Republic of the Philippines may, by law, vest the

SUPREME COURT appointment of other officers

Manila lower in rank in the President
alone, in the courts, or in the
EN BANC heads of the departments,
agencies, commissions or
G.R. No. 86439 April 13, 1989 boards.

MARY CONCEPCION BAUTISTA, petitioner, The President shall have the

power to make appointments
vs.
SENATOR JOVITO R. SALONGA, during the recess of the
COMMISSION ON APPOINTMENTS Congress, whether voluntary or
COMMITTEE ON JUSTICE, JUDICIAL AND compulsory, but such
BAR COUNCIL AND HUMAN RIGHTS AND appointments shall be effective
HESIQUIO R. MALLILLIN, respondents. only until disapproval by the
Commission on Appointments or
until the next adjournment of the
Mary Concepcion Bautista for and in her own Congress.
behalf.
this Court, drawing extensively from the
Christine A.Tomas Espinosa for private proceedings of the 1986 Constitutional
respondent Hesiquio R. Mallillin Commission and the country's experience under
the 1935 and 1973 Constitutions, held that only
those appointments expressly mentioned in the
first sentence of Sec. 16, Art. VII are to be
PADILLA, J.: reviewed by the Commission on Appointments,
namely, "the heads of the executive department,
The Court had hoped that its decision ambassadors, other public ministers and consuls,
in Sarmiento III vs. Mison, 1 would have settled or officers of the armed forces from the rank of
the question of which appointments by the colonel or naval captain, and other officers whose
President, under the 1987 Constitution, are to be appointments are vested in him in this
made with and without the review of the Constitution." All other appointments by the
Commission on Appointments. The Mison case President are to be made without the participation
was the first major case under the 1987 of the Commission on Appointments.
Constitution and in construing Sec. 16, Art. VII of Accordingly, in the Mison case, the appointment
the 1987 Constitution which provides: of therein respondent Salvador M. Mison as head
of the Bureau of Customs, without the
confirmation of the Commission on
The President shall nominate
Appointments, was held valid and in accordance
and, with the consent of the
with the Constitution.
Commission on Appointments,
appoint the heads of the
executive departments, The Mison case doctrine did not foreclose
ambassadors, other public contrary opinions. So with the very provisions of
ministers and consuls, or officers Sec. 16, Art. VII as designed by the framers of the
of the armed forces from the rank 1987 Constitution. But the Constitution, as
of colonel or naval captain, and construed by this Court in appropriate cases, is
other officers whose the supreme law of the land. And it cannot be
appointments are vested in him over-stressed that the strength of the
in this Constitution. He shall also Constitution, with all its imperfections, lies in the
appoint all other officers of the respect and obedience accorded to it by the
Government whose people, especially the officials of government,
appointments are not otherwise who are the subjects of its commands.
provided for by law, and those
whom he may be authorized by Barely a year after Mison, the Court is again
law to appoint. The Congress confronted with a similar question, this time,
whether or not the appointment by the President The above conclusions appear to be plainly
of the Chairman of the Commission on Human evident and, therefore, irresistible. However, the
Rights (CHR), an "independent office" created by presence in this case of certain elements —
the 1987 Constitution, is to be made with or absent in the Mison case — makes necessary a
without the confirmation of the Commission on closer scrutiny. The facts are therefore essential.
Appointments (CA, for brevity). Once more, as
in Mison, the Court will resolve the issue On 27 August 1987, the President of the
irrespective of the parties involved in the litigation, Philippines designated herein petitioner Mary
mindful that what really matters are the principles Concepcion Bautista as "Acting Chairman,
that will guide this Administration and others in Commission on Human Rights." The letter of
the years to come. designation reads:

Since the position of Chairman of the 27 August 1987

Commission on Human Rights is not among the
positions mentioned in the first sentence of Sec.
M a d a m:
16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the
confirmation of the Commission on You are hereby designated
Appointments, it follows that the appointment by ACTING CHAIRMAN,
the President of the Chairman of the (CHR), is to COMMISSION ON HUMAN
be made without the review or participation of the RIGHTS, to succeed the late
Commission on Appointments. Senator Jose W. Diokno and
Justice J. B. L. Reyes.
To be more precise, the appointment of the
Chairman and Members of the Commission on
Human Rights is not specifically provided for in
the Constitution itself, unlike the Chairmen and
Members of the Civil Service Commission, the
Commission on Elections and the Commission on
Audit, whose appointments are expressly vested
by the Constitution in the President with the
consent of the Commission on Appointments. 2

The President appoints the Chairman and

Members of the Commission on Human Rights
pursuant to the second sentence in Section 16,
Art. VII, that is, without the confirmation of the
Commission on Appointments because they are
among the officers of government "whom he (the
President) may be authorized by law to appoint."
And Section 2(c), Executive Order No. 163, 5 May
1987, authorizes the President to appoint the
Chairman and Members of the Commission on
Human Rights. It provides:

(c) The Chairman and the

Members of the Commission on
Human Rights shall be
appointed by the President for a
term of seven years without
reappointment. Appointment to
any vacancy shall be only for the
unexpired term of the
predecessor.
HON. MARY CONCEPCION BAUTISTA 3 MONTEIRO —
Member
Realizing perhaps the need for a permanent
chairman and members of the Commission on By virtue hereof, they may
Human Rights, befitting an independent office, as qualify and enter upon the
mandated by the Constitution, 4 the President of performance of the duties of the
the Philippines on 17 December 1988 extended office furnishing this Office and
to petitioner Bautista a permanent appointment the Civil Service Commission
as Chairman of the Commission. The with copies of their oath of office.
appointment letter is as follows:

1
7
D
e
c
e
m
b
e
r
1
9
8
8

The Honorable
The Chairman
Commission on Human Rights
Pasig, Metro Manila

M a d a m:

Pursuant to the provisions of

existing laws, the following are
hereby appointed to the
positions indicated opposite their
respective names in the
Commission on Human Rights:

MARY
CONCEPCION
BAUTISTA —
Chairman
ABELARDO L. It is to be noted that by virtue of such
appointment, petitioner Bautista was advised by
APORTADERA,
the President that she could qualify and enter
JR — Member
upon the performance of the duties of the office
SAMUEL
of Chairman of the Commission on Human
SORIANO —
Member Rights, requiring her to furnish the office of the
HESIQUIO R. President and the Civil Service Commission with
copies of her oath of office.
MALLILLIN —
Member
NARCISO C. On 22 December 1988, before the Chief Justice
of this Court, Hon. Marcelo B. Fernan, petitioner
Bautista took her oath of office by virtue of her
appointment as Chairman of the Commission on
Human Rights. The full text of the oath of office is
as follows:

OATH OF OFFICE

I, MARY CONCEPCION
BAUTISTA of 3026 General G.
del Pilar Street, Bangkal, Makati,
Metro Manila having been
appointed to the position
of CHAIRMAN of the
Commission on Human Rights,
do solemnly swear that I will
discharge to the best of my ability
all the duties and responsibilities
of the office to which I have been
appointed; uphold the
Constitution of the Republic of
the Philippines, and obey all the
laws of the land without mental
reservation or purpose of
evasion.

SO HELP ME GOD.

M
A
R
Y
C
O
N
C
E
P
C
I
O
N
B
A
U
T
I
S
T
A

SUBSCRIBED AND SWORN

TO before me this 22nd day of
December in the year of Our
Lord, 1988 in Manila.
 SENATE PRESIDENT JOVITO
s
R. SALONGA
Chairman 6

Commission on Appointments
Immediately, after taking her oath of office as Senate, Manila
Chairman of the Commission on Human Rights,
petitioner Bautista discharged the functions and S i r:
duties of the Office of Chairman of the
Commission on Human Rights which, as We acknowledge receipt of the
previously stated, she had originally held merely communication from the
in an acting capacity beginning 27 August 1987. Commission on Appointments
requesting our appearance on
On 9 January 1989, petitioner Bautista received January 19, 1989 for deliberation
a letter from the Secretary of the Commission on on our appointments.
Appointments requesting her to submit to the
Commission certain information and documents We respectfully submit that the
as required by its rules in connection with the appointments of the Commission
confirmation of her appointment as Chairman of commissioners of the Human
the Commission on Human Rights. 7 On 10 Rights Commission are not
January 1989, the Commission on Appointments' subject to confirmation by the
Secretary again wrote petitioner Bautista Commission on Appointments.
requesting her presence at a meeting of the
Commission on Appointments Committee on
The Constitution, in Article VII
Justice, Judicial and Bar Council and Human Section 16 which expressly
Rights set for 19 January 1989 at 9 A.M. at the
vested on the President the
Conference Room, 8th Floor, Kanlaon Tower I,
appointing power, has expressly
Roxas Boulevard, Pasay City that would
mentioned the government
deliberate on her appointment as Chairman of the
officials whose appointments are
Commission on Human Rights. 8 subject to the confirmation of the
Commission on Appointments of
On 13 January 1989, petitioner Bautista wrote to Congress. The Commissioners
the Chairman of the Commission on of the Commission on Human
Appointments stating, for the reasons therein Rights are not included among
given, why she considered the Commission on those.
Appointments as having no jurisdiction to review
her appointment as Chairman of the Commission
Where the confirmation of the
on Human Rights. The petitioner's letter to the
Commission on Appointments is
Commission on Appointments' Chairman reads:
required, as in the case of the
Constitutional Commissions
such as the Commission on J
Audit, Civil Service Commission a
and the Commission on n
Elections, it was expressly u
provided that the nominations a
will be subject to confirmation of r
Commission on Appointments. y
The exclusion again of the 1
Commission on Human Rights, a 3
constitutional office, from this ,
enumeration is a clear denial of 1
authority to the Commission on 9
Appointments to review our 8
appointments to the Commission 9
on Human Rights.
Furthermore, the Constitution Commissioners of the
specifically provides that this Commission on Human Rights.
Commission is an independent
office which: In view of the foregoing
considerations, as Chairman of
a. must an independent constitutional
investigate all office. I cannot submit myself to
forms of human the Commission on
rights violations Appointments for the purpose of
involving civil confirming or rejecting my
and political appointment.
rights;

b. shall monitor
the
government's
compliance in
all our treaty
obligations on
human rights.
We submit that,
the monitoring
of all agencies
of government,
includes even
Congress itself,
in the
performance of
its functions
which may
affect human
rights;

c. may call on all

agencies of
government for
the
implementation
of its mandate.

The powers of the Commission

on Appointments is in fact a
derogation of the Chief
Executive's appointing power
and therefore the grant of that
authority to review a valid
exercise of the executive power
can never be presumed. It must
be expressly granted.

The Commission on
Appointments has no jurisdiction
under the Constitution to review
appointments by the President of
 assembled in plenary (session) m
on the same day, disapproved a
Atty. Bautista's ad n
interim appointment as 9

Chairperson of the Commission

In respondent Commission's comment (in this on Human Rights in view of her
case), dated 3 February 1989, there is attached refusal to submit to the
as Annex 1 a letter of the Commission on jurisdiction of the Commission on
Appointments' Secretary to the Executive Appointments.
Secretary, Hon. Catalino Macaraig, Jr. making
reference to the "ad interim appointment which This is to inform you that the
Her Excellency extended to Atty. Mary Commission on Appointments,
Concepcion Bautista on 14 January 1989 as likewise assembled in plenary
Chairperson of the Commission on Human (session) earlier today, denied
Rights" 10 and informing Secretary Macaraig that, Senator Mamintal A. J.
as previously conveyed to him in a letter of 25 Tamano's motion for
January 1989, the Commission on Appointments reconsideration of the
disapproved petitioner Bautista's "ad disapproval of Atty. Bautista's ad
interim appointment' as Chairperson of the interim appointment as
Commission on Human Rights in view of her Chairperson of the Commission
refusal to submit to the jurisdiction of the on Human Rights.
Commission on Appointments. The letter reads:

HON. CATALINO MACARAIG,

JR.
Executive Secretary
Malacanang, Manila

S i r:

This refers to the ad

interim appointment which Her
Excellency extended to Atty.
Mary Concepcion Bautista on 14
January 1989 as Chairperson of
the Commission on Human
Rights.

As we conveyed to you in our

letter of 25 January 1989, the
Commission on Appointments,
 Chairperson of the Commission
on Human Rights is respectfully
conveyed.

Thank you for your attention.

On the same date (1 February 1989), the

Commission on Appointments' Secretary
informed petitioner Bautista that the motion for
reconsideration of the disapproval of her "ad
interim appointment as Chairman of the
Commission on Human Rights" was denied by
the Commission on Appointments. The letter
reads as follows:

1
F
e
b
r
u
a
r
y
1
9
8
9

ATTY. MARY CONCEPCION

BAUTISTA
Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila

Dear Atty. Bautista:

Pursuant to Sec. 6 (a), Chapter II

of the Rules of the Commission
on Appointments, the denial by
the Commission on
Appointments, assembled in
plenary (session) earlier today,
of Senator Mamintal A.J.
Tamano's motion for In Annex 3 of respondent Commission's same
reconsideration of the comment, dated 3 February 1989, is a news item
disapproval of your ad appearing in the 3 February 1989 issue of the
interim appointment as "Manila Standard" reporting that the President
had designated PCHR Commissioner Hesiquio unlawful and unconstitutional and without any
R. Mallillin as "Acting Chairman of the legal force and effect any action of the
Commission" pending the resolution of Bautista's Commission on Appointments as well as of the
case which had been elevated to the Supreme Committee on Justice, Judicial and Bar Council
Court. The news item is here quoted in full, thus and Human Rights, on the lawfully extended
— appointment of the petitioner as Chairman of the
Commission on Human Rights, on the ground
Aquino names replacement for that they have no lawful and constitutional
MaryCon authority to confirm and to review her
appointment." 14
President Aquino has named
replacement for Presidential The prayer for temporary restraining order was
Commission on Human Rights "to enjoin the respondent Commission on
Chairman Mary Concepcion Appointments not to proceed further with their
Bautista whose appointment was deliberation and/or proceedings on the
rejected anew by the appointment of the petitioner ... nor to enforce,
Congressional commission on implement or act on any order, resolution, etc.
appointments. issued in the course of their deliberations." 15

The President designated PCHR Respondents were required to file comment

commissioner Hesiquio R. within ten (10) days. 16 On 7 February 1989,
Mallillin as acting chairman of the petitioner filed an amended petition, with urgent
Commission pending the motion for restraining order, impleading
resolution of Bautista's case Commissioner Hesiquio R. Mallillin the
which had been elevated to the designated acting chairman as party respondent
Supreme Court. and praying for the nullification of his
appointment. The succeeding day, a
supplemental urgent ex-parte motion was filed by
The President's action followed
after Congressional Commission petitioner seeking to restrain respondent Mallillin
on Appointments Chairman, from continuing to exercise the functions of
chairman and to refrain from demanding courtesy
Senate President Jovito Salonga
resignations from officers or separating or
declared Bautista can no longer
dismissing employees of the Commission.
hold on to her position after her
appointment was not confirmed
for the second time. Acting on petitioner's amended petition and
supplemental urgent ex-parte motion, the Court
resolved to issue a temporary restraining order
For all practical purposes,
directing respondent Mallillin to cease and desist
Salonga said Bautista can be
from effecting the dismissal, courtesy resignation,
accused of usurpation of
authority if she insists to stay on i removal and reorganization and other similar
her office. personnel actions. 17 Respondents were likewise
required to comment on said amended petition
with allowance for petitioner to file a reply within
In effect, the President had two (2) days from receipt of a copy thereof.
asked Bautista to vacate her
office and give way to Mallillin
Respondents Senator Salonga, the Commission
(Mari Villa) 13
on Appointments the Committee on J & BC and
Human Rights filed a comment to the amended
On 20 January 1989, or even before the petition on 21 February 1989. 18 Petitioner filed
respondent Commission on Appointments had her reply. 19 On 24 February 1989, respondent
acted on her "ad interimappointment as Chairman Mallillin filed a separate comment. 20 The Court
of the Commission on Human Rights" petitioner required petitioner to reply to respondent
Bautista filed with this Court the present petition Mallillin's comment . 21 Petitioner filed her
for certiorari with a prayer for the immediate reply. 22
issuance of a restraining order, to declare "as
In deference to the Commission on Rights). All that remained for Bautista to do was
Appointments, an instrumentality of a co-ordinate to reject or accept the appointment. Obviously,
and co-equal branch of government, the Court did she accepted the appointment by taking her oath
not issue a temporary restraining order directed of office before the Chief Justice of the Supreme
against it. However, this does not mean that the Court, Hon. Marcelo B. Fernan and assuming
issues raised by the petition, as met by the immediately thereafter the functions and duties of
respondents' comments, will not be resolved in the Chairman of the Commission on Human
this case. The Court will not shirk from its duty as Rights. Bautista's appointment therefore on 17
the final arbiter of constitutional issues, in the December 1988 as Chairman of the Commission
same way that it did not in Mison. on Human Rights was a completed act on the part
of the President. To paraphrase the great jurist,
As disclosed by the records, and as previously Mr. Chief Justice Marshall, in the celebrated case
adverted to, it is clear that petitioner Bautista was of Marbury vs. Madison. 23
extended by Her Excellency, the President a
permanent appointment as Chairman of the xxx xxx xxx
Commission on Human Rights on 17 December
1988. Before this date, she was merely the The answer to this question
"Acting Chairman" of the Commission. Bautista's seems an obvious one. The
appointment on 17 December 1988 is an appointment being the sole act of
appointment that was for the President solely to the President, must be
make, i.e., not an appointment to be submitted for completely evidenced, when it is
review and confirmation (or rejection) by the shown that he has done
Commission on Appointments. This is in everything to be performed by
accordance with Sec. 16, Art. VII of the 1987 him.
Constitution and the doctrine in Mison which is
here reiterated.
xxx xxx xxx

The threshold question that has really come to the

Some point of time must be
fore is whether the President, subsequent to her taken when the power of the
act of 17 December 1988, and after petitioner executive over an officer, not
Bautista had qualified for the office to which she
removable at his will must cease.
had been appointed, by taking the oath of office
That point of time must be when
and actually assuming and discharging the
the constitutional power of
functions and duties thereof, could extend
appointment has been
another appointment to the petitioner on 14
exercised. And this power has
January 1989, an "ad interim appointment" as
been exercised when the last
termed by the respondent Commission on
act, required from the person
Appointments or any other kind of appointment to
possessing the power, has been
the same office of Chairman of the Commission
performed. ....
on Human Rights that called for confirmation by
the Commission on Appointments.
xxx xxx xxx
The Court, with all due respect to both the
Executive and Legislative Departments of But having once made the
government, and after careful deliberation, is appointment, his (the
constrained to hold and rule in the negative. President's) power over the
When Her Excellency, the President converted office is terminated in all cases,
petitioner Bautista's designation as Acting where by law the officer is not
Chairman to a permanent appointment as removable by him. The right to
Chairman of the Commission on Human Rights the office is then in the person
on 17 December 1988, significantly she advised appointed, and he has the
Bautista (in the same appointment letter) that, by absolute, unconditional power of
virtue of such appointment, she could qualify and accepting or rejecting it.
enter upon the performance of the duties of the
office (of Chairman of the Commission on Human xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER The exercise of political options that finds no
BAUTISTA ON 14 JANUARY 1989 support in the Constitution cannot be sustained.

It is respondent Commission's submission that Nor can the Commission on Appointments, by the
the President, after the appointment of 17 actual exercise of its constitutionally delimited
December 1988 extended to petitioner Bautista, power to review presidential appointments,
decided to extend another appointment (14 create power to confirm appointments that the
January 1989) to petitioner Bautista, this time, Constitution has reserved to the President alone.
submitting such appointment (more accurately, Stated differently, when the appointment is one
nomination) to the Commission on Appointments that the Constitution mandates is for the
for confirmation. And yet, it seems obvious President to make without the participation of the
enough, both in logic and in fact, that no new or Commission on Appointments, the executive's
further appointment could be made to a position voluntary act of submitting such appointment to
already filled by a previously completed the Commission on Appointments and the latter's
appointment which had been accepted by the act of confirming or rejecting the same, are done
appointee, through a valid qualification and without or in excess of jurisdiction.
assumption of its duties.
EVEN IF THE PRESIDENT MAY VOLUNTARILY
Respondent Commission vigorously contends SUBMIT TO THE COMMISSION ON
that, granting that petitioner's appointment as APPOINTMENTS AN APPOINTMENT THAT
Chairman of the Commission on Human Rights is UNDER THE CONSTITUTION SOLELY
one that, under Sec. 16, Art. VII of the BELONGS TO HER, STILL, THERE WAS NO
Constitution, as interpreted in the Mison case, is VACANCY TO WHICH AN APPOINTMENT
solely for the President to make, yet, it is within COULD BE MADE ON 14 JANUARY 1989
the president's prerogative to voluntarily submit
such appointment to the Commission on Under this heading, we will assume, ex gratia
Appointment for confirmation. The mischief in this argumenti, that the Executive may voluntarily
contention, as the Court perceives it, lies in the allow the Commission on Appointments to
suggestion that the President (with Congress exercise the power of review over an appointment
agreeing) may, from time to time move power otherwise solely vested by the Constitution in the
boundaries, in the Constitution differently from President. Yet, as already noted, when the
where they are placed by the Constitution. President appointed petitioner Bautista on 17
December 1988 to the position of Chairman of the
The Court really finds the above contention Commission on Human Rights with the advice to
difficult of acceptance. Constitutional Law, to her that by virtue of such appointment (not, until
begin with, is concerned with power not political confirmed by the Commission on Appointments),
convenience, wisdom, exigency, or even she could qualify and enter upon the performance
necessity. Neither the Executive nor the of her duties after taking her oath of office, the
Legislative (Commission on Appointments) can presidential act of appointment to the subject
create power where the Constitution confers position which, under the Constitution, is to be
none. The evident constitutional intent is to strike made, in the first place, without the participation
a careful and delicate balance, in the matter of of the Commission on Appointments, was then
appointments to public office, between the and there a complete and finished act, which,
President and Congress (the latter acting through upon the acceptance by Bautista, as shown by
the Commission on Appointments). To tilt one her taking of the oath of office and actual
side or the other of the scale is to disrupt or alter assumption of the duties of said office, installed
such balance of power. In other words, to the her, indubitably and unequivocally, as the lawful
extent that the Constitution has blocked off Chairman of the Commission on Human Rights
certain appointments for the President to make for a term of seven (7) years. There was thus no
with the participation of the Commission on vacancy in the subject office on 14 January 1989
Appointments, so also has the Constitution to which an appointment could be validly made.
mandated that the President can confer no power In fact, there is no vacancy in said office to this
of participation in the Commission on day.
Appointments over other appointments
exclusively reserved for her by the Constitution.
Nor can respondents impressively contend that WHEREAS, the Constitution
the new appointment or re-appointment on 14 does not prescribe the term of
January 1989 was an ad interim appointment, office of the Chairman and
because, under the Constitutional design, ad Members of the Commission on
interim appointments do not apply to Human Rights unlike those of
appointments solely for the President to make, other Constitutional
i.e., without the participation of the Commission Commissions;
on Appointments. Ad interim appointments, by
their very nature under the 1987 Constitution, NOW, THEREFORE, I,
extend only to appointments where the review of CORAZON C. AQUINO,
the Commission on Appointments is needed. President of the Philippines, do
That is why ad interim appointments are to hereby order:
remain valid until disapproval by the Commission
on Appointments or until the next adjournment of SECTION 1. Section 2, sub-
Congress; but appointments that are for the paragraph (c) of Executive Order
President solely to make, that is, without the
No. 163 is hereby amended to
participation of the Commission on
read as follows:
Appointments, can not be ad
interim appointments.
The Chairman and Members of
the Commission on Human
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987,
Rights shall be appointed by the
PROVIDING THAT THE TENURE OF THE
President. Their tenure in office
CHAIRMAN AND MEMBERS OF THE
shall be at the pleasure of the
COMMISSION ON HUMAN RIGHTS SHALL BE
President.
AT THE PLEASURE OF THE PRESIDENT IS
UNCONSTITUTIONAL.
SEC. 2. This Executive Order
shall take effect immediately.
Respondent Mallillin contends that with or without
DONE in the City of Manila, this
confirmation by the Commission on 30th day of June, in the year of
Appointments, petitioner Bautista, as Chairman Our Lord, nineteen hundred and
of the Commission on Human Rights, can be
eighty-seven.
removed from said office at anytime, at the
pleasure of the President; and that with the
disapproval of Bautista's appointment
(nomination) by the Commission on
Appointments, there was greater reason for her
removal by the President and her replacement
with respondent Mallillin Thus, according to
respondent Mallillin the petition at bar has
become moot and academic.

We do not agree that the petition has become

moot and academic. To insist on such a posture
is akin to deluding oneself that day is night just
because the drapes are drawn and the lights are
on. For, aside from the substantive questions of
constitutional law raised by petitioner, the records
clearly show that petitioner came to this Court in
timely manner and has not shown any indication
of abandoning her petition.

