Republic of the Philippines 2.
To issue, in addition or in the alternative to the writ of habeas corpus, a writ of
SUPREME COURT
Manila
EN BANC
G.R. No. L-61388 April 20, 1983
IN THE ISSUANCE OF THE WRIT OF HABEAS CORPUS FOR DR. AURORA PARONG,
NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE
LOS SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO
TANGUILIG, LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ. JR.,
JUANITO GRANADA and TOM VASQUEZ. JOSEFINA GARCIA-PADILLA, petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN, FABIAN C. VER, GEN. FIDEL V. RAMOS, and
FIDEL V. RAMOS, and LT. COL. MIGUEL CORONEL, respondents.
Lorenzo M. Tanada, Jose W. Diokno, Joker P. Arroyo, Efren M Mercado and Alexander
Padilla for petitioner.
The Solicitor General for respondents.
DE CASTRO, J.:
Petition for a writ of habeas corpus and mandamus seeking the following relief:
WHEREFORE, petitioners pray this Honorable Court:
1. To immediately issue a writ of habeas corpus directing respondents to appear and
produce the bodies of Dr. AURORA PARONG, NORBERTO PORTUGUESE, SABINO
PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA,
ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN,
BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM VASQUEZ,
forthwith before this Honorable Court and to make due return of the writ therewith;
mandamus compelling the respondents to disclose the petitioners' present place of
detention and to order the respondents to allow counsel and relatives to visit and
confer with the petitioners;
3. Pending the determination of the legality of their continued detention, to
forthwith release the detainees on bail upon such terms and conditions as the Court
may fix, and after hearing, to order petitioners' immediate release; and
4. To grant petitioners such other and further relief as may be deemed just and
equitable in the premises.
The records show that nine (9) of the fourteen (14) detainees herein were arrested
on July 6, 1982 at about 1:45 p.m. when three (3) teams of the PC/INP of
Bayombong, Nueva Viscaya led by Lt. Col. Coronel, lst Lt. de Guzman and lst Lt. Baria,
after securing a Search Warrant No. S-82 issued by Judge Sofronio Sayo of the Court
of First Instance of Nueva Viscaya conducted a raid at the residence of Dra. Aurora
Parong. Apprehended during the said raid were Dra. Aurora Parong, Benjamin
Pineda, Sabino Padilla, Francisco Divinagracia, Zenaida Mallari, Letty Ballogan,
Norberto Portuguese, and Mariano Soriano who were then having a conference in
the dining room of Dra. Parong's residence which had been doing on since 10:00 a.m.
of that same day.
The other four (4) detainees herein, namely: Imelda de los Santos, Eufronio Ortiz, Jr.,
Juanita Granada, and Bienvenida Garcia, were arrested on the following day, July 7,
1982 by the same PC teams.
On July 15, 1982, Tom Vasquez was arrested, and his Volkswagen car, bearing Plate
No. DAP 347, was seized by the PC authorities.
The herein fourteen (14) detainees (hereafter referred to sometimes as petitioners)
were all detained at the PC/INP Command Headquarters, Bayombong, Nueva Vizcaya
from July 6, 1982 until their transfer on the morning of August 10, 1982 to an
undisclosed place reportedly to Camp Crame, Quezon City, to Echague, Isabela, and
to Tuguegarao, Cagayan.
Hence, this petition for the writ of habeas corpus and mandamus filed by Josefina
Garcia-Padilla, mother of detained petitioner Sabino G. Padilla, Jr. on August 13,
1982. The mandamus aspect of the instant petition has, however, become moot and
academic, and whereabouts of petitioners having already become known to
petitioner Josefina Garcia-Padilla.
It is alleged in the petition that the arrest of petitioners was patently unlawful and
illegal since it was effected without any warrant of arrest; that the PC/INP raiding
team which made the arrest were only armed with a search warrant (No. 3-82)
issued by Judge Sofronio G. Sayo of the Court of First Instance of Nueva Viscaya, and
nowhere in said warrant was authority given to make arrests, much less detention;
that the search warrant which authorized respondents to seize "subversive
documents, firearms of assorted calibers, medicine and other subversive
paraphernalia" in the house and clinic of Dra. Aurora Parong was a roving and
general warrant and is, therefore, illegal per se because it does not state specifically
the things that are to be seized (Stonehill vs. Diokno, 20 SCRA 383); that no criminal
charges have as of yet been filed against any of the detainees; that the fourteen (14)
detainees were initially held at the PC/INP Command in Bayombong, Nueva Viscaya
from July 6 up to August 10, 1982, but were subsequently transferred by helicopter
in the morning of August 10, 1982 to a place or safehouse known only to
respondents; that there is no judgment, decree, decision or order from a court of law
which would validate the continued detention of the petitioner; that while it is true
that a purported telegram stating the issuance of a Presidential Commitment Order
(PCO) was shown to the detainees on or about July 11 and 12, 1982, but counsel and
the detainees have not yet been given a copy of such PCO nor notified of its
contents, raising a doubt whether such commitment order has in fact been issued.
