule of
Law, which depends on the existence of an independent judiciary.
In endorse and reproduce herein the impassioned appeal made by then Justice Makasiar in his address
in 1980 before the Philconsa against the proposed return of the supervision of lower courts from the
Supreme Court to the Ministry of Justice, supra, 64 as follows:

On the rule of law rests the survival of a democratic state. But the rule of law depends on the existence of
an independent judiciary. 'Those who (make the proposal), I hope, realize that the ill-effects of such a
proposal will reach them and their children. Even at this late stage in our lives when we are about to fade
from the scene, we cannot evade the tragic consequences of such a proposal; but those who will suffer
more would be the succeeding generations-including the children of those proposing the subtle
destruction of the foundations of the judicial system.

In the evening of our lives, let us not emasculate one branch of the government that is the last sanctuary
of our lives and our liberties-the judiciary. As an enduring legacy to the generations that will come after
us, let us all continue to strengthen the Supreme Court and the entire judicial system.

The contemporary scene demonstrates once again that injustice breeds dissidence which seethes and
finally explodes into a violent and bloody revolution. To all human beings, the denial of justice is a mortal
assault on life itself. Where the human spirit is brutalized by abuses and inequities, the ultimate hope for
liberation lies in the force of arms unless the courts can effectively enforce the rule of law.

Our historical experience delineated the varied seeds of armed rebellion or insurrection with which all of
you are familiar. The ruthless exploitation of peasants and laborers, the lust for and arrogance of power,
unabated corruption, unequal application of the law. the prostitution of elections, despoliation of the
national patrimony by a a favored few, as well as the monopoly and manipulation of the supply and
distribution of economic goods essential to man's existence-all constitute the many facets of injustice that
provide the dynamics of open defiance of the status quo.

The warning has been issued that a tyrant, who wants complete and absolute control over the people, will
first seduce and eliminate the lawyers and thereafter destroy the courts. This tragedy must be averted.

To support any proposal that erodes the independence of the courts, abets subversion of the rule of law,
undermines the stability of our democratic institutions, imperils the liberties of the individual, or gives aid
and comfort to the enemies of the people-is akin to committing treason against the nation. " (Italics
supplied)

13. The Supreme Court as guardian and final arbiter of the Constitution.—The judiciary, as headed by the
Supreme Court has neither the power of the sword nor the purse. Yet as the third great department of
government, it is entrusted by the Constitution with the judicial power-the awesome power and task of
determining disputes between litigants involving life, liberty and fortune and protecting the citizen against
arbitrary or oppressive action of the State. The Supreme Court and all inferior courts are called upon by
the Constitution "to protect the citizen against violation of his constitutional or legal rights or misuse or
abuse of power by the State or its officers. The judiciary [assisted by the bar] stands between the citizen
and the State as a bulwark against executive excesses and misuse or abuse of power by the executive
as also transgression of its constitutional limitations by the legislature." 65

The Constitution is basically a charter of limitations of governmental power and enshrines a system of
separation of powers and checks and balances under which no man is the law nor above the law. It
ordains the weakest department, the Supreme Court, as the guardian and final arbiter of the Constitution.
It postulates and requires a free and independent judiciary, sworn to defend and enforce the Constitution
and the law without fear or favor. It mandates that civilian authority is at all times supreme over the
military. Like His Holiness, the Pope, the Supreme Court has no battalions, tanks or guns to enforce its
decisions. Its strength lies in that its verdicts would be obeyed by the sheer moral force and truth of its
judgments for as long as the Court kept the faith and confidence reposed in it by the people through the
Constitution to render justice and sustained their moral conviction that through the Supreme Court, justice
and the voice of reason and truth would prevail in the end. Under the Rule of Law, "Judicial decisions
applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines
" (Art. 8, Civil Code) and the Excutive and all its offices and agencies. and particularly the military, are
called upon to execute the laws as so interpreted and adjudged by the courts and enforce obedience
thereto. 65-a

As restated by the late Justice Jose P. Laurel in the 1936 landmark case of Angara us. Electoral
Commission, 66"The Constitution sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers would be mere verbiage, the
bill of rights mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should
be in any living Constitution." Justice Laurel pointed out that in contrast to the United States Constitution,
the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the
great burden of "determining the nature, scope and extent of such powers" and stressed that "when the
judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
department ...but only asserts the solemn and sacred obligation entrusted to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an actual
controversy the rights which the instrument secures and guarantees to them."

Let all bear ever in mind that " (I)n a government of laws, existence of the government will be imperilled if
it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or
ill, it teaches the whole people by example. Crime is contagious If the Government becomes the
lawbreaker it breeds contempt for the law it invites every man to become a law unto himself, it invites
anarchy. To declare that in the administration of the criminal law the end justifies the means ... would
bring terrible retribution. 67

14. Erroneous premises of the majority decision.

A. The majority decision holds that under section 4, Rule 102 the writ of habeas corpus has served its
purpose because of the judicial warrant of arrest issued by the Regional Trial Court. This is based on
an erroneous premise that the trial court had such jurisdiction to issue the warrant of arrest, and that the
denial of a preliminary investigation of petitioners-lawyers was a mere informality or defect.—As already
emphasized hereinabove, the trial court was totally devoid and ousted of jurisdiction to issue a warrant of
arrest because of the gross denial to petitioners-lawyers of their constitutional right to due process.

B. The majority decision holds that the filing of the information without preliminary investigation falls within
the exceptions of Rule 112, sec. 7 and Rule 113, sec. 5 of the 1985 Rules on Criminal
Procedure. 68 Again, this is erroneous premise. The fiscal misinvoked and misapplied the cited rules. The
petitioners are not persons "lawfully arrested without a warrant. " The fiscal could not rely on the stale and
inoperative PDA of January 25, 1985. Otherwise, the rules would be rendered nugatory, if all that was
needed was to get a PDA and then serve it at one's whim and caprice when the very issuance of the PDA
is premised on its imperative urgency and necessity as declared by the President himself. The majority
decision then relies on Rule 113, sec. 5 which authorizes arrests without warrant by a citizen or by a
police officer who witnessed the arrestee in flagrante delicto, viz, in the act of committing the
offense. Quite obviously, the arrest was not a citizen's arrest nor were they caught in flagrante
delicto violating the law. In fact, this Court in promulgating the 1985 Rules on Criminal Procedure have
tightened and made the rules more strict. Thus, the Rule now requires that an offense " has in fact just
been committed. " This connotes immediacy in point of time and excludes cases under the old rule where
an offense "has in fact been committed" no matter how long ago. Similarly, the arrestor must
have "personal knowledge of facts indicating that the arrestee has committed it" (instead of just
"reasonable ground to believe that the arrestee has committed it" under the old rule). Clearly, then, an
information could not just be filed against the petitioners without due process and preliminary
investigation.
C. The majority decision's rationale that the Nolasco case invoked by petitioners is not applicable here
since the trial court had granted bail to Nolasco for a number of non-capital offenses, whereas in this case
petitioners are charged with the capital offense of rebellion and the trial court has not allowed bail. This is
erroneously premised. As already emphasized above, the instant information for rebellion against
petitioners is null and void for denial of due process. What remains is the PDA, just like in
the Nolasco case. There, the trial court granted bail. Here, it is this Court that has granted bail in the form
of its May 23rd "immediately executory" release order. It certainly would be judicial anathema that this
Court ordered compliance with the bail order of the trial court in the Nolasco case and yet feel impotent to
enforce its own "immediately executory" release order of the petitioners-lawyers upon their counsel's
recognizance. More so, when the petitioners are members of the Philippine Bar and officers of this Court.

The irony of the situation can be thus depicted. Had this Court simply ordered the immediate
enforcement without delay of its May 23rd order, by May 24th, the petitioners would have not been under
detention. There would be no basis to claim that they were "lawfully arrested without warrant" and
therefore could be instantly charged for the most heinous crimes without preliminary investigation.

D. As stressed by the writer in German vs. Barangan, 69 "to require the citizen at every step to assert his
rights and to go to court is to render illusory his rights. " Here, the flaunting and disregard of the Court's
immediately executory May 23rd release order by not releasing the petitioners-lawyers so that it could be
claimed that they fell under Rule 112, section 7 and considered as "lawfully arrested without warrant"
wherein "the information may be filed by the ... fiscal without preliminary investigation having been first
conducted, on the basis of the affidavit of the offended party or arresting officer or person" (which affidavit
had long been executed since January, 1985 while the unlawful arrests were made on May 10-13 and
in no way could be termed as in flagrante delicto would render illusory petitioners' right to due process
and preliminary investigation. The majority decision should properly apply the case of Abejuela cited by
it 70 that the trial court is called upon "not to dismiss the information but hold the case in abeyance and
conduct its own investigation or require the fiscal to hold a reinvestigation. "Meanwhile, this Court's
release order should be complied with without one moment's delay. Respondents' filing two days later on
May 25th of an "urgent motion for reconsideration" could in no way cause or justify suspension or non-
compliance with this Court's release order.

15. Same standard in Galman case of not jeopardizing accused's constitutional rights should be applied.
In the recent case of Galman vs. Pamaran, the majority held that "the only way to cure the law of its
unconstitutional effects is to construe it in the manner as if IMMUNITY had in 'fact been offered [by the
prosecution] ... (hence) the testimonies compelled thereby are deemed immunized under Section 5 of the
same law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim
of the privilege against self- incrimination which the same law practically strips away from the witness."
The same standard and concern of not placing the accused "in jeopardy of their constitutional rights"
through denial of due process and their right to preliminary investigation should be applied here. The only
way is to construe it in the manner as if this Court's release order had in fact been immediately complied
with and petitioners could in no way be deemed as "lawfully arrested without warrant." Otherwise, the
Rule on preliminary investigation would not be "cured of its unconstitutional effects" by allowing the
railroading on May 27th of the instant information for rebellion without preliminary investigation thru
respondent general's contumacious and unlawful act of disobeying the Court's May 23rd release order.
This was the same standard that would have been applied in the Court's aborted decision in Eastern
Broadcasting Corp. (DYRE) vs. Hon. Dans, Jr. 71 There, this Court brushed aside respondents' procedural
arguments to dismiss the petition as "moot and academic" because of the non-renewal of the petitioner's
radio broadcasting station's license from the time of its summary closure in 1980 up to the time of the
Court's determination in July this year. Instead, as noted in the writer's separate opinion therein, this
Court "serve(d) notice that in the exercise of the judicial power vested in it by the Constitution, it will issue
the equitable writs of certiorari and mandamus to do substantial justice and restore the status quo. In this
case, the summary closure of petitioner's radio station in 1980 having been declared null and void and no
valid ground for non-renewal of its license having been shown, it is as if the said license has been duly
extended up to the end of the current term or year. It is expected that respondents will forthwith return the
crystal of the transmitter and place no further obstacle to the prompt reopening of the radio station so that
petitioner may pick up the broken pieces and rightfully resume its operations (after almost five years of
closure) in accordance with the judgment at bar." Applying this standard to the case at bar, would simply
mean that the clock would simply be turned back to the day of this Court's immediately executory release
order of May 23rd this year, as if the same order had been faithfully and lawfully complied with. Only thus
could substantial and not paper justice be done and the petitioners be not deprived of their constitutional
right to due process and be secured by preliminary investigation against hasty, oppressive and vindictive
prosecution.

16. "The preservation of freedom, like its perfection is a never ending struggle."—This was the exhortation
of President Ferdinand Edralin Marcos at the observance at Fort Bonifacio last May 27th of American
Memorial Day. He admonished the people that "democracy is a condition requiring constant vigilance.
Neither totalitarianism nor authoritarianism can by themselves triumph over the democratic Ideal. But
when free men shirk from their duties to society, as well as to themselves, they imperil their own liberty.
When the citizens of a democracy allow themselves to be lulled into indifference, they seal their own
doom. ... If we are to remain free at all, we must show ourselves to be capable and willing to fight in
defense of our way of life. " 72

17. Former Chief Justice Roberto Concepcion, who with IBP President Emeritus J.B.L. Reyes, has
shunned their well-earned rest and in their eighties continue at the forefront of upholding the cause of
freedom and human rights and rendering free legal aid to the poor, disadvantaged and oppressed, made
this plea for the cause of the independence of the judiciary at the hall of the Court which he once presided
with honor, dignity and integrity. "During the 85 years of this century, there has never been a case as
transcendental as this one. We have tried and bolstered to be a democratic society which is based and
predicated upon freedom of speech. But to bolster up the freedom of speech, we've established the right
of every person accused and even detained to counsel. Now, any (act) tending to impair the disposition of
lawyers to represent the accused, is derogatory to the democratic system, and therefore, derogatory to
human rights. It is significant that at first only, I would say, only persons suspected of being subversives
were being arrested and later on salvaged. I don't know how the word salvage happened to be used,
because salvage from what ...Then even the priests, ... we have started from the North to the
Southernmost part of the Philippines, from Abra to Davao, with lawyers. The only step higher than that
echelon is the Judiciary. So it's not only the lawyers that are being involved in this case, it is the Judiciary,
the independence of the Judiciary." 73

His Holiness Pope John Paul II in his address of February 17, 1981 to the President and the Nation
during his Philippine visit stressed that " Even in exceptional situations that may at times arise, one can
never justify any violation of the fundamental dignity of the human person or of the basic rights that
safeguard this dignity Legitimate concern for the security of a nation, as demanded by the common good,
could lead to the temptation of subjugating to the State the human being and his or her dignity and rights.
Any apparent conflict between the exigencies of security and of the citizens' basic rights must be resolved
according to the fundamental principle upheld always by the Church that social organization exists only
for the service of man and for the protection of his dignity, and that it cannot claim to serve the common
good when human rights are not safeguarded."

17. Petitioners'appeal for liberty should be heeded.-Petitioner Ilagan concisely stated at the May 23rd
hearing that his objective as BAYAN s chairman is To achieve reforms in the government by voicing our
grievances. " 74 In an open letter to his colleagues of the Integrated Bar, after expressing , 'grateful
appreciation for the generous assistance, both financial and moral, which I and my family received . . . .
(and) welcomed . . . . for reasons of necessity" (which hardliners would consider as a criminal act of the
sympathizers and "assisting and aiding the enemy"), petitioner Ilagan makes this poignant appeal:

... What we are here for may not be your concern, but that we are here without due process of law should
interest you all if you are true to your calling. We lawyers are adept at defending persons and interests in
all the courts and forums of the land. We, particularly should be the first concerned at defending our own.
But, by all means, we deserve that sacred right to do so on legitimate, fair and equitable terms. Never
mind that our families have to subsist on the meager earnings of our working wines, but foremost in our
welfare is the right to be free, not only to prepare for our defense adequately but to give essence to that
constitutional tenet that 'every person is presumed innocent until proven otherwise.' We cannot lay claim
of a democratic society if we, lawyers, not only tolerate a lopsided view of the rule of law but ourselves fall
prey to it.