Reliance is placed by respondent Mallillin on

Executive Order No. 163-A, 30 June 1987, full
text of which is as follows:
 Tenure in office should not be confused with term e
of office. As Mr. Justice (later, Chief Justice) s
Concepcion in his concurring opinion in Alba vs. i
Evangelista, 26 stated: d
e
The distinction between "term" n
and "tenure" is important, for, t
pursuant to the Constitution, "no o
officer or employee in the Civil f
Service may be removed or t
suspended except for cause, as h
provided by law" (Art. XII, section e
4), and this fundamental P
principle would be defeated if h
Congress could legally make the i
tenure of some officials l
dependent upon the pleasure of i
the President, by clothing the p
latter with blanket authority to p
replace a public officer before i
the expiration of his term. 27 n
e
s
When Executive Order No. 163 was issued, the
evident purpose was to comply with the
By the President: constitutional provision that "the term of office
and other qualifications and disabilities of the
(Sgd.) JOKER Members of the Commission (on Human Rights)
P. ARROYO shall be provided by law" (Sec. 17(2), Art. XIII,
Executive 1987 Constitution).
Secretary 24
As the term of office of the Chairman (and
Previous to Executive Order No. 163-A, or on 5 Members) of the Commission on Human Rights,
May 1987, Executive Order No. 163 25 was is seven (7) years, without reappointment, as
issued by the President, Sec. 2(c) of which provided by Executive Order No. 163, and
provides: consistent with the constitutional design to give
the Commission the needed independence to
Sec. 2(c). The Chairman and the perform and accomplish its functions and duties,
Members of the Commission on the tenure in office of said Chairman (and
Human Rights shall be Members) cannot be later made dependent on
appointed by the President for a the pleasure of the President.
term of seven years without
reappointment. Appointments to Nor can respondent Mallillin find support in the
any vacancy shall be only for the majority opinion in the Alba case, supra, because
unexpired term of the the power of the President, sustained therein, to
predecessor. replace a previously appointed vice-mayor of
Roxas City given the express provision in Sec. 8,
It is to be noted that, while the earlier executive Rep. Act No. 603 (creating the City of Roxas)
order (No. 163) speaks of a term of office of the stating that the vice-mayor shall serve at the
Chairman and Members of the Commission on pleasure of the President, can find no application
Human Rights — which is seven (7) years without to the Chairman of an INDEPENDENT OFFICE,
reappointment — the later executive order (163- created not by statute but by the Constitution
A) speaks of the tenure in office of the Chairman itself. Besides, unlike in the Alba case, here the
and Members of the Commission on Human Constitution has decreed that the Chairman and
Rights, which is "at the pleasure of the President." Members of the Commission on Human Rights
shall have a "term of office."
Indeed, the Court finds it extremely difficult to commissioner is subject to the
conceptualize how an office conceived and President, therefore, any human
created by the Constitution to be independent as rights violations committed under
the Commission on Human Rights-and vested the person's administration will
with the delicate and vital functions of be subject to presidential
investigating violations of human rights, pressure. That is what we would
pinpointing responsibility and recommending like to avoid — to make the
sanctions as well as remedial measures therefor, protection of human rights go
can truly function with independence and beyond the fortunes of different
effectiveness, when the tenure in office of its political parties or
Chairman and Members is made dependent on administrations in power. 28
the pleasure of the President. Executive Order
No. 163-A, being antithetical to the constitutional xxx xxx xxx
mandate of independence for the Commission on
Human Rights has to be declared MR. SARMIENTO (sponsor).
unconstitutional.
Yes, Madam President. I
conferred with the honorable
The Court is not alone in viewing Executive Order Chief Justice Concepcion and
No. 163-A as containing the seeds of its retired Justice J.B.L. Reyes and
constitutional destruction. The proceedings in the they believe that there should be
1986 Constitutional Commission clearly point to an independent Commission on
its being plainly at war with the constitutional Human Rights free from
intent of independence for the Commission. Thus executive influence because
— many of the irregularities on
human rights violations are
MR. GARCIA (sponsor). committed by members of the
Precisely, one of the reasons armed forces and members of
why it is important for this body to the executive branch of the
be constitutionalized is the fact government. So as to insulate
that regardless of who is the this body from political
President or who holds the interference, there is a need to
executive power, the human constitutionalize it. 29
rights issue is of such
importance that it should be xxx xxx xxx
safeguarded and it should be
independent of political parties or MR. SARMIENTO: On the
powers that are actually holding
inquiry on whether there is a
the reins of government. Our
need for this to be
experience during the martial law
constitutionalized, I would refer
period made us realize how
to a previous inquiry that there is
precious those rights are and, still a need for making this a
therefore, these must be constitutional body free or
safeguarded at all times.
insulated from interference. I
conferred with former Chief
xxx xxx xxx Justice Concepcion and the
acting chairman of the
MR. GARCIA. I would like to Presidential Committee on
state this fact: Precisely we do Human Rights, retired Justice
not want the term or the power of J.B.L. Reyes, and they are one in
the Commission on Human saying that this body should be
Rights to be coterminous with constitutionalized so that it will
the president, because the be free from executive control or
President's power is such that if interferences, since many of the
he appoints a certain abuses are committed by the
commissioner and that
members of the military or the May be what happened was that
armed forces. 30 it was referred to the wrong
committee. In the opinion of the
xxx xxx xxx committee, this need not be a
commission that is similar to the
three constitutional commissions
MR. SARMIENTO. Yes,
like the COA, the COMELEC,
Congress can create this body,
but as I have said, if we leave it and the Civil Service. It need not
to Congress, this commission be in that article. 33
will be within the reach of
politicians and of public officers xxx xxx xxx
and that to me is dangerous. We
should insulate this body from MR. COLAYCO. The
political control and political Commissioners earlier objection
interference because of the was that the Office of the
nature of its functions to President is not involved in the
investigate all forms of human project. How sure are we that the
rights violations which are next President of the Philippines
principally committed by will be somebody we can trust?
members of the military, by the Remember, even now there is a
Armed Forces of the growing concern about some of
Philippines. 31 the bodies, agencies and
commission created by
xxx xxx xxx President Aquino. 34

MR. GARCIA. The critical factor xxx xxx xxx

here is political control, and
normally, when a body is .... Leaving to Congress the
appointed by Presidents who creation of the Commission on
may change, the commission Human Rights is giving less
must remain above these importance to a truly
changes in political control. fundamental need to set up a
Secondly, the other important body that will effectively enforce
factor to consider are the armed the rules designed to uphold
forces, the police forces which human rights. 35
have tremendous power at their
command and, therefore, we PETITIONER BAUTISTA MAY OF COURSE BE
would need a commission REMOVED BUT ONLY FOR CAUSE
composed of men who also are
beyond the reach of these forces To hold, as the Court holds, that petitioner
and the changes in political
Bautista is the lawful incumbent of the office of
administration. 32
Chairman of the Commission on Human Rights
by virtue of her appointment, as such, by the
xxx xxx xxx President on 17 December 1988, and her
acceptance thereof, is not to say that she cannot
MR MONSOD. Yes, It is the be removed from office before the expiration of
committee's position that this her seven (7) year term. She certainly can be
proposed special body, in order removed but her removal must be for cause and
to function effectively, must be with her right to due process properly
invested with an independence safeguarded. In the case of NASECO vs.
that is necessary not only for its NLRC, 36 this Court held that before a rank-and-
credibility but also for the file employee of the NASECO, a government-
effectiveness of its work. owned corporation, could be dismissed, she was
However, we want to make a entitled to a hearing and due process. How much
distinction in this Constitution. more, in the case of the Chairman of
a constitutionally mandated INDEPENDENT Separate Opinions
OFFICE, like the Commission on Human Rights.

If there are charges against Bautista for

misfeasance or malfeasance in office, charges GUTIERREZ, JR., J.: Dissenting Opinion
may be filed against her with the Ombudsman. If
he finds a prima facie case against her, the
With all due respect for the contrary view of the
corresponding information or informations can be majority in the Court, I maintain that it is asking
filed with the Sandiganbayan which may in turn
too much to expect a constitutional ruling which
order her suspension from office while the case
results in absurd or irrational consequences to
or cases against her are pending before said
ever become settled.
court. 37 This is due process in action. This is the
way of a government of laws and not of men.
The President and Congress, the appointees
concerned, and the general public may in time
A FINAL WORD accept the Sarmiento III v. Mison ruling because
this Court has the final word on what
It is to the credit of the President that, in constitutional provisions are supposed to mean
deference to the rule of law, after petitioner but the incongruity will remain sticking out like a
Bautista had elevated her case to this Tribunal, sore thumb. Serious students of the Constitution
Her Excellency merely designated an Acting will continue to be disturbed until the meaning of
Chairman for the Commission on Human Rights the consent power of the Commission on
(pending decision in this case) instead of Appointments is straightened out either through a
appointing another permanent Chairman. The re-examination of this Court's decision or an
latter course would have added only more legal amendment to the Constitution.
difficulties to an already difficult situation.
Section 16, Article VII of the Constitution consists
WHEREFORE, the petition is GRANTED. of only three sentences. The officers specified in
Petitioner Bautista is declared to be, as she is, the the first sentence clearly require confirmation by
duly appointed Chairman of the Commission on the Commission on Appointments. The officers
Human Rights and the lawful incumbent thereof, mentioned in the third sentence just as clearly do
entitled to all the benefits, privileges and not require confirmation. The problem area lies
emoluments of said office. The temporary with those in the second sentence.
restraining order heretofore issued by the Court
against respondent Mallillin enjoining him from I submit that we should re-examine the three
dismissing or terminating personnel of the
groups of presidential appointees under the three
Commission on Human Rights is made
sentences of Section 16.
permanent.
The first group are the heads of executive
SO ORDERED. departments, ambassadors, other public
ministers and consuls, officers of the armed
Narvasa, Melencio-Herrera, Paras, Feliciano, forces from colonel or naval captain, and other
Gancayco, Bidin, Cortes and Regalado, JJ., officers whose appointments are vested in the
concur. President by the Constitution. The first sentence
of Section 16 state they must be confirmed by the
Fernan, C.J., took no part, having administered Commission on Appointments.
petitioner's oath of office.
The third group are officers lower in rank whose
Sarmiento, J., took no part, respondent Mallillin is appointments Congress has by law vested in the
my godson. President alone. They need no confirmation.

The second group of presidential appointees are

"all other officers of the Government whose
appointments are not otherwise provided for by
law and those whom he may be authorized by law
to appoint." To which group do they belong?- must also be appointed with the concurrence of
Group I requiring confirmation or Group 3 where the Commission on Appointments. When the
confirmation is not needed? Constitution requires Congress to specify who
may be appointed by the President alone, we
No matter how often and how long I read the should not add other and higher ranking officers
second sentence of Section 16, I simply cannot as also appointed by her alone. The strained
associate the officers mentioned therein as interpretation by the Court's majority makes the
forming part of those referred to in the third word "alone" meaningless if the officers to whom
sentence. "alone" is not appended are also included in the
third group.
Why am I constrained to hold this view?
(4) The third sentence of Section 16 requires a
(1) If the officers in the first group are the only positive act of Congress which vests an
appointees who need confirmation, there would appointment in the President alone before such
an appointment is freed from the scrutiny of the
be no need for the second and third sentences of
Commission on Appointments. By express
Section 16. They become superfluous. Any one
constitutional mandate, it is Congress which
not falling under an express listing would need no
determines who do not need confirmation. Under
confirmation. I think the Court is wrong in treating
two carefully crafted and significant provisions of the majority ruling of the Court, if Congress
the fundamental law as superfluities. Except for creates an important office and requires the
consent of the Commission before a presidential
the most compelling reasons, which do not exist
appointment to that office is perfected, such a
here, no constitutional provision should be
requirement would be unconstitutional. I believe
considered a useless surplusage.
that the Constitution was never intended to so
restrict the lawmaking power. The Court has no
(2) As strongly stressed by Justice Isagani Cruz jurisdiction to limit the plenary lawmaking power
here and in our earlier dissent, the majority view of the people's elected representatives through
results in the absurd consequence where one of an implied and, I must again add, a strained
several hundred colonels and naval captains reading of the plain text of Section 16. Any
must be confirmed but such important officers as restriction of legislative power must be
the Governor of the Central Bank with broad categorical, express, and specific-never implied
powers over the nation's economy and future or forced.
stability or the Chairman of the Commission on
Human Rights whose office calls for no less than
(5) The Constitution specifies clearly the
a constitutional mandate do not have to be
scrutinized by the Commission on Appointments. presidential appointees who do not need
Why should a minor consul to Timbuktu, Mali confirmation by the Commission. The reason for
non-confirmation is obvious. The members of the
need the thorough scrutiny during the
Supreme Court and all lower courts and the
confirmation process while the Undersecretary of
Ombudsman and his deputies are not confirmed
Foreign Affairs who sends him there and who
because the Judicial and Bar Council screens
exercises control over his acts can be appointed
by the President alone? Why should we interpret nominees before their names are forwarded to
Section 16 in such a strange and irrational the President. The Vice-President as a cabinet
member needs no confirmation because the
manner when no strained construction is needed
Constitution says so. He or she is chosen by the
to give it a logical and more traditional and
nation's entire electorate and is only a breath
understandable meaning.?
away from the Presidency. Those falling under
the third sentence of Section 16, Article VII do not
(3) The second sentence of Section 16 starts have to be confirmed because the Constitution
with, "He shall also appoint ...." Whenever we see gives Congress the authority to free lower ranking
the word "also" in a sentence, we associate it with officials whose positions are created by law from
preceding sentences, never with the different that requirement. I believe that we in the Court
sentence that follows. On the other hand, the third have no power to add by implication to the list of
sentence specifies "other officers lower in rank' presidential appointees whom the Constitution in
who are appointed pursuant to law by the clear and categorical words declares as not
President "alone." This can only mean that the needing confirmation.
higher ranking officers in the second sentence
(6) As stated in my dissent in Sarmiento III v. widespread insurgency, marked inequity in the
Mison, the Commission on Appointments is an ownership and enjoyment of wealth and political
important constitutional body which helps give power, and dangerous conflicts arising from
fuller expression to the democratic principles Ideological, ethnic and religious differences. The
inherent in our presidential form of government. tendency to use force and violent means against
those who hold opposite views appears
There are those who would render innocuous the irresistible to the holders of both governmental
Commission's power or perhaps even move for and rebel firepower.
its abolition as a protest against what they believe
is too much horsetrading or sectarian politics in The President is doubly careful in the choice of
the exercise of its functions. Since the President the Chairman and Members of the Commission
is a genuinely liked and popular leader, on Human Rights. Fully aware of the ruling
personally untouched by scandal, who appears to in Sarmiento III v. Mison, she wants the
be motivated only by the sincerest of intentions, appointments to be a joint responsibility of the
these people would want the Commission to Presidency and Congress, through the
routinely rubberstamp those whom she appoints Commission on Appointments. She wants a more
to high office. thorough screening process for these sensitive
positions. She wants only the best to survive the
Unfortunately, we cannot have one reading of process.
Section 16 for popular Presidents and another
interpretation for more mediocre disliked, and Why should we tell both the President and
even abusive or dictatorial ones. Precisely, Congress that they are wrong.?
Section 16 was intended to check abuse or ill-
considered appointments by a President who Again, I fail to see why the captain of a naval boat
belongs to the latter class. ordered to fire broadsides against rebel
concentrations should receive greater scrutiny in
It is not the judiciary and certainly not the his appointment than the Chairman of the Human
appointed bureaucracy but Congress which truly Rights Commission who has infinitely more
represents the people. We should not expect power and opportunity to bring the rebellion to a
Congress to act only as the selfless Idealists, the just and satisfactory end.
well-meaning technocrats, the philosophers, and
the coffee-shop pundits would have it move. The But even if I were to agree with the Sarmiento III
masses of our people are poor and v. Mison ruling, I would still include the Chairman
underprivileged, without the resources or the time of the Human Rights Commission as one of the
to get publicly involved in the intricate workings of "other officers whose appointments are vested in
Government, and often ill-informed or functionally him in this Constitution" under the first sentence
illiterate. These masses together with the of Section 16, Article VII. Certainly, the chairman
propertied gentry and the elite class can express cannot be appointed by Congress or the
their divergent views only through their Senators Supreme Court. Neither should we read Article
and Congressmen. Even the buffoons and XIII of the Constitution as classifying the
retardates deserve to have their interests chairman among the lower ranking officers who
considered and aired by the people's by law may be appointed by the head of an
representatives. In the democracy we have and executive department, agency, commission, or
which we try to improve upon, the Commission on board. The Constitution created the independent
Appointments cannot be expected to function like office. The President was intended to appoint its
a mindless machine without any debates or even chairman.
imperfections. The discussions and wranglings,
the delays and posturing are part of the
I, therefore, regretfully reiterate my dissent from
democratic process. They should never be used the Sarmiento III v. Mison ruling and join in the
as arguments to restrict legislative power where
call for a re-examination of its doctrine.
the Constitution does not expressly provide for
such a limitation.
CRUZ, J., dissenting:
The Commission on Human Rights is a very
important office. Our country is beset by
This is as good a time as any to re-examine our would need confirmation although he is not a
ruling in Sarmiento v. Mison, which was adopted constitutional officer with the serious
by the Court more than a year ago over two responsibilities of the former. Also not to be
dissents. The President of the Philippines has confirmed are the Governor of the Central Bank
taken a second look at it, and so too has the unlike the relatively minor multisectoral
Commission on Appointments representing both representative of the regional consultative
Houses of the Congress of the Philippines. It commission, and the Undersecretary of Foreign
appears that they are not exactly certain now that Affairs although the consul, who is his
the decision in that case was correct after all. I subordinate, would need confirmation. When I
believe it will not be amiss for us too, in a spirit of pointed to these incongruous situations, I was
humility, to read the Constitution again on the told it was not our place to question the wisdom
possibility that we may have misread it before. of the Constitution. What I was questioning was
not the wisdom of the Constitution but the wisdom
The ponencia assumes that we were right the of our interpretation which I said would lead to
first time and that the Mison case is settled — absurd consequences. But only Justice Gutierrez
there is no need to re-examine it. It therefore agreed with me.
approaches the problem at hand from another
perspective and would sustain the petitioner on Now the chickens have come home to roost. The
an additional ground. petitioner asks us to unequivocally apply our own
ruling in Alison, but we are equivocating.
The theory is that the petitioner's first The ponencia would sustain the petitioner by a
appointment on 17 December 1988 was valid circumlocution, such as it is, as if it does not think
even if not confirmed, conformably to Mison, and Mison, will suffice for its conclusion.
could not be replaced with the second
appointment on 14 January 1989 because there As I see it, the submission of the petitioner's
was no vacancy to fill. By this reasoning, the appointment to the Commission on Appointments
opinion would definitely avoid the question is a clear indication that the President of the
squarely presented to the Court, viz., whether or Philippines no longer agrees with the Mison,
not the Chairman of the Commission on Human ruling, at least insofar as it applies to the present
Rights is subject to confirmation as required now case. Signifi cantly the Commission on
by both the President of the Philippines and the Appointments, which was also aware of Mison,
Commission on Appointments. In effect, we are has as clearly rejected it by acting on the
asked to reconsider the Mison ruling in the light of appointment. These meaningful developments
this supervening significant albeit decidedly not must give us pause. We may have committed an
controlling circumstance. error in Mison, which is bad enough, and may be
persisting in it now, which is worse.
The majority makes its ratiocination sound so
simple, but I find I am unable to agree. I think we Coming now to the theory of the majority, I regret
must address the legal question frontally instead I am also unable to accept it. Consistent with my
of falling back on a legal sleight-of hand of now- view in Mison, I submit that what President
you-see-it-now-you-don't. Aquino extended to the petitioner on 17
December 1988 was an ad interim appointment
As one who never agreed with the bison ruling in that although immediately effective upon
the first place, I suspect that the seeming acceptance was still subject to confirmation. I
diffidence in applying it categorically to the case cannot agree that when the President said the
at bar is due to a degree of uneasiness over its petitioner could and enter into the performance of
correctness. I think this is the reason another her duties, "all that remained for Bautista to do
justification had to be offered to bolster Mison. was to reject or accept the appointment." In fact,
on the very day it was extended, the ad
interim appointment was submitted by the
In my dissent in Alison, I specifically mentioned
the Chairman of the Commission on Human President of the Philippines to the Commission on
Rights as among the important officers who Appointments "for confirmation."
would not have to be confirmed if the majority
view were to be followed. By contrast, and The ponencia says that the appointment did not
inexplicably, the colonel in the armed forces need any confirmation, being the sole act of the
President under the Mison ruling. That would Appointments in view of the following provision of
have settled the question quite conclusively, but Section 16, Article VII of the 1987 Constitution:
the opinion goes on to argue another justification
that I for one find unnecessary, not to say SEC. 16. The President shall
untenable. I sense here a palpable effort to nominate and, with the consent
bolster Mison because of the apprehension that it of the Commission on
is falling apart. Appointments, appoint the heads
of the executive departments,
Of course, there was no vacancy when the ambassadors, other public
nomination was made on 14 January 1989. There ministers and consuls, or officers
is no question that the petitioner was still validly of the armed forces from the rank
holding the office by virtue of her ad of colonel or naval captain,
interim appointment thereto on 17 December and other officers whose
1988. The nomination made later was appointments are vested in him
unnecessary because the ad in this Constitution....
interim appointment was still effective. When the
Commission on Appointments sent the petitioner In my view, the "other officers" whose
the letters dated 9 January 1989 and 10 January appointments are vested in the President in the
1989 requiring her to submit certain data and Constitution are the constitutional officers,
inviting her to appear before it, it was acting not meaning those who hold offices created under
on the nomination but on the ad the Constitution, and whose appointments are not
interimappointment. What was disapproved was otherwise provided for in the Charter. Those
the ad interim appointment, not the nomination. constitutional officers are the chairmen and
The nomination of 14 January 1989 is not in issue members of the Constitutional Commissions,
in this case. It is entirely immaterial. At best, it is namely: the Civil Service Commission (Art. IX-B),
important only as an affirmation of the President's the Commission on Elections (Art. IX-C), the
acknowledgment that the Chairman of the Commission on Audit Art. IX-D), and the
Commission on Human Rights must be confirmed Commission on Human Rights (Sec. 17, XIII).
under Article VII, Section 16 of the Constitution. These constitutional commissions are, without
excaption, declared to be "independent," but
It does not follow, of course, that simply because while in the case of the Civil Service Commission,
the President of the Philippines has changed her the Commission on Elections and the
mind, and with the expressed support of the Commission on Audit, the 1987 Constitution
Commission on Appointments, we should docilely expressly provides that "the Chairman and the
submit and reverse Mison. That is not how Commissioners shall be appointed by the
democracy works. The Court is independent. I do President with the consent of the Commission on
suggest, however, that the majority could have Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art.
erred in that case and that the least we can do IX - C and Sec. 1[2], Art. IX-D), no such clause is
now is to take a more careful look at the decision. found in Section 17, Article VIII creating the
Let us check our bearings to make sure we have Commission on Human Rights. Its absence,
not gone astray. That is all I ask however, does not detract from, or diminish, the
President's power to appoint the Chairman and
I repeat my view that the Chairman of the Commissioners of the said Commission. The
Commission on Human Rights is subject to source of that power is the first sentence of
confirmation by the Commission on Section 16, Article VII of the Constitution for:
Appointments, for the reasons stated in my
dissent in Mison Accordingly, I vote to DENY the (1) the Commission on Human Rights is an office
petition. created by the Constitution, and

GRIÑO-AQUINO, J.: dissenting: (2) the appointment of the Chairman and

Commissioners thereof is vested in the President
I believe that the appointments of the chairman by the Constitution.
and the members of the Commission on Human
Rights by the President require review and Therefore, the said appointments shall be made
confirmation by the Commission on by the President with the consent of the
Commission on Appointments, as provided in sore thumb. Serious students of the Constitution
Section 16, Article VII of the Constitution. will continue to be disturbed until the meaning of
the consent power of the Commission on
It is not quite correct to argue, as the petitioner Appointments is straightened out either through a
does, that the power of the Commission on re-examination of this Court's decision or an
Appointments to review and confirm amendment to the Constitution.
appointments made by the President is a
"derogation of the Chief Executive's appointing Section 16, Article VII of the Constitution consists
power." That power is given to the Commission of only three sentences. The officers specified in
on Appointments as part of the system of checks the first sentence clearly require confirmation by
and balances in the democratic form of the Commission on Appointments. The officers
government provided for in our Constitution. As mentioned in the third sentence just as clearly do
stated by a respected constitutional authority, not require confirmation. The problem area lies
former U.P. Law Dean and President Vicente G. with those in the second sentence.
Sinco:
I submit that we should re-examine the three
The function of confirming groups of presidential appointees under the three
appointments is part of the sentences of Section 16.
power of appointment itself. It is,
therefore, executive rather than The first group are the heads of executive
legislative in nature. In giving this departments, ambassadors, other public
power to an organ of the ministers and consuls, officers of the armed
legislative department, the forces from colonel or naval captain, and other
Constitution merely provides a officers whose appointments are vested in the
detail in the scheme of checks President by the Constitution. The first sentence
and balances between the of Section 16 state they must be confirmed by the
executive and legislative organs Commission on Appointments.
of the government. (Phil. Political
Law by Sinco, 11th ed., p. 266). The third group are officers lower in rank whose
appointments Congress has by law vested in the
WHEREFORE, I vote to dismiss the petition. President alone. They need no confirmation.

Medialdea, J., dissenting: The second group of presidential appointees are

"all other officers of the Government whose
appointments are not otherwise provided for by
law and those whom he may be authorized by law
to appoint." To which group do they belong?-
Group I requiring confirmation or Group 3 where
Separate Opinions confirmation is not needed?

GUTIERREZ, JR., J.: Dissenting Opinion No matter how often and how long I read the
second sentence of Section 16, I simply cannot
associate the officers mentioned therein as
With all due respect for the contrary view of the forming part of those referred to in the third
majority in the Court, I maintain that it is asking sentence.
too much to expect a constitutional ruling which
results in absurd or irrational consequences to
Why am I constrained to hold this view?
ever become settled.

(1) If the officers in the first group are the only

The President and Congress, the appointees
appointees who need confirmation, there would
concerned, and the general public may in time
accept the Sarmiento III v. Mison ruling because be no need for the second and third sentences of
this Court has the final word on what Section 16. They become superfluous. Any one
constitutional provisions are supposed to mean not falling under an express listing would need no
confirmation. I think the Court is wrong in treating
but the incongruity will remain sticking out like a
two carefully crafted and significant provisions of the majority ruling of the Court, if Congress
the fundamental law as superfluities. Except for creates an important office and requires the
the most compelling reasons, which do not exist consent of the Commission before a presidential
here, no constitutional provision should be appointment to that office is perfected, such a
considered a useless surplusage. requirement would be unconstitutional. I believe
that the Constitution was never intended to so
(2) As strongly stressed by Justice Isagani Cruz restrict the lawmaking power. The Court has no
here and in our earlier dissent, the majority view jurisdiction to limit the plenary lawmaking power
results in the absurd consequence where one of of the people's elected representatives through
several hundred colonels and naval captains an implied and, I must again add, a strained
must be confirmed but such important officers as reading of the plain text of Section 16. Any
the Governor of the Central Bank with broad restriction of legislative power must be
powers over the nation's economy and future categorical, express, and specific-never implied
stability or the Chairman of the Commission on or forced.
Human Rights whose office calls for no less than
a constitutional mandate do not have to be (5) The Constitution specifies clearly the
scrutinized by the Commission on Appointments. presidential appointees who do not need
Why should a minor consul to Timbuktu, Mali confirmation by the Commission. The reason for
need the thorough scrutiny during the non-confirmation is obvious. The members of the
confirmation process while the Undersecretary of Supreme Court and all lower courts and the
Foreign Affairs who sends him there and who Ombudsman and his deputies are not confirmed
exercises control over his acts can be appointed because the Judicial and Bar Council screens
by the President alone? Why should we interpret nominees before their names are forwarded to
Section 16 in such a strange and irrational the President. The Vice-President as a cabinet
manner when no strained construction is needed member needs no confirmation because the
to give it a logical and more traditional and Constitution says so. He or she is chosen by the
understandable meaning.? nation's entire electorate and is only a breath
away from the Presidency. Those falling under
(3) The second sentence of Section 16 starts the third sentence of Section 16, Article VII do not
with, "He shall also appoint ...." Whenever we see have to be confirmed because the Constitution
the word "also" in a sentence, we associate it with gives Congress the authority to free lower ranking
preceding sentences, never with the different officials whose positions are created by law from
sentence that follows. On the other hand, the third that requirement. I believe that we in the Court
sentence specifies "other officers lower in rank' have no power to add by implication to the list of
who are appointed pursuant to law by the presidential appointees whom the Constitution in
President "alone." This can only mean that the clear and categorical words declares as not
higher ranking officers in the second sentence needing confirmation.
must also be appointed with the concurrence of
the Commission on Appointments. When the (6) As stated in my dissent in Sarmiento III v.
Constitution requires Congress to specify who Mison, the Commission on Appointments is an
may be appointed by the President alone, we important constitutional body which helps give
should not add other and higher ranking officers fuller expression to the democratic principles
as also appointed by her alone. The strained inherent in our presidential form of government.
interpretation by the Court's majority makes the
word "alone" meaningless if the officers to whom There are those who would render innocuous the
"alone" is not appended are also included in the Commission's power or perhaps even move for
third group. its abolition as a protest against what they believe
is too much horsetrading or sectarian politics in
(4) The third sentence of Section 16 requires a the exercise of its functions. Since the President
positive act of Congress which vests an is a genuinely liked and popular leader,
appointment in the President alone before such personally untouched by scandal, who appears to
an appointment is freed from the scrutiny of the be motivated only by the sincerest of intentions,
Commission on Appointments. By express these people would want the Commission to
constitutional mandate, it is Congress which routinely rubberstamp those whom she appoints
determines who do not need confirmation. Under to high office.
Unfortunately, we cannot have one reading of positions. She wants only the best to survive the
Section 16 for popular Presidents and another process.
interpretation for more mediocre disliked, and
even abusive or dictatorial ones. Precisely, Why should we tell both the President and
Section 16 was intended to check abuse or ill- Congress that they are wrong.?
considered appointments by a President who
belongs to the latter class.
Again, I fail to see why the captain of a naval boat
ordered to fire broadsides against rebel
It is not the judiciary and certainly not the concentrations should receive greater scrutiny in
appointed bureaucracy but Congress which truly his appointment than the Chairman of the Human
represents the people. We should not expect Rights Commission who has infinitely more
Congress to act only as the selfless Idealists, the power and opportunity to bring the rebellion to a
well-meaning technocrats, the philosophers, and just and satisfactory end.
the coffee-shop pundits would have it move. The
masses of our people are poor and But even if I were to agree with the Sarmiento III
underprivileged, without the resources or the time v. Mison ruling, I would still include the Chairman
to get publicly involved in the intricate workings of
of the Human Rights Commission as one of the
Government, and often ill-informed or functionally
"other officers whose appointments are vested in
illiterate. These masses together with the him in this Constitution" under the first sentence
propertied gentry and the elite class can express of Section 16, Article VII. Certainly, the chairman
their divergent views only through their Senators
cannot be appointed by Congress or the
and Congressmen. Even the buffoons and
Supreme Court. Neither should we read Article
retardates deserve to have their interests
XIII of the Constitution as classifying the
considered and aired by the people's
chairman among the lower ranking officers who
representatives. In the democracy we have and by law may be appointed by the head of an
which we try to improve upon, the Commission on
executive department, agency, commission, or
Appointments cannot be expected to function like
board. The Constitution created the independent
a mindless machine without any debates or even
office. The President was intended to appoint its
imperfections. The discussions and wranglings,
chairman.
the delays and posturing are part of the
democratic process. They should never be used
as arguments to restrict legislative power where I, therefore, regretfully reiterate my dissent from
the Constitution does not expressly provide for the Sarmiento III v. Mison ruling and join in the
such a limitation. call for a re-examination of its doctrine.