It is further alleged that respondents are denying the detainees their constitutional
right to counsel, averring that the detainees were allowed regular visits by counsel
and relatives during their period of detention from July 6 to August 10, 1982 at the
PC/INP Command in Bayombong, Nueva Viscaya; however, when a certain Major
Cristobal and Lt. Marcos (alleged to be from the Camp Crame Intelligence Units) took
full control of the investigation, counsels were allowed to visit only on weekends;
that when the detainees were transferred on August 10, 1982 to a place known only
to respondents, the detainees' counsels and relatives were not notified, raising the
apprehension that petitioners' constitutional rights to silence, to counsel and against
self- incrimination are being violated; that counsels have tried to locate if the
detainees were taken to Camp Crame or Camp Bago Bantay but to no avail; that
Major Forondo of the PC Command in Nueva Viscaya informed Mrs. Josefina Padilla
that the detainees were transferred to Tuguegarao, Cagayan, others to Echague,
Isabela; that there seems to be a deliberate and concerted effort by respondents to
conceal from counsel and relatives the detainees' place of detention, raising the
apprehension that respondents are using force, violence, threat, intimidation and
other means which vitiate free will to obtain confession and statements from the
detainees in violation of their constitutional rights.
In the resolution of this Court en banc dated August 17, 1982, the writ of habeas
corpus was issued and respondents were required to make a return of the writ.
Hearing on the petition was set on August 26, 1982.
In the return to the writ filed on August 23, 1982. respondents, through the Solicitor
General, alleged, to wit:
I. AS TO HABEAS CORPUS
1. The detainees mentioned in the petition, with the exception of Tom Vasquez who
was temporarily released on July 17, 1982, after his arrest on July 15, 1982, are all
being detained by virtue of a Presidential Commitment Order (PCO) issued on July 12,
1982, pursuant to LOI No. 1211 dated March 9, 1982, in relation to Presidential
Proclamation No. 2045 dated January 17, 1981. The said PCO was issued by President
Ferdinand E. Marcos for violation of P.D. No. 885. ...
2. The corresponding charges against the said detainees have been filed in court and
before the Acting Provincial Fiscal of Nueva Viscaya where they are pleading. A
warrant of arrest against detainee Dra. Aurora Parong was issued on August 4, 1982,
by the Municipal Court of Bayombong, for illegal possession of firearm and
ammunition. ...
II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS
3. The persons named in the above-mentioned Presidential Commitment Order were
arrested and are being detained for offenses with respect to which under
Proclamation No. 2045, the privilege of the writ of habeas corpus continues to be
suspended, thus:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime Minister of the
Philippines, by virtue of the powers vested in me by the Constitution, do hereby
revoke Proclamation No. 1081 (Proclaiming a state of Martial Law in the Philippines)
and Proclamation No. 1104 (Declaring the Continuation of Martial Law) and proclaim
the termination of the state of martial law throughout the Philippines; Provided, that
the call to the Armed Forces of the Philippines to prevent or suppress lawless
violence, insurrection, rebellion and subversion shall continue to be in force and
effect; and Provided that in the two autonomous regions in Mindanao, upon the
request of the residents therein, the suspension of the privilege of the writ of habeas
corpus shag continue; and in all other places the suspension of the privilege of the
writ shall also continue with respect to persons at present detained as well as others
who may hereafter be similarly detained for the crimes of insurrection or rebellion,
subversion, conspiracy or proposals to commit such crimes, and for all other crimes
and offenses committed by them in furtherance or on the occasion thereof, or
incident thereto, or in connection therewith. (Emphasis supplied)
The privilege of the writ of habeas corpus is unavailing as to them. Courts cannot
inquire into the validity and cause of their arrest and detention.
4. The power of the President in an emergency, such as that which necessitated the
continued suspension of the privilege of the writ of habeas corpus, to order the
detention of persons believed engaged in crimes related to national security is
recognized. (Aquino vs. Enrile, 59 SCRA 83; Luneta, et al. vs. Special Military
Commission, No. 1, et al., 102 SCRA 56).
5. In the instant petition, petitioner Josefina Garcia-Padilla does not appear to have
been authorized by the thirteen (13) other detainees to represent them in the case at
bar."
Accordingly, the petition was duly heard on August 26, 1982. After hearing, the Court
issued the following resolution, to wit:
G.R. No. 61388 (In the Matter of the Petition for the Insurance of the Writ of Habeas
Corpus of Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis
Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano
Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito
Granada and Tom Vasquez; Josefina Garcia-Padilla vs. Minister Juan Ponce Enrile,
Gen. Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col. Miguel Coronel.)- The return of
the writ of habeas corpus and answer to the prayer for mandamus filed by the
Solicitor General for respondents in compliance with the resolution of August 17,
1982 is NOTED.