That we are 'preventively detained' is pure euphemism. Deprived of liberty and entirely curtailed in the
exercise of our basic rights, we are, in every sense, prisoners of the state. It is in this context that 1, on
behalf of your three colleagues here, ask your whole-hearted support in demanding justice for our
cause. 75

Petitioners' eminent counsel make this stirring plea on their behalf:

Constitutional history in republican democratic states is the story of the progressive triumph and
expansion of human liberty as against the assertion of unrestrained power by monarchs, tyrants and
other instrumentalities in the political community. Civilization under law has been marked by the departure
from lese majeste, thestrengthening of legal institutions, especially the independent courts, and the
adoption of rules, substantive and procedural, so that freedom is the general and normal state of the
people. Although in exceptional cases, their individual freedom could be restrained but only on serious
grounds compatible with the Constitution and always upon due process. This, at any rate, is a
fundamental principle of English and American constitutional law whence our own constitutional system
has been derived.

In the words of Justice Jugo Black

. . . . From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions
of violations of 'the law of the land' evolved the fundamental Idea that no man's life liberty or property be
forfeited as criminal punishment for violation of that law until there had been a charge fairly made and
fairly tried in public tribunal free of prejudice, passion excitement and tyrannical power. Thus, as an
assurance against ancient evils, our country, in order to preserve 'the blessings of liberty,' wrote into its
basic law the requirement, among others, that the forfeiture of life, liberty or property of people accused of
crime can only follow if procedural safeguards of due process have been obeyed.

The determination to preserve the accused's right to procedural due process sprang in large part from
knowledge of historical truth that the rights and liberties of the people accused of crime could not safely
be entrusted to secret inquisitorial processes. Chambers v. Florida, 309 U.S. 227.

In this jurisdiction, these rules are enshrined in the Bill of Rights in the Constitution and reenforced by
statutes and the Rules of Court.

xxx xxx xxx

If a person is unlawfully deprived of his liberty, he can avail himself of the great writ of liberty, the privilege
of the writ of habeas corpus for the purpose of regaining freedom in the shortest time possible.

In its early years of practice, the privilege of the writ of habeas corpus was a puny and unavailing remedy
as against the king. For judges were under the influence of the crown and refused to issue the writ for
people who were detained on suspicion of disloyalty to the former but against whom there was no
concrete evidence, and the people continued "to languish in extended detention. To remedy this evil, the
Habeas Corpus Act was adopted in 1679. Ex Parte Watkins, 7 L. Ed. 193, 201; Ex Parte Yerger, 8 Wall.
85: MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 314-315.

Since then, the privilege of the writ of habeas corpus has become the fundamental instrument against
arbitrary and lawless state action. .
The suspension of the privilege of the writ of habeas corpus carries with it the derogation of the people's
freedoms and liberties. Therefore, the provisions must be strictly construed and cannot be allowed to
extend to situations not explicitly allowed by the Constitution.

Obliquely and subliminally respondents suggest to this Court to go back in history and to dismantle the
intricate system of reenforcing rules, principles and procedures that have developed through centuries of
struggle for themore efficacious protection of individual liberty. They seek a return to the lese
majeste when the voice of the King was the voice of God so that those who are touched by his absolute
powers could only pray that the King acted prudently and wisely. Similarly respondents would have this
Court and the people accept the proposition that theState's designation of persons as rebels and
subversives without more is adequate basis for their immediate and indefinite detention. And that
regardless of the quality or absence of evidence, the courts are powerless to intervene in behalf of the
persons so designated.

The Rule of Law and constitutionalism mean precisely the existence and the efficacy of legal institutions
to protect and defend the rights and liberties of the people so they no longer have to depend upon
prayers for the purpose.

Petitioners invoke the power of this Court to uphold the Constitution and to protect the rights of the people
and to reject thebasically undemocratic proposition suggested by respondents. 76

I submit that the Court should heed petitioners' appeal for liberty. An editorial after the Court's stillborn
May 23rd Resolution graphically articulates the compelling reasons for granting their plea for liberty:

The government is not only the Chief Executive and the Batasang Pambansa. It necessarily includes the
Supreme Court and the other courts. And time and again it has been shown that the performance of the
judiciary affects the complexion of the two other branches.

The en banc resolution of the Supreme Court ordering the release from confinement of the three Davao
lawyers who have acted as defense counsel in national security cases illustrates the point.

The resolution shows the power of the judicial review and affirms the supremacy of the Constitution.

It shows the independence of the judiciary and allays the fear of the opposition that, the judiciary is an
instrument of the Chief Executive.

xxx xxx xxx

Where the Constitution of the democracy is not supreme, the Supreme Court weakens as the Chief
Executive becomes stronger. Where that situation obtains, the people no longer trust the courts nor the
Constitution.

In the democracies, the judiciary is usually the 'weakest' of the branches. But here and at this time, the
exclusion of the judiciary from an analysis of the kind of government that obtains would make a big
difference.

77
A government without an independent Supreme Court would be like an automobile without brakes.

I vote to grant the petition for habeas corpus and to set the petitioners immediately at liberty. Petitioners
must be granted their constitutional right to due process and the right to preliminary investigation, as
granted by statute and expressly assured to them by respondents in open court at the May 23rd hearing.
The railroaded ex-parteproceedings and orders in the instant rebellion case should be declared null and
void for lack of jurisdiction in having deprived petitioners of their sacred constitutional right to due
process.

CONCEPCION, JR., J., dissenting:

1. I dissent. The petition is not moot and academic.

2. Petitioners should be set free immediately because they were arrested unlawfully, and the information
filed against them dismissed for being null and void. However, the authorities may, if they choose to do
so, file a case against petitioners in the Fiscal's Office of Davao. The fiscal should conduct a preliminary
investigation as required by law. If he finds the existence of a prima facie case, then he should file the
necessary information in court. After the court issues a warrant of arrest against petitioners, only then
may they be placed in custody.

3. Petitioners have a right to a preliminary investigation, and infringement of this right is a denial of due
process.

4. The instances when a person may be arrested without a warrant are clearly laid down by Rule 113 of
the 1985 Rules on Criminal Procedure as follows:

SEC. 5. Arrest without warrant when lawful.-A peace officer or a private person may, without a warrant,
arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance
with Rule 1 1 2, Section 7. (6a, 17a). "

5. From the facts brought out by the pleadings and at the hearing, petitioners' arrest does not fall under
any of the instances enumerated above. Their arrest without a warrant is therefore patently and
undeniably illegal and contrary to law.

6. Just as a spring polluted at its source cannot produce a flow of clean water, the unlawful arrest of
petitioners cannot give rise to a valid information. The information filed in court against them necessarily
is and must remain null and void.

7. In Morales, 1 this Court cautioned against arrests without warrant in this wise:

14. Care should be exercised in making an arrest without a warrant. Where there is no justification for the
arrest, the public officer could be criminally liable for arbitrary detention or unlawful arrest or for some
other offense."

8. It is the responsibility of the judiciary to define and maintain the delicate balance between individual
freedom and the security of the State. In the fulfillment of this mission, the active participation and
assistance of dedicated human rights lawyers are indispensable. They sacrifice time and effort, and take
grave risks to defend the rights of their clients. I salute them and say, "May their tribe increase."

9. At a time when the Armed Forces of the Philippines has to play a salient role in our affairs of
government in view of the existence of a rebellion in our midst, there is all the more a greater need for
lawyers to defend the rights of individuals against actual or possible abuses of agents of the State.

10. We must strengthen and solidify the Rule of Law. It is the only way to the survival of democracy in our
land.

Patajo J., concur

ABAD SANTOS, J., dissenting :

It was Holmes who said that the life of the law has not been logic; it has been experience. Thus the early
Roman law was ritualistic and highly formal. Gradually, however, it evolved and form was replaced by
substance. The development of the law did not stop there. The Roman praetorian law enlarged,
supplemented and over-rode law which became narrow and rigid in scope. Finally, common law produced
equity jurisprudence. It is a formal set of legal and procedural rules and doctrines to aid and even override
common and statute law in order to protect rights and enforce duties fixed by substantive law.

The majority opinion appeals to the mind for it appears to be logically constructed. It leans heavily on the
letter of the law. Upon the other hand the dissenting opinion of Justice Teehankee which is his article of
faith appeals both to the mind and the heart for it is based not only on law but on equity also.

I believe that Justice Teehankee's opinion better serves the ends of justice and I gladly subscribe to it. I
also subscribe to Justice Concepcion's separate opinion

Last March 10, the Court of Appeals (CA) denied the petition for a writ of habeas corpus by the 43 health
workers who were abducted, tortured, and remain under military detention since February 6. The CA
invoked the so-called “Ilagan Doctrine” in its decision.

A habeas corpus refers to a legal action through which a person can seek relief from unlawful detention. It
is considered an important instrument in safeguarding individual freedom from arbitrary state action.

Remnant of a dictatorship

Meanwhile, the Ilagan Doctrine is a legal principle established by jurisprudence. It states that a writ of
habeas corpus is no longer available after criminal information is filed against the person detained and an
arrest warrant or a commitment order is issued by the court where the said information has been filed.
Thus, under the Ilagan Doctrine, the unlawfulness of an arrest becomes moot and academic or an illegal
arrest becomes “legal” once charges are filed in a court of law.

This legal principle is a remnant of the Marcos dictatorship. It was promulgated by the Supreme Court in
an October 21, 1985 decision on the Ilagan v. Enrile case. Ilagan refers to Laurente Ilagan, a legal
luminary in Davao City and former chairperson of Bagong Alyansang Makabayan (Bayan) Mindanao who
was arrested without warrant together with fellow lawyers Antonio Arellano and Marcos Risonar by the
Philippine Constabulary – Integrated National Police (PC-INP). Enrile refers to then Minister of Defense
(and now Senator) Juan Ponce Enrile.
Incidentally, Attorney Ilagan was the late husband of Gabriela Women’s Party (GWP) Representative Luz
Ilagan. In a speech during a March 11 protest rally denouncing the CA decision, Rep. Ilagan recalled the
events that gave birth to this Marcos-era legal principle that was named after her husband and why it
undermines democracy and human rights. (See video)
CRIMPRO NOTES (PROFESSOR L. D. BATTAD)
HABEAS CORPUS
Notes:
WHEN is the writ available?
y
When there is actual and effective, and not merely nominal and moral restraint is required1 however, actual
physical restraint is not always required; any restraint which will prejudice freedom of action is sufficient2.
y
Available also, when as a CONSEQUENCE a judicial proceeding:
(a)there is a deprivation of a constitutional right resulting from the restraint
(b)court has no jurisdiction to impose the sentence
(c)whenever excessive penalty is imposed3
y
The writ also applies when the judgement that caused the illegal detention is no longer appealable4 or when such
judgement has become final and executory and cannot be amended to give retroactive effect perArt 22 RPC5.
y
To enable parents to recover their children although they may be in the custody of third persons on their own
volition.6
WHEN is the writ NOT available?
y
When information is invalid due to invalid preliminary investigations and that the offense has already prescribed.
(The proper remedy is investigation or reinvestigation of the court the issued the warrant of commitment)
y
Prescription of offense (Proper remedy is a motion to quash prior arraignment, otherwise the remedy is deemed
waived)
y
When restraint is voluntary7
y
Rule 102 Sec 4 likewise provides when the writ is not available.The term process therein includes those issued by
governmental agencies authorized to order his confinement ei., Deportation Board.
Ilagan v Enrile (Melencio-Herrera, 1985)8
Petitioners:Activist-lawyers Laurente Ilagan,AntonioArellano, Marcos Risonar; IBP, FLAG, MABINI
Respondents: Defense Minister Juan Ponce Enrile,Acting Chief of Staff Fidel Ramos, etc.
DOCTRINE: Since function of habeas corpus is to inquire into legality of detention, it cannot be granted to those who
are
already in prison/in custody.Rep ressive ² Information even if filed late can cure an illegal arrest.
FACTS:
y
Davao laywer Laurente Ilagan was arrested by the military in Davao City on May 10, 1985 while snacking with
friends outside his office. Ilagan is chairman of BAYAN-Mindanao.
y
His arresters took him on the basis of an unsigned ´mission orderµ issued by the Ministry of National Defense. He
was detained at Camp Catitipan.
y
Atty. Antonio Arellano, while visiting Ilagan in jail that same day, was also arrested. Arellano is a law professor at
theAteneo de Davao law school, and secretary-general of BAYAN-Mindanao. He had visitedAtty.Arellano along
with 14 other IBP layers.
y
Two days later, the military told IBP Atty. Marcos Risonar would also be arrested. He went to the Camp Catitipan
to verify this, and was thereafter detained.
y
ORIGINAL PETITION FOR HABEAS CORPUS filed by the three lawyers and in their behalf by lawyers groups.
The petition claimed that arrests based on mission orders are illegal, and that this appears to be a military
campaign to harass lawyers involved in national security cases.
y
The SC granted the writ on May 16, set hearing on May 23.
y
Government·s reply (return):The arrests were based on preventive detention actions (PDA)9 issued by President
Marcos in January, and Mindanao was in a state of rebellion, as evidenced by subversive documents allegedly
seized from the lawyers.Asked for denial of petition.
y
Hearing (on May 23): Presentation of evidence to establish prima facie case, but SC ordered the temporary releaseof
the lawyers upon recognizance to their counsels: retired Chief Justice Roberto Concepcion and retiredAssociateJustice
J. B. L. Reyes.
y
Lawyers· manifestation (on May 24): Lawyers still not released.
y
Government·s motion for reconsideration (on May 27): Writ of habeas corpus suspended in Mindanao, thus the
court has no jurisdiction.Also, lawyers were arrested for specific acts of rebellion and economic sabotage, as well
as leadership in the CPP, not for ´lawyeringµ.The three were allegedly involved in thewelgang bayan in Davao
City.