The Commission on Human Rights is a very CRUZ, J., dissenting:

important office. Our country is beset by
widespread insurgency, marked inequity in the This is as good a time as any to re-examine our
ownership and enjoyment of wealth and political ruling in Sarmiento v. Mison, which was adopted
power, and dangerous conflicts arising from by the Court more than a year ago over two
Ideological, ethnic and religious differences. The dissents. The President of the Philippines has
tendency to use force and violent means against taken a second look at it, and so too has the
those who hold opposite views appears Commission on Appointments representing both
irresistible to the holders of both governmental Houses of the Congress of the Philippines. It
and rebel firepower. appears that they are not exactly certain now that
the decision in that case was correct after all. I
The President is doubly careful in the choice of believe it will not be amiss for us too, in a spirit of
the Chairman and Members of the Commission humility, to read the Constitution again on the
on Human Rights. Fully aware of the ruling possibility that we may have misread it before.
in Sarmiento III v. Mison, she wants the
appointments to be a joint responsibility of the The ponencia assumes that we were right the
Presidency and Congress, through the first time and that the Mison case is settled—there
Commission on Appointments. She wants a more is no need to re-examine it. It therefore
thorough screening process for these sensitive approaches the problem at hand from another
perspective and would sustain the petitioner on Now the chickens have come home to roost. The
an additional ground. petitioner asks us to unequivocally apply our own
ruling in Alison, but we are equivocating.
The theory is that the petitioner's first The ponencia would sustain the petitioner by a
appointment on 17 December 1988 was valid circumlocution, such as it is, as if it does not think
even if not confirmed, conformably to Mison, and Mison, will suffice for its conclusion.
could not be replaced with the second
appointment on 14 January 1989 because there As I see it, the submission of the petitioner's
was no vacancy to fill. By this reasoning, the appointment to the Commission on Appointments
opinion would definitely avoid the question is a clear indication that the President of the
squarely presented to the Court, viz., whether or Philippines no longer agrees with the Mison,
not the Chairman of the Commission on Human ruling, at least insofar as it applies to the present
Rights is subject to confirmation as required now case. Signifi cantly the Commission on
by both the President of the Philippines and the Appointments, which was also aware of Mison,
Commission on Appointments. In effect, we are has as clearly rejected it by acting on the
asked to reconsider the Mison ruling in the light of appointment. These meaningful developments
this supervening significant albeit decidedly not must give us pause. We may have committed an
controlling circumstance. error in Mison, which is bad enough, and may be
persisting in it now, which is worse.
The majority makes its ratiocination sound so
simple, but I find I am unable to agree. I think we Coming now to the theory of the majority, I regret
must address the legal question frontally instead I am also unable to accept it. Consistent with my
of falling back on a legal sleight-of hand of now- view in Mison, I submit that what President
you-see-it-now-you-don't. Aquino extended to the petitioner on 17
December 1988 was an ad interim appointment
As one who never agreed with the bison ruling in that although immediately effective upon
the first place, I suspect that the seeming acceptance was still subject to confirmation. I
diffidence in applying it categorically to the case cannot agree that when the President said the
at bar is due to a degree of uneasiness over its petitioner could and enter into the performance of
correctness. I think this is the reason another her duties, "all that remained for Bautista to do
justification had to be offered to bolster Mison. was to reject or accept the appointment." In fact,
on the very day it was extended, the ad
interim appointment was submitted by the
In my dissent in Alison, I specifically mentioned
President of the Philippines to the Commission on
the Chairman of the Commission on Human
Rights as among the important officers who Appointments "for confirmation."
would not have to be confirmed if the majority
view were to be followed. By contrast, and The ponencia says that the appointment did not
inexplicably, the colonel in the armed forces need any confirmation, being the sole act of the
would need confirmation although he is not a President under the Mison ruling. That would
constitutional officer with the serious have settled the question quite conclusively, but
responsibilities of the former. Also not to be the opinion goes on to argue another justification
confirmed are the Governor of the Central Bank that I for one find unnecessary, not to say
unlike the relatively minor multisectoral untenable. I sense here a palpable effort to
representative of the regional consultative bolster Mison because of the apprehension that it
commission, and the Undersecretary of Foreign is falling apart.
Affairs although the consul, who is his
subordinate, would need confirmation. When I Of course, there was no vacancy when the
pointed to these incongruous situations, I was nomination was made on 14 January 1989. There
told it was not our place to question the wisdom is no question that the petitioner was still validly
of the Constitution. What I was questioning was holding the office by virtue of her ad
not the wisdom of the Constitution but the wisdom interim appointment thereto on 17 December
of our interpretation which I said would lead to 1988. The nomination made later was
absurd consequences. But only Justice Gutierrez unnecessary because the ad
agreed with me. interim appointment was still effective. When the
Commission on Appointments sent the petitioner
the letters dated 9 January 1989 and 10 January In my view, the "other officers" whose
1989 requiring her to submit certain data and appointments are vested in the President in the
inviting her to appear before it, it was acting not Constitution are the constitutional officers,
on the nomination but on the ad meaning those who hold offices created under
interimappointment. What was disapproved was the Constitution, and whose appointments are not
the ad interim appointment, not the nomination. otherwise provided for in the Charter. Those
The nomination of 14 January 1989 is not in issue constitutional officers are the chairmen and
in this case. It is entirely immaterial. At best, it is members of the Constitutional Commissions,
important only as an affirmation of the President's namely: the Civil Service Commission (Art. IX-B),
acknowledgment that the Chairman of the the Commission on Elections (Art. IX-C), the
Commission on Human Rights must be confirmed Commission on Audit Art. IX-D), and the
under Article VII, Section 16 of the Constitution. Commission on Human Rights (Sec. 17, XIII).
These constitutional commissions are, without
It does not follow, of course, that simply because excaption, declared to be "independent," but
the President of the Philippines has changed her while in the case of the Civil Service Commission,
mind, and with the expressed support of the the Commission on Elections and the
Commission on Appointments, we should docilely Commission on Audit, the 1987 Constitution
submit and reverse Mison. That is not how expressly provides that "the Chairman and the
democracy works. The Court is independent. I do Commissioners shall be appointed by the
suggest, however, that the majority could have President with the consent of the Commission on
erred in that case and that the least we can do Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art.
now is to take a more careful look at the decision. IX - C and Sec. 1[2], Art. IX-D), no such clause is
Let us check our bearings to make sure we have found in Section 17, Article VIII creating the
not gone astray. That is all I ask Commission on Human Rights. Its absence,
however, does not detract from, or diminish, the
I repeat my view that the Chairman of the President's power to appoint the Chairman and
Commissioners of the said Commission. The
Commission on Human Rights is subject to
source of that power is the first sentence of
confirmation by the Commission on
Section 16, Article VII of the Constitution for:
Appointments, for the reasons stated in my
dissent in Mison Accordingly, I vote to DENY the
petition. (1) the Commission on Human Rights is an office
created by the Constitution, and
GRIÑO-AQUINO, J.: dissenting:
(2) the appointment of the Chairman and
I believe that the appointments of the chairman Commissioners thereof is vested in the President
and the members of the Commission on Human by the Constitution.
Rights by the President require review and
confirmation by the Commission on Therefore, the said appointments shall be made
Appointments in view of the following provision of by the President with the consent of the
Section 16, Article VII of the 1987 Constitution: Commission on Appointments, as provided in
Section 16, Article VII of the Constitution.
SEC. 16. The President shall
nominate and, with the consent It is not quite correct to argue, as the petitioner
of the Commission on does, that the power of the Commission on
Appointments, appoint the heads Appointments to review and confirm
of the executive departments, appointments made by the President is a
ambassadors, other public "derogation of the Chief Executive's appointing
ministers and consuls, or officers power." That power is given to the Commission
of the armed forces from the rank on Appointments as part of the system of checks
of colonel or naval captain, and balances in the democratic form of
and other officers whose government provided for in our Constitution. As
appointments are vested in him stated by a respected constitutional authority,
in this Constitution.... former U.P. Law Dean and President Vicente G.
Sinco:
 The function of confirming GEN. EDUARDO GARCIA, in his capacity as
appointments is part of the Chief, Philippine Constabulary, COL. N. C.
power of appointment itself. It is, CAMELLO, in his capacity as Chief of Staff,
therefore, executive rather than Philippine Constabulary and HON. JUAN
legislative in nature. In giving this PONCE ENRILE in his capacity as Secretary,
power to an organ of the Department of National defense, respondents.
legislative department, the
Constitution merely provides a G.R. No. L-33982 December 11, 1971
detail in the scheme of checks
and balances between the IN THE MATTER OF THE PETITION FOR
executive and legislative organs HABEAS CORPUS OF NEMESIO E.
of the government. (Phil. Political PRUDENTE FELICIDAD G.
Law by Sinco, 11th ed., p. 266). PRUDENTE, petitioners,

WHEREFORE, I vote to dismiss the petition.

vs.

----------------------------------------------------------- GENERAL MANUEL YAN, GEN. EDU

GARCIA, respondents.
Republic of the Philippines
SUPREME COURT
G.R. No. L-34004 December 11, 1971
Manila
IN THE MATTER OF THE APPLICATION FOR
EN BANC HABEAS CORPUSIN BEHALF OF GERARDO
TOMAS, ALSO KNOWN AS "GERRY TOMAS"
AND FOR RETURN OF DOCUMENTS
ILLEGALLY SEIZED. DOMINGO E. DE LARA,
G.R. No. L-33964 December 11, 1971 in his capacity as Chairman, Committee on
Legal Assistance, Philippine Bar
IN THE MATTER OF THE PETITION FOR Association, petitioner,
HABEAS CORPUS OF TEODOSIO LANSANG
RODOLFO DEL ROSARIO, and BAYANI vs.
ALCALA, petitioners,
vs. BRIG. GENERAL EDUARDO M. GARCIA,
BRIGADIER-GENERAL EDUARDO M. CHIEF, PHILIPPINE
GARCIA, Chief, Philippine CONSTABULARY, respondent.
Constabulary, respondent.
G.R. No. L-34013 December 11, 1971
G.R. No. L-33965 December 11, 1971
REYNALDO RIMANDO, petitioner,
ROGELIO V. ARIENDA, petitioner,
vs.
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief of
SECRETARY OF NATIONAL DEFENSE, and the Philippine Constabulary, respondent.
CHIEF, PHIL. CONSTABULARY, respondents.
G.R. No. L-34039 December 11, 1971
G.R. No. L-33973 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR
LUZVIMINDA DAVID, petitioner, HABEAS CORPUSIN BEHALF OF SGT.
FILOMENO M. DE CASTRO AND HIS WIFE,
vs. MRS. BARCELISA C. DE CASTRO. CARLOS
C. RABAGO, in his capacity as President of
the Conference Delegates Association of the Jose W. Diokno and Juanito R. Remulla for
Philippines (CONDA),petitioner, petitioner Antolin Oreta, Jr.

vs. Domingo E. de Lara for and in his own behalf.

BRIG. GEN. EDUARDO M. GARCIA, Chief, Office of the Solicitor General Felix Q. Antonio
Philippine Constabulary, respondent. and Assistant Solicitor General Bernardo P.
Pardo for respondents.
G.R. No. L-34265 December 11, 1971

IN THE MATTER OF THE PETITION FOR

HABEAS CORPUS OF ANTOLIN ORETA, JR. CONCEPCION, C.J.:
ANTOLIN ORETA, JR., petitioner,
In the evening of August 21, 1971, at about 9
vs. p.m., while the Liberal Party of the Philippines
was holding a public meeting at Plaza Miranda,
GEN. EDUARDO GARCIA and COL. Manila, for the presentation of its candidates in
PROSPERO OLIVAS, respondents. the general elections scheduled for November 8,
1971, two (2) hand grenades were thrown, one
G.R. No. L-34339 December 11, 1971 after the other, at the platform where said
candidates and other persons were. As a
consequence, eight (8) persons were killed and
GARY B. OLIVAR, assisted by his father, many more injured, including practically all of the
GEORGE OLIVAR, petitioner, aforementioned candidates, some of whom
sustained extensive, as well as serious, injuries
vs. which could have been fatal had it not been for
the timely medical assistance given to them.
GEN. EDUARDO GARCIA, in his capacity as
Chief, Philippine Constabulary, et On August 23, soon after noontime, the President
al., respondents. of the Philippines announced the issuance of
Proclamation No. 889, dated August 21, 1971,
Ignacio P. Lacsina for petitioners Teodosio reading as follows:
Lansang, et al.
WHEREAS, on the basis of
Ramon A. Gonzales for petitioner Rogelio V. carefully evaluated information, it
Arienda. is definitely established that
lawless elements in the country,
E. Voltaire Garcia II for petitioner Luzvimindo which are moved by common or
David. similar ideological conviction,
design and goal and enjoying the
active moral and material
Verzola, Africa and Atencio, Lorenzo M. Tanada,
support of a foreign power and
Wigberto E. Tañada, Fortunato de Leon, R. G.
being guided and directed by a
Suntay and Juan T. David for petitioner Felicidad
well trained, determined and
G. Prudente.
ruthless group of men and taking
advantage of our constitutional
Ruben L. Roxas for petitioner Reynaldo liberties to promote and attain
Rimando. their ends, have entered into a
conspiracy and have in fact
Nuñez, Acob, Del Rosario and Ramos for joined and banded their forces
petitioner Carlos Rabago, etc. together for the avowed purpose
of actually staging, undertaking
E. Voltaire Garcia II and M. P. Vivo for petitioner and waging an armed
Gary Olivar, etc., et al. insurrection and rebellion in
order to forcibly seize political manifestation of which has been
power in this country, overthrow the dastardly attack on the
the duly constituted government, Liberal Party rally in Manila on
and supplant our existing August 21, 1971, which has
political social, economic and resulted in the death and serious
legal order with an entirely new injury of scores of persons;
one whose form of government,
whose system of laws, whose WHEREAS, public safety
conception of God and religion, requires that immediate and
whose notion of individual rights effective action be taken in order
and family relations, and whose to maintain peace and order,
political, social and economic secure the safety of the people
precepts are based on the and preserve the authority of the
Marxist-Leninist-Maoist State;
teachings and beliefs;
NOW, THEREFORE, I,
WHEREAS, these lawless FERDINAND E. MARCOS,
elements, acting in concert President of the Philippines, by
through front organizations that virtue of the powers vested upon
are seemingly innocent and me by Article VII, Section 10,
harmless, have continuously and Paragraph (2) of the
systematically strengthened and Constitution, do hereby suspend
broadened their memberships the privilege of the writ of habeas
through sustained and careful corpus, for the persons presently
recruiting and enlistment of new detained, as well as others who
adherents from among our may be hereafter similarly
peasantry, laborers, detained for the crimes of
professionals, intellectuals, insurrection or rebellion, and all
students, and mass media other crimes and offenses
personnel, and through such committed by them in
sustained and careful furtherance or on the occasion
recruitment and enlistment have thereof, or incident thereto, or in
succeeded in infiltrating almost connection therewith.
every segment of our society in
their ceaseless determination to Presently, petitions for writ of habeas
erode and weaken the political, corpus were filed, in the above-entitled cases, by
social, economic and moral the following persons, who, having been arrested
foundations of our existing
without a warrant therefor and then detained,
government and to influence
upon the authority of said proclamation, assail its
many peasant, labor,
validity, as well as that of their detention, namely:
professional, intellectual, student
and mass media organizations to
commit acts of violence and 1. TEDORO LANSANG, RODOLFO DEL
depredations against our duly ROSARIO and BAYANI ALCALA, the petitioners
constituted authorities, against in Case No. L-33964 — filed on August 24, 1971
the members of our law — who, on August 22, 1971, between 8 a.m. and
enforcement agencies, and 6 p.m., were "invited" by agents of the Philippine
worst of all, against the peaceful Constabulary — which is under the command of
members of our society; respondent Brig. Gen. Eduardo M. Garcia — to
go and did go to the headquarters of the
Philippine Constabulary, at Camp Crame,
WHEREAS, these lawless
Quezon City, for interrogation, and thereafter,
elements have created a state of detained;
lawlessness and disorder
affecting public safety and the
security of the State, the latest 2. ROGELIO V. ARIENDA, the petitioner in Case
No. L-33965 — filed, also, on August 24, 1971 —
who was picked up in his residence, at No. 55 residence, at 318 Lakandula St., Angeles City, on
Road, 3, Urduja Village, Quezon City, by August 22, 1971, between 6 and 7 p.m., and
members of the Metrocom and then detained; taken to the PC offices at Sto. Domingo, Angeles
City, then to Camp Olivas, San Fernando,
3. Soon after the filing of the petition in Case No. Pampanga, and eventually to Camp Crame,
L-33965 — or on August 28, 1971 — the same Quezon City, where he is restrained and deprived
was amended to include VICENTE ILAO and of liberty;
JUAN CARANDANG, as petitioners therein,
although, apart from stating that these additional 9. GERARDO TOMAS, alias Gerry Tomas, a 17-
petitioners are temporarily residing with the year old second year college students of St. Louis
original petitioner, Rogelio V. Arienda, the University, Baguio City, on whose behalf,
amended petition alleged nothing whatsoever as Domingo E. de Lara — in his capacity as
regards the circumstances under which said Chairman, Committee on Legal Assistance,
Vicente Ilao and Juan Carandang are said to be Philippine Bar Association — filed on September
illegally deprived of their liberty; 3, 1971, the petition in Case No. L-34004, upon
the ground that said Gerardo Tomas had, on
4. LUZVIMINDO DAVID, petitioner in Case No. L- August 23, 1971, at about 6 a.m., been arrested
33973 — filed on August 25, 1971 — who was by Constabulary agents, while on his way to
similarly arrested in his residence, at No. 131-B school in the City of Baguio, then brought to the
Kamias Road, Quezon City, and detained by the Constabulary premises therein at Camp Holmes,
Constabulary; and, thereafter, taken, on August 24, 1971, to
Camp Olivas, Pampanga, and thence, on August
25, 1971, to the Constabulary headquarters at
5. Felicidad G. Prudente, who filed the petition in
Camp Crame, Quezon City, where he is detained;
Case No. L-33982 — on August 27, 1971 — upon
the ground that her father, Dr. NEMESIO E.
PRUDENTE, had, on August 22, 1971, at about 10. REYNALDO RIMANDO, petitioner in Case
8 p.m., been apprehended by Constabulary No. L-34013 — filed on September 7, 1971 — a
agents in his house, at St. Ignatius Village, 19-year old student of the U.P. College in Baguio
Quezon City, and then detained at the Camp city — who, while allegedly on his way home, at
Crame stockade, Quezon City; Lukban Road, Baguio, on August 23, 1971, at
about 1 a.m., was joined by three (3) men who
brought him to the Burnham Park, thence, to
6. ANGELO DE LOS REYES, who was allowed
Camp Olivas at San Fernando, Pampanga, and,
— on August 30, 1971 — to intervene as one of
thereafter, to Camp Crame, Quezon City, where
the petitioners in Cases Nos. L-33964, L-33965
and L-33973, he having been arrested by he is detained;
members of the Constabulary on August 22,
1971, between 6:30 and 7:30 p.m., in his 11. Sgt. FILOMENO M. DE CASTRO and his
residence, at 86 Don Manuel Street, Sta. Mesa wife, Mrs. BARCELISA C. DE CASTRO, on
Heights, Quezon City, and brought to Camp whose behalf Carlos C. Rabago — as President
Crame, Quezon City, where he is detained and of the Conference Delegates Association of the
restrained of liberty; Philippines (CONDA) — filed the petition in Case
No. L-34039 — on September 14, 1971 —
against Gen. Eduardo M. Garcia, alleging that, on
7. VICTOR FELIPE, who was similarly allowed to
August 27, 1971, at about 3 p.m., Mrs. De Castro
intervene as one of the petitioners in said three
was arrested, while at Liamzon Subdivision,
(3) cases, upon the ground that, on August 23,
1971, at about 8 a.m., he was, likewise, Rosario, Pasig, Rizal, by agents of the
Constabulary, and taken to the PC headquarters
apprehended at Sta. Rosa, Laguna, by members
at Camp Crame, where, later, that same
of the Philippine Constabulary and brought, first
afternoon, her husband was brought, also, by PC
to the Constabulary headquarters at Canlubang,
agents and both are detained;
Laguna, and, then, to Camp Crame, Quezon City,
where he is detained and restrained of liberty;
12. ANTOLIN ORETA, JR., who filed the petition
in Case No. L-34265 — on October 26, 1971 —
8. TERESITO SISON, who was, also, allowed to
against said Gen. Garcia, as Chief of the
intervene as one of the petitioners in the same
Constabulary, and Col. Prospero Olivas, Chief of
three (3) cases, he having been arrested in his
the Central Intelligence Service (CIS), Philippine committing, individually or in conspiracy with
Constabulary, alleging that, upon invitation from others, engaged in armed struggle, insurgency
said CIS, he went, on October 20, 1971, to Camp and other subversive activities for the overthrow
Aguinaldo, Quezon City, to see Gen. Manuel of the Government; that petitioners cannot raise,
Yan, Chief of Staff of the Armed Forces of the in these proceedings for habeas corpus, "the
Philippines, who referred petitioner to Col. Laroya question of their guilt or innocence"; that the
of the CIS; that the latter, in turn, referred him to "Chief of Constabulary had petitioners taken into
CIS Investigator Atty. Berlin Castillo and another custody on the basis of the existence of evidence
CIS against, whose name is unknown to the sufficient to afford a reasonable ground to believe
petitioner; and that, after being interrogated by that petitioners come within the coverage of
the two (2), petitioner was detained illegally; and persons to whom the privilege of the writ
of habeas corpus has been suspended"; that the
13. GARY OLIVAR, petitioner in Case No. L- "continuing detention of the petitioners as an
34339 — filed on November 10, 1971 — who was urgent bona fide precautionary and preventive
apprehended, by agents of the Constabulary, in measure demanded by the necessities of public
the evening of November 8, 1941, in Quezon City, safety, public welfare and public interest"; that the
and then detained at Camp Crame, in the same President of the Philippines has "undertaken
City. concrete and abundant steps to insure that the
constitutional rights and privileges of the
Upon the filing of the aforementioned cases, the petitioners as well as of the other persons in
respondents were forthwith required to answer current confinement pursuant to Proclamation
889 remain unimpaired and unhampered"; and
the petitions therein, which they did. The return
and answer in L-33964 — which was, mutatis that "opportunities or occasions for abuses by
mutandis, reproduced substantially or by peace officers in the implementation of the
reference in the other cases, except L-34265 — proclamation have been greatly minimized, if not
alleges, inter alia, that the petitioners had been completely curtailed, by various safeguards
contained in directives issued by proper
apprehended and detained "on reasonable belief"
authority."
that they had "participated in the crime of
insurrection or rebellion;" that "their continued
detention is justified due to the suspension of the These safeguards are set forth in:
privilege of the writ of habeas corpus pursuant to
Proclamation No. 889 of the President of the 1. A letter of the President to the Secretary of
Philippines;" that there is "a state of insurrection National Defense, dated August 21, 1971,
or rebellion" in this country, and that "public safety directing, inter alia, in connection with the arrest
and the security of the State required the or detention of suspects pursuant to Proclamation
suspension of the privilege of the writ of habeas No. 889, that, except when caught inflagrante
corpus," as "declared by the President of the delicto, no arrest shall be made without warrant
Philippines in Proclamation No. 889; that in authorized in writing by the Secretary of National
making said declaration, the "President of the Defense; that such authority shall not be granted
Philippines acted on relevant facts gathered thru unless, "on the basis of records and other
the coordinated efforts of the various intelligence evidences," it appears satisfactorily, in
agents of our government but (of) which the Chief accordance with Rule 113, section 6(b), of the
Executive could not at the moment give a full Rules of Court, that the person to be arrested is
account and disclosure without risking revelation probably guilty of the acts mentioned in the
of highly classified state secrets vital to its safely proclamation; that, if such person will be charged
and security"; that the determination thus made with a crime subject to an afflictive penalty under
by the President is "final and conclusive upon the the Anti-Subversion Act, the authorization for his
court and upon all other persons" and "partake(s) arrest shall not be issued unless supported by
of the nature of political question(s) which cannot signed intelligence reports citing at least one
be the subject of judicial inquiry," pursuant to reliable witness to the same overt act; that no
Barcelon v. Baker, 5 Phil. 87, and Montenegro v. unnecessary or unreasonable force shall be used
Castañeda, 91 Phil. 882; that petitioners "are in effecting arrests; and that arrested persons
under detention pending investigation and shall not be subject to greater restraint than is
evaluation of culpabilities on the reasonable necessary for their detention;
belief" that they "have committed, and are still
2. Communications of the Chief of the WHEREAS, on the basis of
Constabulary, dated August 23, 27, and 30, 1971, carefully evaluated information, it
to all units of his command, stating that the is definitely established that
privilege of the writ is suspended for no other lawless elements in the country,
persons than those specified in the proclamation; which are moved by common or
that the same does not involve material law; that similar ideological conviction,
precautionary measures should be taken to design and goal and enjoying the
forestall violence that may be precipitated by active moral and material
improper behavior of military personnel; that support of a foreign power and
authority to cause arrest under the proclamation being guided and directed by a
will be exercised only by the Metrocom, CMA, well-trained, determined and
CIS, and "officers occupying position in the ruthless group of men and taking
provinces down to provincial commanders"; that advantage of our constitutional
there shall be no indiscriminate or mass arrests; liberties to promote and attain
that arrested persons shall not be harmed and their ends, have entered into a
shall be accorded fair and humane treatment; and conspiracy and have in fact
that members of the detainee's immediate family joined and banded their forces
shall be allowed to visit him twice a week; together for the avowed purpose
of [actually] staging, undertaking,
3. A memorandum of the Department of National [and] wagging and are actually
Defense, dated September 2, 1971, directing the engaged in an armed
Chief of the Constabulary to establish appropriate insurrection and rebellion in
Complaints and Action Bodies/Groups to prevent order to forcibly seize political
and/or check any abuses in connection with the power in this country, overthrow
suspension of the privilege of the writ; and the duly constituted government,
and supplant our existing
political, social, economic and
4. Executive Order No. 333, dated August 26,
legal order with an entirely new
1971, creating a Presidential Administrative
one whose form of government,
Assistance Committee to hear complaints
whose system of laws, whose
regarding abuses committed in connection with
the implementation of Proclamation No. 889. conception of God and religion,
whose notion of individual rights
and family relations, and whose
Respondents in L-33965 further alleged that political, social and economic
therein petitioners Vicente Ilao and Juan precepts are based on the
Carandang had been released from custody on Marxist-Leninist-Maoist teaching
August 31, 1971, "after it had been found that the and beliefs;
evidence against them was insufficient."
WHEREAS, these lawless
In L-34265, the "Answer and Return" filed by elements, acting in concert
respondents therein traversed some allegations through front organizations that
of fact and conclusions of law made in the petition are seemingly innocent and
therein and averred that Antolin Oreta, Jr., the harmless, have continuously and
petitioner therein, had been and is detained "on systematically strengthened and
the basis of a reasonable ground to believe that broadened their memberships
he has committed overt acts in furtherance of through sustained and careful
rebellion or insurrection against the government" recruiting and enlistment of new
and, accordingly, "comes within the class of adherents from among our
persons as to whom the privilege of the writ peasantly, laborers,
of habeas corpus has been suspended by professionals, intellectuals,
Proclamation No. 889, as amended," the validity students, and mass media
of which is not contested by him. personnel, and through such
sustained and careful
On August 30, 1971, the President issued recruitment and enlistment have
Proclamation No. 889-A, amending Proclamation succeeded in infiltrating almost
No. 889, so as to read as follows: every segment of our society in
their ceaseless determination to On September 1, 1971, Cases Nos. L-33964, L-
erode and weaken the political, 33965, L-33973 and L-33982 were jointly heard
social, economic and moral and then the parties therein were allowed to file
foundations of our existing memoranda, which were submitted from
government and influence many September 3 to September 9, 1971.
peasant, labor, professional,
intellectual, student and mass Soon thereafter, or on September 18, 1971,
media organizations to commit Proclamation No. 889 was further amended by
acts of violence and Proclamation No. 889-B, lifting the suspension of
depredations against our duly the privilege of the writ of habeas corpus in the
constituted authorities, against following provinces, sub-provinces and cities of
the members of our law the Philippine, namely:
enforcement agencies, and
worst of all, against the peaceful A. PROVINCES:
members of our society;
1. Batanes 15.
WHEREAS, these lawless
Negros Occ.
elements, by their acts of
2. Ilocos Norte
rebellion and insurrection, have
16. Negros Or.
created a state of lawlessness 3. Ilocos Sur 17.
and disorder affecting public
Cebu
safety and security of the State,
4. Abra 18.
the latest manifestation of which
Bohol
has been the dastardly attack on
5. Abra 19.
the Liberal Party rally in Manila Capiz
on August 21, 1971, which has
6. Pangasinan
resulted in the death and serious
20. Aklan
injury of scores of persons;
7. Batangas 21.
Antique
WHEREAS, public safety 8. Catanduanes
requires that immediate and 22. Iloilo
effective action be taken in order 9. Masbate 23.
to maintain peace and order, Leyte
secure the safety of the people 10. Romblon 24.
and preserve the authority of the Leyte del Sur
State; 11. Marinduque
25. Northern
NOW THEREFORE, I, Samar
FERDINAND E. MARCOS, 12. Or. Mindoro
President of the Philippines, by 26. Eastern
virtue of the powers vested upon Samar
me by Article VII, Section 10, 13. Occ.
Paragraph (2) of the Mindoro 27.
Constitution, do hereby suspend Western Samar
the privilege of the writ of habeas 14. Palawan.
corpus for the persons presently
detained, as well as all others B. SUB-PROVINCES:
who may be hereafter similarly
detained for the crimes of
1. Guimaras 3.
insurrection or rebellion [,] and
Siquior
[all] other [crimes and offenses] 2. Biliran
overt acts committed by them in
furtherance [or on the occasion]
thereof[,]. [or incident thereto, or C. CITIES:
in connection therewith.]1
 1. Laog 10. B. CITIES:
Bacolod
2. Dagupan 11. 1. Surigao 8.
Bago Tangub
3. San Carlos 2. Davao 9.
12. Canlaon Dapitan
4. Batangas 13. 3. Butuan 10.
La Carlota Dipolog
5. Lipa 14. Bais 4. Cagayan 11.
6. Puerto Zamboanga
Princesa 15. 5. Gingoong 12.
Dumaguete Basilan
7. San Carlos 6. Ozamiz 13.
(Negros 16. Pagadian.
Iloilo 7. Oroquieta
Occ.) 17. Roxas
8. Cadiz 18.
On October 4, 1971, the suspension of the
Tagbilaran
privilege was further lifted by Proclamation No.
9. Silay 19.
889-D, in the following places:
Lapu-lapu