At the hearing of this case this morning, former Senator Jose W. Diokno, Attorneys
Alexander A. Padilla and Efren H. Mercado appeared for petitioner. Solicitor General
Estelito P. Mendoza and Assistant Solicitor General Ramon A. Barcelona, appeared
for the respondents. All of the detainees, except Tom Vasquez, who was temporarily
released on July 17, 1982, were present in Court; Dr. Aurora Parong, Norberto
Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin
Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida
Garcia, Eufronio Ortiz, Jr. and Juanito Granada. Attorney Alexander A. Padilla argued
for the petitioner. Solicitor General Mendoza argued for the respondents. Former
Senator Diokno argued in the rebuttal. The Court Resolved to require the Solicitor
General to SUBMIT within five (5) days from date the documents relevant to the
issuance of the Presidential Commitment Order. Thereafter, the case shall be
considered SUBMITTED for resolution.
As required, the Solicitor General submitted the documents relevant to the issuance
of the Presidential Commitment Order on August 27, 1982, after which the case was
submitted for resolution.
The fundamental issue here, as in all petitioner for the writ of habeas corpus, is
whether or not petitioners' detention is legal. We have carefully gone over the claims
of the parties in their respective pleadings as well as in the oral argument during the
hearing on August 26, 1982, and We find that petitioners have not been illegally
deprived of their constitutional right to liberty, neither in the manner of their arrest,
nor by their continued detention, and that the circumstances attendant in the herein
case do not warrant their release on a writ of habeas corpus.
1. At the time of the arrest of the nine (9) of the fourteen (14) detainees herein on
July 6, 1982, records reveal that they were then having conference in the dining
room of Dra. Parong's residence from 10:00 a.m. of that same day. Prior thereto, all
the fourteen (14) detainees were under surveillance as they were then Identified as
members of the Communist Party of the Philippines (CPP) engaging in subversive
activities and using the house of detainee Dra. Aurora Parong in Bayombong, Nueva
Viscaya, as their headquarters. Caught in flagrante delicto, the nine (9) detainees
mentioned scampered towards different directions leaving in top of their conference
table numerous subversive documents, periodicals, pamphlets, books,
correspondence, stationaries, and other papers, including a plan on how they would
infiltrate the youth and student sector (code-named YORK). Also found were one (1) .
38 cal. revolver with eight (8) live bullets, nineteen (19) rounds of ammunition for
M16 armalite, eighteen thousand six hundred fifty pesos (P18,650.00) cash believed
to be CPP/NPA funds, assorted medicine packed and ready for distribution, as
sizeable quantity of printing paraphernalia, which were then seized. There is no
doubt that circumstances attendant in the arrest of the herein detainees fall under a
situation where arrest is lawful even without a judicial warrant as specifically
provided for under Section 6(a), Rule 113 of the Rules of Court and allowed under
existing jurisprudence on the matter. As provided therein, a peace officer or a private
person may, without a warrant, arrest a person when the person to be arrested has
committed or actually committing, or is about to commit an offense in his presence.
From the facts as above narrated, the claim of the petitioners that they were initially
arrested illegally is, therefore, without basis in law and in fact. The crimes of
insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes,
and other crimes and offenses committed in the furtherance on the occasion thereof,
or incident thereto, or in connection therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses which set them apart from the
common offenses, aside from their essentially involving a massive conspiracy of
nationwide magnitude. Clearly then, the arrest of the herein detainees was well
within the bounds of the law and existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing them in the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of the existence
of probable cause before the issuance of a judicial warrant of arrest and the granting
of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no
legal impediment to arresting or capturing persons committing overt acts of violence
against government forces, or any other milder acts but equally in pursuance of the
rebellious movement. The arrest or capture is thus impelled by the exigencies of the
situation that involves the very survival of society and its government and duly
constituted authorities. If killing and other acts of violence against the rebels find
justification in the exigencies of armed hostilities which is of the essence of waging a
rebellion or insurrection, most assuredly so in case of invasion, merely seizing their
persons and detaining them while any of these contingencies continues cannot be
less justified. In the language of Moyer vs. Peabody, 1 cited with approval in Aquino,
et al. vs. Ponce Enrile, 2 the President " shall make the ordinary use of the soldiers to
that end that he may kill persons who resist, and, of course, that he may use the
milder measure of seizing the bodies of those whom he considers to stand in the way
of restoring peace. Such arrests are not necessarily for punishment, but are by way of
precaution, to prevent the exercise of hostile power."
Thus characterized, the arrest and detention of persons ordered by the President
through the issuance of Presidential Commitment Order PCO is merely preventive.
"When it comes to a decision by the head of the State upon a matter involving its life,
the ordinary rights of individuals must yield to what he deems the necessities of the
moment. Public danger warrants the substitution of executive process for judicial
process." 3 What should be underscored is that if the greater violation against life
itself such as killing, will not be the subject of judicial inquiry, as it cannot be raised as
transgressing against the due process clause that protects life, liberty and property,
lesser violations against liberty, such as arrest and detention, may not be insisted
upon as reviewable by the courts.