1 Zagala vs Illustre

2 Moncupa vs Enrile

3 Cruz vs Dir. Of Prisons

4 Chavez vs CA

5 Directo vs Dir. Of Prisons

6 Salvana vs Gaela

7 Kelly etc., vs Dir. Of Prisons

8 Krissy Conti, who likes this case so much

9 Proclamation No. 2045 lifted Martial Law, but the amendment Proclamation No. 2045-A, kept

suspended the privilege of the Writ of Habeas Corpus in

the two autonomous regions of Mindanao and in all other places with respect to political crimes.

y
Government·s manifestation (on May 28): Information for rebellion filed at RTC Davao, and warrants of arrests
have been issued already.Asked again for petition to be dismissed for being moot.
y
Lawyers· opposition:The detained were not given benefit of preliminary investigation, and were denied
constitutional right of due process so the information must be voided.
y
The two parties thereafter traded motions and comments on the welgang bayan as an exercise of freedom of
speech, and of the validity of Proc. No. 2095-A and the PDAs.
ISSUE: WON habeas corpus may be granted to the lawyers charged with rebellion even though they have been
illegally
arrested, and have not been subject to preliminary investigation
HELD: NO.The function of the special proceeding of habeas corpus is to inquire into the legality of detention. Now,
the
lawyers are detained by virtue of a judicial order (i.e. the late warrants) so remedy is no longer available.The petition is
dismissed for being moot and academic, motion for reconsideration is granted.
RATIO: Sec. 4, Rule 102 of the Rules of Court:The writ is not allowed when the person is already in the custody of an
officer under process issued by a court or judge.
Plus Sec. 14, Rule 102:A prisoner who is lawfully committed for an offense punishable by death shall not be released,
discharged or bailed.
If the lawyers question their detention because of improper arrest, or that no preliminary investigation has been
conducted, the remedy is a quashal of the warrant of arrest and/or the information.
The court declined to comment on the legality of the arrests. ´As to whether the detained attorneys fall under either of
the
(instances of in flagrante delicto, paragraphs a and b Rule 113) is a question of fact, which will need the presentation of
evidence«µ
Likewise with the question on the absence of preliminary investigation: the Court is not called upon to ´dismiss the
information but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a
reinvestigation.µ Further, the right to PI is waivable, hence does not affect the validity of proceedings.
Melencio-Herrera, addition opinion: Lawyers are not entitled to bail because the offense is punishable by reclusion
perpetua to death. So RTC should hear the case immediately to determine right away if the evidence is flimsy. RTC is
alsoentitled to ´procedural due processµ so it should not be deprived of its jurisdiction, and must be given opportunity
to hearthe substantial merits of the case.
Also, when issuing PDAs, the arrested individuals must be furnished with the original or a certified true copy of the
document.
Teehankee10, dissent: If only the SC had ordered the immediate compliance with its first decision, the lawyers would
not
be in custody now.
1) On the arrests and detention ² Unlawful, invalid because the military violated the constitutional rights of the lawyers.
They have a right to PI and to due process, both violated in the course of the debacle. They are not mere informalities or
defects in the process. ´A violation of a constitutional right deprives the court of jurisdiction; and as a consequence its
judgment is null and void and confers no rights.µ11
2) On the people·s right to assembly ² Sole limitation to freedom of expression is if it is a serious evil to public safety,
public morals, public health, or any other legitimate public interest. In fact, the police has the duty to extend protection
to
the demonstrators.
3) On evidence and the preservation of liberties and motives ²The good motive may be to preserve peace and order in
Mindanao, but the military·s zealousness is misplaced.There is no tenable, concrete evidence that has been submitted
other than the accusations that BAYAN is communist-led or ²infiltrated.The Court also warned against military·s
practice
of hiring ´professional witnessesµ.
4) On political discussion ² Protection is especially mandated for political discussion. Per the Salonga v Pano case:
´Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments.µ
5) On the PDAs ² No comment on constitutionality because it is the subject of a separate petition.At the very least,
thePDAs were stale and inoperative.They were issued on January 25, 1985. PDAs are only valid for service within 24
hoursin Manila, and 48 hours outside.
10 Is later happier in Agcaoili v Enrile habeas corpus case. ³I write this concurrence to record and
celebrate the historical fact that with the true win of the
people expressed against all odds in the February 7, 1986 snap elections and the four glorious days of
bloodless revolution from February 22nd to
February 25th«´ Corazon Aquino had revoked Proclamation 2045 and 2045-A immediately after being
sworn president.
11 Quoted from PBM Employees v PBM Co.

6) On civilian supremacy ² the Court already granted the writ, but the military refused to comply!That is an affront to
the
judiciary, which though the weakest department, is the ´guardian and final arbiterµ of the constitution.
Velasco vs CA12
Notes:
y
Prof.Te·sArgument: LACK OF JURISDICTION. Since the arrest was invalid (warrantless and does not fall under
the exceptions mentioned in Rule 113 ROC), the complaint must be dismissed, the court has not acquired
jurisdiction of Larkins person. It should be noted that the prior arrest was for violation of BP 22, which for the
record Larkins has posted bail and was granted. His continued detention was subsequently illegal since the arrest
was not effected with a warrant for the crime of rape.BU T since the former counsel of Larkins has already
instituted a MOTION FOR BAIL, it was in effect a waiver for the alleged illegal warrantless arrest and has
subsequently barred the writ of habeas corpus for lack of jurisdiction.The court held that the subsequent filing of
motion to dismiss was a mere afterthought on the part of the defense.
Moncupa vs Enrile13
Doctrine:A writ for habeas corpus may lie not only when there is physical restraint. Whenever a person is unlawfully
denied one or more of his constitutional freedoms the courts have authority to inquire into the validity of such restraint.
People vs Alojado14
Doctrine: Illegality or irregularity of arrests must be questioned prior arraignment or prior entering of plea,
subsequent submission to a courts jurisdiction is an implied waiver. Such voluntary submission to the court herein is
shown when he entered his plea and thereafter participated actively in the trial.
People vs Rondero15
Doctrine: Irregularity of arrest was deemed waived when instead of quashing information for lack of jurisdiction
accused
voluntarily submitted himself to the courts· jurisdiction by entering his plea.
Umil vs. Ramos (Per curiam, 1990)16
Nature: Petitions for Habeas Corpus
Facts:
y
This is a consolidated case on 8 petitions for habeas corpus: (1) GR 81567, Umil v. Ramos; (2-3) GR 84581-82,
Roque and Buenaobra v. De Villa and Montano; (4-5)GR 84583-84,Anonuevo and Casiple v. Ramos, et al.; (6)GR
83162, Ocaya and Rivera v.Aguirre, et al.; (7)GR 85727, Espiritu v. Lim and Reyes; (8) Nazareno v. Medina, et al.
y
The petitioners in the said cases claim that they were unlawfully detained as there were no warrants of arrest
against them and that they did not undergo preliminary investigation.The respondents however argue that the
arrests made on the petitioners fall within the ambit specified by law.
y
In the first case, Rolando Dural a.k.a. Ronnie Javelon was an NPA member who was reportedly being treated for a
gunshot wound in St.Agnes Hospital in the RooseveltArea when he was arrested. He was the suspect in the
killing of 2 CAPCOM soldiers the day before, where witnesses saw that the gunman stepped on the hood of the
CAPCOM vehicle and opened fire on the soldiers inside. He was charged with Double Murder andAssault against
Agents or Persons in Authority. With Dural were Roberto Umil and Renato Villanueva. The latter two, posted bail
and were released; this mooted the HC writ which were granted them weeks earlier. While Dural·s warrantless
arrest was seemingly unjustified, his membership with NPA justified it as subversion was a continuing offense.
y
In the second and third case,Amelia Roque and Wilfredo Buenaobra were apprehended in the house of Renato ¶Ka
Mong· Constantino which was under surveillance for days due to information from a captured NPA member,
Rogelio Ramos. Roque was a member of the National United Front Commission, a section of the CPP-NPA, and
was found to possess subversive documents stored in her sister·s house in Caloocan which she admitted
ownership of. Buenaobra was a courier for NPA who was also apprehended while about to deliver a message to
Constantino in his house in Marikina. Buenaobra was arrested the night he went to Constantino·s house. Roque
was found the next day after the letter found in Buenaobra·s possession pointed to their location. Said location
was searched and more documents, allegedly belonging to the outlawed organization, were found. Both were
charged with violation of theAnti-SubversionAct (Roque two days after she was arrested, while Buenobra
unstated). Roque filed for habeas corpus but Buenaobra manifested intent to stay in Camp Crame.
y
In the fourth and fifth case, DomingoAnonuevo a.k.a. KaTed and Ramon Casiple a.k.a. KaTotoy were also
members of the NUFC (National United Front Commission) who were arrested when they visited the Constantino
residence which was under surveillance.After seeing ¶bulging· objects in their waist, military had them frisked. In
their possession were found subversive documents as well as guns and ammunitions.They claim that the arrest
is illegal for want of arrest warrant and preliminary investigation.
y
In the sixth case, Vicky Ocaya arrived in a car with a companion, Danny Rivera, at a house in Marikina owned by
a certain BenitoTiamson which was under surveillance for reports of being NPA. She was found to be carryin

Horacio Morales Jr vs Minister of Defense Juan Ponce

Enrile et al

Habeas Corpus – The Right to Bail

In April 1982, Morales and some others were arrested while driving a motor vehicle in Laong-Laan St, QC.
They were charged in CFI Rizal for rebellion punishable under the RPC. Morales alleged that they were
arrested without any warrant of arrest; that their constitutional rights were violated, among them the right
to counsel, the right to remain silent, the right to a speedy and public trial, and the right to bail.
Respondents countered that the group of Morales were already under surveillance for some time before
they were arrested and that the warrantless arrest done is valid and at the same time the privilege of the
writ of habeas corpus was already suspended.

ISSUE: Whether or not Morales et al can post bail.

HELD: Normally, rebellion being a non-capital offense is bailable. But because the privilege of the writ of
habeas corpus remains suspended “with respect to persons at present detained as well as other who may
hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and for all other crimes and offenses committed by them in furtherance
of or on the occasion thereof, or incident thereto, or in connection therewith,” the natural consequence is
that the right to bail for the commission of anyone of the said offenses is also suspended. To hold
otherwise would defeat the very purpose of the suspension. Therefore, where the offense for which the
detainee was arrested is anyone of the said offenses he has no right to bail even after the charges are filed
in court. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or
offenses committed in furtherance thereof or in connection therewith constitute direct attacks on the life
of the State. Just as an individual has right to self-defense when his life is endangered, so does the State.
The suspension of the privilege of the writ is to enable the State to hold in preventive imprisonment
pending investigation and trial those persons who plot against it and commit acts that endanger the
State’s very existence. For this measure of self-defense to be effective, the right to bail must also be
deemed suspended with respect to these offenses. However, there is a difference between preventive and
punitive imprisonment. Where the filing of charges in court or the trial of such charges already filed
becomes protracted without any justifiable reason, the detention becomes punitive in character and the
detainee regains his right to freedom. Quite notable in this case however is that the 2 nd division of the SC
reiterated the Lansang Doctrine as opposed to what they ruled in the Garcia-Padilla Case.

Case Digest on Stonehill v. Diokno, 20 SCRA 383 (1967)

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Stonehill v. Diokno, 20 SCRA 383 (1967) F: Upon application of the officers of the govt
(resp. prosecutors), several judges (resp. judges) issued a total of 42 search warrants
against petitioners &/ or the corporations of w/c they were officers, directed to any
peace officer, to search the perons named and/ or the premises of their offices,
warehouses, and/ or residences, and to seize several personal prop. as the "subject of
the offense; stolen or embezelled or the fruits of the offense," or "used or intended to
be used as the means of committing the offense" as violation of CB Laws, Tariff and
Customs Laws (TCC), NIRC and the RPC." Alleging that the aforementioned search
warrants are null & void, said petitioners filed w/ the SC this orig. action for
certiorari, prohibition, mandamus & injunction. The writ was partially lifted or
dissolved, insofar as the papers, documents, and things seized from the officers of the
corporations; but the injunction was maintained as regards those found & seized in
the residences of petitioners. ISSUES: (1) With respect to those found & seized in the
offices of the corporations, w/n petitioners have cause of action to assail the validity
of the contested warrants. (2) In connection w/ those found & seized in the
residences of petitioners, w/n the search warrants in question and the searches and
seizures made under the authority thereof are valid. (3) If the answer in no. 2 is no,
w/n said documents, papers and things may be used in evidence against petitioners.
HELD: (1) No. Petitioners have no cause of action to assail the legality of the
contested warrants and the seizure made in pursuance thereof bec. said corporations
have their respective personalities, separate and distinct from the personality of
petitioners. The legality of a seizure can be contested only by the party whose rights
have been impaired thereby and that the objection to an unlawful search and seizure
is purely personal and cannot be avalied of by 3rd parties.

(2) No. Two points must be stressed in connection w/ Art. III, Sec. 2 of the Consti: (a)
that no warrant shall issue but upon probable cause to be determined by the judge in
the manner set forth therein; & (b) that the warrant shall particularly describe the
things to be seized. None of these requirements has been complied w/. It was stated
that the natural and juridical persons has committed a violation of CB laws, TCC, NIRC
& RPC. No specific offense had been alleged in said applications. The averments
thereof w/ respect to the offense committed were abstract. As a consequence, it was
impossible for the judges who issued the warrants to have found the existence of a
probable cause, for the same presupposes the introduction of competent proof that
the party against whom it is sought has performed particular acts, or committed
specific omissions, violating a given provision of our criminal laws. General search
warrants are outlawed bec. they place the sanctity of the domicile and the privacy of
communication and correspondence at the mercy of the whims, caprice or passion
of peace officers. The warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations, whatever their nature, thus
openly contravening the explicit command of our Bill of Rights-- that the things to be
se

PEOPLE VS. ARUTA [288 SCRA 626; G.R. NO. 120515; 13 APR
1998]
Friday, February 06, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law
Facts: On Dec. 13, 1988, P/Lt. Abello was tipped off by his informant that a
certain “Aling Rosa” will be arriving from Baguio City with a large volume of
marijuana and assembled a team. The next day, at the Victory Liner Bus terminal
they waited for the bus coming from Baguio, when the informer pointed out who
“Aling Rosa” was, the team approached her and introduced themselves as NARCOM
agents. When Abello asked “aling Rosa” about the contents of her bag, the latter
handed it out to the police. They found dried marijuana leaves packed in a plastic
bag marked “cash katutak”.

Instead of presenting its evidence, the defense filed a demurrer to evidence

alleging the illegality of the search and seizure of the items. In her testimony, the
accused claimed that she had just come from Choice theatre where she watched a
movie “Balweg”. While about to cross the road an old woman asked her for help in
carrying a shoulder bag, when she was later on arrested by the police. She has no
knowledge of the identity of the old woman and the woman was nowhere to be
found. Also, no search warrant was presented.

The trial court convicted the accused in violation of the dangerous drugs of 1972

Issue: Whether or Not the police correctly searched and seized the drugs from
the accused.

Held: The following cases are specifically provided or allowed by law:

1. Warrantless search incidental to a lawful arrest recognized under Section 12,

Rule 126 of the Rules of Court 8 and by prevailing jurisprudence

2. Seizure of evidence in "plain view," the elements of which are: (a) a prior valid
intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties; (b) the evidence was inadvertently
discovered by the police who had the right to be where they are; (c) the evidence
must be immediately apparent, and (d) "plain view" justified mere seizure of
evidence without further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle's

inherent mobility reduces expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion amounting to probable cause
that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk;

7. Exigent and Emergency Circumstances.

The essential requisite of probable cause must still be satisfied before a warrantless
search and seizure can be lawfully conducted.

The accused cannot be said to be committing a crime, she was merely crossing the
street and was not acting suspiciously for the Narcom agents to conclude that she
was committing a crime. There was no legal basis to effect a warrantless arrest of
the accused’s bag, there was no probable cause and the accused was not lawfully
arrested.

The police had more than 24 hours to procure a search warrant and they did not do
so. The seized marijuana was illegal and inadmissible evidence.