20. Cebu 24. A. PROVINCES:

Tacloban
21. Mandaue 1. Cagayan 5.
25. Ormoc Camarines
22. Danao 26. 2. Cavite 6.
Calbayog Albay
23. Toledo 3. Mountain
Province 7.
On September 25, 1971, the President issued Sorsogon
Proclamation No. 889-C, restoring the privilege of 4. Kalinga-
the writ in the following provinces and cities: Apayao

A. PROVINCES: B. CITIES:

1. Surigao del 1. Cavite City 3.

Norte 8. Agusan Trece Martires
del Sur 2. Tagaytay 4.
2. Surigao del Legaspi
Sur 9. Misamis
Or. As a consequences, the privilege of the writ
3. Davao del of habeas corpus is still suspended in the
Norte 10. following eighteen (18) provinces, two (2) sub-
Misamis Occ. provinces and eighteen (18) cities, to wit:
4. Davao del
Sur 11. A. PROVINCE:
Zamboanga del
Norte 1. Bataan 10.
5. Davao North Cotabato
Oriental 12. 2. Benguet 11.
Basilan Nueva Ecija
6. Bukidnon 13. 3. Bulacan 13.
Pagadian Pampanga
7. Agusan del 4. Camarines
Norte Sur 14. Quezon
 5. Ifugao 15. although tentatively, a consensus to the contrary,
Rizal and decided that the Court had authority to and
6. Isabela 16. should inquire into the existence of the factual
South Cotabato bases required by the Constitution for the
7. Laguna 17. suspension of the privilege of the writ; but before
Tarlac proceeding to do so, the Court deemed it
8. Lanao del necessary to hear the parties on the nature and
Norte 18. extent of the inquiry to be undertaken, none of
Zambales them having previously expressed their views
9. Lanao del thereof. Accordingly, on October 5, 1971, the
Norte Court issued, in L-33964, L-33965, L-33973 and
L-33982, a resolution stating in part that —
B. SUB-PROVINCES:
... a majority of the Court having
1. Aurora 2. Quirino tentatively arrived at a
consensus that it may inquire in
order to satisfy itself of the
C. CITIES:
existence of the factual bases for
the issuance of Presidential
1. Angeles 10. Proclamations Nos. 889 and
Manila 889-A (suspending the privilege
2. Baguio 11. of the writ of habeas corpus for
Marawi all persons detained or to be
3. Cabanatuan detained for the crimes of
12. Naga rebellion or insurrection
4. Caloocan 13. throughout the Philippines,
Olongapo which area has lately been
5. Cotabato 14. reduced to some eighteen
Palayan provinces, two subprovinces and
6. General eighteen cities with the partial
Santos 15. lifting of the suspension of the
Pasay privilege effected by Presidential
7. Iligan 16. Proclamations Nos. 889-B, 889-
Quezon C and 889-D) and thus
8 Iriga 17. San determine the constitutional
Jose sufficiency of such bases in the
9 Lucena 18. light of the requirements of
San Pablo Article III, sec. 1, par. 14, and
Article VII, sec. 10, par. 2, of the
The first major question that the Court had to Philippine Constitution; and
consider was whether it would adhere to the view considering that the members of
taken in Barcelon v. Baker,2 and reiterated the Court are not agreed on the
in Montenegro v. Castañeda,3 pursuant to which, precise scope and nature of the
"the authority to decide whether the exigency has inquiry to be made in the
arisen requiring suspension (of the privilege of premises, even as all of them are
the writ of habeas corpus) belongs to the agreed that the Presidential
President and his 'decision is final and conclusive' findings are entitled to great
upon the courts and upon all other persons." respect, the Court RESOLVED
Indeed, had said question been decided in the that these cases be set for
affirmative the main issue in all of these cases, rehearing on October 8, 1971 at
except 9:30 A.M.
L-34339, would have been settled, and, since the
other issues were relatively of minor importance, xxx xxx xxx
said cases could have been readily disposed of.
Upon mature deliberation, a majority of the
Members of the Court had, however, reached,
On October 8, 1971, said four cases were, (4) Nemesio Prudente -- " " L-
therefore, heard, once again, but, this time jointly 33982
with cases Nos. L-34004, L-34013, and L-34039, (5) Gerardo Tomas -- " " L-34004
and the parties were then granted a period to file (6) Reynaldo Rimando -- " " L-
memoranda, in amplification of their respective 34013
oral arguments, which memoranda were (7) Filomeno M. de Castro -- " "
submitted from October 12 to October 21, 1971. L-34039
(8) Barcelisa de Castro -- " " L-
Respondents having expressed, during the oral 34039
arguments, on September 1 and October 8, 1971, (9) Antolin Oreta, Jr. -- " " L-
their willingness to impart to the Court classified 34264.
information relevant to these cases, subject to
appropriate security measures, the Court met at (b) charged, together with other persons named
closed doors, on October 28 and 29, 1971, and, in the criminal complaint filed therefor, with a
in the presence of three (3) attorneys for the violation of Republic Act No. 1700 (Anti-
petitioners, chosen by the latter, namely, Senator Subversion Act), in the City Fiscal's Office of
Jose W. Diokno, Senator Salvador H. Laurel, and Quezon City:
Atty. Leopoldo Africa, as well as of the Solicitor
General and two (2) members of his staff, was (1) Angelo de los Reyes -- G.R.
briefed, by Gen. Manuel Yan, Chief of Staff of the No. L-22982 *
Armed Forces of the Philippines, Gen. Fidel (2) Teresito Sison -- " " L-33982 *
Ramos, Deputy Chief of Staff, Gen. Felizardo
Tanabe, Col. Tagumpay Nanadiego, Judge
(c) accused, together with many others named in
Advocate General, JAGS (GSC), and other
the criminal complaint filed therefor, of a violation
ranking officers of said Armed Forces, on said of section 4 of Republic Act No. 1700 (Anti-
classified information, most of which was
Subversion Act), in the Court of First Instance of
contained in reports and other documents already
Rizal:
attached to the records. During the proceedings,
the members of the Court, and, occassionally,
counsel for the petitioners, propounded pertinent (1) Rodolfo del Rosario -- G.R.
questions to said officers of the Armed Forces. No. L-33969 **
Both parties were then granted a period of time (2) Luzvimindo David -- " " L-
within which to submit their respective 33973
observations, which were filed on November 3, (3) Victor Felipe -- " " L-33982 *
1971, and complemented by some documents
attached to the records on November 6, 1971, and continue under detention pursuant to
and a summary, submitted on November 15, Proclamation No. 889, as amended, and praying
1971, of the aforesaid classified information. that the petitions in G.R. Nos. L-33964, L-33965,
L-33982, L-34004, L-34013 and L-34039 be
In the meantime, cases Nos. L-34265 (Oreta) and dismissed, without prejudice to the resolution of
L-34339 (Olivar) had been filed and the parties the remaining cases. Copy of the criminal
therein were heard in oral argument on complaint filed, as above stated, with the Court of
November 4, and 16, 1971, respectively. First Instance of Rizal and docketed therein as
Criminal Case No. Q-1623 of said court — which
was appended to said manifestations-motions of
On November 15, 1971, the Solicitor General
the respondent as Annex 2 thereof — shows that
filed manifestations — motions stating that on Gary Olivar, the petitioner in L-34339, is one of
November 13, 1971, the following petitioners
the defendants in said case.
were:
Required to comment on said manifestations-
(a) released from custody: motions, Luzvimindo David, petitioner in L-33973,
in his comment dated November 23, 1971, urged
(1) Teodosio Lansang -- G.R. the Court to rule on the merits of the petitions in
No. L-33964 all of these cases, particularly on the
(2) Bayani Alcala -- " " L-33964 constitutionality of Presidential Proclamation No.
(3) Rogelio Arienda -- " " L-33965 889, as amended, upon the ground that he is still
detained and that the main issue is one of public privileges of the writ of habeas
interest involving as it does the civil liberties of the corpus, or place the Philippines
people. Angelo de los Reyes, one of the or any part thereof under martial
petitioners in L-33964, L-33965 and L-33973, law.
Nemesio E. Prudente and Gerardo Tomas, for
whose respective benefit the petitions in L-33982 Regardless of whether or not the President may
and L-34004 have been filed, maintained that the suspend the privilege of the writ of habeas
issue in these cases is not moot, not even for the corpus in case of "imminent danger" of invasion,
detainees who have been released, for, as long insurrection or rebellion — which is one of the
as the privilege of the writ remains suspended, grounds stated in said paragraph (2), section 10
they are in danger of being arrested and detained of Art. VII of the Constitution, but not mentioned
again without just cause or valid reason. In his in paragraph (14), section 1 of its Bill of Rights —
reply, dated and filed on November 29, 1971, the petitioners maintained that Proclamation No. 889
Solicitor General insisted that the release of the did not declare the existence of actual "invasion
above-named petitioners rendered their insurrection or rebellion or imminent danger
respective petitions moot and academic. thereof," and that, consequently, said
Proclamation was invalid. This contention was
I predicated upon the fact that, although the first
"whereas" in Proclamation No. 889 stated that
Petitioners herein, except Antolin Oreta, Jr. in L- "lawless elements" had "entered into
34265, question the formal validity of the a conspiracy and have in fact joined and banded
proclamation suspending the privilege of the writ their forces together for the avowed purpose of
of habeas corpus. In this connection, it should be actually staging, undertaking and waging an
noted that, as originally formulated, Proclamation armed insurrection and rebellion," the actuality so
No. 889 was contested upon the ground that it did alleged refers to the existence, not of an uprising
not comply with the pertinent constitutional that constitutes the essence of a rebellion or
provisions, namely, paragraph (14) of section 1, insurrection, but of the conspiracy and
Article III of our Constitution, reading: the intent to rise in arms.