3. Transcendentally important, therefore, is the question of whether the issuance of
a Presidential Commitment Order (PCO) has provided the legal basis of the detention
of herein detainees following their arrest for Proclamation No. 2045 covered
offenses. This question has to be set at rest promptly and decisively, if We are to
break a seemingly continuous flow of petitions for habeas corpus, as what had been
seen lately of such petitioners being filed in this Court one after the other.
The function of the PCO is to validate, on constitutional ground, the detention of a
person for any of the offenses covered by Proclamation No. 2045 which continues in
force the suspension of the privilege of the writ of habeas corpus, if the arrest has
been made initially without any warrant, its legal effect is to render the writ
unavailing as a means of judicially inquiring into the legality of the detention in view
of the suspension of the privilege of the writ. The grant of the power to suspend the
said privilege provides the basis for continuing with perfect legality the detention as
long as the invasion or rebellion has not been repelled or quelled, and the need
therefor in the interest of public safety continues.
The significance of the conferment of this power, constitutionally upon the President
as Commander-in-Chief, is that the exercise thereof is not subject to judicial inquiry,
with a view to determining its legality in the light of the bill of rights guarantee to
individual freedom. This must be so because the suspension of the privilege is a
military measure the necessity of which the President alone may determine as an
incident of his grave responsibility as the Commander-in-Chief of the Armed Forces,
of protecting not only public safety but the very life of the State, the government and
duly constituted authorities. This should be clear beyond doubt in the case of
"invasion," along which "rebellion" or "insurrection" is mentioned by the
Constitution, which contingency does not present a legal question on whether there
is a violation of the right to personal liberty when any member of the invading force
is captured and detained.
The presidential responsibility is one attended with all urgency when so grave a peril
to the life of the Nation besets the country in times of the aforementioned
contingencies. In the discharge of this awesome and sacred responsibility, the
President should be free from interference. The existence of warlike conditions as
are created by invasion, rebellion or insurrection, the direst of all emergencies that
can possibly confront a nation, argues, beyond dispute, against subjecting his actions
in this regard to judicial inquiry or interference from whatever source. If freedom
from judicial review is conceded in the exercise of his peacetime powers as that of
appointment and of granting pardon, denominated as political powers of the
President, it should incontestably be more so with his wartime power, as it were, to
adopt any measure in dealing with situations calling for military action as in case of
invasion, rebellion or insurrection.
The suspension of the privilege of the writ of habeas corpus is one such measure. To
be effective, the occasion for its application on specific individuals should be left to
the exclusive and sound judgment of the President, at least while the exigencies of
invasion, rebellion or insurrection persist, and the public safety requires it, a matter,
likewise, which should be left for the sole determination of the President as
Commander-in-Chief of the Nation's armed forces. The need for a unified command
in such contingencies is imperative-even axiomatic-as a basic military concept in the
art of warfare.
4. From the clear language of the Lansang case, 4 "the function of Court is merely to
check — not to supplant — the Executive, or to ascertain merely whether he has
gone beyond the constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act. " If, however, the constitutional
right to bail is granted to the herein petitioners by the court, through the procedure
laid down under Rule 114 of the Rules of court, what inevitably results is the
supplanting of the decision of the President to detain pursuant to Proclamation No.
2045, of persons who come under its coverage.
The specific mention in the Constitution of rebellion and insurrection along with
invasion and imminent danger thereof, shows that the terms "rebellion and
insurrection" are used therein in the sense of a state or condition of the Nation, not
in the concept of a statutory offense. What, therefore, should determine the legality
of imposing what is commonly referred to as "preventive detention" resulting from
the suspension of the privilege of habeas corpus, is the necessity of its adoption as a
measure to suppress or quell the rebellion, or beat off an invasion. The necessity for
such measure as a means of defense for national survival quite clearly transcends in
importance and urgency the claim of those detained to the right to bail to obtain
their freedom. To hold otherwise would defeat the purpose of the constitutional
grant of the power to suspend the privilege of the writ of habeas corpus on the
occasions expressly mentioned in the charter. For what indeed could the purpose be
of suspending the privilege of the writ of habeas corpus other than to restrict, at
least for the duration of the emergency of invasion or rebellion, the right to personal
liberty, dictated as it is, in the greater interest of public safety and national security.
So it is that Proclamation No. 2045 mentions not only rebellion or insurrection as
coming within the suspension of the privilege of the writ of habeas corpus, but also
other offenses, including subversion which is not mentioned in the Constitution,
committed by reason or on the occasion of the rebellion, or in connection therewith,
or in the furtherance thereof. There need be no alarm over what libertarian jurists
fear as violation of the constitutional right to personal liberty when the President
decrees the suspension of the privilege of habeas corpus. Only those who give cause
for it will be subject to restriction of their liberty, as the necessity therefor arises in
the interest of national defense and survival. The constitutional guarantee of
individual freedom is intact in all its plenitude and sanctity, save only as the
Constitution has envisioned the need for its limitation, and only to a few, in relation
to the entire population, as the Constitution itself permits in case of overwhelming
and imperious necessity.