RULE 113, RULES OF COURT

Section 5. Arrest without warrant; when lawful. — A peace officer or a private

person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraph (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.

RULE 126, RULES OF COURT

Section 2. Court where application for search warrant shall be filed. — An

application for search warrant shall be filed with the following:

a) Any court within whose territorial jurisdiction a crime was committed.

b) For compelling reasons stated in the application, any court within the judicial
region where the crime was committed if the place of the commission of the crime
is known, or any court within the judicial region where the warrant shall be
enforced.

However, if the criminal action has already been filed, the application shall only be
made in the court where the criminal action is pending.

Section 7. Right to break door or window to effect search. — The officer, if refused
admittance to the place of directed search after giving notice of his purpose and
authority, may break open any outer or inner door or window of a house or any
part of a house or anything therein to execute the warrant or liberate himself or
any person lawfully aiding him when unlawfully detained therein.

Section 12. Delivery of property and inventory thereof to court; return and
proceedings thereon.

(a) The officer must forthwith deliver the property seized to the judge who issued
the warrant, together with a true inventory thereof duly verified under oath.
(b) Ten (10) days after issuance of the search warrant, the issuing judge shall
ascertain if the return has been made, and if none, shall summon the person to
whom the warrant was issued and require him to explain why no return was made.
If the return has been made, the judge shall ascertain whether section 11 of this
Rule has been complained with and shall require that the property seized be
delivered to him. The judge shall see to it that subsection (a) hereof has been
complied with.
(c) The return on the search warrant shall be filed and kept by the custodian of the
log book on search warrants who shall enter therein the date of the return, the
result, and other actions of the judge.

A violation of this section shall constitute contempt of court.

GUANZON VS. DE VILLA [181 SCRA 623; G.R. 80508; 30 JAN

1990]
Friday, February 06, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: The 41 petitioners alleged that the "saturation drive" or "aerial target
zoning" that were conducted in their place (Tondo Manila) were unconstitutional.
They alleged that there is no specific target house to be search and that there is no
search warrant orwarrant of arrest served. Most of the policemen are in their
civilian clothes and without nameplates or identification cards. The residentswere
rudely rouse from their sleep by banging on the walls and windows of their
houses. The residents were at the point of high-powered guns and herded like
cows. Men were ordered to strip down to their briefs for the police to examine their
tattoo marks. The residentscomplained that they're homes were ransacked, tossing
their belongings and destroying their valuables. Some of their money and valuables
had disappeared after the operation. The residents also reported incidents of
maulings, spot-beatings and maltreatment. Those who were detained also suffered
mental and physical torture to extract confessions and tactical informations. The
respondents said that such accusations were all lies. Respondents contends that
theConstitution grants to government the power to seek and cripple subversive
movements for the maintenance of peace in the state. The aerial target zoning
were intended to flush out subversives and criminal elements coddled by
the communities were the said drives were conducted. They said that they have
intelligently and carefully planned months ahead for the actual operation and that
local andforeign media joined the operation to witness and record such event.

Issue: Whether or Not the saturation drive committed consisted of violation of

human rights.

Held: It is not the police action per se which should be prohibited rather it is the
procedure used or the methods which "offend even hardened sensibilities" .Based
on the facts stated by the parties, it appears to have been no impediment to
securing search warrants or warrants of arrest before any houses were searched or
individuals roused from sleep were arrested. There is no showing that the
objectives sought to be attained by the "aerial zoning" could not be achieved even
as th rights of the squatters and low income families are fully protected. However,
the remedy should not be brought by a tazpaer suit where not one
victim complaints and not one violator is properly charged. In the circumstances of
this taxpayers' suit, there is no erring soldier or policeman whom the court
can order prosecuted. In the absence of clear facts no permanent relief can be
given.

In the meantime where there is showing that some abuses were committed, the
court temporary restraint the alleged violations which are shocking to the senses.
Petition is remanded to the RTC of Manila.

Case Digest on Valmonte v. De Villa, 170 SCRA 256 (1989)

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Valmonte v. De Villa, 170 SCRA 256 (1989)

F: On 1/20/87, the NCRDC was activated w/ the mission of conducting security
operations w/in its area or responsibility and peripheral areas, for the purpose of
establishing an effective territorial defense, maintaining peace and order, and
providing an atmosphere conducive to the social, economic and political dev''t of the
NCR. As part of its duty to maitain peace and order, the NCRDC installed checkpoints
in various parts of Valenzuela and MM. Petitioners aver that, bec. of the institution of
said checkpoints, the Valenzuela residents are worried of being harassed and of their
sarety being placed at the arbitrary, capricious and whimsical disposition of the
military manning the checkpoints, considering that their cars and vehicles are being
subjected to regular searches and check-ups, especially at night or at dawn, w/o a
SW and/ or court order. Their alleged fear for their safety increased when Benjamin
Parpon, was gaunned down allegedly in cold blood by members of the NCRDC for
ignoring and/ or continuing to speed off inspite of warning shots fired in the air.
HELD: Petitioner''s concern for their safety and apprehension at being harassed by
the military manning the checkpoints are not sufficient grounds to declare the
checkpoints per se, illegal. No proof has been presented before the Court to show
that, in the course of their routine checks, the military, indeed, committed specific
violations of petitioners'' rights against unlawful search and seizure of other rights.
The constitutional right against unreasonable searches and seizures is a personal
right invocable only by those whose rights have been infringed, or threatened to be
infringed.

Not all searches and seizures are prohibited. Those w/c are reasonable are not
forbidden. The setting up of the questioned checkpoints may be considered as a
security measure to enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benfit of the public.
Checkpoints may not also be regarded as measures to thwart plots to destabilize the
govt, in the interest of public security. Between the inherent right of the state to
protect its existence and promote public welfare and an individual''s right against a
warrantless search w/c is, however, reasonably conducted, the former should
prevail. True, the manning of checkpoints by the military is susceptible of abuse by
the military in the same manner that all governmental power is susceptible of abuse.
But, at the cost of occasional inconveninece, discomfort and even irritation to the
citizen, the checkpoints during these abnormal times, when conducted w/in
reasonable limits, are part of the price we pay for an orderly society and a peaceful
community.

Published: February 18, 2008

Source: http://www.shvoong.com/law-and-politics/1767286-case-digest-
valmonte-villa-170/#ixzz1fGSjBBxXCheckpoints and the right
against unreasonable search and seizure
Published by Atty. Fred January 21st, 2008 in Criminal Law, Elections and Constitutional Law and Litigation and Labor
Law. 6 Comments

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A checkpoint is something that motorists have to contend with on the road. Only recently, a

“concerned Filipino citizen” raised some issues with respect to PNP/AFP checkpoints. The issues raised

are valid, as the Supreme Court itself noted that it “has become aware of how some checkpoints have
been used as points of thievery and extortion practiced upon innocent civilians. Even the increased

prices of foodstuffs coming from the provinces, entering the Metro Manila area and other urban

centers, are largely blamed on the checkpoints, because the men manning them have reportedly

become “experts” in mulcting travelling traders. This, of course, is a national tragedy.”

Still, the power of the authorities to install checkpoints is conceded by the Supreme Court. With that,

let’s have a brief discussion on checkpoints and the right against unreasonable search and seizures.

The Constitution ensures the “right of the people to be secure in their persons, houses, papers, and

effects against unreasonable searches and seizures of whatever nature and for any purpose shall be

inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be

determined personally 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.• (Section 2, Article III). The Constitution also provides that any

evidence obtained in violation of the provision mentioned is inadmissible in evidence (Sec. 3, Article

III).

The general rule is this — no arrests and search/seizure could be made without a warrant.

However, there are exceptions. Among the exceptions concerning search and seizure are: (1) search

of moving vehicles; (2) seizure in plain view; and (3) waiver by the accused of his right against

unreasonable search and seizure. These exceptions, while distinct and separate from each other, are

often discussed together (routine airport security inspection is a slightly different matter, but that’s

the subject of another post).

Search and seizure relevant to moving vehicles are allowed in recognition of the impracticability

of securing a warrant under said circumstances. In such cases however, the search and seizure may

be made only upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known

to the seizing officer, that an automobile or other vehicle contains an item, article or object which by

law is subject to seizure and destruction. The SC also found probable cause in the following instances:

(a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused;

(b) where an informer positively identified the accused who was observed to have been acting

suspiciously;
(c) where the accused fled when accosted by policemen;

(d) where the accused who were riding a jeepney were stopped and searched by policemen who had

earlier received confidential reports that said accused would transport a large quantity of marijuana;

and

(e) where the moving vehicle was stopped and searched on the basis of intelligence information and

clandestine reports by a deep penetration agent or spy — one who participated in the drug smuggling

activities of the syndicate to which the accused belonged — that said accused were bringing prohibited

drugs into the country.

Under the plain view doctrine, objects falling in the “plain view― of an officer who has a right

to be in the position to have that view are subject to seizure and may be presented as evidence. The

“plain view― doctrine applies when the following requisites concur:

(a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is

in a position from which he can view a particular area;

(b) the discovery of the evidence in plain view is inadvertent; and

(c) it is immediately apparent to the officer that the item he observes may be evidence of a crime,

contraband or otherwise subject to seizure.

To illustrate, the SC found all these elements in one case: “The law enforcement officers lawfully made

an initial intrusion because of the enforcement of the Gun Ban and were properly in a position from

which they particularly viewed the area. In the course of such lawful intrusion, the policemen came

inadvertently across a piece of evidence incriminating the petitioner where they saw the gun tucked

into his waist. The gun was in plain view and discovered inadvertently when the petitioner alighted

from the vehicle.― In this particular case, the gun was found only after the accused steped out of

the vehicle. The accused claims that he could not have freely refused the “police orders― issued

by the police team who were “armed to the teeth” and “in the face of such show of

force.― The SC, however, noted that the “police team manning the checkpoint politely
requested the passengers to alight from their vehicles, and the motorists who refused this request

were not forced to do so.―

As to military or police checkpoints, the Supreme Court already ruled that these checkpoints are not

illegal per se, as long as the vehicle is neither searched nor its occupants subjected to body

search, and the inspection of the vehicle is merely visual. The search which is limited to routine

checks — visual inspection or flashing a light inside the car, without the occupants being subjected to

physical or body searches. In other words, in the absence of probable cause, the authorities:

(a) cannot compel the passengers to step out of the car;

(b) cannot conduct bodily searches; and

(c) cannot compel the motorist to open the trunk or glove compartment of the car, or any package

contained therein.

A search of the luggage inside the vehicle would require the existence of probable cause. On the other

hand, no probable cause is required if the accused voluntarily opens the trunk and allows the search,

as waiver of one’s right against unreasonable search and seizures is one of the exceptions noted

above.

The negative impressions on checkpoints, however, should not be an excuse to be rude to the officers

manning them. If I’m flagged down at a check point, I usually roll down the driver’s window halfway,

address the officer in a courteous manner, then mentally note his name plate. What is your recourse

in case of abuse? In the words of the Supreme Court: “where abuse marks the operation of a

checkpoint, the citizen is not helpless. For the military is not above but subject to the law. And the

courts exist to see that the law is supreme. Soldiers, including those who man checkpoints, who abuse

their authority act beyond the scope of their authority and are, therefore, liable criminally and civilly

for their abusive acts. This tenet should be ingrained in the soldiery in the clearest of terms by higher

military authorities.”

* Sources:
Abenes vs. Court of Appeals (G.R. No. 156320, February 14, 2007)

People vs. Lacerna (G.R. No. 109250, September 5, 1997)

Valmonte vs. De Villa (G.R. No. 83988, May 24, 1990)

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 83988 September 29, 1989

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S

RIGHTS (ULAP),petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.

Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.:

This is a petition for prohibition with preliminary injunction and/or temporary restraining order,
seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional
and the dismantling and banning of the same or, in the alternative, to direct the respondents to
formulate guidelines in the implementation of checkpoints, for the protection of the people.

Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of
the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner
Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association
whose members are all members of the IBP.

The factual background of the case is as follows:

On 20 January 1987, the National Capital Region District Command (NCRDC) was activated
pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission
of conducting security operations within its area of responsibility and peripheral areas, for the
purpose of establishing an effective territorial defense, maintaining peace and order, and providing
an atmosphere conducive to the social, economic and political development of the National Capital
Region. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various
parts of Valenzuela, Metro Manila.

Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are
worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical
disposition of the military manning the checkpoints, considering that their cars and vehicles are
being subjected to regular searches and check-ups, especially at night or at dawn, without the
benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at
dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan,
was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint
along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the
checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner
Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was
stopped and his car subjected to search/check-up without a court order or search warrant.

Petitioners further contend that the said checkpoints give the respondents a blanket authority to
make searches and/or seizures without search warrant or court order in violation of the
Constitution; 2 and, instances have occurred where a citizen, while not killed, had been harassed.

Petitioners' concern for their safety and apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has
been presented before the Court to show that, in the course of their routine checks, the military
indeed committed specific violations of petitioners' right against unlawful search and seizure or other
rights.

In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's
Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege
that any of their rights were violated are not qualified to bring the action, as real parties in interest.

The constitutional right against unreasonable searches and seizures is a personal right invocable
only by those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a
reasonable or unreasonable search and seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved. 5

Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without
a search warrant by the military manning the checkpoints, without more, i.e., without stating the
details of the incidents which amount to a violation of his right against unlawful search and seizure,
is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right
against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but
is to be resolved according to the facts of each case. 6

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked
on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not
constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its mission of establishing
effective territorial defense and maintaining peace and order for the benefit of the public.
Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the
interest of public security. In this connection, the Court may take judicial notice of the shift to urban
centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings
in cities of police and military men by NPA "sparrow units," not to mention the abundance of
unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all
of which are reported in media, most likely brought about by deteriorating economic conditions —
which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the
inherent right of the state to protect its existence and promote public welfare and an individual's right
against a warrantless search which is howeverreasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the
same manner that all governmental power is susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal
times, when conducted within reasonable limits, are part of the price we pay for an orderly society
and a peaceful community.

Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and
a review and refinement of the rules in the conduct of the police and military manning the
checkpoints was ordered by the National Capital Regional Command Chief and the Metropolitan
Police Director. 10

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes,
Griño-Aquino, Medialdea and Regalado, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-59118 March 3, 1988

JUAN DIZON AND SOLEDAD RAMOS, petitioners,

vs.
BRIG. GEN. VICENTE EDUARDO AND COL. TEDDY CARIAN, respondents.

Free Legal Assistance Group for petitioners.

The Solicitor General for respondents.