The privilege of the writ Whatever may be the merit of this claim, the same
of habeas corpus shall not be has been rendered moot and academic by
suspended except in cases of Proclamation No. 889-A, issued nine (9) days
invasion, insurrection, or after the promulgation of the original
rebellion, when the public safety proclamation, or on August 30, 1971. Indeed,
requires it, in any way of which said Proclamation No. 889-A amended, inter alia,
events the same may be the first "whereas" of the original proclamation by
suspended wherever during postulating the said lawless elements "have
such period the necessity for entered into a conspiracy and have in fact joined
such suspension shall exist. and banded their forces together for the avowed
purpose of staging, undertaking, waging and are
actually engaged in an armed insurrection and
and paragraph (2), section 10, Article VII of the
same instrument, which provides that: rebellion in order to forcibly seize political power
in this country, overthrow the duly constituted
government, and supplant our existing political,
The President shall be social, economic and legal order with an entirely
commander-in-chief of all armed new one ...." Moreover, the third "whereas" in the
forces of the Philippines, and original proclamation was, likewise, amended by
whenever it becomes necessary, alleging therein that said lawless elements, "by
he may call out such armed their acts of rebellion and insurrection," have
forces to prevent or suppress created a state of lawlessness and disorder
lawless violence, invasion, affecting public safety and the security of the
insurrection, or rebellion. In case State. In other words, apart from adverting to the
of invasion, insurrection, or existence of actual conspiracy and of the intent to
rebellion, or imminent danger rise in arms to overthrow the government,
thereof when the public safety Proclamation No. 889-A asserts that the lawless
requires it, he may suspend the
elements "are actually engaged in an armed The weight of Barcelon v. Baker, as a precedent,
insurrection and rebellion" to accomplish their is diluted by two (2) factors, namely: (a) it relied
purpose. heavily upon Martin v. Mott7 involving the U.S.
President's power to call out the militia, which —
It may not be amiss to note, at this juncture, that he being the commander-in-chief of all the armed
the very tenor of the original proclamation and forces — may be exercised to suppress or
particularly, the circumstances under which it had prevent any lawless violence, even without
been issued, clearly suggest the intent to aver invasion, insurrection or rebellion, or imminent
that there was and is, actually, a state of rebellion danger thereof, and is, accordingly, much
in the Philippines, although the language of said broader than his authority to suspend the
proclamation was hardly a felicitous one, it having privilege of the writ of habeas corpus,
in effect, stressed the actuality of the intent to rise jeopardizing as the latter does individual liberty;
in arms, rather than of the factual existence of the and (b) the privilege had been suspended by the
rebellion itself. The pleadings, the oral arguments American Governor-General, whose act, as
and the memoranda of respondents herein have representative of the Sovereign, affecting the
consistently and abundantly emphasized — to freedom of its subjects, can hardly be equated
justify the suspension of the privilege of the writ with that of the President of the Philippines
of habeas corpus — the acts of violence and dealing with the freedom of the Filipino people, in
subversion committed prior to August 21, 1971, whom sovereignty resides, and from whom all
by the lawless elements above referred to, and government authority emanates. The pertinent
the conditions obtaining at the time of the ruling in the Montenegro case was based mainly
issuance of the original proclamation. In short, upon the Barcelon case, and hence, cannot have
We hold that Proclamation No. 889-A has more weight than the same. Moreover, in the
superseded the original proclamation and that the Barcelon case, the Court held that it could go into
flaws attributed thereto are purely formal in the question: "Did the Governor-General" —
nature. acting under the authority vested in him by the
Congress of the United States, to suspend the
privilege of the writ of habeas corpus under
II
certain conditions — "act in conformance with
such authority?" In other words, it did determine
Let us now consider the substantive validity of the whether or not the Chief Executive had acted in
proclamation, as amended. Pursuant to the accordance with law. Similarly, in the Montenegro
above-quoted provisions of the Constitution, two case, the Court held that petitioner therein had
(2) conditions must concur for the valid exercise "failed to overcome the presumption of
of the authority to suspend the privilege to the correctness which the judiciary accords to acts of
writ, to wit: (a) there must be "invasion, the Executive ...." In short, the
insurrection, or rebellion" or — pursuant to Court considered the question whether or not
paragraph (2), section 10 of Art. VII of the there really was are rebellion, as stated in the
Constitution — "imminent danger thereof," and proclamation therein contested.
(b) "public safety" must require the suspension of
the privilege. The Presidential Proclamation
Incidentally, even the American jurisprudence is
under consideration declares that there has been
and there is actually a state of rebellion and neither explicit nor clear on the point under
consideration. Although some cases8 purport to
that4 "public safety requires that immediate and
deny the judicial power to "review" the findings
effective action be taken in order to maintain
made in the proclamations assailed in said cases,
peace and order, secure the safety of the people
the tenor of the opinions therein given,
and preserve the authority of the State."
considered as a whole, strongly suggests the
court's conviction that the conditions essential for
Are these findings conclusive upon the Court? the validity of said proclamations or orders were,
Respondents maintain that they are, upon the in fact, present therein, just as the opposite view
authority of Barcelon v. Baker5 and Montenegro taken in other cases9 had a backdrop permeated
v. Castañeda.6 Upon the other hand, petitioners or characterized by the belief that said conditions
press the negative view and urge a reexamination were absent. Hence, the dictum of Chief Justice
of the position taken in said two (2) cases, as well Taney to the effect that "(e)very case must
as a reversal thereof. depend on its own circumstances." 10 One of the
important, if not dominant, factors, in connection
therewith, was intimated in Sterling v. the necessity for such suspension shall
Constantin, 11 in which the Supreme Court of the exist." 13 For from being full and plenary, the
United States, speaking through Chief Justice authority to suspend the privilege of the writ is
Hughes, declared that: thus circumscribed, confined and restricted, not
only by the prescribed setting or the conditions
.... When there is a substantial essential to its existence, but, also, as regards the
showing that the exertion of state time when and the place where it may be
power has overridden private exercised. These factors and the aforementioned
rights secured by that setting or conditions mark, establish and define
Constitution, the subject the extent, the confines and the limits of said
is necessarily one for judicial power, beyond which it does not exist. And, like
inquiry in an appropriate the limitations and restrictions imposed by the
proceeding directed against the Fundamental Law upon the legislative
individuals charged with the department, adherence thereto and compliance
transgression. To such a case therewith may, within proper bounds, be inquired
the Federal judicial power into by courts of justice. Otherwise, the explicit
extends constitutional provisions thereon would be
(Art. 3, sec. 2) and, so meaningless. Surely, the framers of our
extending, the court has all the Constitution could not have intended to engage in
authority appropriate to its such a wasteful exercise in futility.
exercise. .... 12
Much less may the assumption be indulged in
In our resolution of October 5, 1971, We stated when we bear in mind that our political system is
that "a majority of the Court" had essentially democratic and republican in
"tentatively arrived at a consensus that it may character and that the suspension of the privilege
inquire in order to satisfy itself of the existence of affects the most fundamental element of that
the factual bases for the issuance of Presidential system, namely, individual freedom. Indeed, such
Proclamations Nos. 889 and 889-A ... and freedom includes and connotes, as well as
thus determine the constitutional sufficiency of demands, the right of every single member of our
such bases in the light of the requirements of citizenry to freely discuss and dissent from, as
Article III, sec. 1, par. 14, and Article VII, sec. 10, well as criticize and denounce, the views, the
par 2, of the Philippine Constitution...." Upon policies and the practices of the government and
further deliberation, the members of the Court are the party in power that he deems unwise,
now unanimous in the conviction that it has the improper or inimical to the commonwealth,
authority to inquire into the existence of said regardless of whether his own opinion is
factual bases in order to determine the objectively correct or not. The untrammelled
constitutional sufficiency thereof. enjoyment and exercise of such right — which,
under certain conditions, may be a civic duty of
the highest order — is vital to the democratic
Indeed, the grant of power to suspend the
system and essential to its successful operation
privilege is neither absolute nor unqualified. The
and wholesome growth and development.
authority conferred by the Constitution, both
under the Bill of Rights and under the Executive
Department, is limited and conditional. The Manifestly, however, the liberty guaranteed and
precept in the Bill of Rights establishes a general protected by our Basic Law is one enjoyed and
rule, as well as an exception thereto. What is exercised, not in derogation thereof, but
more, it postulates the former in the negative, consistently therewith, and, hence, within the
evidently to stress its importance, by providing framework of the social order established by the
that "(t)he privilege of the writ of habeas Constitution and the context of the Rule of Law.
corpus shall not be suspended ...." It is only by Accordingly, when individual freedom is used to
way of exception that it permits the suspension of destroy that social order, by means of force and
the privilege "in cases of invasion, insurrection, or violence, in defiance of the Rule of Law — such
rebellion" — or, under Art VII of the Constitution, as by rising publicly and taking arms against the
"imminent danger thereof" — "when the public government to overthrow the same, thereby
safety requires it, in any of which events the same committing the crime of rebellion — there
may be suspended wherever during such period emerges a circumstance that may warrant a
limited withdrawal of the aforementioned on October 18, 1950, members of the Communist
guarantee or protection, by suspending the Politburo in the Philippines were apprehended in
privilege of the writ of habeas corpus, when Manila. Subsequently accused and convicted of
public safety requires it. Although we must be the crime of rebellion, they served their respective
forewarned against mistaking mere dissent — no sentences. 16
matter how emphatic or intemperate it may be —
for dissidence amounting to rebellion or The fifties saw a comparative lull in Communist
insurrection, the Court cannot hesitate, much less activities, insofar as peace and order were
refuse — when the existence of such rebellion or concerned. Still, on June 20, 1957, Rep. Act No.
insurrection has been fairly established or cannot 1700, otherwise known as the Anti-Subversion
reasonably be denied — to uphold the finding of Act, was approved, upon the ground — stated in
the Executive thereon, without, in effect, the very preamble of said statute — that.
encroaching upon a power vested in him by the
Supreme Law of the land and depriving him, to ... the Communist Party of the
this extent, of such power, and, therefore, without Philippines, although purportedly
violating the Constitution and jeopardizing the
a political party, is in fact an
very Rule of Law the Court is called upon to
organized conspiracy to
epitomize.
overthrow the Government of the
Republic of the Philippines, not
As heretofore adverted to, for the valid only by force and violence but
suspension of the privilege of the writ: (a) there also by deceit, subversion and
must be "invasion, insurrection or rebellion" or — other illegal means, for the
pursuant to paragraph (2), section 10 of Art. VII of purpose of establishing in the
the Constitution — "imminent danger thereof"; Philippines a totalitarian regime
and (b) public safety must require the subject to alien domination and
aforementioned suspension. The President control;
declared in Proclamation No. 889, as amended,
that both conditions are present.
... the continued existence and
activities of the Communist Party
As regards the first condition, our of the Philippines constitutes
jurisprudence 14 attests abundantly to the a clear,
Communist activities in the Philippines, especially present and grave danger to the
in Manila, from the late twenties to the early security of the Philippines; 17 and
thirties, then aimed principally at incitement to
sedition or rebellion, as the immediate objective. ... in the face of the organized,
Upon the establishment of the Commonwealth of systematic and persistent
the Philippines, the movement seemed to have
subversion, national in scope but
waned notably; but, the outbreak of World War II
international in direction, posed
in the Pacific and the miseries, the devastation
by the Communist Party of the
and havoc, and the proliferation of unlicensed
Philippines and its activities,
firearms concomitant with the military occupation there is urgent need for special
of the Philippines and its subsequent liberation, legislation to cope with this
brought about, in the late forties, a resurgence of
continuing menace to the
the Communist threat, with such vigor as to be
freedom and security of the
able to organize and operate in Central Luzon an
country....
army — called HUKBALAHAP, during the
occupation, and renamed Hukbong Mapagpalaya
ng Bayan (HMP) after liberation — which clashed In the language of the Report on Central Luzon,
several times with the armed forces of the submitted, on September 4, 1971, by the Senate
Republic. This prompted then President Quirino Ad Hoc Committee of Seven — copy of which
to issue Proclamation No. 210, dated October 22, Report was filed in these cases by the petitioners
1950, suspending the privilege of the writ herein —
of habeas corpus, the validity of which was
upheld in Montenegro v. Castañeda. 15 Days The years following 1963 saw
before the promulgation of said Proclamation, or the successive emergence in the
country of several mass
 organizations, notably the In the year 1969, the NPA had — according to the
Lapiang Manggagawa (now the records of the Department of National Defense —
Socialist Party of the Philippines) conducted raids, resorted to kidnappings and
among the workers; the taken part in other violent incidents numbering
Malayang Samahan ng mga over 230, in which it inflicted 404 casualties, and,
Magsasaka (MASAKA) among in turn, suffered 243 losses. In 1970, its records
the peasantry; the Kabataang of violent incidents was about the same, but the
Makabayan (KM) among the NPA casualties more than doubled.
youth/students; and the
Movement for the Advancement At any rate, two (2) facts are undeniable: (a) all
of Nationalism (MAN) among the Communists, whether they belong to the
intellectuals/professionals. The traditional group or to the Maoist faction, believe
PKP has exerted all-out effort to that force and violence are indispensable to the
infiltrate, influence and utilize attainment of their main and ultimate objective,
these organizations in promoting and act in accordance with such belief, although
its radical brand of they may disagree on the means to be used at a
nationalism. 18 given time and in a particular place; and (b) there
is a New People's Army, other, of course, that the
Meanwhile, the Communist leaders in the arm forces of the Republic and antagonistic
Philippines had been split into two (2) groups, one thereto. Such New People's Army is per se proof
of which — composed mainly of young radicals, of the existence of a rebellion, especially
constituting the Maoist faction — reorganized the considering that its establishment
Communist Party of the Philippines early in 1969 was announced publicly by the reorganized CPP.
and established a New People's Army. This Such announcement is in the nature of a public
faction adheres to the Maoist concept of the challenge to the duly constituted authorities and
"Protracted People's War" or "War of National may be likened to a declaration of war, sufficient
Liberation." Its "Programme for a People's to establish a war status or a condition of
Democratic Revolution" states, inter alia: belligerency, even before the actual
commencement of hostilities.
The Communist Party of the
Philippines is determined to We entertain, therefore, no doubts about the
implement its general existence of a sizeable group of men who have
programme for a people's publicly risen in arms to overthrow the
democratic revolution. All Filipino government and have thus been and still are
communists are ready to engaged in rebellion against the Government of
sacrifice their lives for the worthy the Philippines.
cause of achieving the new type
of democracy, of building a new In fact, the thrust of petitioners' argument is that
Philippines that is genuinely and the New People's Army proper is too small,
completely independent, compared with the size of the armed forces of the
democratic, united, just and Government, that the Communist rebellion or
prosperous ... insurrection cannot so endanger public safety as
to require the suspension of the privilege of the
xxx xxx xxx writ of habeas corpus. This argument does not
negate, however, the existence of a rebellion,
The central task of any which, from the constitutional and statutory
revolutionary movement is to viewpoint, need not be widespread or attain the
seize political power. The magnitude of a civil war. This is apparent from the
Communist Party of the very provision of the Revised Penal Code
Philippines assumes this task at defining the crime of rebellion, 20 which may be
a time that both the international limited in its scope to "any part" of the Philippines,
and national situations are and, also, from paragraph (14) of section 1,
favorable of asking the road of Article III of the Constitution, authorizing the
armed suspension of the privilege of the writ "wherever"
revolution ... 19 — in case of rebellion — "the necessity for such
suspension shall exist." In fact, the case of Under the English law, the reviewing court
Barcelon v. Baker referred to a proclamation determines only whether there is some
suspending the privilege in the provinces of evidentiary basis for the contested administrative
Cavite and Batangas only. The case of In re findings; no quantitative examination of the
Boyle 21involved a valid proclamation suspending supporting evidence is undertaken. The
the privilege in a smaller area — a country of the administrative findings can be interfered
state of Idaho. with only if there is no evidence whatsoever in
support thereof, and said finding is, accordingly,
The magnitude of the rebellion has a bearing on arbitrary, capricious and obviously unauthorized.
the second condition essential to the validity of This view has been adopted by some American
the suspension of the privilege — namely, that the courts. It has, likewise, been adhered to in a
suspension be required by public safety. Before number of Philippine cases. Other cases,
delving, however, into the factual bases of the in bothjurisdictions, have applied the "substantial
presidential findings thereon, let us consider the evidence" rule, which has been construed to
precise nature of the Court's function in passing mean "more than a mere scintilla" or "relevant
upon the validity of Proclamation No. 889, as evidence as a reasonable mind might accept as
amended. adequate to support a conclusion," 23 even if
other minds equally reasonable might
conceivably opine otherwise.
Article VII of the Constitution vests in the
Executive the power to suspend the privilege of
the writ of habeas corpus under specified Manifestly, however, this approach refers to the
conditions. Pursuant to the principle of separation review of administrative determinations involving
of powers underlying our system of government, the exercise of quasi-judicial functions calling for
the Executive is supreme within his own sphere. or entailing the reception of evidence. It does not
However, the separation of powers, under the and cannot be applied, in its aforesaid form, in
Constitution, is not absolute. What is more, it testing the validity of an act of Congress or of the
goes hand in hand with the system of checks and Executive, such as the suspension of the
balances, under which the Executive is supreme, privilege of the writ of habeas corpus, for, as a
as regards the suspension of the privilege, but general rule, neither body takes evidence — in
only if and when he acts within the sphere the sense in which the term is used in judicial
allotted to him by the Basic Law, and the authority proceedings — before enacting a legislation or
to determine whether or not he has so acted is suspending the writ. Referring to the test of the
vested in the Judicial Department, which, in this validity of a statute, the Supreme Court of the
respect, is, in turn, constitutionally supreme. United States, speaking through Mr. Justice
Roberts, expressed, in the leading case of
In the exercise of such authority, the function of Nebbia v. New York, 24 the view that:
the Court is merely to check — not
to supplant 22 — the Executive, or to ascertain ... If the laws passed are seen to
merely whether he had gone beyond the have a reasonable relation to a
constitutional limits of his jurisdiction, not to proper legislative purpose, and
exercise the power vested in him or to determine are neither arbitrary nor
the wisdom of his act. To be sure, the power of discriminatory, the requirements
the Court to determine the validity of the of due process are satisfied,
contested proclamation is far from being identical and judicial determination to that
to, or even comparable with, its power over effect renders a court functus
ordinary civil or criminal cases elevated thereto officio ... With the wisdom of the
by ordinary appeal from inferior courts, in which policy adopted, with the
cases the appellate court has all of the powers of adequacy or practically of the
the court of origin. law enacted to forward it, the
courts are
both incompetent and unauthori
Under the principle of separation of powers and
zed to deal ...
the system of checks and balances, the judicial
authority to review decisions of administrative
bodies or agencies is much more limited, as Relying upon this view, it is urged by the Solicitor
regards findings of fact made in said decisions. General —
 ... that judicial inquiry into the circumstance was adverted to in some American
basis of the questioned cases to justify the invalidation therein decreed of
proclamation can go no said act of the Executive. Said cases involved,
further than to satisfy the however, the conviction by military courts of
Court not that the President's members of the civilian population charged
decision is correct and that with common crimes. It was manifestly, illegal for
public safety was endanger by military courts to assume jurisdiction over
the rebellion and justified the civilians so charged, when civil courts were
suspension of the writ, but that in functioning normally.
suspending the writ, the
President did not act arbitrarily. Then, too, the alleged absence of any untoward
incident after August 21, 1971, does not
No cogent reason has been submitted to warrant necessarily bear out petitioners' view. What is
the rejection of such test. Indeed, the co-equality more, it may have been due precisely to the
of coordinate branches of the Government, under suspension of the privilege. To be sure, one of its
our constitutional system, seems to demand that logical effects is to compel those connected with
the test of the validity of acts of Congress and of the insurrection or rebellion to go into hiding. In
those of the Executive be, mutatis mutandis, fact, most of them could not be located by the
fundamentally the same. Hence, counsel for authorities, after August 21, 1971.
petitioner Rogelio Arienda admits that the proper
standard is not correctness, but arbitrariness. The alleged July-August Plan to terrorize Manila
is branded as incredible, upon the theory that,
Did public safety require the suspension of the according to Professor Egbal Ahman of Cornell
privilege of the writ of habeas corpus decreed in University, "guerrilla use of terror ... is sociological
Proclamation No. 889, as amended? Petitioners and psychologically selective," and that the
submit a negative answer upon the ground: (a) indiscriminate resort to terrorism is bound to
that there is no rebellion; (b) that, prior to and at boomerang, for it tends to alienate the people's
the time of the suspension of the privilege, the symphaty and to deprive the dissidents of much
Government was functioning normally, as were needed mass support. The fact, however, is that
the courts; (c) that no untoward incident, the violence used is some demonstrations held in
confirmatory of an alleged July-August Plan, has Manila in 1970 and 1971 tended to terrorize the
actually taken place after August 21, 1971; (d) bulk of its inhabitants. It would have been highly
that the President's alleged apprehension, imprudent, therefore, for the Executive to discard
because of said plan, is non-existent and the possibility of a resort to terrorism, on a much
unjustified; and (e) that the Communist forces in bigger scale, under the July-August Plan.
the Philippines are too small and weak to
jeopardize public safety to such extent as to We will now address our attention to petitioners'
require the suspension of the privilege of the writ theory to the effect that the New People's Army of
of habeas corpus. the Communist Party of the Philippines is too
small to pose a danger to public safety of such
As above indicated, however, the existence of a magnitude as to require the suspension of the
rebellion is obvious, so much so that counsel for privilege of the writ of habeas corpus. The flaw in
several petitioners herein have admitted it. petitioners' stand becomes apparent when we
consider that it assumes that the Armed Forces
With respect to the normal operation of of the Philippines have no other task than to fight
government, including courts, prior to and at the the New People's Army, and that the latter is the
time of the suspension of the privilege, suffice it only threat — and a minor one — to our security.
to say that, if the conditions were such that courts Such assumption is manifestly erroneous.
of justice no longer functioned, a suspension of
the privilege would have been unnecessary, there The records before Us show that, on or before
being no courts to issue the writ of habeas August 21, 1971, the Executive had information
corpus. Indeed, petitioners' reference to the and reports — subsequently confirmed, in many
normal operation of courts as a factor indicative respects, by the abovementioned Report of the
of the illegality of the contested act of the Senate Ad-Hoc Committee of Seven 25 — to the
Executive stems, perhaps, from the fact that this effect that the Communist Party of the Philippines
does not merely adhere to Lenin's idea of a swift Luzon, forty-nine (49) in Central Luzon, forty-two
armed uprising; that it has, also, adopted Ho Chi (42) in the Visayas and twenty-one (21) in
Minh's terrorist tactics and resorted to the Mindanao and Sulu; that in 1970, the Party had
assassination of uncooperative local official; that, recorded two hundred fifty-eight (258) major
in line with this policy, the insurgents have killed demonstrations, of which about thirty-three (33)
5 mayors, 20 barrio captains and 3 chiefs of ended in violence, resulting in fifteen (15) killed
police; that there were fourteen (14) meaningful and over five hundred (500) injured; that most of
bombing incidents in the Greater Manila Area in these actions were organized, coordinated or led
1970; that the Constitutional Convention Hall was by the aforementioned front organizations; that
bombed on June 12, 1971; that, soon after the the violent demonstrations were generally
Plaza Miranda incident, the NAWASA main pipe, instigated by a small, but well-trained group of
at the Quezon City-San Juan boundary, was armed agitators; that the number of
bombed; that this was followed closely by the demonstrations heretofore staged in 1971 has
bombing of the Manila City Hall, the COMELEC already exceeded those of 1970; and that twenty-
building, the Congress Building and the four (24) of these demonstrations were violent,
MERALCO substation at Cubao, Quezon City; and resulted in the death of fifteen (15) persons
and that the respective residences of Senator and the injury of many more.
Jose J. Roy and Congressman Eduardo
Cojuangco were, likewise, bombed, as were the Subsequent events — as reported — have also
MERALCO main office premises, along Ortigas proven that petitioners' counsel have
Avenue, and the Doctor's Pharmaceuticals, Inc. underestimated the threat to public safety posed
Building, in Caloocan City. by the New People's Army. Indeed, it appears
that, since August 21, 1971, it had in Northern
Petitioners, similarly, fail to take into account that Luzon six (6) encounters and staged one (1) raid,
— as per said information and reports — the in consequence of which seven (7) soldiers lost
reorganized Communist Party of the Philippines their lives and two (2)others were wounded,
has, moreover, adopted Mao's concept of whereas the insurgents suffered five (5)
protracted people's war, aimed at the casualties; that on August 26, 1971, a well-armed
paralyzation of the will to resist of the group of NPA, trained by defector Lt. Victor
government, of the political, economic and Corpus, attacked the very command port of TF
intellectual leadership, and of the people LAWIN in Isabela, destroying two (2) helicopters
themselves; that conformably to such concept, and one (1) plane, and wounding one (1) soldier;
the Party has placed special emphasis upon a that the NPA had in Central Luzon a total of four
most extensive and intensive program of (4) encounters, with two (2) killed and three (3)
subversion by the establishment of front wounded on the side of the Government, one (1)
organizations in urban centers, the organization BSDU killed and three (3) NPA casualties; that in
of armed city partisans and the infiltration in an encounter at Botolan, Zambales, one (1) KM-
student groups, labor unions, and farmer and SDK leader, an unidentified dissident, and
professional groups; that the CPP has managed Commander Panchito, leader of the dissident
to infiltrate or establish and control nine (9) major group were killed; that on August 26, 1971, there
labor organizations; that it has exploited the youth was an encounter in the barrio of San Pedro. Iriga
movement and succeeded in making Communist City, Camarines Sur, between the PC and the
fronts of eleven (11) major student or youth NPA, in which a PC and two (2) KM members
organizations; that there are, accordingly, about were killed; that the current disturbances in
thirty (30) mass organizations actively advancing Cotabato and the Lanao provinces have been
the CPP interests, among which are the rendered more complex by the involvement of the
Malayang Samahan ng Magsasaka (MASAKA), CPP/NPA, for, in mid-1971, a KM group, headed
the Kabataang Makabayan (KM), the Movement by Jovencio Esparagoza, contacted the Higa-
for the Advancement of Nationalism (MAN), the onan tribes, in their settlement in Magsaysay,
Samahang Demokratiko ng Kabataan (SDK), the Misamis Oriental, and offered them books,
Samahang Molave (SM) and the Malayang pamphlets and brochures of Mao Tse Tung, as
Pagkakaisa ng Kabataang Pilipino(MPKP); that, well as conducted teach-ins in the reservation;
as of August, 1971, the KM had two hundred that Esparagoza an operation of the PC in said
forty-five (245) operational chapters throughout reservation; and that there are now two (2) NPA
the Philippines, of which seventy-three (73) were cadres in Mindanao.
in the Greater Manila Area, sixty (60) in Northern
It should, also, be noted that adherents of the to above, he had substantial grounds to entertain
CPP and its front organizations are, according to such belief.
intelligence findings, definitely capable of
preparing powerful explosives out of locally Petitioners insist that, nevertheless, the President
available materials; that the bomb used in the had no authority to suspend the privilege in the
Constitutional Convention Hall was a "clay-more" entire Philippines, even if he may have been
mine, a powerful explosive device used by the justified in doing so in some provinces or cities
U.S. Army, believed to have been one of many thereof. At the time of the issuance of
pilfered from the Subic Naval Base a few days Proclamation No. 889, he could not be
before; that the President had received reasonably certain, however, about the placed to
intelligence information to the effect that there be excluded from the operation of the
was a July-August Plan involving a wave of proclamation. He needed some time to find out
assassinations, kidnappings, terrorism and mass how it worked, and as he did so, he caused the
destruction of property and that an extraordinary suspension to be gradually lifted, first, on
occurence would signal the beginning of said September 18, 1971, in twenty-seven (27)
event; that the rather serious condition of peace provinces, three (3) sub-provinces and twenty six
and order in Mindanao, particularly in Cotabato (26) cities; then, on September 25, 1971, in order
and Lanao, demanded the presence therein of fourteen (14) provinces and thirteen (13) cities;
forces sufficient to cope with the situation; that a and, still later, on October 4, 1971, in seven (7)
sizeable part of our armed forces discharge other additional provinces and four (4) cities, or a total
functions; and that the expansion of the CPP of forty-eight (48) provinces, three (3) sub-
activities from Central Luzon to other parts of the provinces and forth-three (43) cities, within a
country, particularly Manila and its suburbs, the period of forty-five (45) days from August 21,
Cagayan Valley, Ifugao, Zambales, Laguna, 1971.
Quezon and Bicol Region, required that the rest
of our armed forces be spread thin over a wide Neither should We overlook the significance of
area.
another fact. The President could have declared
a general suspension of the privilege. Instead,
Considering that the President was in possession Proclamation No. 889 limited the suspension to
of the above data — except those related to persons detained "for crimes of insurrection or
events that happened after August 21, 1971 — rebellion, and all other crimes and offenses
when the Plaza Miranda bombing took place, the committed by them in furtherance or on the
Court is not prepared to hold that the Executive occasion thereof, or incident thereto, or in
had acted arbitrarily or gravely abused his connection therewith." Even this was further
discretion when he then concluded that public limited by Proclamation No. 889-A, which
safety and national security required the withdrew from the coverage of the suspension
suspension of the privilege of the writ, particularly persons detained for other crimes and offenses
if the NPA were to strike simultaneously with committed "on the occasion" of the insurrection or
violent demonstrations staged by the two rebellion, or "incident thereto, in or connection
hundred forty-five (245) KM chapters, all over the therewith." In fact, the petitioners in L-33964, L-
Philippines, with the assistance and cooperation 33982 and L-34004 concede that the President
of the dozens of CPP front organizations, and the had acted in good faith.
bombing or water mains and conduits, as well as
electric power plants and installations — a
In case of invasion, insurrection or rebellion or
possibility which, no matter how remote, he was
imminent danger thereof, the President has,
bound to forestall, and a danger he was under
under the Constitution, three (3) courses of action
obligation to anticipate and arrest. open to him, namely: (a) to call out the armed
forces; (b) to suspend the privilege of the writ
He had consulted his advisers and sought their of habeas corpus; and (c) to place the Philippines
views. He had reason to feel that the situation or any part thereof under martial law. He had,
was critical — as, indeed, it was — and already, called out the armed forces, which
demanded immediate action. This he took measure, however, proved inadequate to attain
believing in good faith that public safety required the desired result. Of the two (2)other
it. And, in the light of the circumstances adverted alternatives, the suspension of the privilege is the
least harsh.
In view of the foregoing, it does not appear that Lansang, Rogelio Arienda, Antolin Oreta, Jr.,
the President has acted arbitrary in issuing Filomeno de Castro, Barcelisa C. de Castro,
Proclamation No. 889, as amended, nor that the Reynaldo Rimando, Gerardo Tomas and Bayani
same is unconstitutional. Alcala, who were released on November 13,
1971, and are no longer deprived of their liberty,
III their respective petitions have, thereby, become
moot and academic, as far as their prayer for
The next question for determination is whether release is concerned, and should, accordingly, be
petitioners herein are covered by said dismissed, despite the opposition thereto of
counsel for Nemesio Prudente and Gerardo
Proclamation, as amended. In other words, do
Tomas who maintain that, as long as the privilege
petitioners herein belong to the class of persons
as to whom privilege of the writ of habeas of the writ remains suspended, these petitioners
corpus has been suspended? might be arrested and detained again, without
just cause, and that, accordingly, the issue raised
in their respective petitions is not moot. In any
In this connection, it appears that Bayani Alcala, event, the common constitutional and legal
one of the petitioners in L-33964, Gerardo issues raised in these cases have, in fact, been
Tomas, petitioner in L-34004, and Reynaldo decided in this joint decision.
Rimando, petitioner in L-34013, were, on
November 13, 1971, released "permanently" —
meaning, perhaps, without any intention to Must we order the release of Rodolfo del Rosario,
one of the petitioners in
prosecute them — upon the ground that, although
L-33964, Angelo de los Reyes, Victor Felipe and
there was reasonable ground to believe that they
Teresito Sison, intervenors in L-33964, L-33965
had committed an offense related to subversion,
and L-33973, Luzvimindo David, petitioner in L-
the evidence against them is insufficient to
warrant their prosecution; that Teodosio 33973, and Gary Olivar, petitioner in L-34339,
who are still detained? The suspension of the
Lansang, one of the petitioners in L-33964,
privilege of the writ was decreed by Proclamation
Rogelio Arienda, petitioner in L-33965, Nemesio
No. 889, as amended, for persons detained "for
Prudente, petitioner in L-33982, Filomeno de
the crimes of insurrection or rebellion and other
Castro and Barcelisa C. de Castro, for whose
benefit the petition in L-34039 was filed, and overt acts committed by them in furtherance
Antolin Oreta, Jr., petitioner in L-34265, were, on thereof."
said date, "temporarily released"; that Rodolfo del
Rosario, one of the petitioners in The records shows that petitioners Luzvimindo
L-33964, Victor Felipe, an intervenor in L-33964, David, Rodolfo del Rosario, Victor Felipe, Angelo
L-33965 and L-33973, as well as Luzvimindo de los Reyes, Teresito Sison and Gary Olivar are
David, petitioner in L-33973, and Gary Olivar, accused in Criminal Case No. Q-1623 of the
petitioner in L-34339, are still under detention Court of First Instance of Rizal with a violation of
and, hence, deprived of their liberty, they — the Anti-Subversion Act and that the similar
together with over forty (40) other persons, who charge against petitioners Angelo de los Reyes
are at large — having been accused, in the Court and Teresito Sison in a criminal complaint,
of First Instance of Rizal, of a violation of section originally filed with the City Fiscal of Quezon City,
4 of Republic Act No. 1700 (Anti-Subversion Act); has, also, been filed with said court. Do the
and that Angelo delos Reyes and Teresito Sison, offenses so charged constitute one of the crimes
intervenors in said L-33964, L-33965 and or overt acts mentioned in Proclamation No. 889,
L-33973, are, likewise, still detained and have as amended?
been charged — together with over fifteen (15)
other persons, who are, also, at large — with In the complaint in said Criminal Case No. 1623,
another violation of said Act, in a criminal it is alleged:
complaint filed with the City Fiscal's Office of
Quezon City. That in or about the year 1968
and for sometime prior thereto
With respect to Vicente Ilao and Juan Carandang and thereafter up to and
— petitioners in L-33965 — who were released including August 21, 1971, in the
as early as August 31, 1971, as well as to city of Quezon, Philippines, and
petitioners Nemesio Prudente, Teodosio elsewhere in the Philippines,
within the jurisdiction of this purposes for
Honorable Court, the above- which they have
named accused knowingly, been
wilfully and by overt acts became appropriated;
officers and/or ranking leaders of
the Communist Party of the 2. By engaging
Philippines, a subversive by subversion
association as defined by thru expansion
Republic Act No. 1700, which and requirement
is an organized conspiracy to activities not
overthrow the government of the only of the
Republic of the Philippines by Communist
force, violence, deceit, Party of the
subversion and other illegal Philippines but
means, for the purpose of also of the
establishing in the Philippines a united front
communist totalitarian regime organizations of
subject to alien domination and the Communist
control; Party of the
Philippines as
That all the above-named the Kabataang
accused, as such officers and/or Makabayan
ranking leaders of the (KM),
Communist Party of the Movement for
Philippines conspiring, the Democratic
confederating and mutual Philippines
helping one another, did then (MDP),
and there knowingly, wilfully, and Samahang
feloniously and by overt acts Demokratikong
committed subversive acts all Kabataan
intended to overthrow the (SDK),
government of the Republic of Students'
the Philippines, as follows: Alliance for
National
1. By rising Democracy
publicly and (STAND),
taking arms MASAKA
against the Olalia-faction,
forces of the Student Cultural
government, Association of
engaging in war the University of
against the the Philippines
forces of the (SCAUP),
government, de KASAMA,
stroying Pagkakaisa ng
property or Magbubukid ng
committing Pilipinas (PMP)
serious and many
violence, others; thru
exacting agitation
contributions or promoted by
diverting public rallies,
lands or demonstration
property from and strikes
the law some of them
violent in nature,
intended to the will of the
create social government to
discontent, resist.
discredit those
in power and That the following aggravating
weaken the circumstances attended the
people's commission of the offense:
confidence in
the government; a. That the offense was
thru consistent
committed in contempt of and
propaganda by
with insult to the public
publications,
authorities;
writing, posters,
leaflets of
similar means; b. That some of the overt acts
speeches, were committed in the Palace of
teach-ins, the Chief Executive;
messages,
lectures or other c. That craft, fraud, or disguise
similar means; was employed;
or thru the
media as the d. That the offense was
TV, radio or committed with the aid of armed
newspapers, all men;
intended to
promote the e. That the offense was
Communist committed with the aid of
pattern of persons under fifteen(15) years
subversion; old.