5. Worthy of profound notice and keen appreciation is the fact that the authority to
suspend the privilege of the writ of habeas corpus has been deliberately vested on
the President as the Commander-in-Chief of the armed forces, together with the
related power to call out the armed forces to suppress lawless violence and impose
martial law. 5 The choice could not have been more wise and sound, for no other
official may, with equal capability and fitness, be entrusted with the grave
responsibility that goes with the grant of the authority. The legislature was
considered in the alternative upon which to lodge the power, or to share in its
exercise, but the distilled wisdom of the Constitutional Convention finally made its
choice for the President alone.
As previously noted, "invasion" which is not a statutorily-defined offense and
"imminent danger thereof" as mentioned in the Constitution indicate that "rebellion
and insurrection" are also mentioned therein not in their concept as statutorily-
defined public crimes, but as a state or condition of extreme emergency resulting
from the existence of the aforesaid events. Now, if captured enemies from the
invading force may not be charged with any statutory offense that would provide the
occasion to demand the right to bail, it is obvious that persons engaged in rebellion
or insurrection may not claim the right to be released on bail when similarly captured
or arrested during the continuance of the aforesaid contingency. They may not even
claim the right to be charged immediately in court, as they may rightfully do so, were
they being charged with an ordinary or common offense. This is so because according
to legal writers or publicists, the suspension of the privilege of the writ of habeas
corpus "has the sole effect of allowing the executive to defer the trials of persons
charged with certain offenses during the period of emergency." 6 This clearly means
denial of the right to be released on bail on being charged in court with bailable
offenses.
The suspension of the privilege of the writ of habeas corpus must, indeed, carry with
it the suspension of the right to bail, if the government's campaign to suppress the
rebellion is to be enhanced and rendered effective. If the right to bail may be
demanded during the continuance of the rebellion, and those arrested, captured and
detained in the course thereof will be released, they would, without the least doubt,
rejoin their comrades in the field thereby jeopardizing the success of government
efforts to bring to an end the invasion, rebellion or insurrection.
Realistically, a person engaged in the rebellion does not, upon being arrested or
captured, cease to be as committed to the cause of the movement. Through a grand
conspiracy, as is of the essence of how rebellion is committed, involving a great mass
of confederates bound together by a common goal, he remains in a state of
continued participation in the criminal act or design. His heart still beats with the
same emotion for the success of the movement of which he continues to be an
ardent adherent and ally. It is simple logic then to hold that there should be no legal
compulsion for a captured rebel to be charged in court, only to be released on bail,
while he is, realistically and legally, still as much as part and parcel of the movement,
continuing as it is, as those still engaged in carrying on actively to attain their goal of
overthrowing the established regime. Hence, it is easy to perceive how impressed
with absolute verity is the opinion expressed by two acknowledged authorities on
Constitutional law in our country, 7 which We quote:
... If the return to the writ shows that the person in custody was apprehended and
detained in areas where the privileges of the writ have been suspended or for the
crimes mentioned in the executive proclamation, the court will suspend further
proceedings in the action.
Impeccable as it is, the opinion could not but find a resonant echo as it did in the
recent case of Buscayno vs. Military Commission; 8 decided after Proclamation No.
2045 was issued, which in terms clear and categorical, held that the constitutional
right to bail is unavailing when the privilege of the writ of habeas corpus is
suspended with respect to certain crimes as enumerated or described in the
abovementioned Proclamation.
It is, likewise, all too well-known that when the rebel forces capture government
troopers or kidnap private individuals, they do not accord to them any of the rights
now being demanded by the herein petitioners, particularly to be set at liberty upon
the filing of bail. As a matter of common knowledge, captives of the rebels or
insurgents are not only not given the right to be released, but also denied trial of any
kind. In some instances, they may even be liquidated unceremoniously. What is then
sought by the suspension of the privilege of the writ of habeas corpus is, among
others, to put the government forces on equal fighting terms with the rebels, by
authorizing the detention of their own rebel or dissident captives as the rebellion
goes on. In this way, the advantage the rebellion forces have over those of the
government, as when they resort to guerilla tactics with sophisticated weapons, is, at
least, minimized, thereby enhancing the latter's chances of beating their enemy. It
would, therefore, seem to be ignoring realities in the name of misplaced
magnanimity and compassion, and for the sake of humanity, to grant the demand for
respect of rights supposedly guaranteed by the Constitution by those who
themselves seek to destroy that very same instrument, trampling over it already as
they are still waging war against the government. This stark actuality gives added
force and substance to the rationale of the suspension of the privilege of the writ of
habeas corpus in case of invasion, insurrection, rebellion, or imminent danger
thereof, when public safety requires it.