RESOLUTION

TEEHANKEE, C. J.:

"This is a case of disappeared persons" (desaparecidos). This was the opening plea filed six years
ago by the late Senator Jose Wright Diokno as lead counsel 1 on behalf of the parents of the two
young persons Eduardo Dizon, 30 years of age at the time, single and described in the petition as "a
community leader and a self-employed businessman (despite his having only one arm)" and Isabel
Ramos, 22 years of age at the time, single and a former architecture student. The two had been
arrested with others by the military, detained in the military camp, and then claimed by the military to
have been released after nine days. But they were not released to their parents, who had been
visiting them, nor to any other responsible person — and were never seen or heard from by anyone
since then.
Senator Diokno passed away a year ago last February 27th. He, together with the martyred Senator
Benigno "Ninoy" Aquino, Jr. were the first victims of martial law imposed in September 1972 by then
President Ferdinand E. Marcos, destroying in one fell swoop the Philippines' 75 years of stable
democratic traditions and established reputation as the showcase of democracy in Asia. They were
the first to be arrested in the d ark of the night of September 22, 1972, as the military authorities
spread out through the metropolis upon orders of the President-turned-dictator to lock up the
opposition together with newspaper editors, journalists and columnists and detain them at various
army camps. What was the martial law government's justification for the arrest and detention of
Diokno and Aquino? The government's return to their petitions for habeas corpus claimed that they
were "regarded as participants or as having given aid and comfort "in the conspiracy to seize political
and state power and to take over the government by force.'" 2 The fact is that they just happened to
be the foremost contenders for the Presidency of the Republic in the scheduled November 1973
Presidential elections, at which time Mr. Marcos would have finished his second 4-year term and
barred under the prevailing 1935 Constitution from running for a third term. In their petitions for
habeas corpus, they challenged the proclamation of martial law and their arbitrary detention,
invoking the Constitution and the Bill of Rights.

It was to take almost two years for Diokno to regain his liberty. No charges of any sort were ever
filed against him. His continued arbitrary detention without any charges for close to two years was
getting more and more untenable. As the separate opinion-resolution 3 of then Chief Justice Querube
C. Makalintal stated, a vote of seven-to-five of the Court's twelve members then in favor of granting
Diokno's motion to withdraw his petition filed earlier was not deemed sufficient by the majority which
scheduled the promulgation of the Court's action and resolution dismissing all the petitions and
upholding the validity of the martial law proclamation for September 12, 1974, which was the last day
before Justice Calixto Zaldivar's compulsory retirement from the Court upon reaching the age of 70.
But as the said opinion-resolution further stated: "Before they could be promulgated, however, a
major development supervened: petitioner Diokno was released by the President in the morning of
September 11, 1974. In view thereof all the members of this Court except Justice Castro agreed to
dismiss Diokno's petition on the ground that it had become moot, with those who originally voted to
grant the motion for withdrawal citing said motion as an additional ground for such dismissal.

What is not found in the proceedings or opinions and which should now be made part of the record
for the sake of historical truth is that what precipitated the sudden order releasing Diokno on
September 11, 1974 was that Mme. Justice Cecilia Munoz-Palma, who had been appointed to the
Court with two others on October 21, 1973, had submitted a dissent with her separate opinion
assailing Diokno's continued detention for two years without charges as a violation of the Universal
Declaration of Human Rights. This promptly reached the big ears of Mr. Marcos and he forthwith
issued the release order and aborted Justice Palma's dissent. The Court's 11-member 4 opinion-
resolution dismissing all petitions and upholding the validity of the proclamation of martial law with
eight separate opinions was ultimately released on September 17, 1974. 5

Senator Ninoy Aquino underwent an even more tortuous ordeal. He was charged on August 11,
1973 with murder, subversion and illegal possession of firearms and found guilty and sentenced to
death by a military commission, notwithstanding his being a civilian and the fact that said general
offenses were allegedly committed before the imposition of martial law, and could not fall within the
jurisdiction of military commissions, which are not courts but mere adjuncts of the Commander-in-
Chief to enforce military discipline. Mr. Marcos had publicly pronounced the evidence against Ninoy
as "not only strong but overwhelming" in a nation-wide press conference on August 24, 1971
following the Plaza Miranda bombing three days earlier of the LP proclamation meeting, yet had not
charged him before the civil courts. Ninoy had contended correctly but in vain that he had been
publicly indicted and his guilt prejudged by Mr. Marcos' and he could not possibly get due process
and a fair trial before a group of Mr. Marcos' military subordinates. 6 In 1980. After over eight years of
detention, Ninoy Aquino was allowed to leave to undergo heart surgery in the U.S. After three years
of exile, he sought to return and as is now history, he was to die within 60 seconds of his being led
away by soldiers from his plane that had just landed at the MIA on August 21,1983 at past 1 p.m.

Diokno and Ninoy had undergone untold hardships of solitary confinement and deprivation during
their long detention. In fact, at one time they themselves had disappeared — were
also desaparecidos. Their wives filed in early April, 1973 an urgent petition, stating that after their
visitation privileges were stopped since March 10, 1973 and February 25, 1973, respectively, their
husbands had disappeared from their detention cells and that they had lost all contact with them for
over a month and, worse, that all their personal effects and clothes, including their eyeglasses,
toothbrushes and medicines had been ominously returned without any explanation to their homes. It
turned out that Ninoy had been able to smuggle out of his solitary cell a written statement critical of
Mr. Marcos and his martial law regime. He and Diokno were thereafter secretly flown out, manacled
and blindfolded, by the military to the army camp at Fort Magsaysay in Nueva Ecija where they were
stripped naked and isolated in boarded cells with hardly any light or ventilation.

On the same day, April 6, 1973, the Court forthwith "upon humanitarian consideration .... resolved
unanimously to grant ... (their) prayer to be allowed to visit their husbands, subject to such
precautions as respondents may deem necessary." Again, we must record here for the sake of
historical truth, and so that such undue interference and pressure upon the Court may never again
come to pass, that upon the issuance of the Resolution, the then Acting Solicitor General (in the
absence of then Solicitor General Mendoza), upon orders of the powers that were, sought audience
with the then Chief Justice (who convened the members of the Court), in an attempt to convince the
Court to recall the Resolution, citing reasons of national security and personal safety of the
detainees and that "compliance with the Resolution will encroach upon and dangerously erode the
martial law powers exclusively vested in the President by the 1935 and 1973 Constitution." 6-a The
Court, as one, maintained its Resolution (telling him to file a proper motion for reconsideration, which
he did on April 10, 1973 and was to be rendered moot afterwards). To do otherwise would have
been craven submission and abdication. When their wives finally got to see Diokno and Ninoy on
April 8,1973 for thirty minutes after a four-hour automobile trip to the concentration camp at Fort
Magsaysay, they were a pitiable sight, having lost about 30 to 40 pounds in weight.

After Diokno's release on September 11, 1974, in the words of living legend Justice J.B.L. Reyes "(I)t
is a measure of his soul's greatness that after being unjustly imprisoned for two years and released
without any charges being preferred against him, Ka Pepe wasted no time in protests or
recriminations but immediately proceeded to organize and guide the Free Legal Assistance Group
(FLAG) dedicated to the gratuitous defense and vindication of others who, like him, would be
persecuted, oppressed and denied justice. To this task he dedicated the rest of his life, even when
nailed to the bed of suffering that brought him to an early grave." 7 It is fitting that his selfless
dedication to the cause of the poor, the deprived and the oppressed and to pro bono service be
herein duly acknowledged, albeit posthumously. He knew only too well, having experienced it
himself with his wife and family, the mental anguish and torture and the sustained shock undergone
by the spouses and families of persons who have disappeared — "the crushing reality of loss
coupled with the unreality of death that afflicts the families of those who have disappeared The result
is a form of mental torture brought about by either the suspension of bereavement or the feeling of
helplessness — and paralyzing uncertainty about what to do to protect their loved ones." 8 He
wished at the very least to alleviate their pain and anguish. Illustrious son of an illustrious father,
Justice Ramon Diokno, 9 he left a legacy of hope and faith in the Filipino, as he wrote:

When martial law was imposed, what happened to the law?

And so law in the land died. I grieve for it but I do not despair over it. I know, with a certainty no argument
can turn, no wind can shake, that from its dust will rise a new and better law: more just, more human and
more humane. When that will happen, I know not. That it will happen, I know . 10
This application for the issuance of a writ of habeas corpus had been filed on December 17,1981 by
petitioners, Juan Dizon and Soledad Ramos, on behalf of their son, Eduardo Dizon and their
daughter, Isabel Ramos, respectively, who were arrested on September 15,1981 by Philippine
Constabulary (PC) elements of the Pampanga PC Command then led by respondent Provincial
Commander Col. Teddy Carian at Barrio Sto. Rosario, Sta. Ana, Pampanga without warrant of arrest
or Presidential Order of Arrest They were detained by the respondents at the PC Stockade at San
Fernando, Pampanga under the jurisdiction of respondents Brig. Gen. Vicente Eduardo, then
Regional Commander of the area, holding office at Camp Olivas, and Col. Teddy Carian for
interrogation and investigation without assistance of counsel. The desaparecidos were allegedly
released nine days later, or on September 24,1981, as per their release papers of the same
date. 11 However, they were never seen nor heard from since their supposed release. Alleging that
the signatures of the desaparecidos on their release papers were falsified and thus, they were never
released by the military said release being a scheme of the respondents to prolong their detention,
torture and interrogation, the petitioners-parents filed the petition at bar on December 17,1981.

The Court issued the writ of habeas corpus on December 29, 1981. In the return of the writ filed on
behalf of respondents on January 5,1982, by then Solicitor General Estelito P. Mendoza, and
verified by respondent, then Provincial Commander Col. Carian, respondents insisted that the
detainees were indeed released on September 24,1981, and submitted the supporting affidavits
dated December 30, 1981 of Major Reynaldo C. Cabauatan and lst Lt. Roque S. Maranon, both
assigned with respondent Carian's Provincial Headquarters. 12 Respondents denied petitioners'
allegation of falsification of the detainees' signatures on their release papers, claiming that the same
were signed in their presence and asked for dismissal of the petition.

Diokno invoked the United Nations General Assembly Resolution expressing deep concern over
such cases of involuntary disappearances and calling on all governments to stamp it out, as follows:

RESOLUTION ON DISAPPEARED PERSONS

December 20, 1978

The General Assembly.

Recalling the provisions of the Universal Declaration of Human Rights, and in particular Articles 3, 5,
9, 10 and 11, concerning, inter alia, the right to life, liberty and security of person, freedom from
torture, freedom from arbitrary arrest and detention, and the right to a fair and public trial; and the
provisions of articles 6,7,9 and 10 of the International Covenant on Civil and Political Rights, which
define and establish safeguards for certain of these rights;

Deeply concerned by reports from various parts of the world relating to enforced or involuntary
disappearances of persons as a result of excesses on the part of law enforcement or security
authorities or similar organizations, often while such persons are subject to detention or
imprisonment, as well as of unlawful actions or widespread violence;

Concerned also at reports of difficulties in obtaining reliable information from competent authorities
as to the circumstances of such persons, including reports of the persistent refusal of such
authorities or organizations to acknowledge that they hold such persons in their custody or otherwise
to account for them;

Mindful of the danger to the life, liberty and physical ty of such persons arising from the persistent
failure of these authorities or organizations to acknowledge that such persons are held in custody or
otherwise to account for them;
Deeply moved by the anguish and sorrow which such stances cause to the relatives of disappeared
persons, especially to spouses, children and parents;

1. Call upon Governments:

(a) In the event reports of enforced or involuntary disappearances, to devote appropriate resources
to searching for such persons and to undertake speedy and impartial investigations;

(b) To ensure that law enforcement and security authorities or organizations are fully accountable,
especially in law, in the discharge of their duties, such accountability to include legal responsibility
for unjustifiable excesses which might lead to enforced or involuntary disappearances and to other
violations of human rights;

(c) To ensure that the human rights of all persons, including those subjected to any form of detention
and imprisonment, are fully respected;

(d) To cooperate with other Governments, relevant United Nations organs, specialized agencies,
inter-governmental organizations and humanitarian bodies in a common effort to search for, locate
or account for such persons in the event of reports of enforced or involuntary disappearances;

2. Requests the Commission on Human Rights to consider the question of disappeared persons with
a view to making appropriate recommendations;

3. Urges the Secretary-General to continue to use his good offices in cases of enforced or
involuntary disappearances of persons, drawing, as appropriate, upon the relevant experience of the
International Committee of the Red Cross and of other humanitarian organizations;

4. Requests the Secretary-General to draw the concerns expressed in this resolution to the attention
of all Governments, regional and inter-regional organizations and specialized agencies for the
purpose of conveying on an urgent basis the need for disinterested humanitarian action to respond
to the situation of persons who have disappeared.

— UN Document A/RES 33/173

Diokno posed on behalf of the desaparecidos the following vital questions in the case at bar: When
respondents' defense to a petition for habeas corpus is that they released the detainees for whom
the petition was filed, but the allegation of release is disputed by petitioners, and it is not denied that
the detainees have not been seen or heard from since their supposed release, do petitioners have
the burden in law of proving that the detainees are still detained by respondents or does the burden
shift to respondents of proving that they did release the detainees? Secondly, if respondents have
the burden of proving by clear and convincing evidence that they released the detainees, have they
in fact discharged that burden in this case? And lastly, if respondents have not satisfied the Court
that they released the detainees, but nevertheless refuse or are unable to produce their bodies, what
relief may the Court grant petitioners?

I. On the first question, we have applied the general rule in a number of cases that the release of a
detained person renders the petition for habeas corpus moot and academic. Respondents make
such a plea in line with their return that they had released the desaparecidos after nine days. But
their return begs the question. The cited general rule postulates that the release of the detainees is
an established fact and not in dispute, and that they do not continue to be missing persons
or desaparecidos. Where, however, there are grounds for grave doubts about the alleged release of
the detainees, which we share, particularly, where the standard and prescribed procedure in
effecting the release has not been followed, then the burden of proving by clear and convincing
evidence the alleged release is shifted to the respondents. Release is an affirmative defense and
"each party must prove his own affirmative allegations," 13 just as the burden of proof of self-defense
in a killing rests on the accused. Moreover, evidence of release lies particularly within respondents'
power.