3. Thru urban Identical allegations are made in the complaint

guerilla warfare filed with the City Fiscal of Quezon City, except
characterized that the second paragraph thereof is slightly more
by elaborate than that of the complaint filed with the
assassinations, CFI, although substantially the same. 26
bombings,
sabotage,
In both complaints, the acts imputed to the
kidnapping and
defendants herein constitute rebellion and
arson, intended
subversion, of — in the language of the
to advertise the
proclamation — "other overt acts committed ... in
movement,
furtherance" of said rebellion, both of which are
build up its
covered by the proclamation suspending the
morale and
privilege of the writ. It is clear, therefore, that the
prestige,
crime for which the detained petitioners are held
discredit and
and deprived of their liberty are among those for
demoralize the
which the privilege of the writ of habeas
authorities to
corpus has been suspended.
use harsh and
repressive
measures, Up to this point, the Members of the Court are
demoralize the unanimous on the legal principles enunciated.
people and
weaken their After finding that Proclamation No. 889, as
confidence in amended, is not invalid and that petitioners
the government Luzvimindo David, Victor Felipe, Gary Olivar,
and to weaken Angelo de los Reyes, Rodolfo del Rosario and
Teresito Sison are detained for and actually although ordinarily the Court would have merely
accused of an offense for which the privilege of determined the existence of the substantial
the writ has been suspended by said evidence of petitioners' connection with the crime
proclamation, our next step would have been the of rebellion. Besides, the latter alternative would
following: The Court, or a commissioner require the reception of evidence by this Court
designated by it, would have received evidence and thus duplicate the proceedings now taking
on whether — as stated in respondents' "Answer place in the court of first instance. What is more,
and Return" — said petitioners had been since the evidence involved in the same
apprehended and detained "on reasonable belief" proceedings would be substantially the same and
that they had "participated in the crime of the presentation of such evidence cannot be
insurrection or rebellion." made simultaneously, each proceeding would
tend to delay the other.
It is so happened, however, that on November 13,
1971 — or two (2) days before the proceedings Mr. Justice Fernando is of the opinion — in line
relative to the briefing held on October 28 and 29, with the view of Mr. Justice Tuason, in Nava v.
1971, had been completed by the filing 27 of the Gatmaitan, 28 to the effect that "... if and when
summary of the matters then taken up — the formal complaint is presented, the court steps
aforementioned criminal complaints were filed in and the executive steps out. The detention
against said petitioners. What is more, the ceases to be an executive and becomes a judicial
preliminary examination and/or investigation of concern ..." — that the filing of the above-
the charges contained in said complaints has mentioned complaint against the six (6) detained
already begun. The next question, therefore, is: petitioners herein, has the effect of the Executive
Shall We now order, in the cases at hand, the giving up his authority to continue holding them
release of said petitioners herein, despite the pursuant to Proclamation No. 889, as amended,
formal and substantial validity of the proclamation even if he did not so intend, and to place them
suspending the privilege, despite the fact that fully under the authority of courts of justice, just
they are actually charged with offenses covered like any other person, who, as such, cannot be
by said proclamation and despite the deprived of his liberty without lawful warrant,
aforementioned criminal complaints against them which has not, as yet, been issued against
and the preliminary examination and/or anyone of them, and that, accordingly, We should
investigations being conducted therein? order their immediate release. Despite the
humanitarian and libertarian spirit with which this
The Members of the Court, with the exception of view had been espoused, the other Members of
Mr. Justice Fernando, are of the opinion, and, so the Court are unable to accept it because:
hold, that, instead of this Court or its
Commissioner taking the evidence adverted to (a) If the proclamation suspending the privilege of
above, it is best to let said preliminary the writ of habeas corpus is valid — and We so
examination and/or investigation to be hold it to be — and the detainee is covered by the
completed, so that petitioners' released could be proclamation, the filing of a complaint or
ordered by the court of first instance, should it find information against him does not affect the
that there is no probable cause against them, or suspension of said privilege, and, consequently,
a warrant for their arrest could be issued, should his release may not be ordered by Us;
a probable cause be established against them.
Such course of action is more favorable to the (b) Inasmuch as the filing of a formal complaint or
petitioners, inasmuch as the preliminary information does not detract from the validity and
examination or investigation requires a greater efficacy of the suspension of the privilege, it
quantum of proof than that needed to establish would be more reasonable to construe the filing
that the Executive had not acted arbitrary in of said formal charges with the court of first
causing the petitioners to be apprehended and instance as an expression of the President's
detained upon the ground that they had belief that there are sufficient evidence to convict
participated in the commission of the crime of the petitioners so charged and that hey should not
insurrection or rebellion. And, it is mainly for the be released, therefore, unless and until said court
reason that the Court has opted to allow the Court — after conducting the corresponding preliminary
of First Instance of Rizal to proceed with the examination and/or investigation — shall find that
determination of the existence of probable cause, the prosecution has not established the existence
of a probable cause. Otherwise, the Executive 3. The Court of First Instance of Rizal is hereby
would have released said accused, as were the directed to act with utmost dispatch in conducting
other petitioners herein; the preliminary examination and/or investigation
of the charges for violation of the Anti-Subversion
(c) From a long-range viewpoint, this Act filed against herein petitioners Luzvimindo
interpretation — of the act of the President in David, Victor Felipe, Gary Olivar, Angelo de los
having said formal charges filed — is, We believe, Reyes, Rodolfo del Rosario and Teresito Sison,
more beneficial to the detainees than that favored and to issue the corresponding warrants of arrest,
by Mr. Justice Fernando. His view — particularly if probable cause is found to exist against them,
the theory that the detainees should be released or, otherwise, to order their release; and
immediately, without bail, even before the
completion of said preliminary examination 4. Should there be undue delay, for any reason
and/or investigation — would tend to induce the whatsoever, either in the completion of the
Executive to refrain from filing formal charges as aforementioned preliminary examination and/or
long as it may be possible. Manifestly, We should investigation, or in the issuance of the proper
encourage the early filing of said charges, so that orders or resolution in connection therewith, the
courts of justice could assume jurisdiction over parties may by motion seek in these proceedings
the detainees and extend to them effective the proper relief.
protection.
5. Without special pronouncement as to costs. It
Although some of the petitioners in these cases is so ordered.
pray that the Court decide whether the
constitutional right to bail is affected by the Reyes, J.B.L., Makalintal, Zaldivar, Teehankee,
suspension of the privilege of the writ of habeas Barredo, Villamor and Makasiar, JJ., concur.
corpus, We do not deem it proper to pass upon
such question, the same not having been
sufficiently discussed by the parties herein.
Besides, there is no point in settling said question
with respect to petitioners herein who have been
released. Neither is necessary to express our
view thereon, as regards those still detained,
inasmuch as their release without bail might still
be decreed by the court of first instance, should it Separate Opinions
hold that there is no probable cause against them.
At any rate, should an actual issue on the right to
bail arise later, the same may be brought up in
appropriate proceedings.
CASTRO and BARREDO, JJ., concurring:
WHEREFORE, judgment is hereby rendered:
While concurring fully in the opinion of the Court,
we nevertheless write separately to answer, from
1. Declaring that the President did not act our own perspective, a point which Mr. Justice
arbitrarily in issuing Proclamation No. 889, as Fernando makes in his dissent. His view, as we
amended, and that, accordingly, the same is not understand it, is that while an individual may be
unconstitutional; detained beyond the maximum detention period
fixed by law when the privilege of the writ
2. Dismissing the petitions in L-33964, L-33965, of habeas corpus is suspended, such individual is
L-33982, L-34004, L-34013, L-34039 and L- nevertheless entitled to be released from the very
34265, insofar as petitioners Teodosio Lansang, moment a formal complaint is filed in court
Bayani Alcala, Rogelio Arienda, Vicentellao, Juan against him. The theory seems to be that from the
Carandang, Nemesio E. Prudente, Gerardo time the charge is filed, the court acquires,
Tomas, Reynaldo Rimando, Filomeno M. de because the executive officials abdicate,
Castro, Barcelisa C. de Castro and Antolin Oreta, jurisdiction.
Jr. are concerned;
This view is based on the separate opinion of Mr. court decides whether there is probable cause to
Justice Pedro Tuason in Nava vs. order his arrest.
Gatmaitan.1 Justice Tuason, in part, said:
Under ordinary circumstances, when a person is
All persons detained for arrested without a warrant and is charged in
investigation by the executive court, he is not released. He is held until the
department are under executive judicial authority orders either his release or his
control. It is here where the confinement. It is no argument to say that under
Constitution tells the court to Article III, section 1 (3) of the Constitution only a
keep their hands off — unless court can order the arrest of an individual. Arrests
the cause of the detention be for without warrant are familiar occurrences, and
an offense other than rebellion or they have been upheld as constitutional.3
insurrection, which is another
matter. What is more, the privilege of the writ was
suspended precisely to authorize the detention of
By the same token, if and when persons believed to be plotting against the
a formal complaint is presented, security of the State until the courts can act on
the court steps in and the their respective cases. To require their
executive steps out. The peremptory release upon the mere filing of
detention ceases to be an charges against them, without giving the proper
executive and becomes a judicial court opportunity and time to decide the question
concern... of probable cause, would obviously be to defeat
the very basic purpose of the suspension. We
But the issue to which the Supreme Court think our role as judges in the cases at bar is
Justices in Nava individually addressed clear. After finding that the Presidential decree
themselves is radically disparate from that raised was validly issued, we should give it effect. To
in these cases. There the question was whether uphold its validity and then try to dilute its efficacy
after the detainees had been formally charged in in the name of personal liberty is, we believe,
court and an order for their arrest had been actually to doubt the constitutionality of the
issued, they were entitled to bail. It was on that exercise of the Presidential prerogative.
question that the Court was split 5 to 4, and it was
the opinion of Justice Tuason, one of the five, that Not only that. If the rule were that the detainees
after the detainees had been accused in court, must be released upon the mere filing of charges
the question of release on bail was a matter that against them in court, it is unlikely that the
the court should decide. executive officials would have filed the charges
because of their awareness of the continuing
Upon the other hand, the question here danger which in the first place impelled the arrest
presented is whether the detainees should be of the detainees, and the end result would be to
released forthwith upon the filing of charges inflict on the latter a much longer period of
against them in court and cannot thereafter be re- deprivation of personal liberty than is warranted.
arrested except only by court order. This is a
totally different question. It is our submission that Whatever our personal views may be of the
they are not entitled to be released. The dissent power to suspend, the fact remains that the power
is, we believe, based on the fallacy that when a is there, writ large and indubitable in the
formal charge is filed against a person he is Constitution. It is far too easy to write anthologies
thereby surrendered to the court and the arresting on the side of civil liberties or on the side of
officer is thereby divested of custody over him. governmental order, depending on one's
Except in a metaphorical sense, the detainee is inclination or commitment. But that is not our
not delivered or surrendered at all to the judicial function. Constitutional issues, it has been said,
authorities. What the phrase "delivered to the do not take the form of right versus wrong, but of
court" simply means is that from the time a person right versus right. And the Court's function, as we
is indicted in court, the latter acquires jurisdiction see it, is, fundamentally to moderate the clash of
over the subject-matter. 2 The detainee remains values, and not to inflate them into constitutional
in the custody of the detaining officer, under the dimensions.
same authority invoked for the detention, until the
Where it is possible, we should avoid passing on 1. The function of judicial review fitly
a constitutional question. But where there is no characterized as both delicate and awesome is
escape from the duty of abstention, our further never more so than when the judiciary is called
duty is to decide the question of constitutional upon to pass on the validity of an act of the
validity on a less heroic plane. President arising from the exercise of a power
granted admittedly to cope with an emergency or
And that is what we have tried to do in pointing crisis situation. More specifically, with reference
out that the ordinary rules of criminal procedure to the petitions before us, the question that calls
provide an adequate answer to Mr. Justice for prior consideration is whether the suspension
Fernando's problem. That solution is for the of the privilege of the writ of habeas corpusis
arresting officer to hold the person detained until tainted by constitutional infirmity. What the
the court can act, with the only difference that President did attested to an executive
where the privilege of the writ of habeas corpus is determination of the existence of the conditions
available, the arresting officer must release the that warranted such a move. For one of the
detainee upon the expiration of the maximum mandatory provisions of the Bill of Rights 1 is that
detention time allowed by law, if he has not no such suspension is allowable, except in cases
delivered the detainee to the court within that of invasion, insurrection or rebellion, when the
period. public safety requires, and, even, then, only in
such places and for such period of time as may
To insist on the procedural aspect of a be necessary.2 There is the further provision that
constitutional problem as a manner of solving it the constitutional official so empowered to take
such a step is the President.3 The exceptional
is, after all, no less to be libertarian. Insistence on
character of the situation is thus underscored.
it is, to us, and in point of fact, one of the
The presumption would seem to be that if such a
cornerstone of liberalism.
step were taken, there must have been a
conviction on the part of the Executive that he
FERNANDO, J., concurring and dissenting: could not, in the fulfillment of the responsibility
entrusted to him, avoid doing so. That decision is
The decision of the Court penned by the Chief his to make; it is not for the judiciary. It is therefore
Justice easily ranks with his many landmark encased in the armor of what must have been a
opinions in Constitutional Law and is in the careful study on his part, in the light of relevant
tradition of the great judicial pronouncements information which as Commander-in-Chief he is
from this Tribunal. Skillful in its analysis, furnished, ordinarily beyond the ken of the courts.
impressive as to its learning, comprehensive in its When it is considered further that the Constitution
scope, and compelling in its logic, it exerts does admit that the sphere of individual freedom
considerable persuasive force. There is much in contracts and the scope of governmental
it therefore to which concurrence is easily yielded. authority expands during times of emergency, it
I find it difficult however to accept the conclusion becomes manifest why an even greater degree of
that the six petitioners still under detention should caution and circumspection must be exercised by
not be set free. It is for me a source of deep regret the judiciary when, on this matter, it is called upon
that having gone quite far in manifesting the to discharge the function of judicial review.
utmost sympathy for and conformity with the
claims of civil liberties, it did not go farther. 2. Not that the judiciary has any choice on the
Candor induces the admission though that the matter. That view would indict itself for
situation realistically viewed may not justify going unorthodoxy if it maintains that the existence of
all the way. Nonetheless the deeply-rooted rebellion suffices to call for the disregard of the
conviction as to the undoubted primacy of applicable constitutional guarantees. Its
constitutional rights, even under circumstances implication would be that the Constitution ceases
the least propitious, precludes me from joining my to be operative in times of danger to national
brethren in that portion of the decision reached. safety and security. Well has the American
Nor should I let this opportunity pass without Supreme Court in the leading case of Ex-
acknowledging the fairness, even the generosity, parte Milligan4 stated: "The Constitution is a law
in the appraisal of my position in the position of for rulers and for people equally in war and in
the Chief Justice. peace and covers with the shield of its protection
all classes of men at all times and under all
circumstances." This ringing affirmation should at
the very least give pause to those troubled by the It is in that context, to my mind, that the petitions
continuing respect that must be accorded civil before us should be appraised, for in terms of
liberties under crisis conditions. The fact that the physical, as distinguished from intellectual,
Constitution provides for only one situation where liberty, the privilege of the writ of habeas
a provision of the Bill of Rights may be corpus occupies a place second to none. As was
suspended, emphasizes the holding in the above- stressed in Gumabon v. Director of
cited Milligan case that the framers of the Prisons: 11 "Rightly then could Chafee refer to the
Constitution "limited the suspension to one great writ 'as the most important human rights
right and left the rest to remain forever inviolable." provision' in the fundamental law." Care is to be
While perhaps at times likely to give rise to taken then lest in the inquiry that must be
difficulties in the disposition of cases during a undertaken to determine whether the
troubled era where a suspension has been constitutional requisites justifying a suspension
decreed, such a view is to be taken into careful are present, the effects thereof as to the other civil
consideration. liberties are not fully taken into account. It affords
no justification to say that such a move was
3. For it is a truism that he Constitution is prompted by the best motives and loftiest of
paramount, and the Supreme Court has no intentions. Much less can there be acceptance of
choice but to apply its provisions in the the view, as contended by one of the counsel for
determination of actual cases and controversies respondents, that between the safety of the
before it. Nor is this all. The protection of the overwhelming majority of Filipinos and the claims
citizen and the maintenance of his constitutional of the petitioners to liberty, the former must
rights is one of the highest duties and privileges prevail. That is to indulge in the vice of over
of the judiciary.5The exercise thereof according to simplification. Our fundamental postulate is that
Justice Laurel requires that it gives effect to the the state exists to assure individual rights, to
supreme law to the extent in clear cases of setting protect which governments are instituted deriving
aside legislative and executive action.6 The their just powers from the consent of the
supreme mandates of the Constitution are not to governed. "The cardinal article of faith of our
be loosely brushed aside.7 Otherwise, the Bill or civilization," according to Frank further, "is the
Rights might be emasculated into mere inviolable character of the individual." 12
expressions of sentiment.8Speaking of this Court,
Justice Abad Santos once pertinently observed: 4. With all the admitted difficulty then that the
"This court owes its own existence to that great function of judicial review presents in passing
instrument and derives all its powers therefrom. upon the executive determination of suspending
In the exercise of its powers and jurisdiction, this the privilege of the writ, there is still no way of
court is bound by the provisions of the evading such a responsibility, except on the pain
Constitution."9 Justice Tuason would thus apply of judicial abdication. It may not admit of doubt
the constitutional rights with undeviating rigidity: that on this matter this Court, unlike the President,
"To the plea that the security of the State would cannot lay claim to the experience and the
be jeopardized by the release of the defendants requisite knowledge that would instill confidence
on bail, the answer is that the existence of danger in its decisions. That is no warrant for an
is never a justification for courts to tamper with unquestioning and uncritical acceptance of what
the fundamental rights expressly granted by the was done. It cannot simply fold its hands and
Constitution. These rights are immutable, evince an attitude of unconcern. It has to decide
inflexible, yielding to no pressure of convenience, the case. This it does by applying the law to the
expediency, or the so-called 'judicial facts as found, as it would in ordinary cases. If
statesmanship.' The Legislature itself can not petitioners then can make out a case of an
infringe them, and no court conscious of its unlawful deprivation of liberty, they are entitled to
responsibilities and limitations would do so. If the the writ prayed for. If the suspension of the
Bill of Rights are incompatible with stable privilege be the justification, they could, as they
government and a menace to the Nation, let the did, challenge its validity. To repeat, this Court,
Constitution be amended, or abolished. It is trite even if denied the fullness of information and the
to say that, while the Constitution stands, the conceded grasp of the Executive still must
courts of justice as the repository of civil liberty adjudicate the matter as best it can. It has to act
are bound to protect and maintain undiluted not by virtue of its competence but by the force of
individual rights." 10 its commission a function authenticated by
history. 13 That would be to live up to its solemn
trust, to paraphrase Cardozo, of preserving the 6. The doctrine announced in Montenegro v.
great ideals of liberty and equally against the Castañeda 19 that such a question is political has
erosion of possible encroachments, whether thus been laid to rest. It is about time too. It owed
minute or extensive. 14 Even if there be no its existence to the compulsion exerted by
showing then of constitutional infirmity, at least Barcelon v. Baker, a 1905 decision. 20 This Court
one other branch of the government, that to which was partly misled by an undue reliance in the
such an awesome duty had been conferred has latter case on what it considered to be
had the opportunity of reflecting on the matter authoritative pronouncements from such
with detachment, with objectivity, and with full illustrious American jurists as Marshall, Story,
awareness of the commands of the Constitution and Taney. That is to misread what was said by
as well as the realities of the situation. them. This is most evidence in the case of Chief
Justice Marshall, whose epochal Marbury v.
5. Nor is the power of the judiciary to so inquire, Madison 21 was cited. Why that was so is difficult
negated as contended by respondents, by to understand. For it speaks to the contrary. It was
reliance on the doctrine of political questions. The by virtue of this decision that the function of
term has been made applicable to controversies judicial review owes its origin notwithstanding the
clearly non-judicial and therefore beyond its absence of any explicit provision in the American
jurisdiction or to an issue involved in a case Constitution empowering the courts to do so.
appropriately subject to its cognizance, as to Thus: "It is emphatically the province and duty of
which there has been a prior legislative or the judicial department to say what the law is.
executive determination to which deference must Those who apply the rule to particular cases,
be paid. 15 It has likewise been employed loosely must of necessity expound and interpret that rule.
to characterize a suit where the party proceeded If two laws conflict with each other, the courts
against is the President or Congress, or any must decide on the operation of each. So if a law
branch thereof. 16 If to be de-limited with be in opposition to the constitution: if both the law
accuracy, "political questions" should refer to and the constitution apply to a particular case, so
such as would under the Constitution be decided that the court must either decide that case
by the people in their sovereign capacity or in conformably to the law, disregarding the
regard to which full discretionary authority is constitution; or conformably to the constitution,
vested either in the Presidency or Congress. It is disregarding the law; the court must determine
thus beyond the competence of the judiciary to which of these conflicting rules governs the case.
pass upon. 17 Unless, clearly falling within the This is of the very essence of judicial duty. If, the,
above formulation, the decision reached by the the courts are to regard the constitution, and the
political branches whether in the form of a constitution is superior to any ordinary act of the
congressional act or an executive order could be legislature, the constitution, and not such ordinary
tested in court. Where private rights are affected, act, must govern the case to which they both
the judiciary has no choice but to look into its apply." 22
validity. It is not to be lost sight of that such a
power comes into play if there is an appropriate Nor is the excerpt from Justice Story, speaking for
proceeding that may be filed only after either the United States Supreme Court, in Martin v.
coordinate branch has acted. Even when the Mott, 23 as made clear in the opinion of the Chief
Presidency or Congress possesses plenary Justice, an authority directly in point. There, a
power, its improvidence exercise or the abuse militiaman had been convicted of failing to
thereof, if shown, may give rise to a justiciable respond to a call, made under the Act of 1795, to
controversy. 18 For the constitutional grant of serve during the War of 1812. His property was
authority is not usually unrestricted. There are taken to satisfy the judgment. He brought an
limits to what may be done and how it is to be action of replevin. The American Constitution
accomplished. Necessarily then, the courts in the empowers its Congress "to provide for calling
proper exercise of judicial review could inquire forth the Militia" in certain cases, and Congress
into the question of whether or not either of the did provide that in those cases the President
two coordinate branches has adhered to what is should have authority to make the call. All that
laid down by the Constitution. The question thus Justice Story did in construing the statute in the
posed is judicial rather than political. So it is in the light of the language and purpose of her
matter before us so clearly explained in the Constitution was to recognize the authority of the
opinion of the Chief Justice. American President to decide whether the
exigency has arisen. In stating that such power
was exclusive and thus had a conclusive effect, furnished the President, was arbitrary. Such a
he relied on the language employed, impressed test met with the approval of the chief counsel for
with such a character. The constitutional petitioners, Senator Jose W. Diokno. To
provision on the suspension of the privilege of the paraphrase Frankfurter, the question before the
writ is, as shown, anything but that. 24 Chief judiciary is not the correctness but the
Justice Taney, in Luther v. Borden, 25 likewise reasonableness of the action taken. One who is
had to deal with a situation involving the calling not the Executive but equally knowledgeable may
out of the militia. As a matter of fact, an eminent entertain a different view, but the decision rests
commentator speaking of the two above with the occupant of the office. As would be
decisions had this apt observation: "The common immediately apparent even from a cursory
element in these opinions would seem to be a perusal of the data furnished the President, so
genuine judicial reluctance to speak in a situation impressively summarized in the opinion of the
where the voice of the Court, even if heard, could Chief Justice, the imputation of arbitrariness
not have any effect. More than this, both Story would be difficult to sustain. Moreover, the steps
and Taney seem to share the suspicion, unusual taken by him to limit the area where the
in them, that under a popular form of government suspension operates as well as his instructions
there are certain questions that the political attested to a firm resolve on his part to keep
branches must be trusted to answer with strictly within the bounds of his authority. Under
finality." 26 What was said next is even more the circumstances, the decision reached by the
pertinent. Thus: "It would be dangerous and Court that no finding of unconstitutionality is
misleading to push the principles of these cases warranted commends itself for approval. The
too far, especially the doctrine of 'political most that can be said is that there was a
questions' as implied in Luther v. Borden. Given manifestation of presidential power well-nigh
the opportunity to afford a grievously injured touching the extreme border of his conceded
citizen relief from a palpably unwarranted use of competence, beyond which a forbidden domain
presidential or military power, especially when the lies. The requisite showing of either improvidence
question at issue falls in the penumbra between or abuse has not been made.
the 'political' and the 'justiciable', the Court will act
as if it had never heard of this doctrine and its 8. Why the dissent then. My basic premise is that
underlying assumption that there are some the suspension of the privilege of the writ
powers against which the judiciary simply cannot partakes of an executive action which if valid
be expected to act as the last line of binds all who are within its operations. The
defense." 27 It would thus seem evidence that function of enacting a legal norm general in
support for the hitherto prevailing Montenegro character appertains to either Congress or the
ruling was rather frail. Happily, with our decision, President. Its specific application to particular
it is no longer capable of the mischief to which it individuals, like petitioners here, is however a
does lend itself of an undue diminution of judicial task incumbent on the judiciary. What is more, as
power to the prejudice of constitutional rights. had just been explained, its validity maybe tested
in courts. Even if valid, any one may seek judicial
7. With such presidential determination of the determination as to whether he is embraced
existence of the conditions required by the within its terms. After our declaration of the
Constitution to justify a suspension of the validity of the Proclamation No. 889 as amended,
privilege of the writ no longer conclusive on the the next question is its applicability to petitioners.
other branches, this Court may thus legitimately I am the first to recognize the meticulous care with
inquire into its validity. The question before us, it which the Chief Justice, after reaching the
bears repeating, is whether or not Proclamation conclusion that petitioners are covered by the
No. 889 as it now stands, not as it was originally suspension, saw to it that their constitutional
issued, is valid. The starting point must be a rights are duly safeguarded in whatever
recognition that the power to suspend the proceedings they would have thereafter to face.
privilege of the writ belongs to the Executive, There is thus as assurance that as far as human
subject to limitations. So the Constitution foresight can anticipate matters, the possibility of
provides, and it is to be respected. The range of abuse is minimized.
permissible inquiry to be conducted by this
Tribunal is necessarily limited then to the The matter, for me, could be viewed
ascertainment of whether or not such a independently of whether or not petitioners, by
suspension, in the light of the credible information
the conduct imputed to them, could be detained Teresito Sison, have, for me, become immune
further by virtue of the suspension of the privilege from the operation of the proclamation
of the writ. For admittedly, a supervening fact, the suspending the privilege of the writ of habeas
Executive's determination to have them charged corpus and are thus entitled to their liberty. I am
according to the ordinary procedural rules, did reinforced in my conviction by the well-settled
present itself. There was thus introduced an principle of constitutional construction that if there
element decisive in its consequences. They are are two possible modes of interpretation, that one
entitled to treatment no different from that which raises the least constitutional doubt should
accorded any other individual facing possible be preferred. Certainly, to my way of thinking, the
criminal charges. The opinion of the Chief Justice choice is obvious. That interpretation which would
is correct in pointing out that such an approach throw the full mantle of protection afforded by the
follows the dictum of Justice Tuason, speaking for Constitution to those unfortunate enough to be
himself in Nava v. Gatmaitan, 28 where a majority caught in the meshes of criminal law is more in
of five, lacking just one vote to enable this Court keeping with the high estate accorded
to reach a binding decision, did arrive at the constitutional rights.
conclusion that the suspension of the privilege of
the writ does not suspend the right to bail. Thus: There is another consideration that strengthens
"By the same token, if and when formal complaint my conviction on the matter. The language of the
is presented, the court steps in and the executive Constitution would seem to imply at the most that
steps out. The detention ceases to be an the suspension of the privilege of the writ renders
executive and becomes a judicial concern. it unavailable for the time being. Still there are
Thereupon the corresponding court assumes its authorities sustaining the view that preventive
role and the judicial process takes its course to detention subject to the test of good faith is
the exclusion of the executive or the legislative allowable.32Such a doctrine is no doubt partly
departments. Hence forward, the accused is traceable to Anglo-American legal history where
entitled to demand all the constitutional as pointed out by Maine: "Substantive law has at
safeguards and privileges essential to due first the look of being gradually secreted in the
process." 29 Parenthetically, it may be observed interstices of procedure." 33 The writ of habeas
that the above view reflects the stand taken by corpus then is more than just an efficacius device
Justice Recto, fortified by Justice Laurel, drawing or the most speedy means of obtaining one's
heavily on continental juristic thought, both of liberty. It has become a most valuable
whom, having retired from the bench and substantive right. It would thus serve the cause of
thereafter having been elected to the Senate, constitutional rights better if the Tuason dictum as
were invited to appear as amici curiae in the to the judicial process supplanting executive rule
Nava case. the moment charges are filed be accorded
acceptance. Thereby the number of individuals
It would follow to my way of thinking then that the who would have to submit to further detention,
petitioners still detained ought not to be further that may well turn out to be unjustified, would be
deprived of their liberty in the absence of a reduced. What is more, greater fidelity is
warrant of arrest for whatever offense they may manifested to the principle that liberty is the rule
be held to answer, to be issued by a judge after a and restraint the exception.
finding of probable cause. That is to comply with
the constitutional requirement against I am not of course insensible to the observation
unreasonable search and seizure. 30 Moreover, in the opinion of the Court that this concept could
to keep them in confinement after the ordinary be an obstacle to the early resumption of the
processes of the law are to be availed of, as ordinary judicial process as the Executive might
thereafter decreed by the Executive itself is to be minded to postpone resort to it, considering
ignore the safeguard in the Bill of Rights that no that there would necessarily be an end to the
person shall be held to answer for a criminal detention at that early stage of individuals who
offense without due process of law. 31 That would continue to pose risk to the safety of the
explain why with full recognition of the sense of government. It does occur to me, however, that
realism that infuses the opinion of the Court, I the presumption should be that the high executive
cannot, from the above standpoint, reach the dignitaries can be trusted to act in accordance
same conclusion they did. These six petitioners, with the dictates of good faith and the command
Rodolfo del Rosario, Victor Felipe, Luzvimindo, of the Constitution. At least, such seems to be the
David, Gary Olivar, Angelo de los Reyes and
case now. The opinion of the Court is quite to act in accordance with what it professes. Its
explicit as to the measures taken to minimize the appeal for all sectors or society becomes
possibility of abuse from officials in the lower strengthened and vitalized. Nor do I close my
category, who in their zeal or even from less eyes to the risk that such an attitude towards
worthy motives might make a mockey of the other those who constitute a source of danger entails.
constitutional rights. That is as it should be. It That for me is not conclusive. With nations, as
should continue to be so even if there be with ordinary mortals, that is unavoidable.
acceptance of the doctrine enunciated by Justice Repose, in the often-quoted aphorism of Holmes,
Tuason. There is, for me at least, no undue cause is not the destiny of man.
for pessimism.
9. One last observation. It would appear to me
These is to my mind another reinforcement to this that if there is really a resolve to maintain inviolate
approach to the question before us, perhaps one constitutional rights for all, more especially so for
based more on policy rather than strictly legal those inclined and disposed to differ and to be
considerations. The petitioners who have not vocal, perhaps even intemperate, in their
been released are youth leaders, who for motives criticism, that serious thought should be given to
best known to them, perhaps excess of idealism, the desirability of removing from the President his
impatience with existing conditions, even power to suspend the privilege of the writ
overweening ambition, clamor for change, of habeas corpus as well as the power to declare
apparently oblivious at times that it could be martial law. Nor would the government be lacking
accomplished through means of which the law in authority to cope with the crisis of invasion,
does not disapprove. It would be premature at this insurrection, or rebellion or lawless violence, as
stage to say whether or not their activities have the President as commander-in-chief can
incurred for them a penal sanction, which summon the aid of the armed forces to meet the
certainly would be appropriate if their conduct is danger posed to public safety. If the privilege of
beyond the pale. Even they should recognize that the writ cannot be suspended and martial law
the existing order has the right to defendant itself beyond the power of the President to declare,
against those who would destroy it. Nonetheless there is a greater likelihood as far as the rights of
as a constitutional democracy can justifiably pride the individual are concerned, of the Constitution
itself on its allegiance to ways of persuasion remaining at all times supreme, as it ought to be,
rather than coercion, the most meticulous whether it be in peace or in war or under other
observance of the free way of life seems to me, crisis conditions. As long, however, as such a
even at this stage, not without its beneficent presidential prerogative exists, it would not be
influence on their future course of conduct. This proper for the courts not to accord recognition to
is not by any means to intimate that my brethren its exercise, if there be observance of the
view matters differently. Far from it. Any limitations imposed by the Constitution. At the
difference if at all in the positions taken is a most, they can only through construction nullify
question of emphasis. Rightly, the opinion of the what would amount to an unconstitutional
Chief Justice stresses the importance of the rule application. How desirable it would be then, to my
of law. It is to be hoped that with a proper way of thinking, if the Constitution would strip the
understanding of what has been decided by the President of such power. That would be
Court today, there would be a diminution of the constitutionalism triumphant. In terms of Lincoln's
wholesale condemnation of the present system of memorable dilemma, the government would be
government by some sectors of the youth and neither too strong for the liberties of the people
perhaps even lead to much-needed refinement in nor too weak to maintain its existence. This is a
the volume and quality of their utterances. It could matter though appropriately addressed to the
even conceivably, not only for them but for others Constitutional Convention.
of a less radical cast of mind, but equally suffering
from disenchantment and disillusion, induce a On the purely legal aspect, however, let me
reassessment and reappraisal of their position, reiterate that my acceptance of the Tuason
even if from all appearances their commitment dictum in the Nava case did result in my inability
and dedication are plain for all to see. More than to concur fully with the opinion of the Chief
that, such a response will go a long way towards Justice, which, as pointed out at the outset, is
a keener appreciation of the merits of a possessed of a high degree of merit.
constitutional democracy. For thereby, it
demonstrates that it lives up to its ideas; it strives
 the opinion of Justice Tuason, one of the five, that
after the detainees had been accused in court,
the question of release on bail was a matter that
the court should decide.
Separate Opinions
Upon the other hand, the question here
CASTRO and BARREDO, JJ., concurring: presented is whether the detainees should be
released forthwith upon the filing of charges
against them in court and cannot thereafter be re-
While concurring fully in the opinion of the Court, arrested except only by court order. This is a
we nevertheless write separately to answer, from totally different question. It is our submission that
our own perspective, a point which Mr. Justice they are not entitled to be released. The dissent
Fernando makes in his dissent. His view, as we is, we believe, based on the fallacy that when a
understand it, is that while an individual may be formal charge is filed against a person he is
detained beyond the maximum detention period thereby surrendered to the court and the arresting
fixed by law when the privilege of the writ officer is thereby divested of custody over him.
of habeas corpus is suspended, such individual is Except in a metaphorical sense, the detainee is
nevertheless entitled to be released from the very not delivered or surrendered at all to the judicial
moment a formal complaint is filed in court authorities. What the phrase "delivered to the
against him. The theory seems to be that from the court" simply means is that from the time a person
time the charge is filed, the court acquires, is indicted in court, the latter acquires jurisdiction
because the executive officials abdicate, over the subject-matter. 2 The detainee remains
jurisdiction. in the custody of the detaining officer, under the
same authority invoked for the detention, until the
This view is based on the separate opinion of Mr. court decides whether there is probable cause to
Justice Pedro Tuason in Nava vs. order his arrest.
Gatmaitan.1 Justice Tuason, in part, said:
Under ordinary circumstances, when a person is
All persons detained for arrested without a warrant and is charged in
investigation by the executive court, he is not released. He is held until the
department are under executive judicial authority orders either his release or his
control. It is here where the confinement. It is no argument to say that under
Constitution tells the court to Article III, section 1 (3) of the Constitution only a
keep their hands off — unless court can order the arrest of an individual. Arrests
the cause of the detention be for without warrant are familiar occurrences, and
an offense other than rebellion or they have been upheld as constitutional.3
insurrection, which is another
matter. What is more, the privilege of the writ was
suspended precisely to authorize the detention of
By the same token, if and when persons believed to be plotting against the
a formal complaint is presented, security of the State until the courts can act on
the court steps in and the their respective cases. To require their
executive steps out. The peremptory release upon the mere filing of
detention ceases to be an charges against them, without giving the proper
executive and becomes a judicial court opportunity and time to decide the question
concern... of probable cause, would obviously be to defeat
the very basic purpose of the suspension. We
But the issue to which the Supreme Court think our role as judges in the cases at bar is
Justices in Nava individually addressed clear. After finding that the Presidential decree
themselves is radically disparate from that raised was validly issued, we should give it effect. To
in these cases. There the question was whether uphold its validity and then try to dilute its efficacy
after the detainees had been formally charged in in the name of personal liberty is, we believe,
court and an order for their arrest had been actually to doubt the constitutionality of the
issued, they were entitled to bail. It was on that exercise of the Presidential prerogative.
question that the Court was split 5 to 4, and it was
Not only that. If the rule were that the detainees from this Tribunal. Skillful in its analysis,
must be released upon the mere filing of charges impressive as to its learning, comprehensive in its
against them in court, it is unlikely that the scope, and compelling in its logic, it exerts
executive officials would have filed the charges considerable persuasive force. There is much in
because of their awareness of the continuing it therefore to which concurrence is easily yielded.
danger which in the first place impelled the arrest I find it difficult however to accept the conclusion
of the detainees, and the end result would be to that the six petitioners still under detention should
inflict on the latter a much longer period of not be set free. It is for me a source of deep regret
deprivation of personal liberty than is warranted. that having gone quite far in manifesting the
utmost sympathy for and conformity with the
Whatever our personal views may be of the claims of civil liberties, it did not go farther.
power to suspend, the fact remains that the power Candor induces the admission though that the
is there, writ large and indubitable in the situation realistically viewed may not justify going
Constitution. It is far too easy to write anthologies all the way. Nonetheless the deeply-rooted
on the side of civil liberties or on the side of conviction as to the undoubted primacy of
governmental order, depending on one's constitutional rights, even under circumstances
inclination or commitment. But that is not our the least propitious, precludes me from joining my
function. Constitutional issues, it has been said, brethren in that portion of the decision reached.
do not take the form of right versus wrong, but of Nor should I let this opportunity pass without
right versus right. And the Court's function, as we acknowledging the fairness, even the generosity,
see it, is, fundamentally to moderate the clash of in the appraisal of my position in the position of
values, and not to inflate them into constitutional the Chief Justice.
dimensions.
1. The function of judicial review fitly
Where it is possible, we should avoid passing on characterized as both delicate and awesome is
a constitutional question. But where there is no never more so than when the judiciary is called
escape from the duty of abstention, our further upon to pass on the validity of an act of the
duty is to decide the question of constitutional President arising from the exercise of a power
validity on a less heroic plane. granted admittedly to cope with an emergency or
crisis situation. More specifically, with reference
And that is what we have tried to do in pointing to the petitions before us, the question that calls
for prior consideration is whether the suspension
out that the ordinary rules of criminal procedure
of the privilege of the writ of habeas corpusis
provide an adequate answer to Mr. Justice
tainted by constitutional infirmity. What the
Fernando's problem. That solution is for the
President did attested to an executive
arresting officer to hold the person detained until
the court can act, with the only difference that determination of the existence of the conditions
where the privilege of the writ of habeas corpus is that warranted such a move. For one of the
mandatory provisions of the Bill of Rights1 is that
available, the arresting officer must release the
no such suspension is allowable, except in cases
detainee upon the expiration of the maximum
of invasion, insurrection or rebellion, when the
detention time allowed by law, if he has not
public safety requires, and, even, then, only in
delivered the detainee to the court within that
period. such places and for such period of time as may
be necessary.2 There is the further provision that
the constitutional official so empowered to take
To insist on the procedural aspect of a such a step is the President.3 The exceptional
constitutional problem as a manner of solving it character of the situation is thus underscored.
is, after all, no less to be libertarian. Insistence on The presumption would seem to be that if such a
it is, to us, and in point of fact, one of the step were taken, there must have been a
cornerstone of liberalism. conviction on the part of the Executive that he
could not, in the fulfillment of the responsibility
FERNANDO, J., concurring and dissenting: entrusted to him, avoid doing so. That decision is
his to make; it is not for the judiciary. It is therefore
The decision of the Court penned by the Chief encased in the armor of what must have been a
Justice easily ranks with his many landmark careful study on his part, in the light of relevant
opinions in Constitutional Law and is in the information which as Commander-in-Chief he is
tradition of the great judicial pronouncements furnished, ordinarily beyond the ken of the courts.
When it is considered further that the Constitution instrument and derives all its powers therefrom.
does admit that the sphere of individual freedom In the exercise of its powers and jurisdiction, this
contracts and the scope of governmental court is bound by the provisions of the
authority expands during times of emergency, it Constitution."9 Justice Tuason would thus apply
becomes manifest why an even greater degree of the constitutional rights with undeviating rigidity:
caution and circumspection must be exercised by "To the plea that the security of the State would
the judiciary when, on this matter, it is called upon be jeopardized by the release of the defendants
to discharge the function of judicial review. on bail, the answer is that the existence of danger
is never a justification for courts to tamper with
2. Not that the judiciary has any choice on the the fundamental rights expressly granted by the
matter. That view would indict itself for Constitution. These rights are immutable,
unorthodoxy if it maintains that the existence of inflexible, yielding to no pressure of convenience,
rebellion suffices to call for the disregard of the expediency, or the so-called 'judicial
applicable constitutional guarantees. Its statesmanship.' The Legislature itself can not
implication would be that the Constitution ceases infringe them, and no court conscious of its
to be operative in times of danger to national responsibilities and limitations would do so. If the
safety and security. Well has the American Bill of Rights are incompatible with stable
Supreme Court in the leading case of Ex- government and a menace to the Nation, let the
parte Milligan4 stated: "The Constitution is a law Constitution be amended, or abolished. It is trite
for rulers and for people equally in war and in to say that, while the Constitution stands, the
peace and covers with the shield of its protection courts of justice as the repository of civil liberty
all classes of men at all times and under all are bound to protect and maintain undiluted
circumstances." This ringing affirmation should at individual rights." 10
the very least give pause to those troubled by the
continuing respect that must be accorded civil It is in that context, to my mind, that the petitions
liberties under crisis conditions. The fact that the before us should be appraised, for in terms of
Constitution provides for only one situation where physical, as distinguished from intellectual,
a provision of the Bill of Rights may be liberty, the privilege of the writ of habeas
suspended, emphasizes the holding in the above- corpus occupies a place second to none. As was
cited Milligan case that the framers of the stressed in Gumabon v. Director of
Constitution "limited the suspension to one great Prisons: 11 "Rightly then could Chafee refer to the
right and left the rest to remain forever inviolable." writ 'as the most important human rights
While perhaps at times likely to give rise to provision' in the fundamental law." Care is to be
difficulties in the disposition of cases during a taken then lest in the inquiry that must be
troubled era where a suspension has been undertaken to determine whether the
decreed, such a view is to be taken into careful constitutional requisites justifying a suspension
consideration. are present, the effects thereof as to the other civil
liberties are not fully taken into account. It affords
3. For it is a truism that he Constitution is no justification to say that such a move was
paramount, and the Supreme Court has no prompted by the best motives and loftiest of
choice but to apply its provisions in the intentions. Much less can there be acceptance of
determination of actual cases and controversies the view, as contended by one of the counsel for
before it. Nor is this all. The protection of the respondents, that between the safety of the
citizen and the maintenance of his constitutional overwhelming majority of Filipinos and the claims
rights is one of the highest duties and privileges of the petitioners to liberty, the former must
of the judiciary.5The exercise thereof according to prevail. That is to indulge in the vice of over
Justice Laurel requires that it gives effect to the simplification. Our fundamental postulate is that
supreme law to the extent in clear cases of setting the state exists to assure individual rights, to
aside legislative and executive action.6 The protect which governments are instituted deriving
supreme mandates of the Constitution are not to their just powers from the consent of the
be loosely brushed aside.7 Otherwise, the Bill or governed. "The cardinal article of faith of our
Rights might be emasculated into mere civilization," according to Frank further, "is the
expressions of sentiment.8Speaking of this Court, inviolable character of the individual." 12
Justice Abad Santos once pertinently observed:
"This court owes its own existence to that great
4. With all the admitted difficulty then that the thus beyond the competence of the judiciary to
function of judicial review presents in passing pass upon. 17 Unless, clearly falling within the
upon the executive determination of suspending above formulation, the decision reached by the
the privilege of the writ, there is still no way of political branches whether in the form of a
evading such a responsibility, except on the pain congressional act or an executive order could be
of judicial abdication. It may not admit of doubt tested in court. Where private rights are affected,
that on this matter this Court, unlike the President, the judiciary has no choice but to look into its
cannot lay claim to the experience and the validity. It is not to be lost sight of that such a
requisite knowledge that would instill confidence power comes into play if there is an appropriate
in its decisions. That is no warrant for an proceeding that may be filed only after either
unquestioning and uncritical acceptance of what coordinate branch has acted. Even when the
was done. It cannot simply fold its hands and Presidency or Congress possesses plenary
evince an attitude of unconcern. It has to decide power, its improvidence exercise or the abuse
the case. This it does by applying the law to the thereof, if shown, may give rise to a justiciable
facts as found, as it would in ordinary cases. If controversy. 18 For the constitutional grant of
petitioners then can make out a case of an authority is not usually unrestricted. There are
unlawful deprivation of liberty, they are entitled to limits to what may be done and how it is to be
the writ prayed for. If the suspension of the accomplished. Necessarily then, the courts in the
privilege be the justification, they could, as they proper exercise of judicial review could inquire
did, challenge its validity. To repeat, this Court, into the question of whether or not either of the
even if denied the fullness of information and the two coordinate branches has adhered to what is
conceded grasp of the Executive still must laid down by the Constitution. The question thus
adjudicate the matter as best it can. It has to act posed is judicial rather than political. So it is in the
not by virtue of its competence but by the force of matter before us so clearly explained in the
its commission a function authenticated by opinion of the Chief Justice.
history. 13 That would be to live up to its solemn
trust, to paraphrase Cardozo, of preserving the 6. The doctrine announced in Montenegro v.
great ideals of liberty and equally against the Castañeda 19 that such a question is political has
erosion of possible encroachments, whether thus been laid to rest. It is about time too. It owed
minute or extensive. 14 Even if there be no its existence to the compulsion exerted by
showing then of constitutional infirmity, at least Barcelon v. Baker, a 1905 decision. 20 This Court
one other branch of the government, that to which was partly misled by an undue reliance in the
such an awesome duty had been conferred has latter case on what it considered to be
had the opportunity of reflecting on the matter authoritative pronouncements from such
with detachment, with objectivity, and with full illustrious American jurists as Marshall, Story,
awareness of the commands of the Constitution and Taney. That is to misread what was said by
as well as the realities of the situation. them. This is most evidence in the case of Chief
Justice Marshall, whose epochal Marbury v.
5. Nor is the power of the judiciary to so inquire, Madison 21 was cited. Why that was so is difficult
negated as contended by respondents, by to understand. For it speaks to the contrary. It was
reliance on the doctrine of political questions. The by virtue of this decision that the function of
term has been made applicable to controversies judicial review owes its origin notwithstanding the
clearly non-judicial and therefore beyond its absence of any explicit provision in the American
jurisdiction or to an issue involved in a case Constitution empowering the courts to do so.
appropriately subject to its cognizance, as to Thus: "It is emphatically the province and duty of
which there has been a prior legislative or the judicial department to say what the law is.
executive determination to which deference must Those who apply the rule to particular cases,
be paid. 15 It has likewise been employed loosely must of necessity expound and interpret that rule.
to characterize a suit where the party proceeded If two laws conflict with each other, the courts
against is the President or Congress, or any must decide on the operation of each. So if a law
branch thereof. 16 If to be de-limited with be in opposition to the constitution: if both the law
accuracy, "political questions" should refer to and the constitution apply to a particular case, so
such as would under the Constitution be decided that the court must either decide that case
by the people in their sovereign capacity or in conformably to the law, disregarding the
regard to which full discretionary authority is constitution; or conformably to the constitution,
vested either in the Presidency or Congress. It is disregarding the law; the court must determine
which of these conflicting rules governs the case. powers against which the judiciary simply cannot
This is of the very essence of judicial duty. If, the, be expected to act as the last line of
the courts are to regard the constitution, and the defense." 27 It would thus seem evidence that
constitution is superior to any ordinary act of the support for the hitherto prevailing Montenegro
legislature, the constitution, and not such ordinary ruling was rather frail. Happily, with our decision,
act, must govern the case to which they both it is no longer capable of the mischief to which it
apply." 22 does lend itself of an undue diminution of judicial
power to the prejudice of constitutional rights.
Nor is the excerpt from Justice Story, speaking for
the United States Supreme Court, in Martin v. 7. With such presidential determination of the
Mott, 23 as made clear in the opinion of the Chief existence of the conditions required by the
Justice, an authority directly in point. There, a Constitution to justify a suspension of the
militiaman had been convicted of failing to privilege of the writ no longer conclusive on the
respond to a call, made under the Act of 1795, to other branches, this Court may thus legitimately
serve during the War of 1812. His property was inquire into its validity. The question before us, it
taken to satisfy the judgment. He brought an bears repeating, is whether or not Proclamation
action of replevin. The American Constitution No. 889 as it now stands, not as it was originally
empowers its Congress "to provide for calling issued, is valid. The starting point must be a
forth the Militia" in certain cases, and Congress recognition that the power to suspend the
did provide that in those cases the President privilege of the writ belongs to the Executive,
should have authority to make the call. All that subject to limitations. So the Constitution
Justice Story did in construing the statute in the provides, and it is to be respected. The range of
light of the language and purpose of her permissible inquiry to be conducted by this
Constitution was to recognize the authority of the Tribunal is necessarily limited then to the
American President to decide whether the ascertainment of whether or not such a
exigency has arisen. In stating that such power suspension, in the light of the credible information
was exclusive and thus had a conclusive effect, furnished the President, was arbitrary. Such a
he relied on the language employed, impressed test met with the approval of the chief counsel for
with such a character. The constitutional petitioners, Senator Jose W. Diokno. To
provision on the suspension of the privilege of the paraphrase Frankfurter, the question before the
writ is, as shown, anything but that. 24 Chief judiciary is not the correctness but the
Justice Taney, in Luther v. Borden, 25 likewise reasonableness of the action taken. One who is
had to deal with a situation involving the calling not the Executive but equally knowledgeable may
out of the militia. As a matter of fact, an eminent entertain a different view, but the decision rests
commentator speaking of the two above with the occupant of the office. As would be
decisions had this apt observation: "The common immediately apparent even from a cursory
element in these opinions would seem to be a perusal of the data furnished the President, so
genuine judicial reluctance to speak in a situation impressively summarized in the opinion of the
where the voice of the Court, even if heard, could Chief Justice, the imputation of arbitrariness
not have any effect. More than this, both Story would be difficult to sustain. Moreover, the steps
and Taney seem to share the suspicion, unusual taken by him to limit the area where the
in them, that under a popular form of government suspension operates as well as his instructions
there are certain questions that the political attested to a firm resolve on his part to keep
branches must be trusted to answer with strictly within the bounds of his authority. Under
finality." 26 What was said next is even more the circumstances, the decision reached by the
pertinent. Thus: "It would be dangerous and Court that no finding of unconstitutionality is
misleading to push the principles of these cases warranted commends itself for approval. The
too far, especially the doctrine of 'political most that can be said is that there was a
questions' as implied in Luther v. Borden. Given manifestation of presidential power well-nigh
the opportunity to afford a grievously injured touching the extreme border of his conceded
citizen relief from a palpably unwarranted use of competence, beyond which a forbidden domain
presidential or military power, especially when the lies. The requisite showing of either improvidence
question at issue falls in the penumbra between or abuse has not been made.
the 'political' and the 'justiciable', the Court will act
as if it had never heard of this doctrine and its
underlying assumption that there are some
8. Why the dissent then. My basic premise is that Justice Recto, fortified by Justice Laurel, drawing
the suspension of the privilege of the writ heavily on continental juristic thought, both of
partakes of an executive action which if valid whom, having retired from the bench and
binds all who are within its operations. The thereafter having been elected to the Senate,
function of enacting a legal norm general in were invited to appear as amici curiae in the
character appertains to either Congress or the Nava case.
President. Its specific application to particular
individuals, like petitioners here, is however a It would follow to my way of thinking then that the
task incumbent on the judiciary. What is more, as petitioners still detained ought not to be further
had just been explained, its validity maybe tested deprived of their liberty in the absence of a
in courts. Even if valid, any one may seek judicial warrant of arrest for whatever offense they may
determination as to whether he is embraced be held to answer, to be issued by a judge after a
within its terms. After our declaration of the finding of probable cause. That is to comply with
validity of the Proclamation No. 889 as amended, the constitutional requirement against
the next question is its applicability to petitioners. unreasonable search and seizure. 30 Moreover,
I am the first to recognize the meticulous care with to keep them in confinement after the ordinary
which the Chief Justice, after reaching the processes of the law are to be availed of, as
conclusion that petitioners are covered by the thereafter decreed by the Executive itself is to
suspension, saw to it that their constitutional ignore the safeguard in the Bill of Rights that no
rights are duly safeguarded in whatever person shall be held to answer for a criminal
proceedings they would have thereafter to face. offense without due process of law. 31 That would
There is thus as assurance that as far as human explain why with full recognition of the sense of
foresight can anticipate matters, the possibility of realism that infuses the opinion of the Court, I
abuse is minimized. cannot, from the above standpoint, reach the
same conclusion they did. These six petitioners,
The matter, for me, could be viewed Rodolfo del Rosario, Victor Felipe, Luzvimindo,
independently of whether or not petitioners, by David, Gary Olivar, Angelo de los Reyes and
the conduct imputed to them, could be detained Teresito Sison, have, for me, become immune
further by virtue of the suspension of the privilege from the operation of the proclamation
of the writ. For admittedly, a supervening fact, the suspending the privilege of the writ of habeas
Executive's determination to have them charged corpus and are thus entitled to their liberty. I am
according to the ordinary procedural rules, did reinforced in my conviction by the well-settled
present itself. There was thus introduced an principle of constitutional construction that if there
element decisive in its consequences. They are are two possible modes of interpretation, that one
entitled to treatment no different from that which raises the least constitutional doubt should
accorded any other individual facing possible be preferred. Certainly, to my way of thinking, the
criminal charges. The opinion of the Chief Justice choice is obvious. That interpretation which would
is correct in pointing out that such an approach throw the full mantle of protection afforded by the
follows the dictum of Justice Tuason, speaking for Constitution to those unfortunate enough to be
himself in Nava v. Gatmaitan, 28 where a majority caught in the meshes of criminal law is more in
of five, lacking just one vote to enable this Court keeping with the high estate accorded
to reach a binding decision, did arrive at the constitutional rights.
conclusion that the suspension of the privilege of
the writ does not suspend the right to bail. Thus: There is another consideration that strengthens
"By the same token, if and when formal complaint my conviction on the matter. The language of the
is presented, the court steps in and the executive Constitution would seem to imply at the most that
steps out. The detention ceases to be an the suspension of the privilege of the writ renders
executive and becomes a judicial concern. it unavailable for the time being. Still there are
Thereupon the corresponding court assumes its authorities sustaining the view that preventive
role and the judicial process takes its course to detention subject to the test of good faith is
the exclusion of the executive or the legislative allowable.32Such a doctrine is no doubt partly
departments. Hence forward, the accused is traceable to Anglo-American legal history where
entitled to demand all the constitutional as pointed out by Maine: "Substantive law has at
safeguards and privileges essential to due first the look of being gradually secreted in the
process." 29 Parenthetically, it may be observed interstices of procedure." 33 The writ of habeas
that the above view reflects the stand taken by
corpus then is more than just an efficacius device as a constitutional democracy can justifiably pride
or the most speedy means of obtaining one's itself on its allegiance to ways of persuasion
liberty. It has become a most valuable rather than coercion, the most meticulous
substantive right. It would thus serve the cause of observance of the free way of life seems to me,
constitutional rights better if the Tuason dictum as even at this stage, not without its beneficent
to the judicial process supplanting executive rule influence on their future course of conduct. This
the moment charges are filed be accorded is not by any means to intimate that my brethren
acceptance. Thereby the number of individuals view matters differently. Far from it. Any
who would have to submit to further detention, difference if at all in the positions taken is a
that may well turn out to be unjustified, would be question of emphasis. Rightly, the opinion of the
reduced. What is more, greater fidelity is Chief Justice stresses the importance of the rule
manifested to the principle that liberty is the rule of law. It is to be hoped that with a proper
and restraint the exception. understanding of what has been decided by the
Court today, there would be a diminution of the
I am not of course insensible to the observation wholesale condemnation of the present system of
in the opinion of the Court that this concept could government by some sectors of the youth and
be an obstacle to the early resumption of the perhaps even lead to much-needed refinement in
ordinary judicial process as the Executive might the volume and quality of their utterances. It could
be minded to postpone resort to it, considering even conceivably, not only for them but for others
that there would necessarily be an end to the of a less radical cast of mind, but equally suffering
detention at that early stage of individuals who from disenchantment and disillusion, induce a
continue to pose risk to the safety of the reassessment and reappraisal of their position,
government. It does occur to me, however, that even if from all appearances their commitment
the presumption should be that the high executive and dedication are plain for all to see. More than
dignitaries can be trusted to act in accordance that, such a response will go a long way towards
with the dictates of good faith and the command a keener appreciation of the merits of a
of the Constitution. At least, such seems to be the constitutional democracy. For thereby, it
case now. The opinion of the Court is quite demonstrates that it lives up to its ideas; it strives
explicit as to the measures taken to minimize the to act in accordance with what it professes. Its
possibility of abuse from officials in the lower appeal for all sectors or society becomes
category, who in their zeal or even from less strengthened and vitalized. Nor do I close my
worthy motives might make a mockey of the other eyes to the risk that such an attitude towards
constitutional rights. That is as it should be. It those who constitute a source of danger entails.
should continue to be so even if there be That for me is not conclusive. With nations, as
acceptance of the doctrine enunciated by Justice with ordinary mortals, that is unavoidable.
Tuason. There is, for me at least, no undue cause Repose, in the often-quoted aphorism of Holmes,
for pessimism. is not the destiny of man.