6. Invoking the Lansang case, 9 however, petitioners would ask this Court to review
the issuance of the PCO against them, intimating that arbitrariness attended its
issuance because, relying on the evidence supposedly available in the hands of the
military, they claim they are not guilty of rebellion. They also contend that the
provisions of LOI No. 1211 have not been complied with.
The Lansang case went no further than to pronounce the suspension of the writ of
the privilege of habeas corpus on August 21, 1971, valid and constitutional, on a
finding that there was no arbitrariness attendant to the suspension. It never intended
to suggest that for every individual case of arrest and detention, the writ of habeas
corpus is available, even after the suspension of this privilege, to question the legality
of the arrest and detention on ground of arbitrariness. When a person is charged in
court for an ordinary offense, the law does not authorize the filing of a petition for
habeas corpus based on the ground that there is absolutely no evidence to hold him
for trial, which, in effect, constitutes an allegation of arbitrariness in the filing of the
case against him. The law has afforded him adequate safeguards against
arbitrariness, such as the requirement of determining the existence of a probable
cause by the judge before the issuance of the warrant of arrest. The finding of such
probable cause may not be immediately brought for review by this Court in a habeas
corpus proceeding, on the claim of arbitrariness. The matter is to be decided on the
basis of the evidence, and this Court is not the proper forum for the review sought,
not being a trier of facts. If such a procedure were allowed, it would be easy to delay
and obstruct the prosecution of an offense by a resort to a petition for habeas corpus
based on arbitrariness, which most accuse, if not all, would be most inclined,
specially when they are out on bail. The petition now before Us is exactly one of this
kind. If granted, the effect is to transfer the jurisdiction of the trial courts in criminal
cases to this Court, which is simply inconceivable. Moreover, arbitrariness, while so
easy to allege, is hard to prove, in the face of the formidable obstacle built up by the
presumption of regularity in the performance of official duty. Unexhilaratingly, this is
the revealing experience of this Court in the Lansang case, where it doubtlessly
realized how hardly possible it is to adduce evidence or proof upon which to show
the President having acted with arbitrariness.
7. The last question relates to the legality of the Presidential Commitment Order
(PCO) issued by the President on July 12, 1982, tested by the conformity of its
issuance to the procedure laid down under LOI 1211, petitioners insisting that the LOI
limits the authority of the President to cause the arrest and detention of persons
engaged in or charged with, the crimes mentioned in Proclamation No. 2045. They
contend that the procedure prescribed in the LOI not having been observed, the PCO
issued thereunder did not validate the initial illegal arrest of the herein petitioners as
wen as their continued detention.
It must be noted that LOI No. 1211, which provides the guidelines in the arrest and
detention of persons engaged in, or charged with, the crimes mentioned in
Proclamation No. 2045, charged with, the crimes mentioned contemplates of three
situations when an arrest can be made, to wit:
1. The arrest and detention effected by virtue of a warrant issued by a judge;
2. The arrest and detention effected by a military commander or the head of a law
enforcement agency after it is determined that the person or persons to be arrested
would probably escape or commit further acts which would endanger public order
and safety. After the arrest, however, the case shall be immediately referred to the
city or provincial fiscal or to the municipal, city, circuit, or district judge for
preliminary examination or investigation who, if the evidence warrants, shall file the
corresponding charges and, thereafter, we a warrant of arrest;
3. The military commander or the head of the law enforcement agency may apply to
the President thru the Minister of National Defense, for a Presidential Commitment
Order under the following circumstances:
(a) When resort to judicial process is  not possible or expedient without endangering
public order and safety; or
(b) When the release on bail of the person or persons already under arrest by virtue
of a judicial warrant would endanger said public order and safety.
Petitioners appear to place entire reliance on paragraphs 1 and 2 of LOI No. 1211,
ignoring paragraph 3 of LOI No. 1211, which provides:
3. The above notwithstanding, the military commander or the head of the law
enforcement agency may apply to the President thru the Minister of National
Defense, for a Presidential Commitment Order covering the person or persons
believed to be participants in the commission of the crimes referred to in paragraph
1 under the following circumstances:
(a) When resort to judicial process is not possible or expedient without endangering
public order and safety; or
(b) When the release on bail of the person or persons already under arrest by virtue
of a judicial warrant would endanger said public order and safety.
The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged
necessity of judicial warrant before a person may be arrested and detained is not
well-founded. Neither is the contention that paragraph 3 of LOI 1211 applies only
when judicial process is not possible. This is a narrow and constricted interpretation
of LOI 1211 when viewed in its entirety. Even in instances when a resort to judicial
process is possible, where, in the judgment of the President, a resort thereto would
not be expedient because it would endanger the public order or safety, a PCO is
justified. So, too, when release on bail in the ordinary judicial process will invite the
same danger.