II. This brings us to the second question: Have the respondents proved the alleged release by clear
and convincing evidence? Diokno submitted a negative answer thereto on the following grounds:

1. The signatures of the detainees on their release papers were falsified. (Petitioners submitted
specimen signatures of the desaparecidos Eduardo Dizon and Isabel Ramos, attached as Annexes
"B" and "C", respectively, of the petition. At the hearing of the case on January 7, 1982, the records
of the PC/INP Command, San Fernando, Pampanga were submitted to this Court by the Solicitor
General. On page 33 thereof, is found the application for registration as voter of Eduardo Dizon
which was filed with the Election Registrar of Sta. Ana, Pampanga, on October 29,1977, while on
page 88- 95, are found the statement of Isabel Ramos when she previously surrendered to the
Bataan PC Command in 1978, the booking sheet and arrest report, and on pages 51-62 and 73-84
are copies other statement executed on September 16,1981, after her second arrest. A xerox copy
of the voting record 14 of Eduardo Dizon, when he voted at Sta. Ana, Pampanga in the 1981
presidential election was also submitted. The documents bear the signatures of the undisputed
detainess. Diokno submitted that even the signatures of the detainees on documents that
respondents themselves submitted are markedly different from the signatures on their supposed
release certificates. With respect to Eduardo Dizon, Diokno noted particularly the very poor line
quality of Dizon's signature on the release certificate when compared to the speed and freedom of
his signature on his voter's application form . 15 With respect to Isabel Ramos, the final letter's' in
Ramos in the waiver of detention and certificate of release do not contain any retrace or flourish,
whereas in all her signatures on her statements the final letter "s" has a retrace like an "x" as the last
stroke. 16

The Solicitor General, in turn, in the Answer filed as Supplement to the Return on behalf of
respondents disputes Diokno's conclusions about the falsity of the detainees' signatures on the
release certificates and questions the reliability of the specimen signatures used, adding that "it is
not possible to make any comparison of signatures for the purpose of determining genuineness on
the basis of xerox copies. 17

2. Respondents did not follow the prescribed standard procedure for releasing detainees:

a) Respondents did not release the detainees to their parents though the latter had been visiting
them and, in fact Dizon's father was in the camp on the very day he was supposedly released.
Failing this, they should be released to another responsible person in the community. This is the
standard practice, as shown by the certificate of release of Isabel Ramos when she was first taken
into custody in 1978 as well as the certificates of release of the other alleged "Communist Terrorists"
arrested with the two desaparecidos who were released a day ahead.

b) Defense Ministry regulations require that releases be reported to the Ministry within 72 hours.
Respondent Carian did not report the supposed releases to the Ministry. In fact, he did not even
report their "releases" to his regional commander, respondent Gen. Eduardo.

c) Respondent Carian's command could not readily furnish copies of the detainees' release
certificates to their parents when the latter asked for them. They took one month to produce the
certificate of Isabel and three monthsto produce that of Eduardo.
d) Respondent Col. Carian had no authority, inherent or delegated, to release the detainees. In
respondents' return, it was stated that the two were arrested in flagrante delicto with unlicensed
firearms and explosives. Under General Order No. 67 (October 8, 1980), only the President or his
duly authorized representative could have released the two before trial. Respondent Carian's
records also fail to show that he consulted with respondent General Eduardo, much less with
Defense Minister Enrile, before he supposedly released the detainees.

3. The inherent implausibility of respondent Carian's reason for supposedly releasing the detainees
— that they had agreed to act as spies.

a) Respondent Carian says he knew that Isabel had once before been detained for subversive
activities. It is unlikely that Isabel would have agreed to become a spy and even more unlikely that
respondent Carian would have believed her if she had.

b) Respondent Carian knew that the probability of the detainees' keeping their supposed bargain
was remote. Yet, he took no precautions to insure compliance. Worse, when they broke the
supposed bargain by failing to report as he says they agreed to, he took no steps to look for them.

c) If respondent Carian wanted the detainees to become spies, he certainly made

sure neither would be effective.

—He did not follow the prescribed procedure in releasing them. That made the release and
consequently the detainees themselves--immediately suspect.

—He required them to report to his command twice a month. That made it virtually certain that their
activities would be discovered, and soon, by their comrades.

—He eagerly revealed the supposed bargain in his defense in this case, making it a matter of public
record. That effectively stifled any possibility of the supposed bargain's ever being carried out.

—It appears clear that no bargain was ever made with the detainees for them to be released in order
for them to act as spies. The given reason for their release in order to act as spies appears far from
credible — considering that respondents were admittedly aware the risk that the detainees "would
renege on their promise." 18 The burden of proving their actual release remains undischarged!

4. What is likewise difficult of comprehension is that according to the affidavits of Major Cabauatan
and Lt. Maranon, elements of their command after encountering a group of "heavily armed men"
captured the detainees with other alleged Comminist Terrorists; with one casualty on the latter's
side, yet all of them except the two detainees "were released on or before September 23, 1981,
having been found out that no sufficient evidence would be established to warrant their further
detention" (see fn. 12, supra) and on September 24,1981, the two desaparecidos were likewise
supposedly released. This appears to be a result of respondents' own decision, without proper
referral to the proper prosecution authorities to make the judgment. This was in effect admitted by
the Solicitor General in his Supplemental Answer stating that:

The release of Eduardo Dizon and Isabel Ramos was part of a military operation against the NPA. The
Pampanga PC Commander, respondent Lt. Col. Carian, had authority from higher headquarters to do
what was essential in connection with that military operation. This was confirmed during the hearing by
respondent Gen. Eduardo. Respondent Carian used sound discretion in releasing the two. Instead of
attempting to prosecute them with evidence perhaps inadequate to convict although adequate prima
facie, he decided to derive benefit from the situation by using them to obtain information on NPA
activities.19
Having been supposedly found with explosives and unlicensed firearms in an encounter, such
decision to release them instead and enlist them as spies again appears to strain credulity. More so
in the case of Isabel Ramos who at 19 years in 1978 had already reneged on her alleged promise to
spy for respondents. And in the case of Eduardo Dizon, while the military regarded him as a
suspected "Communist Terrorist", his claim as a community leader seems to have valid basis for the
Solicitor General himself had appointed him as KBL watcher in the 1980 elections and his father had
sought the Solicitor General's assistance several times to find Eduardo. Nor have respondents
questioned petitioners' good faith and their efforts to find their missing children.

III. The Court regrets that it cannot grant the relief sought by petitioners. It is not the repository of all
remedies for every grievance. But the Court does state that under the facts and circumstances
above set forth, it is far from satisfied and as already indicated shares the grave doubts about public
respondents' allegation that they had released the desaparecidos on September 24, 1981, nine days
after they were taken into custody. Petitioners' charges of falsification of the detainees' alleged
signatures on the certificates of release, compounded by the irregularities and failure of respondents
to follow the prescribed procedure in effecting the release for purposes of authentication and to
produce and furnish the parents upon request copies of the release certificates (taking one month in
the case of Isabel Ramos and three months in the case of Eduardo Dizon) need thorough
investigation. If duly determined, they would involve, as indicated by Diokno, prosecution for criminal
contempt, falsification of public document, perjury and violation of Article 125 of the Revised Penal
Code requiring delivery of detained persons to the judicial authority within the periods therein fixed,
and worse. This connotes that the respondents with their subordinates who executed the supporting
affidavits, Major Cabauatan and Lt. Maranon, were involved in a grand conspiracy for the purpose.
The Court cannot make this determination. It is not a trier of facts, nor does it have the means and
facilities to conduct such investigation of the grave charges at bar as well as of the whereabouts and
fate of the desaparecidos.

While the case was pending under the martial law regime of Mr. Marcos whom the people finally
ousted on February 25, 1986, the Court was hard put to refer the charges to an independent
government entity or agency to conduct such investigation. Diokno in his traverse of February
24,1982 to the return had in expressing hope that the desaparecidos might still be alive as against
the Solicitor General's conjecture that they may have met their death after their alleged release, cited
documented cases of other detainees who were arrested and hidden by the military for periods from
four months to almost a year, then allowed to surface, such as that of:

Delfin Delica, a former university student arrested on October 11, 1975, along the highway in
Bulacan, Central Luzon. He was confined incommunicado for nearly a year in a 'safehouse' of the
Constabulary Anti- Narcotics Unit (CANU), which is also involved in anti-subversive operations,
before his relatives were informed of his whereabouts and were allowed to see him. ...

Another prisoner arrested and kept in isolation by CANU was Francisco Pascual, Jr., a pastor at the
Four-square Church and student at the University of the Philippines, Los Baños. Pascual was held
incommunicado for four and a half-months in a safehouse and tortured by CANU agents led by
Lieutenant Colonel Saturnino Domingo, deputy CANU chief. Pascual, however, managed to escape
from the "safehouse" to tell of his ordeal.

A more recent case ... is that of Sixto Carlos, Jr. Arrested on April 23, 1979, in Mandaluyong, Metro
Manila, with no witnesses, Sixto Carlos, Jr. was held incommunicado and blindfolded in a small, dark
room where he was tortured for several days. His tormentors refused to allow him to take medication
prescribed for his heart ailment, although they had found the results of his ECG test in his wallet. It
was four months before his family learned of his whereabouts.
... Sixto Carlos, Jr.'s father is a retired Colonel and was at one time the armed forces Judge
Advocate General. Normally the military officers who arrested Sixto, Jr. would have given due regard
to this fact and informed the retired colonel of his son's whereabouts and well-being. But even the
armed forces chief of staff, General Romeo Espino, and Defense minister Juan Ponce Enrile
categorically denied having Sixto, Jr. in custody despite persistent appeals by the family.

... it took a personal audience by Sixto, Jr.'s wife with President Marcos to get definitive information
that the prisoner was alive and in military custody. Only upon Marcos' order was the wife — and she
alone — first allowed to visit her husband at the heavily-secured military Security Unit detention area
in Fort Bonifacio. Sixto, Jr.'s lawyer, Jose W. Diokno, later managed to see him once; Sixto, Jr. was
pressured to dismiss Diokno as his lawyer, under threat of losing the visiting privilege of his wife and
children if he did not do so.

— Disappearances: A Workbook, New York: Amnesty International USA, 1981, pp. 71-72. 20

Fortunately, after the historic February 1986 peaceful revolution which saw the ouster of the Marcos
dictatorship and the restoration of freedom and democracy in our beloved land, President Corazon
C. Aquino immediately moved to restore fundamental democratic structures and processes. One
such step, among many, was the creation on March 18, 1986 of the Presidential Committee On
Human Rights (PCHR) 21 with Diokno himself as chairman to affirm "the new governments
commitment to "uphold and respect the people's civil liberties and human rights,'" and "the United
Nations General Assembly's Resolution of 14 December 1984, encouraging all member states to
take steps for the establishment or, where they already exist, the strengthening of national
institutions for protection of human rights," 22 and was primarily charged with the investigation,
among others, of "complaints it may receive, cases known to it or to its members, and such cases as
the President may, from time to time assign to it, of unexplained or forced disappearances (extra-
judicial killings, salvaging, massacres, torture, hamletting, food blockades) and other violations of
human rights, past or present, committed by officers or agents of the national government or
persons acting in their place or stead or under their orders, express or implied."

More, the 1987 Constitution which was overwhelmingly ratified on February 2,1987 expressly
mandated the creation of the Commission on Human Rights as an independent office 23 in place of a
mere Presidential Committee. The Constitution vested the Commission on Human Rights with
broader powers than its predecessor committee, such as to investigate, on its own or on complaint
by any party, all forms of human rights violations involving civil and political rights; to exercise
visitorial powers over jails, prisons, or detention facilities; to establish a continuing program of
research, education, and information to enhance respect for the primacy of human rights; to
recommend to the Congress effective measures to promote human rights and to provide for
compensation to victims of violations of human rights, on their families; to monitor the government's
compliance with international treaty, obligations on human rights and grant immunity from
prosecution to any person whose testimony or whose possession of documents or other evidence is
necessary or convenient to determine the truth in any investigation conducted by it or under its
authority. On May 5, 1987, President Corazon C. Aquino issued Executive Order No. 163 declaring
the effectivity of the creation of the Commission On Human Rights as provided for in the 1987
Constitution. This case (as well as all other cases, past and present) may therefore be properly
referred to said Commission for a full and thorough investigation and determination of the facts and
circumstances surrounding the disappearance of Eduardo Dizon and Isabel Ramos and of the
related grave charges of petitioners against the respondents and the other officers above-named.

ACCORDINGLY, the Court Resolved to refer this case to the Commission on Human Rights for
investigation and appropriate action as may be warranted by its findings, and to furnish the Court
with a report of the outcome of its investigation and action taken thereon. This Resolution is
immediately executory.

Yap, Fernan, Narvasa, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ.,
concur.

Griño-Aquino, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 115576 August 4, 1994

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LEONARDO PAQUINTO AND
JESUS CABANGUNAY.

CHAIRMAN SEDFREY A. ORDOÑEZ, COMM. SAMUEL M. SORIANO, COMM. HESIQUIO R.

MALLILLIN, COMM. NARCISO C. MONTEIRO, COMM. PAULYNN PAREDES-SICAM, THE
COMMISSION ON HUMAN RIGHTS, petitioners,
vs.
DIRECTOR OF PRISONS, respondent.

CRUZ, J.:

Why are Leonardo Paquinto and Jesus Cabangunay still in prison?

These persons are among the civilians who were tried by the military commissions during the period
of martial law. Both were originally condemned to die by musketry, but their sentence was
commuted by the new Constitution toreclusion perpetua.

Their convictions were subsequently nullified by this Court in the case of Olaguer v. Military
Commission No. 34, 1where we held that the military tribunals had no jurisdiction to try civilians when
the courts of justice were functioning.

Accordingly, in the case of Cruz v. Ponce Enrile, 2 this Court directed the Department of Justice to
file the corresponding informations in the civil courts against the petitioners within 180 days from
notice of the decision.

No information has so far been filed against Paquinto and Cabangunay, but they have remained
under detention.
On May 27, 1992, Ernesto Abaloc, together with Cabangunay and Paquinto, wrote to the United
Nations Human Rights Committee (UNHRC) complaining that their continued detention violated their
rights under Articles 6, 7, 9, 10, 14, and 26 of the International Covenant on Civil and Political
Rights. 3

In its decision dated October 14, 1993, the UNHRC declared their communication as admissible and
requested the Republic of the Philippines to submit a written explanation of their complaint within six
months from the date of transmittal. 4

The Department of Foreign Affairs furnished the Commission on Human Rights with a copy of the
decision. Thereupon, the Commission, through its Chairman Sedfrey A. Ordoñez wrote the
Secretary of Justice of its intention to sue for the release of the complaints unless criminal charges
had already been filed against them. 5

On June 7, 1994, the Department of Justice informed the Commission that Abaloc had been
released on September 29, 1992, and that Paquinto and Cabangunay were still detained at the
National Penitentiary. There was the intimation that it would not object to a petition for habeas
corpus that the Commission might choose to file for Paquinto and Cabangunay. 6 This assurance
was later confirmed in a letter from the Department dated May 31, 1994. 7

The present petition for habeas corpus was filed with this Court on June 13, 1994. The writ was
immediately issued, returnable on or before June 22, 1994, on which date a hearing was also
scheduled.

At the hearing, Chairman Ordoñez argued for the prisoners and pleaded for their immediate release
in view of the failure of the Department of Justice to file charges against them within the period
specified in the Cruz case. He stressed that their continued detention despite the nullification of their
convictions was a clear violation of their human rights.

For its part, the Office of the Solicitor General, as counsel for the respondent Director of Prisons,
argued that under our ruling in Tan v. Barrios, 8 the Olaguer decision could not be retroactively
applied to decisions of the military tribunals that have already become final or to persons who were
already serving their sentence. It suggested that, under the circumstances, the only recourse of the
prisoners was to reiterate and pursue their applications for executive clemency.