These is to my mind another reinforcement to this 9. One last observation. It would appear to me
approach to the question before us, perhaps one that if there is really a resolve to maintain inviolate
based more on policy rather than strictly legal constitutional rights for all, more especially so for
considerations. The petitioners who have not those inclined and disposed to differ and to be
been released are youth leaders, who for motives vocal, perhaps even intemperate, in their
best known to them, perhaps excess of idealism, criticism, that serious thought should be given to
impatience with existing conditions, even the desirability of removing from the President his
overweening ambition, clamor for change, power to suspend the privilege of the writ
apparently oblivious at times that it could be of habeas corpus as well as the power to declare
accomplished through means of which the law martial law. Nor would the government be lacking
does not disapprove. It would be premature at this in authority to cope with the crisis of invasion,
stage to say whether or not their activities have insurrection, or rebellion or lawless violence, as
incurred for them a penal sanction, which the President as commander-in-chief can
certainly would be appropriate if their conduct is summon the aid of the armed forces to meet the
beyond the pale. Even they should recognize that danger posed to public safety. If the privilege of
the existing order has the right to defendant itself the writ cannot be suspended and martial law
against those who would destroy it. Nonetheless beyond the power of the President to declare,
there is a greater likelihood as far as the rights of
the individual are concerned, of the Constitution SECRETARY OF NATIONAL DEFENSE, and
remaining at all times supreme, as it ought to be, CHIEF, PHIL. CONSTABULARY, respondents.
whether it be in peace or in war or under other
crisis conditions. As long, however, as such a G.R. No. L-33973 December 11, 1971
presidential prerogative exists, it would not be
proper for the courts not to accord recognition to LUZVIMINDA DAVID, petitioner,
its exercise, if there be observance of the
limitations imposed by the Constitution. At the
most, they can only through construction nullify vs.
what would amount to an unconstitutional
application. How desirable it would be then, to my GEN. EDUARDO GARCIA, in his capacity as
way of thinking, if the Constitution would strip the Chief, Philippine Constabulary, COL. N. C.
President of such power. That would be CAMELLO, in his capacity as Chief of Staff,
constitutionalism triumphant. In terms of Lincoln's Philippine Constabulary and HON. JUAN
memorable dilemma, the government would be PONCE ENRILE in his capacity as Secretary,
neither too strong for the liberties of the people Department of National defense, respondents.
nor too weak to maintain its existence. This is a
matter though appropriately addressed to the G.R. No. L-33982 December 11, 1971
Constitutional Convention.
IN THE MATTER OF THE PETITION FOR
On the purely legal aspect, however, let me HABEAS CORPUS OF NEMESIO E.
reiterate that my acceptance of the Tuason PRUDENTE FELICIDAD G.
dictum in the Nava case did result in my inability PRUDENTE, petitioners,
to concur fully with the opinion of the Chief
Justice, which, as pointed out at the outset, is vs.
possessed of a high degree of merit.
GENERAL MANUEL YAN, GEN. EDU
----------------------------------------------------------- GARCIA, respondents.

Republic of the Philippines G.R. No. L-34004 December 11, 1971

SUPREME COURT
Manila
IN THE MATTER OF THE APPLICATION FOR
HABEAS CORPUSIN BEHALF OF GERARDO
EN BANC TOMAS, ALSO KNOWN AS "GERRY TOMAS"
AND FOR RETURN OF DOCUMENTS
ILLEGALLY SEIZED. DOMINGO E. DE LARA,
in his capacity as Chairman, Committee on
G.R. No. L-33964 December 11, 1971 Legal Assistance, Philippine Bar
Association, petitioner,
IN THE MATTER OF THE PETITION FOR
HABEAS CORPUS OF TEODOSIO LANSANG vs.
RODOLFO DEL ROSARIO, and BAYANI
ALCALA, petitioners, BRIG. GENERAL EDUARDO M. GARCIA,
vs. CHIEF, PHILIPPINE
BRIGADIER-GENERAL EDUARDO M. CONSTABULARY, respondent.
GARCIA, Chief, Philippine
Constabulary, respondent. G.R. No. L-34013 December 11, 1971

G.R. No. L-33965 December 11, 1971 REYNALDO RIMANDO, petitioner,

ROGELIO V. ARIENDA, petitioner, vs.

vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief of Suntay and Juan T. David for petitioner Felicidad
the Philippine Constabulary, respondent. G. Prudente.

G.R. No. L-34039 December 11, 1971 Ruben L. Roxas for petitioner Reynaldo
Rimando.
IN THE MATTER OF THE APPLICATION FOR
HABEAS CORPUSIN BEHALF OF SGT. Nuñez, Acob, Del Rosario and Ramos for
FILOMENO M. DE CASTRO AND HIS WIFE, petitioner Carlos Rabago, etc.
MRS. BARCELISA C. DE CASTRO. CARLOS
C. RABAGO, in his capacity as President of E. Voltaire Garcia II and M. P. Vivo for petitioner
the Conference Delegates Association of the Gary Olivar, etc., et al.
Philippines (CONDA),petitioner,
Jose W. Diokno and Juanito R. Remulla for
vs. petitioner Antolin Oreta, Jr.