By its very nature, and clearly by its language, LOI 1211 is a mere directive of the
President as Commander-in-Chief of the Armed Forces of the Philippines to his
subordinates or implementing officers for the ultimate objective of providing
guidelines in the arrest and detention of the persons covered by Presidential
Proclamation No. 2045. The purpose is "to insure protection to individual
liberties without sacrificing the requirements of public order and safety and the
effectiveness of the campaign against those seeking the forcible overthrow of the
government and duty constituted authorities. " LOI 1211 does not, in any manner,
limit the authority of the President to cause the arrest and detention of persons
engaged in, or charged with the crimes or offenses mentioned in said Proclamation in
that he (President) would subject himself to the superior authority of the judge who,
under normal judicial processes in the prosecution of the common offenses, is the
one authorized to issue a judicial warrant after a preliminary investigation is
conducted with a finding of probable cause. Those who would read such an intention
on the part of the President in issuing LOI 1211 seems to do so in their view that LOI
forms part of the law of the land under the 1976 amendment of the
Constitution. 10 They would then contend that a PCO issued not in compliance with
the provisions of the LOI would be an illegality and of no effect.
To form part of the law of the land, the decree, order or LOI must be issued by the
President in the exercise of his extraordinary power of legislation as contemplated in
Section 6 of the 1976 amendments to the Constitution, whenever in his judgment,
there exists a grave emergency or a threat or imminence thereof, or whenever the
interim Batasan Pambansa or the regular National Assembly fails or is unable to act
adequately on any matter for any reason that in his judgment requires immediate
action. There can be no pretense, much less a showing, that these conditions
prompted the President to issue LOI 1211. Verily, not all LOI issued by the President
should be dignified into forming part of the law of the land.
In the event then that the judge believes no warrant shall issue, the President, under
Presidential Proclamation No. 2045 and Letter of Instruction No. 1211, is not bound
by such finding, as explicitly provided in paragraph 2 of LOI 1211. That the President
avails of the facilities of the judicial machinery, as is the clear intent of LOI 1211, to
aid him in exercising his power to restrain personal liberty, as dictated by the
necessities and exigencies of the emergency, does not indicate any intention on his
part to renounce or to allow even mere curtailment of his power such that the
judicial process will thereupon take its normal course, under which the detainees or
accused would then be entitled to demand their right of due process, particularly in
relation to their personal liberty. 11 The issuance of the PCO by the President
necessarily constitutes a finding that the conditions he has prescribed in LOI 1211 for
the issuance of that PCO have been met, and intends that the detention would be
pursuant to the executive process incident to the government campaign against the
rebels, subversives and dissidents waging a rebellion or insurrection. The ruling in the
Nava vs. Gatmaitan case,* as above intimated, must have shown him that to
prosecute the offense through the judicial process of forthwith instead of deferring
it, would neither be wise nor expedient if he were to deal effectively with the grave
emergency at hand.
What has been said above shows the need of reexamining the Lansang case with a
view to reverting to the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905 decision,
and Montenegro vs. Castaneda, 91 Phil. 882 (1952), that the President's decision to
suspend the privilege of the writ of habeas corpus is "final and conclusive upon the
courts, and all other persons." This well-settled ruling was diluted in the Lansang case
which declared that the "function of the Court is merely to check — not to supplant
— the Executive, or ascertain merely whether he has gone beyond the constitutional
limits of his jurisdiction not to exercise the power vested in him or to determine the
wisdom of his act." Judicial interference was thus held as permissible, and the test as
laid down therein is not whether the President acted correctly but whether he acted
arbitrarily. This would seem to be pure semanticism, if We consider that with
particular reference to the nature of the actions the President would take on the
occasion of the grave emergency he has to deal with, which, as clearly indicated in
Section 9, Art. VII of the Constitution partakes of military measures, the judiciary can,
with becoming modesty, ill afford to assume the authority to check or reverse or
supplant the presidential actions. On these occasions, the President takes absolute
command, for the very life of the Nation and its government, which, incidentally,
includes the courts, is in grave peril. In so doing, the President is answerable only to
his conscience, the people and to God. For their part, in giving him the supreme
mandate as their President, the people can only trust and pray that, giving him their
own loyalty with utmost patriotism, the President will not fail them.
In his separate opinion in the Lansang case, then Justice Fernando, now our learned
Chief Justice, went along with the proposition that the decision of the Executive in
the exercise of his power to suspend the privilege of the writ of habeas corpus is his
alone, and in his own language, is "ordinarily beyond the ken of the Courts." This is
so, as the Founding Fathers must have felt that in the particular situations at hand,
the Executive and the Judiciary should maintain a mutually deferential attitude. This
is the very essence of the doctrine of "political question, " as determining the
justiciability of a case. The wisdom of this concept remains well-recognized in
advanced constitutional systems. To erase it from our own system as seems to be
what was done in the Lansang case, may neither be proper nor prudent. A good
example could be given in the exercise of the presidential power of pardon which is
beyond judicial review, specially under the new Constitution where the condition
that it may be granted only after final conviction has been done away with.