It has been seven years since the Olaguer decision nullifying the convictions of Paquinto and
Cabangunay by the military commissions was promulgated. It has been six years since our decision
in the Cruz case directed the Secretary of Justice to file the appropriate informations against the
civilians still detained under convictions rendered by the military tribunals. The prisoners have been
confined since 1974. We can only guess at the validity of their convictions as the records of their
cases have allegedly been burned.

The loss of these records is the main reason the Department gives for its failure to file the
corresponding charges against the two detainees before the civil courts. It is unacceptable, of
course. It is not the fault of the prisoners that the records cannot now be found. If anyone is to be
blamed, it surely cannot be the prisoners, who were not the custodian of those records. It is illogical
and even absurd to suggest that because the government cannot prosecute them, the prisoners'
detention must continue.

The other excuse of the government must also be rejected. During the hearing, the Office of the
Solicitor General contended that the prisoners had themselves opted to serve their sentences rather
than undergo another trial. Their ultimate objective, so it was maintained, was to secure their release
by applying for executive clemency. To prove this, counsel submitted a letter from one
Atty. Anselmo B. Mabuti to the Secretary of Justice manifesting that Leonardo B. Paquinto "chooses
to complete the service of his sentence so that the Board of Pardons and Parole has jurisdiction over
his case." 9 No mention was made of Jesus Cabangunay.

Upon direct questioning from the Court during the hearing, both Paquinto and Cabangunay
disowned Atty. Mabuti as their counsel and said they had never seen nor talked to him before.
Paquinto denied ever having authorized him to write the letter. Instead, the two prisoners reiterated
their plea to be released on the strength of the Olaguer decision.

The petitioners further contend in their memorandum that a re-examination of the ruling in Cruz
v. Enrile 10 in relation to the case of Tan v. Barrios, 11 is necessary in view of certain supervening
events. These are the failure of the Department of Justice to file the informations against the
prisoners; the decision of the UNHRC declaring admissible the communication
No. 503/1992 of Abaloc, Paquinto and Cabangunay and thus suggesting the violation of their liberty
as guaranteed under the International Covenant on Civil and Political Rights; and the assurance of
the Department of Justice that it would have no objection to the filing of a petition for habeas
corpus by the Commission on behalf of Paquinto and Cabangunay.

The Court stresses that in its en banc resolution dated February 26, 1991, it declared, citing the Tan
case, that "those civilians who were convicted by military courts and who have been serving (but not
yet completed) their sentences of imprisonment for the past many years" . . . "may be given the
option either to complete the service of their sentence, or be tried anew by the civil courts. Upon
conviction, they should be credited in the service of their sentence for the full period of their previous
imprisonment. Upon acquittal, they should be set free."

Accordingly, it directed "the Department of Justice to forthwith comply with the directive in the "Cruz
Cases" for the filing of the necessary informations against them in the courts having jurisdiction over
the offenses involved, without prejudice to said petitioners' exercise of the option granted to them by
this Court's ruling in G.R. Nos. 85481-82, William Tan, et al. v. Hernani T. Barrios, etc., et al., supra."

The Office of the Solicitor General submitted its memorandum after its second motion for extension
was denied, in view of the necessity to decide this petition without further delay. 12 The memorandum
was admitted just the same, but we find it adds nothing to the respondent's original arguments.

There is absolutely no question that the prisoners' plea should be heeded. The government has
failed to show that their continued detention is supported by a valid conviction or by the pendency of
charges against them or by any legitimate cause whatsoever. If no information can be filed against
them because the records have been lost, it is not the prisoners who should be made to suffer. In
the eyes of the law, Paquinto and Cabangunay are not guilty or appear to be guilty of any crime for
which they may be validly held. Hence, they are entitled to be set free.

Liberty is not a gift of the government but the right of the governed. Every person is free, save only
for the fetters of the law that limit but do not bind him unless he affronts the rights of others or
offends the public welfare. Liberty is not derived from the sufferance of the government or its
magnanimity or even from the Constitution itself, which merely affirms but does not grant it. Liberty is
a right that inheres in every one of us as a member of the human family. When a person is deprived
of this right, all of us are diminished and debased for liberty is total and indivisible.

WHEREFORE, the petition is GRANTED. Jesus Cabangunay and Leonardo Paquinto should not be
detained in prison a minute longer. They are ordered released IMMEDIATELY.
 Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

FIRST DIVISION

[G.R. No. 111876. January 31, 1996]

JOHANNA SOMBONG, petitioner, vs. COURT OF APPEALS and

MARIETTA NERI ALVIAR, LILIBETH NERI and all persons
holding the subject child ARABELA SOMBONG in their
custody, respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; HABEAS CORPUS; PURPOSE. -
In general, the purpose of the writ of habeas corpus is to determine whether or not
a particular person is legally held. A prime specification of an application for a writ
of habeas corpus, in fact, is an actual and effective, and not merely nominal or
moral, illegal restraint of liberty. “The writ ofhabeas corpus was devised and exists
as a speedy and effectual remedy to relieve persons from unlawful restraint, and as
the best and only sufficient defense of personal freedom. A prime specification of an
application for a writ of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient.”
2. ID.; ID.; ID.; PROPER LEGAL REMEDY. - Although the Writ of Habeas
Corpus ought not to be issued if the restraint is voluntary, we have held time and
again that the said writ is the proper legal remedy to enable parents to regain the
custody of a minor child even if the latter be in the custody of a third person of her
own free will. It may even be said that in custody cases involving minors, the
question of illegal and involuntary restraint of liberty is not the underlying rationale
for the availability of the writ as a remedy; rather, the writ of habeas corpus is
prosecuted for the purpose of determining the right of custody over a child.
3. ID.; ID.; ID.; CHILD CUSTODY CASES; WELFARE OF THE CHILD IS THE
SUPREME CONSIDERATION. - The controversy does not involve the question of
personal freedom, because an infant is presumed to be in the custody of someone
until he attains majority age. In passing on the writ in a child custody case, the court
deals with a matter of an equitable nature. Not bound by any mere legal right of
parent or guardian, the court gives his or her claim to the custody of the child due
weight as a claim founded on human nature and considered generally equitable and
just. Therefore, these cases are decided, not on the legal right of the petitioner to be
relived from unlawful imprisonment or detention, as in the .case of adults, but on the
court’s view of the best interests of those whose welfare requires that they be in
 custody of one person or another. Hence, the court is not bound to deliver a child
into the custody of any claimant or of any persons, but should, in the consideration
of the facts, leave it in such custody as its welfare at the time appears to require. In
short, the child’s welfare is the supreme consideration.
APPEARANCES OF COUNSEL
Nimfa N. Ward for petitioner.
Josefin de Alban Law Office for private respondent.

DECISION
HERMOSISIMA, JR., J.:

Every so’ often two women claim to be the legitimate parent of the same child. One
or the other, whether for financial gain or for sheer cupidity, should be an impostor. The
court is consequently called upon to decide as to which of them should have the child’s
lawful custody. This is the very nature of this case. The child herein had considerably
grown through the years that this controversy had unbearably lagged. The wisdom of
the ages should be of some help, delicate as the case considerably is. The earliest
recorded decision on the matter is extant in the Bible, I Kings 3. As it appears, King
Solomon in all his glory resolved the controversy posed by two women claiming the
same child:

“And the King said, Bring me a sword. And they brought a sword before the King.

“And the King said, Divide the living child in two, and give half to the one, and half
to the other.

“Then spoke the woman whose the living child was unto the King, for her bowels
yearned upon her son, and she said, O my Lord, give her the living child, and in no
wise slay it. But the other said, Let it be neither mine nor thine, but divide it.

“Then the King answered and said, Give her the living child, and in no wise slay it:
she is the mother thereof.” (1 Kings, Chapter 3, Verses 25-27)

King Solomon’s wisdom, was inspired by God:

“And all Israel heard of the judgment which the King had judged; and they feared the
King: for they saw that the wisdom of God was in him, to do judgment.” (Ibid., Verse
28)

We do resolve the herein controversy inspired by God’s own beloved King.

The Petition for Review on Certiorari before us seeks the reversal of the decision1 of
respondent Court of Appeals2 which had reversed the decision3 of the Regional Trial
Court4 which granted the Petition for Habeas Corpus filed by petitioner.
 The following facts were developed by the evidence presented by the opposing
parties:
Petitioner is the mother of Arabella O. Sombong who was born on April 23,
1987 in Signal Village, Taguig, Metro Manila.5 Some time in November, 1987, Arabella,
then only six months old, was brought to the Sir John Clinic, located at 121 First
Avenue, Kalookan City, for relief of coughing fits and for treatment of colds. Petitioner
did not have enough money to pay the hospital bill in the amount of P300.00. Arabella
could not be discharged, then, because of the petitioner’s failure to pay the bill.
Petitioner surprisingly gave testimony to the effect that she allegedly paid the
private respondents by installments in the total amount of P1,700.00, knowing for a fact
that the sum payable was only P300.00. Despite such alleged payments, the owners of
the clinic, Dra. Carmen Ty and her husband, Mr. Vicente Ty, allegedly refused to turn
over Arabella to her. Petitioner claims that the reason for such a refusal was that she
refused to go out on a date with Mr. Ty, who had been courting her. This allegedly gave
Dra. Ty a reason to be jealous of her, making it difficult for everyone all around.
On the other hand and in contrast to her foregoing allegations, petitioner testified
that she visited Arabella at the clinic only after two years, i.e., in 1989. This time, she did
not go beyond berating the spouses Ty for their refusal to give Arabella to her. Three
years thereafter, i.e., in 1992, petitioner again resurfaced to lay claim to her child. Her
pleas allegedly fell on deaf ears.
Consequently, on May 21, 1992, petitioner filed a petition with the Regional Trial
Court of Quezon City for the issuance of a Writ of Habeas Corpus against the spouses
Ty. She alleged therein that Arabella was being unlawfully detained and imprisoned at
No. 121, First Avenue, Grace Park, Kalookan City. The petition was denied due course
and summarily dismissed,6 without prejudice, on the ground of lack of jurisdiction, the
alleged detention having been perpetrated in Kalookan City.
Petitioner, thereafter, filed a criminal complaint7 with the Office of the City
Prosecutor of Kalookan City against the spouses Ty. Dr. Ty, in her counter-affidavit,
admitted that petitioner’s child, Arabella, had for some time been in her custody.
Arabella was discharged from the clinic in April, 1989, and was, in the presence of her
clinic staff, turned over to someone who was properly identified to be the child’s
guardian.
In the face of the refusal of the spouses Ty to turn over Arabella to her, she had
sought the help of Barangay Captains Alfonso and Bautista of Kalookan City, Mayor
Asistio of the same city, and even Congresswoman Hortensia L. Starke of Negros
Occidental. Their efforts to help availed her nothing.
On September 4, 1992, the Office of the City Prosecutor of Kalookan City, on the
basis of petitioner’s complaint, filed an information 8 against the spouses Ty for
Kidnapping and Illegal Detention of a Minor before
the Regional Trial Court of Kalookan City.9 On September 16, 1992, an order for the
arrest of the spouses Ty was issued in the criminal case. Facing arrest, Dra. Ty
disclosed the possibility that the child, Arabella, may be found at No. 23 Jesus Street,
San Francisco del Monte, Quezon City. The agents of the National Bureau of
Investigation went to said address and there found a female child who answered to the
name of Cristina Grace Neri. Quite significantly, the evidence disclosed that the child,
Cristina, had been living with respondent Marietta Neri Alviar since 1988. When she
was just a baby, Cristina was abandoned by her parents at the Sir John Clinic. On April
18, 1988, Dr. Fe Mallonga, a dentist at the Sir John Clinic and niece of both Dra. Ty and
respondent Alviar, called the latter up to discuss the possibility of turning over to her
care one of the several abandoned babies at the said clinic. Respondent Alviar was told
that this baby whose name was unknown had long been abandoned by her parents and
appeared to be very small, very thin, and full of scabies. Taking pity on the baby,
respondent Alviar and her mother, Maura Salacup Neri, decided to take care of her.
This baby was baptized at the Good Samaritan Church on April 30, 1988. Her
Certificate of Baptism10 indicates her name to be Cristina Grace S. Neri; her birthday to
be April 30, 1987; her birthplace to be Quezon City; and her foster father and foster
mother to be Cicero Neri and Maura Salacup, respectively. Respondent Alviar was
invited by the National Bureau of Investigation for questioning on September 22, 1992 in
the presence of Dra. Ty and petitioner. Cristina was also brought along by said
respondent. At that confrontation, Dra. Ty could not be sure that Cristina was indeed
petitioner’s child, Arabella. Neither could petitioner with all certainty say that Cristina
was her long lost daughter.
On October 13, 1992, petitioner filed a petition for the issuance of a Writ of Habeas
Corpus with the Regional Trial Court11 of Quezon City. The trial court conducted a total
of eight (8) hearings, for the period, from October 28, 1992 to December 11, 1992.
On January 15, 1993, it rendered a decision granting the Petition for Habeas
Corpus and ordering respondent Alviar to immediately deliver the person of Cristina
Grace Neri to the petitioner, the court having found Cristina to be the petitioner’s long
lost child, Arabella.
The trial court, in justification of its conclusions, discussed that:

“On the issue of whether or not the minor child, in question, is the daughter of the
petitioner, there seems to be no question, to the mind of this Court, that the petitioner,
is, indeed, the mother of the child, registered by the name of Arabella O. Sombong,
per her Certificate of Birth x x x and later caused to be baptized as Cristina Grace S.
Nery (sic) x x x For, this child is the same child which was delivered by the Sir John
Clinic at KalookanCity, owned by Dra. Carmen Ty, to Dra. Fe Mallonga and later
given to the custody of the respondents. In fact, Dra. Carmen Ty, in her testimony
admitted that the petitioner is the mother of Arabella xxx

On the question of whether or not the petitioner has the rightful custody of the minor
child, in question, which is being withheld by the respondents from her, as will
authorize the granting of the petition for habeas corpus x x x there is no question that
the minor x x x is only about five (5) years old x x x it follows that the child must not
be separated from the mother, who is the petitioner, unless, of course, this Court finds
compelling reasons to order otherwise.
Heretofore, under the New Civil Code of the Philippines, the compelling reasons
which may deprive the parents of their authority or suspend exercise thereof are
stated. It was then provided in Article 332, supra, that:

‘The courts may deprive the parents of their authority x x x if they should treat their
children with excessive harshness x x x or abandon them. x x x’ (Italics supplied by
the RTC)

Unfortunately, the foregoing article, which was under Title XI, parental authority, was
expressly repealed by Article 254 of the Family Code of the Philippines xxx

xxx xxx xxx

It can be seen, therefore, that the words ‘or abandoned them’ mentioned in Article 332
of the New Civil Code x x x is (sic) no longer mentioned in the amending (of) Art.
231 of the Family Code of the Philippines.

It is clear x x x that under the law presently controlling, abandonment is no longer

considered a compelling reason upon the basis of which the Court may separate the
child below seven (7) years old from the mother.

Conceivably, however, in paragraph 6 of Article 231, supra, the effects of culpable

negligence on the part of the parent may be considered by this Court in suspending
petitioner’s parental authority over her daughter, in question x x x

The question, therefore, is whether there is culpable negligence on the part of the
petitioner so that her parental authority over her child, in question, may at least be
suspended by this Court.

This Court is not persuaded that the petitioner is guilty of culpable negligence vis-a-
vis her daughter, in question, upon the bases of the facts adduced. For, there is no
question that from April, 1988 she kept on demanding from Dra. Carmen Ty x x x the
return of her child to her but the latter refused even to see her or to talk to her. Neither
did Vicente Ty, the husband of Dra. Carmen Ty, respond to her entreaties to return her
daughter.

xxx xxx xxx

Besides, in the interim, while petitioner was looking for her daughter, she made
representations for her recovery with Barangay Captains Alfonso and Bautista, and
Mayor Asistio, all of Kalookan City, as well as with Congresswoman Hortensia L.
Starke to intervene in her behalf.
It cannot be said, therefore, no matter how remotely, that the petitioner was negligent,
nay culpably, in her efforts for the recovery of her daughter.

xxx xxx xxx

Certainly, the respondents have no right to the parental authority of the child,
superior to that of the petitioner as they are not her parents. They have, therefore, no
right to the custody of petitioner’s daughter. The Sir John Clinic, or Dra. Carmen Ty,
have (sic) no right to deliver the child, in question, to Dra. Fe Mallonga. Neither had the
latter the right and the authority to gave (sic) the child to the respondents, whose
custody of petitioner’s daughter is, consequently, illegal.”12
Herein private respondents filed an appeal from the decision of the Regional Trial
Court to the Court of Appeals. The Appellate Court took cognizance of the following
issues: (1) The propriety of the habeas corpus proceeding vis-a-vis the problem
respecting the identity of the child subject of said proceeding; (2) If indeed petitioner be
the mother of the child in question, what the effect would proof of abandonment be
under the circumstances of the case; and (3) Will the question of the child’s welfare be
the paramount consideration in this case which involves child custody.
The Court of Appeals reversed and set aside the decision of the trial court, ruling as
it did that:

“x x x the lower court erred in sweepingly concluding that petitioner’s child Arabella
Sombong and respondents’ foster child Cristina Neri are one and the same person to
warrant the issuance of the writ. x x x

As clearly stated in the facts of this case, not even petitioner herself could recognize
her own child when respondents’ foster child Cristina Neri was presented to her
before the NBI and respondent court. Dr. Carmen Ty at the NB! investigation could
not also ascertain whether or not Cristina Neri and petitioner’s missing child are one
and the same person.

Before the lower court, petitioner-appellee presented two physicians from the Sir John
Clinic, namely, Dr. Carmen Ty and Dr. Angelina Trono to identify the child in
question. But both witnesses could not positively declare that Cristina Neri is the same
missing child Arabella Sombong of petitioner. Dr. Trono even declared in court that
there were other babies left in the clinic and that she could not be certain which baby
was given to respondents (pp. 48-49, tsn, Nov. 10, 1992). x x x Petitioner, herself,
could not identify her own child, prompting the respondent court to call for child
Cristina Neri to come forward near the bench for comparison of her physical features
with that of her alleged mother, the petitioner (p. 32, tsn, Nov. 5, 1992). After a
comparison of petitioner and Cristina Neri’s physical features, the lower court found
no similarity and to which petitioner agreed claiming that said child looked like her
sister-in-law (p. 33, id.) When the lower court instructed petitioner to bring said sister-
in-law in the next hearing, petitioner stated they were not on good terms (p.
34, id.) No one, therefore, up to this time has come forward to testify as a witness in
order to positively identify respondents’ child Cristina Neri to be one and the same as
petitioner’s missing child, Arabella Sombong.

xxx xxx xxx

The issuance of a writ of habeas corpus does not lie in this case considering that
petitioner is not entitled to the custody of Cristina Neri because she is not the mother
of the said child, and does not have the right to have custody over said child.

xxx xxx xxx

We do not agree with the lower court that the ground of abandonment of a child has
been repealed by Art. 231 of the Family Code for abandonment can also be included
under the phrase ‘cases which have resulted from culpable negligence of the parent’
(par. 2, Art. 231 of the Family Code). What can be the worst culpable negligence of a
parent than abandoning her own child. This court does not believe petitioner-
appellee’s explanation that she had been negotiating for the discharge of her child for
the past five years. That was too long a time for negotiation when she could have filed
immediately a complaint with the authorities or the courts x x x

As to the issue of the welfare of the child, petitioner-appellee’s capability to give her
child the basic needs and guidance in life appear (sic) to be bleak. Before the lower
court petitioner-appellee filed a motion to litigate as pauper as she had no fixed
income. She also admitted that she had no stable job, and she had been separated from
a man previously married to another woman. She also confessed that she planned to
go abroad and leave her other child Johannes to the care of the nuns. The child
Arabella Sombong wherever she is certainly does not face a bright prospect with
petitioner-appellee.”13

This prompted the petitioner to file this petition.

We do not find the petition to be meritorious.
While we sympathize with the plight of petitioner who has been separated from her
daughter for more than eight years, we cannot grant her the relief she is seeking,
because the evidence in this case does not support a finding that the child, Cristina, is
in truth and in fact her child, Arabella; neither is there sufficient evidence to support the
finding that private respondents’ custody of Cristina is so illegal as to warrant the grant
of a Writ of Habeas Corpus. In general, the purpose of the writ of habeas corpus is to
determine whether or not a particular person is legally held. A prime specification of an
application for a writ of habeas corpus, in fact, is an actual and effective, and not merely
nominal or moral, illegal restraint of liberty. “The writ of habeas corpus was devised and
exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and
as the best and only sufficient defense of personal freedom. A prime specification of an
application for a writ of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such restraint is
illegal. Any restraint which will preclude freedom of action is sufficient.14
Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint
of liberty must be in the nature of an illegal and involuntary deprivation of freedom of
action. This is the basic requisite under the first part of Section 1, Rule 102, of the
Revised Rules of Court, which provides that “except as otherwise expressly provided by
law, the writ of habeas corpus shall extend to all cases of illegal confinement or
detention by which any person is deprived of his liberty.”
In the second part of the same provision, however, Habeas Corpus may be resorted
to in cases where “the rightful custody of any person is withheld from the person entitled
thereto.” Thus, although the Writ of Habeas Corpus ought not to be issued if the
restraint is voluntary, we have held time and again that the said writ is the proper legal
remedy to enable parents to regain the custody of a minor child even if the latter be in
the custody of a third person of her own free will.15
It may even be said that in custody cases involving minors, the question of illegal
and involuntary restraint of liberty is not the underlying rationale for the availability of the
writ as a remedy; rather, the writ of habeas corpus is prosecuted for the purpose of
determining the right of custody over a child.
The controversy does not involve the question of personal freedom, because an
infant is presumed to be in the custody of someone until he attains majority age. In
passing on the writ in a child custody case, the court deals with a matter of an equitable
nature. Not bound by any mere legal right of parent or guardian, the court gives his or
her claim to the custody of the child due weight as a claim founded on human nature
and considered generally equitable and just. Therefore, these cases are decided, not on
the legal right of the petitioner to be relieved from unlawful imprisonment or detention,
as in the case of adults, but on the court’s view of the best interests of those whose
welfare requires that they be in custody of one person or another. Hence, the court is
not bound to deliver a child into the custody of any claimant or of any person, but
should, in the consideration of the facts, leave it in such custody as its welfare at the
time appears to require. In short, the child’s welfare is the supreme consideration.
Considering that the child’s welfare is an all-important factor in custody cases, the
Child and Youth Welfare Code16 unequivocally provides that in all questions regarding
the care and custody, among others, of the child, his welfare shall be the paramount
consideration.17 In the same vein, the Family Code authorizes the courts to, if the
welfare of the child so demands, deprive the parents concerned of parental authority
over the child or adopt such measures as may be proper under the circumstances. 18
The foregoing principles considered, the grant of the writ in the instant case will all
depend on the concurrence of the following requisites: (1) that the petitioner has the
right of custody over the minor; (2) that the rightful custody of the minor is being
withheld from the petitioner by the respondent; and (3) that it is to the best interest of
the minor concerned to be in the custody of petitioner and not that of the respondent.
Not all of these requisites exist in this case. The dismissal of this petition is thus
warranted.
I
As to the question
of identity.
Petitioner does not have the right of custody over the minor Cristina because, by the
evidence disclosed before the court a quo, Cristina has not been shown to be
petitioner’s daughter, Arabella. The evidence adduced before the trial court does not
warrant the conclusion that Arabella is the same person as Cristina. It will be
remembered that, in habeas corpus proceedings, the question of identity is relevant and
material, subject to the usual presumptions including those as to identity of
person.19 These presumptions may yield, however, to the evidence proffered by the
parties.

“Identity may be thought of as a quality of a person or thing, - the quality of sameness

with another person or thing. The essential assumption is that two persons or things
are first thought of as existing, and that then the one is alleged, because of common
features, to be the same as the other.”20

Evidence must necessarily be adduced to prove that two persons, initially thought of
to be distinct and separate from each other, are indeed one and the same. The process
is both logical and analytical.

“x x x it operates by comparing common marks found to exist in the two supposed

separate objects of thought, with reference to the possibility of their being the same. It
follows that its force depends on the necessariness of the association between the
mark and a single object. Where a certain circumstance, feature, or mark, may
commonly be found associated with a large number of objects, the presence of that
feature or mark in two supposed objects is little indication of their identity, because x
x x the other conceivable hypotheses are so numerous, i.e., the objects that possess
that mark are numerous and therefore any two of them possessing it may well be
different. But where the objects possessing the mark are only one or a few, and the
mark is found in two supposed instances, the chances of two being different are ‘nil’
or are comparatively small.

Hence, in the process of identification of two supposed objects, by a common mark,

the force of the inference depends on the degree of necessariness of association of
that mark with a single object.
For simplicity’s sake, the evidential circumstance may thus be spoken of as ‘a
mark.’ But in practice it rarely occurs that the evidential mark is a single circumstance.
The evidencing feature is usually a group of circumstances, which as a whole constitute
a feature capable of being associated with a single object. Rarely can one circumstance
alone be so inherently peculiar to a single object. It is by adding circumstance to
circumstance that we obtain a composite feature or mark which as a whole cannot be
supposed to be associated with more than a single object.
The process of constructing an inference of identity thus consists usually in adding
together a number of circumstances, each of which by itself might be a feature of many
objects, but all of which together make it more probable that they co-exist in a single
object only. Each additional circumstance reduces the chances of there being more
than one object so associated.”21
In the instant case, the testimonial and circumstantial proof establishes the
individual and separate existence of petitioner’s child, Arabella, from that of private
respondents’ foster child, Cristina.
We note, among others, that Dr. Trono, who is petitioner’s own witness, testified in
court that, together with Arabella, there were several babies left in the clinic and so she
could not be certain whether it was Arabella or some other baby that was given to
private respondents. Petitioner’s own evidence shows that, after the confinement of
Arabella in the clinic in 1987, she saw her daughter again only in 1989 when she visited
the clinic. This corroborates the testimony of petitioner’s own witness, Dra. Ty, that
Arabella was physically confined in the clinic from November, 1987 to April, 1989. This
testimony tallies with her assertion in her counter-affidavit to the effect that Arabella was
in the custody of the hospital until April, 1989. All this, when juxtaposed with the
unwavering declaration of private respondents that they obtained custody of Cristina in
April, 1988 and had her baptized at the Good Samaritan Church on April 30, 1988,
leads to the conclusion that Cristina is not Arabella.
Significantly, Justice. Lourdes K. Tayao-Jaguros, herself a mother and
the ponente of the herein assailed decision, set the case for hearing on August 30,
1993 primarily for the purpose of observing petitioner’s demeanor towards the minor
Cristina. She made the following personal but relevant manifestation:

“The undersigned ponente as a mother herself of four children, wanted to see how
petitioner as an alleged mother of a missing child supposedly in the person of Cristina
Neri would react on seeing again her long lost child. The petitioner appeared in the
scheduled hearing of this case late, and she walked inside the courtroom looking for a
seat without even stopping at her alleged daughter’s seat; without even casting a
glance on said child, and without even that tearful embrace which characterizes the
reunion of a loving mother with her missing dear child. Throughout the proceedings,
the undersigned ponente noticed no signs of endearment and affection expected of a
mother who had been deprived of the embrace of her little child for many years. The
conclusion or finding of undersigned ponente as a mother, herself, that petitioner-
appellee is not the mother of Cristina Neri has been given support by aforestated
observation x x x.”22
 The process of constructing an inference of identity having earlier been explained to
consist of adding one circumstance to another in order to obtain a composite feature or
mark which as a whole cannot be supposed to be associated with more than a single
object, the reverse is also true, i.e., when one circumstance is added to another, and
the result is a fortification of the corporeality of. each of the two objects the identity of
which is being sought to be established, the nexus of circumstances correspondingly
multiply the chances of there being more than one object so associated. This is the
situation that confronts us in this case, and so the inevitable but sad conclusion that we
must make is that petitioner has no right of custody over the minor Cristina, because
Cristina is not identical with her missing daughter, Arabella.
II
Private respondents
not unlawfully
withholding custody.
Since we hold that petitioner has not been established by evidence to be entitled to
the custody of the minor Cristina on account of mistaken identity, it cannot be said that
private respondents are unlawfully withholding from petitioner the rightful custody over
Cristina. At this juncture, we need not inquire into the validity of the mode by which
private respondents acquired custodial rights over the minor, Cristina. This matter is not
ripe for adjudication in this instant petition for habeas corpus.
III
Private respondents
have the interest of
the child Cristina at heart.
We find that private respondents are financially, physically and spiritually in a better
position to take care of the child, Cristina. They have the best interest of Cristina at
heart. On the other hand, it is not to the best interest of the minor, Cristina, to be placed
in the custody of petitioner, had the petitioner’s custody rights over Cristina been
established. The Court of Appeals gave the reason:

“As to the issue of the welfare of the child, petitioner-appellee’s capability to give her
child the basic needs and guidance in life appear (sic) to be bleak. Before the lower
court petitioner-appellee filed a motion to litigate as pauper as she had no fixed
income. She also admitted that she had no stable job, and she had been separated from
a man previously married to another woman. She also confessed that she planned to
go abroad and leave her other child Johannes to the care of the nuns. The child
Arabella Sombong wherever she is certainly does not face a bright prospect with
petitioner-appellee “23

In the light of the aforegoing premises, we are constrained to rule that Habeas
Corpus does not lie to afford petitioner the relief she seeks.
 WHEREFORE, the appealed decision of the Court of Appeals in CA-G.R. SP No.
30574 is AFFIRMED IN TOTO. Costs against petitioner.
SO ORDERED.