True, the Constitution is the law "equally in war and in peace," 12 as Chief Justice
Fernando cited in his brilliant separate opinion in the same Lansang case. Precisely, it
is the Constitution that gives the President specific "military power" in times of
warlike conditions as exist on the occasion of invasion, insurrection or rebellion. Both
power and right are constitutionally granted, with the difference that the guarantee
of the right to liberty is for personal benefit, while the grant of the presidential
power is for public safety. Which of the two enjoys primacy over the other is all too
obvious. For the power is intended as a limitation of the right, in much the same way
as individual freedom yields to the exercise of the police power of the State in the
interest of general welfare. The difference again is that the power comes into being
during extreme emergencies the exercise of which, for complete effectiveness for the
purpose it was granted should not permit intereference, while individual freedom is
obviously for full enjoyment in time of peace, but in time of war or grave peril to the
nation, should be limited or restricted. In a true sense then, our Constitution is for
both peacetime and in time of war; it is not that in time of war the Constitution is
silenced. The Founding Fathers, with admirable foresight and vision, inserted
provisions therein that come into play and application in time of war or similar
emergencies. So it is that, as proclaimed by the Constitution, the defense of the State
is a prime duty of government. Compulsory military service may be imposed,
certainly a mandate that derogates on the right to personal liberty. It, therefore,
becomes self-evident that the duty of the judiciary to protect individual rights must
yield to the power of the Executive to protect the State, for if the State perishes, the
Constitution, with the Bill of Rights that guarantees the right to personal liberty,
perishes with it.
In times of war or national emergency, the legislature may surrender a part of its
power of legislation to the President. 13 Would it not be as proper and wholly
acceptable to lay down the principle that during such crises, the judiciary should be
less jealous of its power and more trusting of the Executive in the exercise of its
emergency powers in recognition of the same necessity? Verily, the existence of the
emergencies should be left to President's sole and unfettered determination. His
exercise of the power to suspend the privilege of the writ of habeas corpus on the
occasion thereof, should also be beyond judicial review. Arbitrariness, as a ground for
judicial inquiry of presidential acts and decisions, sounds good in theory but
impractical and unrealistic, considering how well-nigh impossible it is for the courts
to contradict the finding of the President on the existence of the emergency that
gives occasion for the exercise of the power to suspend the privilege of the writ. For
the Court to insist on reviewing Presidential action on the ground of arbitrariness
may only result in a violent collision of two jealous powers with tragic consequences,
by all means to be avoided, in favor of adhering to the more desirable and long-
tested doctrine of "political question" in reference to the power of judicial review. 14
Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason
for the reexamination of the Lansang doctrine and reversion to that of Barcelon vs.
Baker  and Montenegro vs. Castaneda.
Accordingly, We hold that in times of war and similar emergency as expressly
provided in the Constitution, the President may suspend the privilege of the writ of
habeas corpus, which has the effect of allowing the Executive to defer the
prosecution of any of the offenses covered by Proclamation No. 2045, including, as a
necessary consequence, the withholding for the duration of the suspension of the
privilege, of the right to bail. The power could have been vested in Congress, instead
of the President, as it was so vested in the United States for which reason, when
President Lincoln himself exercised the power in 1861, Chief Justice Taney of the U.S.
Supreme Court expressed the opinion that Congress alone possessed this power
under the Constitutional., 15 Incidentally, it seems unimaginable that the judiciary
could subject the suspension, if decreed through congressional action, to the same
inquiry as our Supreme Court did with the act of the President, in the Lansang case,
to determine if the Congress acted with arbitrariness.

We further hold that under LOI 1211, a Presidential Commitment Order, the issuance
of which is the exclusive prerogative of the President under the Constitution, may not
be declared void by the courts, under the doctrine of "political question," as has been
applied in the Baker and Castaneda cases, on any ground, let alone its supposed
violation of the provision of LOI 1211, thus diluting, if not abandoning the doctrine of
the Lansang case. The supreme mandate received by the President from the people
and his oath to do justice to every man should be sufficient guarantee, without need
of judicial overseeing, against commission by him of an act of arbitrariness in the
discharge particularly of those duties imposed upon him for the protection of public
safety which in itself includes the protection of life, liberty and property. This Court is
not possessed with the attribute of infallibility that when it reviews the acts of the
President in the exercise of his exclusive power, for possible fault of arbitrariness, it
would not itself go so far as to commit the self-same fault.

Finally, We hold that upon the issuance of the Presidential Commitment Order
against herein petitioners, their continued detention is rendered valid and legal, and
their right to be released even after the filing of charges against them in court, to
depend on the President, who may order the release of a detainee or his being
placed under house arrest, as he has done in meritorious cases.

WHEREFORE, the instant petition should be, as it is hereby dismissed.

SO ORDERED.