BRIG. GEN. EDUARDO M. GARCIA, Chief, Domingo E. de Lara for and in his own behalf.
Philippine Constabulary, respondent.
Office of the Solicitor General Felix Q. Antonio
G.R. No. L-34265 December 11, 1971 and Assistant Solicitor General Bernardo P.
Pardo for respondents.
IN THE MATTER OF THE PETITION FOR
HABEAS CORPUS OF ANTOLIN ORETA, JR.
ANTOLIN ORETA, JR., petitioner,
CONCEPCION, C.J.:
vs.
In the evening of August 21, 1971, at about 9
GEN. EDUARDO GARCIA and COL. p.m., while the Liberal Party of the Philippines
PROSPERO OLIVAS, respondents. was holding a public meeting at Plaza Miranda,
Manila, for the presentation of its candidates in
G.R. No. L-34339 December 11, 1971 the general elections scheduled for November 8,
1971, two (2) hand grenades were thrown, one
GARY B. OLIVAR, assisted by his father, after the other, at the platform where said
GEORGE OLIVAR, petitioner, candidates and other persons were. As a
consequence, eight (8) persons were killed and
vs. many more injured, including practically all of the
aforementioned candidates, some of whom
sustained extensive, as well as serious, injuries
GEN. EDUARDO GARCIA, in his capacity as which could have been fatal had it not been for
Chief, Philippine Constabulary, et the timely medical assistance given to them.
al., respondents.
On August 23, soon after noontime, the President
Ignacio P. Lacsina for petitioners Teodosio of the Philippines announced the issuance of
Lansang, et al. Proclamation No. 889, dated August 21, 1971,
reading as follows:
Ramon A. Gonzales for petitioner Rogelio V.
Arienda. WHEREAS, on the basis of
carefully evaluated information, it
E. Voltaire Garcia II for petitioner Luzvimindo is definitely established that
David. lawless elements in the country,
which are moved by common or
Verzola, Africa and Atencio, Lorenzo M. Tanada, similar ideological conviction,
Wigberto E. Tañada, Fortunato de Leon, R. G. design and goal and enjoying the
active moral and material
support of a foreign power and depredations against our duly
being guided and directed by a constituted authorities, against
well trained, determined and the members of our law
ruthless group of men and taking enforcement agencies, and
advantage of our constitutional worst of all, against the peaceful
liberties to promote and attain members of our society;
their ends, have entered into a
conspiracy and have in fact WHEREAS, these lawless
joined and banded their forces elements have created a state of
together for the avowed purpose lawlessness and disorder
of actually staging, undertaking affecting public safety and the
and waging an armed security of the State, the latest
insurrection and rebellion in manifestation of which has been
order to forcibly seize political the dastardly attack on the
power in this country, overthrow Liberal Party rally in Manila on
the duly constituted government, August 21, 1971, which has
and supplant our existing resulted in the death and serious
political social, economic and injury of scores of persons;
legal order with an entirely new
one whose form of government, WHEREAS, public safety
whose system of laws, whose requires that immediate and
conception of God and religion,
effective action be taken in order
whose notion of individual rights
to maintain peace and order,
and family relations, and whose
secure the safety of the people
political, social and economic and preserve the authority of the
precepts are based on the State;
Marxist-Leninist-Maoist
teachings and beliefs;
NOW, THEREFORE, I,
FERDINAND E. MARCOS,
WHEREAS, these lawless President of the Philippines, by
elements, acting in concert virtue of the powers vested upon
through front organizations that
me by Article VII, Section 10,
are seemingly innocent and
Paragraph (2) of the
harmless, have continuously and
Constitution, do hereby suspend
systematically strengthened and the privilege of the writ of habeas
broadened their memberships corpus, for the persons presently
through sustained and careful detained, as well as others who
recruiting and enlistment of new
may be hereafter similarly
adherents from among our
detained for the crimes of
peasantry, laborers,
insurrection or rebellion, and all
professionals, intellectuals,
other crimes and offenses
students, and mass media committed by them in
personnel, and through such
furtherance or on the occasion
sustained and careful
thereof, or incident thereto, or in
recruitment and enlistment have
connection therewith.
succeeded in infiltrating almost
every segment of our society in
their ceaseless determination to Presently, petitions for writ of habeas
erode and weaken the political, corpus were filed, in the above-entitled cases, by
social, economic and moral the following persons, who, having been arrested
foundations of our existing without a warrant therefor and then detained,
government and to influence upon the authority of said proclamation, assail its
many peasant, labor, validity, as well as that of their detention, namely:
professional, intellectual, student
and mass media organizations to 1. TEDORO LANSANG, RODOLFO DEL
commit acts of violence and ROSARIO and BAYANI ALCALA, the petitioners
in Case No. L-33964 — filed on August 24, 1971 7. VICTOR FELIPE, who was similarly allowed to
— who, on August 22, 1971, between 8 a.m. and intervene as one of the petitioners in said three
6 p.m., were "invited" by agents of the Philippine (3) cases, upon the ground that, on August 23,
Constabulary — which is under the command of 1971, at about 8 a.m., he was, likewise,
respondent Brig. Gen. Eduardo M. Garcia — to apprehended at Sta. Rosa, Laguna, by members
go and did go to the headquarters of the of the Philippine Constabulary and brought, first
Philippine Constabulary, at Camp Crame, to the Constabulary headquarters at Canlubang,
Quezon City, for interrogation, and thereafter, Laguna, and, then, to Camp Crame, Quezon City,
detained; where he is detained and restrained of liberty;

2. ROGELIO V. ARIENDA, the petitioner in Case 8. TERESITO SISON, who was, also, allowed to
No. L-33965 — filed, also, on August 24, 1971 — intervene as one of the petitioners in the same
who was picked up in his residence, at No. 55 three (3) cases, he having been arrested in his
Road, 3, Urduja Village, Quezon City, by residence, at 318 Lakandula St., Angeles City, on
members of the Metrocom and then detained; August 22, 1971, between 6 and 7 p.m., and
taken to the PC offices at Sto. Domingo, Angeles
3. Soon after the filing of the petition in Case No. City, then to Camp Olivas, San Fernando,
L-33965 — or on August 28, 1971 — the same Pampanga, and eventually to Camp Crame,
was amended to include VICENTE ILAO and Quezon City, where he is restrained and deprived
JUAN CARANDANG, as petitioners therein, of liberty;
although, apart from stating that these additional
petitioners are temporarily residing with the 9. GERARDO TOMAS, alias Gerry Tomas, a 17-
original petitioner, Rogelio V. Arienda, the year old second year college students of St. Louis
amended petition alleged nothing whatsoever as University, Baguio City, on whose behalf,
regards the circumstances under which said Domingo E. de Lara — in his capacity as
Vicente Ilao and Juan Carandang are said to be Chairman, Committee on Legal Assistance,
illegally deprived of their liberty; Philippine Bar Association — filed on September
3, 1971, the petition in Case No. L-34004, upon
4. LUZVIMINDO DAVID, petitioner in Case No. L- the ground that said Gerardo Tomas had, on
33973 — filed on August 25, 1971 — who was August 23, 1971, at about 6 a.m., been arrested
similarly arrested in his residence, at No. 131-B by Constabulary agents, while on his way to
Kamias Road, Quezon City, and detained by the school in the City of Baguio, then brought to the
Constabulary; Constabulary premises therein at Camp Holmes,
and, thereafter, taken, on August 24, 1971, to
5. Felicidad G. Prudente, who filed the petition in Camp Olivas, Pampanga, and thence, on August
Case No. L-33982 — on August 27, 1971 — upon 25, 1971, to the Constabulary headquarters at
Camp Crame, Quezon City, where he is detained;
the ground that her father, Dr. NEMESIO E.
PRUDENTE, had, on August 22, 1971, at about
8 p.m., been apprehended by Constabulary 10. REYNALDO RIMANDO, petitioner in Case
agents in his house, at St. Ignatius Village, No. L-34013 — filed on September 7, 1971 — a
Quezon City, and then detained at the Camp 19-year old student of the U.P. College in Baguio
Crame stockade, Quezon City; city — who, while allegedly on his way home, at
Lukban Road, Baguio, on August 23, 1971, at
about 1 a.m., was joined by three (3) men who
6. ANGELO DE LOS REYES, who was allowed
brought him to the Burnham Park, thence, to
— on August 30, 1971 — to intervene as one of
the petitioners in Cases Nos. L-33964, L-33965 Camp Olivas at San Fernando, Pampanga, and,
thereafter, to Camp Crame, Quezon City, where
and L-33973, he having been arrested by
he is detained;
members of the Constabulary on August 22,
1971, between 6:30 and 7:30 p.m., in his
residence, at 86 Don Manuel Street, Sta. Mesa 11. Sgt. FILOMENO M. DE CASTRO and his
Heights, Quezon City, and brought to Camp wife, Mrs. BARCELISA C. DE CASTRO, on
Crame, Quezon City, where he is detained and whose behalf Carlos C. Rabago — as President
restrained of liberty; of the Conference Delegates Association of the
Philippines (CONDA) — filed the petition in Case
No. L-34039 — on September 14, 1971 —
against Gen. Eduardo M. Garcia, alleging that, on Executive could not at the moment give a full
August 27, 1971, at about 3 p.m., Mrs. De Castro account and disclosure without risking revelation
was arrested, while at Liamzon Subdivision, of highly classified state secrets vital to its safely
Rosario, Pasig, Rizal, by agents of the and security"; that the determination thus made
Constabulary, and taken to the PC headquarters by the President is "final and conclusive upon the
at Camp Crame, where, later, that same court and upon all other persons" and "partake(s)
afternoon, her husband was brought, also, by PC of the nature of political question(s) which cannot
agents and both are detained; be the subject of judicial inquiry," pursuant to
Barcelon v. Baker, 5 Phil. 87, and Montenegro v.
12. ANTOLIN ORETA, JR., who filed the petition Castañeda, 91 Phil. 882; that petitioners "are
in Case No. L-34265 — on October 26, 1971 — under detention pending investigation and
against said Gen. Garcia, as Chief of the evaluation of culpabilities on the reasonable
Constabulary, and Col. Prospero Olivas, Chief of belief" that they "have committed, and are still
the Central Intelligence Service (CIS), Philippine committing, individually or in conspiracy with
Constabulary, alleging that, upon invitation from others, engaged in armed struggle, insurgency
said CIS, he went, on October 20, 1971, to Camp and other subversive activities for the overthrow
Aguinaldo, Quezon City, to see Gen. Manuel of the Government; that petitioners cannot raise,
Yan, Chief of Staff of the Armed Forces of the in these proceedings for habeas corpus, "the
Philippines, who referred petitioner to Col. Laroya question of their guilt or innocence"; that the
of the CIS; that the latter, in turn, referred him to "Chief of Constabulary had petitioners taken into
CIS Investigator Atty. Berlin Castillo and another custody on the basis of the existence of evidence
CIS against, whose name is unknown to the sufficient to afford a reasonable ground to believe
petitioner; and that, after being interrogated by that petitioners come within the coverage of
the two (2), petitioner was detained illegally; and persons to whom the privilege of the writ
of habeas corpus has been suspended"; that the
13. GARY OLIVAR, petitioner in Case No. L- "continuing detention of the petitioners as an
urgent bona fide precautionary and preventive
34339 — filed on November 10, 1971 — who was
measure demanded by the necessities of public
apprehended, by agents of the Constabulary, in
safety, public welfare and public interest"; that the
the evening of November 8, 1941, in Quezon City,
President of the Philippines has "undertaken
and then detained at Camp Crame, in the same
City. concrete and abundant steps to insure that the
constitutional rights and privileges of the
petitioners as well as of the other persons in
Upon the filing of the aforementioned cases, the current confinement pursuant to Proclamation
respondents were forthwith required to answer 889 remain unimpaired and unhampered"; and
the petitions therein, which they did. The return that "opportunities or occasions for abuses by
and answer in L-33964 — which was, mutatis peace officers in the implementation of the
mutandis, reproduced substantially or by proclamation have been greatly minimized, if not
reference in the other cases, except L-34265 — completely curtailed, by various safeguards
alleges, inter alia, that the petitioners had been contained in directives issued by proper
apprehended and detained "on reasonable belief" authority."
that they had "participated in the crime of
insurrection or rebellion;" that "their continued
These safeguards are set forth in:
detention is justified due to the suspension of the
privilege of the writ of habeas corpus pursuant to
Proclamation No. 889 of the President of the 1. A letter of the President to the Secretary of
Philippines;" that there is "a state of insurrection National Defense, dated August 21, 1971,
or rebellion" in this country, and that "public safety directing, inter alia, in connection with the arrest
and the security of the State required the or detention of suspects pursuant to Proclamation
suspension of the privilege of the writ of habeas No. 889, that, except when caught inflagrante
corpus," as "declared by the President of the delicto, no arrest shall be made without warrant
Philippines in Proclamation No. 889; that in authorized in writing by the Secretary of National
making said declaration, the "President of the Defense; that such authority shall not be granted
Philippines acted on relevant facts gathered thru unless, "on the basis of records and other
the coordinated efforts of the various intelligence evidences," it appears satisfactorily, in
agents of our government but (of) which the Chief accordance with Rule 113, section 6(b), of the
Rules of Court, that the person to be arrested is petitioner therein, had been and is detained "on
probably guilty of the acts mentioned in the the basis of a reasonable ground to believe that
proclamation; that, if such person will be charged he has committed overt acts in furtherance of
with a crime subject to an afflictive penalty under rebellion or insurrection against the government"
the Anti-Subversion Act, the authorization for his and, accordingly, "comes within the class of
arrest shall not be issued unless supported by persons as to whom the privilege of the writ
signed intelligence reports citing at least one of habeas corpus has been suspended by
reliable witness to the same overt act; that no Proclamation No. 889, as amended," the validity
unnecessary or unreasonable force shall be used of which is not contested by him.
in effecting arrests; and that arrested persons
shall not be subject to greater restraint than is On August 30, 1971, the President issued
necessary for their detention; Proclamation No. 889-A, amending Proclamation
No. 889, so as to read as follows:
2. Communications of the Chief of the
Constabulary, dated August 23, 27, and 30, 1971, WHEREAS, on the basis of
to all units of his command, stating that the carefully evaluated information, it
privilege of the writ is suspended for no other is definitely established that
persons than those specified in the proclamation; lawless elements in the country,
that the same does not involve material law; that which are moved by common or
precautionary measures should be taken to similar ideological conviction,
forestall violence that may be precipitated by design and goal and enjoying the
improper behavior of military personnel; that active moral and material
authority to cause arrest under the proclamation support of a foreign power and
will be exercised only by the Metrocom, CMA, being guided and directed by a
CIS, and "officers occupying position in the well-trained, determined and
provinces down to provincial commanders"; that ruthless group of men and taking
there shall be no indiscriminate or mass arrests; advantage of our constitutional
that arrested persons shall not be harmed and liberties to promote and attain
shall be accorded fair and humane treatment; and their ends, have entered into a
that members of the detainee's immediate family conspiracy and have in fact
shall be allowed to visit him twice a week; joined and banded their forces
together for the avowed purpose
3. A memorandum of the Department of National of [actually] staging, undertaking,
Defense, dated September 2, 1971, directing the [and] wagging and are actually
Chief of the Constabulary to establish appropriate engaged in an armed
Complaints and Action Bodies/Groups to prevent insurrection and rebellion in
and/or check any abuses in connection with the order to forcibly seize political
suspension of the privilege of the writ; and power in this country, overthrow
the duly constituted government,
4. Executive Order No. 333, dated August 26, and supplant our existing
1971, creating a Presidential Administrative political, social, economic and
Assistance Committee to hear complaints legal order with an entirely new
regarding abuses committed in connection with one whose form of government,
the implementation of Proclamation No. 889. whose system of laws, whose
conception of God and religion,
Respondents in L-33965 further alleged that whose notion of individual rights
therein petitioners Vicente Ilao and Juan and family relations, and whose
political, social and economic
Carandang had been released from custody on
precepts are based on the
August 31, 1971, "after it had been found that the
Marxist-Leninist-Maoist teaching
evidence against them was insufficient."
and beliefs;
In L-34265, the "Answer and Return" filed by
WHEREAS, these lawless
respondents therein traversed some allegations
elements, acting in concert
of fact and conclusions of law made in the petition
through front organizations that
therein and averred that Antolin Oreta, Jr., the
are seemingly innocent and virtue of the powers vested upon
harmless, have continuously and me by Article VII, Section 10,
systematically strengthened and Paragraph (2) of the
broadened their memberships Constitution, do hereby suspend
through sustained and careful the privilege of the writ of habeas
recruiting and enlistment of new corpus for the persons presently
adherents from among our detained, as well as all others
peasantly, laborers, who may be hereafter similarly
professionals, intellectuals, detained for the crimes of
students, and mass media insurrection or rebellion [,] and
personnel, and through such [all] other [crimes and offenses]
sustained and careful overt acts committed by them in
recruitment and enlistment have furtherance [or on the occasion]
succeeded in infiltrating almost thereof[,]. [or incident thereto, or
every segment of our society in in connection therewith.]1
their ceaseless determination to
erode and weaken the political, On September 1, 1971, Cases Nos. L-33964, L-
social, economic and moral 33965, L-33973 and L-33982 were jointly heard
foundations of our existing and then the parties therein were allowed to file
government and influence many memoranda, which were submitted from
peasant, labor, professional, September 3 to September 9, 1971.
intellectual, student and mass
media organizations to commit
Soon thereafter, or on September 18, 1971,
acts of violence and
Proclamation No. 889 was further amended by
depredations against our duly Proclamation No. 889-B, lifting the suspension of
constituted authorities, against the privilege of the writ of habeas corpus in the
the members of our law
following provinces, sub-provinces and cities of
enforcement agencies, and
the Philippine, namely:
worst of all, against the peaceful
members of our society;
A. PROVINCES:
WHEREAS, these lawless
elements, by their acts of 1. Batanes 15.
rebellion and insurrection, have Negros Occ.
created a state of lawlessness 2. Ilocos Norte
and disorder affecting public 16. Negros Or.
safety and security of the State, 3. Ilocos Sur 17.
the latest manifestation of which Cebu
has been the dastardly attack on 4. Abra 18.
the Liberal Party rally in Manila Bohol
on August 21, 1971, which has 5. Abra 19.
resulted in the death and serious Capiz
injury of scores of persons; 6. Pangasinan
20. Aklan
7. Batangas 21.
WHEREAS, public safety
Antique
requires that immediate and 8. Catanduanes
effective action be taken in order 22. Iloilo
to maintain peace and order,
9. Masbate 23.
secure the safety of the people
Leyte
and preserve the authority of the
10. Romblon 24.
State;
Leyte del Sur
11. Marinduque
NOW THEREFORE, I, 25. Northern
FERDINAND E. MARCOS, Samar
President of the Philippines, by 12. Or. Mindoro
 26. Eastern Sur 9. Misamis
Samar Or.
13. Occ. 3. Davao del
Mindoro 27. Norte 10.
Western Samar Misamis Occ.
14. Palawan. 4. Davao del
Sur 11.
B. SUB-PROVINCES: Zamboanga del
Norte
5. Davao
1. Guimaras 3.
Oriental 12.
Siquior
Basilan
2. Biliran
6. Bukidnon 13.
Pagadian
C. CITIES: 7. Agusan del
Norte
1. Laog 10.
Bacolod B. CITIES:
2. Dagupan 11.
Bago
1. Surigao 8.
3. San Carlos
Tangub
12. Canlaon
2. Davao 9.
4. Batangas 13.
Dapitan
La Carlota
5. Lipa 14. Bais 3. Butuan 10.
Dipolog
6. Puerto
4. Cagayan 11.
Princesa 15.
Zamboanga
Dumaguete
5. Gingoong 12.
7. San Carlos
(Negros 16. Basilan
Iloilo 6. Ozamiz 13.
Pagadian.
Occ.) 17. Roxas
7. Oroquieta
8. Cadiz 18.
Tagbilaran
9. Silay 19. On October 4, 1971, the suspension of the
Lapu-lapu privilege was further lifted by Proclamation No.
889-D, in the following places:
20. Cebu 24.
Tacloban A. PROVINCES:
21. Mandaue
25. Ormoc 1. Cagayan 5.
22. Danao 26. Camarines
Calbayog 2. Cavite 6.
23. Toledo Albay
3. Mountain
On September 25, 1971, the President issued Province 7.
Proclamation No. 889-C, restoring the privilege of Sorsogon
the writ in the following provinces and cities: 4. Kalinga-
Apayao
A. PROVINCES:
B. CITIES:
1. Surigao del
Norte 8. Agusan 1. Cavite City 3.
del Sur Trece Martires
2. Surigao del
 2. Tagaytay 4. 9 Lucena 18.
Legaspi San Pablo

As a consequences, the privilege of the writ The first major question that the Court had to
of habeas corpus is still suspended in the consider was whether it would adhere to the view
following eighteen (18) provinces, two (2) sub- taken in Barcelon v. Baker,2 and reiterated
provinces and eighteen (18) cities, to wit: in Montenegro v. Castañeda,3 pursuant to which,
"the authority to decide whether the exigency has
A. PROVINCE: arisen requiring suspension (of the privilege of
the writ of habeas corpus) belongs to the
President and his 'decision is final and conclusive'
1. Bataan 10.
upon the courts and upon all other persons."
North Cotabato
2. Benguet 11. Indeed, had said question been decided in the
Nueva Ecija affirmative the main issue in all of these cases,
except
3. Bulacan 13.
L-34339, would have been settled, and, since the
Pampanga
other issues were relatively of minor importance,
4. Camarines
said cases could have been readily disposed of.
Sur 14. Quezon
5. Ifugao 15. Upon mature deliberation, a majority of the
Rizal Members of the Court had, however, reached,
although tentatively, a consensus to the contrary,
6. Isabela 16.
and decided that the Court had authority to and
South Cotabato
should inquire into the existence of the factual
7. Laguna 17.
bases required by the Constitution for the
Tarlac
8. Lanao del suspension of the privilege of the writ; but before
proceeding to do so, the Court deemed it
Norte 18.
necessary to hear the parties on the nature and
Zambales
extent of the inquiry to be undertaken, none of
9. Lanao del
them having previously expressed their views
Norte
thereof. Accordingly, on October 5, 1971, the
Court issued, in L-33964, L-33965, L-33973 and
B. SUB-PROVINCES: L-33982, a resolution stating in part that —

1. Aurora 2. Quirino ... a majority of the Court having

tentatively arrived at a
C. CITIES: consensus that it may inquire in
order to satisfy itself of the
1. Angeles 10. existence of the factual bases for
Manila the issuance of Presidential
2. Baguio 11. Proclamations Nos. 889 and
Marawi 889-A (suspending the privilege
3. Cabanatuan of the writ of habeas corpus for
12. Naga all persons detained or to be
4. Caloocan 13. detained for the crimes of
Olongapo rebellion or insurrection
5. Cotabato 14. throughout the Philippines,
Palayan which area has lately been
6. General reduced to some eighteen
Santos 15. provinces, two subprovinces and
Pasay eighteen cities with the partial
7. Iligan 16. lifting of the suspension of the
Quezon privilege effected by Presidential
8 Iriga 17. San Proclamations Nos. 889-B, 889-
Jose C and 889-D) and thus
determine the constitutional
 sufficiency of such bases in the and a summary, submitted on November 15,
light of the requirements of 1971, of the aforesaid classified information.
Article III, sec. 1, par. 14, and
Article VII, sec. 10, par. 2, of the In the meantime, cases Nos. L-34265 (Oreta) and
Philippine Constitution; and L-34339 (Olivar) had been filed and the parties
considering that the members of therein were heard in oral argument on
the Court are not agreed on the November 4, and 16, 1971, respectively.
precise scope and nature of the
inquiry to be made in the On November 15, 1971, the Solicitor General
premises, even as all of them are
filed manifestations — motions stating that on
agreed that the Presidential
November 13, 1971, the following petitioners
findings are entitled to great
were:
respect, the Court RESOLVED
that these cases be set for
rehearing on October 8, 1971 at (a) released from custody:
9:30 A.M.
(1) Teodosio Lansang -- G.R.
xxx xxx xxx No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
On October 8, 1971, said four cases were,
(4) Nemesio Prudente -- " " L-
therefore, heard, once again, but, this time jointly
33982
with cases Nos. L-34004, L-34013, and L-34039,
(5) Gerardo Tomas -- " " L-34004
and the parties were then granted a period to file
(6) Reynaldo Rimando -- " " L-
memoranda, in amplification of their respective 34013
oral arguments, which memoranda were
(7) Filomeno M. de Castro -- " "
submitted from October 12 to October 21, 1971.
L-34039
(8) Barcelisa de Castro -- " " L-
Respondents having expressed, during the oral 34039
arguments, on September 1 and October 8, 1971, (9) Antolin Oreta, Jr. -- " " L-
their willingness to impart to the Court classified 34264.
information relevant to these cases, subject to
appropriate security measures, the Court met at
(b) charged, together with other persons named
closed doors, on October 28 and 29, 1971, and,
in the criminal complaint filed therefor, with a
in the presence of three (3) attorneys for the violation of Republic Act No. 1700 (Anti-
petitioners, chosen by the latter, namely, Senator Subversion Act), in the City Fiscal's Office of
Jose W. Diokno, Senator Salvador H. Laurel, and
Quezon City:
Atty. Leopoldo Africa, as well as of the Solicitor
General and two (2) members of his staff, was
briefed, by Gen. Manuel Yan, Chief of Staff of the (1) Angelo de los Reyes -- G.R.
Armed Forces of the Philippines, Gen. Fidel No. L-22982 *
Ramos, Deputy Chief of Staff, Gen. Felizardo (2) Teresito Sison -- " " L-33982 *
Tanabe, Col. Tagumpay Nanadiego, Judge
Advocate General, JAGS (GSC), and other (c) accused, together with many others named in
ranking officers of said Armed Forces, on said the criminal complaint filed therefor, of a violation
classified information, most of which was of section 4 of Republic Act No. 1700 (Anti-
contained in reports and other documents already Subversion Act), in the Court of First Instance of
attached to the records. During the proceedings, Rizal:
the members of the Court, and, occassionally,
counsel for the petitioners, propounded pertinent (1) Rodolfo del Rosario -- G.R.
questions to said officers of the Armed Forces. No. L-33969 **
Both parties were then granted a period of time (2) Luzvimindo David -- " " L-
within which to submit their respective 33973
observations, which were filed on November 3, (3) Victor Felipe -- " " L-33982 *
1971, and complemented by some documents
attached to the records on November 6, 1971,
and continue under detention pursuant to requires it, in any way of which
Proclamation No. 889, as amended, and praying events the same may be
that the petitions in G.R. Nos. L-33964, L-33965, suspended wherever during
L-33982, L-34004, L-34013 and L-34039 be such period the necessity for
dismissed, without prejudice to the resolution of such suspension shall exist.
the remaining cases. Copy of the criminal
complaint filed, as above stated, with the Court of and paragraph (2), section 10, Article VII of the
First Instance of Rizal and docketed therein as same instrument, which provides that:
Criminal Case No. Q-1623 of said court — which
was appended to said manifestations-motions of
The President shall be
the respondent as Annex 2 thereof — shows that
commander-in-chief of all armed
Gary Olivar, the petitioner in L-34339, is one of
forces of the Philippines, and
the defendants in said case.
whenever it becomes necessary,
he may call out such armed
Required to comment on said manifestations- forces to prevent or suppress
motions, Luzvimindo David, petitioner in L-33973, lawless violence, invasion,
in his comment dated November 23, 1971, urged insurrection, or rebellion. In case
the Court to rule on the merits of the petitions in of invasion, insurrection, or
all of these cases, particularly on the rebellion, or imminent danger
constitutionality of Presidential Proclamation No. thereof when the public safety
889, as amended, upon the ground that he is still requires it, he may suspend the
detained and that the main issue is one of public privileges of the writ of habeas
interest involving as it does the civil liberties of the corpus, or place the Philippines
people. Angelo de los Reyes, one of the or any part thereof under martial
petitioners in L-33964, L-33965 and L-33973, law.
Nemesio E. Prudente and Gerardo Tomas, for
whose respective benefit the petitions in L-33982
Regardless of whether or not the President may
and L-34004 have been filed, maintained that the suspend the privilege of the writ of habeas
issue in these cases is not moot, not even for the corpus in case of "imminent danger" of invasion,
detainees who have been released, for, as long insurrection or rebellion — which is one of the
as the privilege of the writ remains suspended, grounds stated in said paragraph (2), section 10
they are in danger of being arrested and detained
of Art. VII of the Constitution, but not mentioned
again without just cause or valid reason. In his
in paragraph (14), section 1 of its Bill of Rights —
reply, dated and filed on November 29, 1971, the
petitioners maintained that Proclamation No. 889
Solicitor General insisted that the release of the did not declare the existence of actual "invasion
above-named petitioners rendered their insurrection or rebellion or imminent danger
respective petitions moot and academic. thereof," and that, consequently, said
Proclamation was invalid. This contention was
I predicated upon the fact that, although the first
"whereas" in Proclamation No. 889 stated that
Petitioners herein, except Antolin Oreta, Jr. in L- "lawless elements" had "entered into
34265, question the formal validity of the a conspiracy and have in fact joined and banded
proclamation suspending the privilege of the writ their forces together for the avowed purpose of
of habeas corpus. In this connection, it should be actually staging, undertaking and waging an
noted that, as originally formulated, Proclamation armed insurrection and rebellion," the actuality so
No. 889 was contested upon the ground that it did alleged refers to the existence, not of an uprising
not comply with the pertinent constitutional that constitutes the essence of a rebellion or
provisions, namely, paragraph (14) of section 1, insurrection, but of the conspiracy and
Article III of our Constitution, reading: the intent to rise in arms.

The privilege of the writ Whatever may be the merit of this claim, the same
of habeas corpus shall not be has been rendered moot and academic by
suspended except in cases of Proclamation No. 889-A, issued nine (9) days
invasion, insurrection, or after the promulgation of the original
rebellion, when the public safety proclamation, or on August 30, 1971. Indeed,
said Proclamation No. 889-A amended, inter alia, writ, to wit: (a) there must be "invasion,
the first "whereas" of the original proclamation by insurrection, or rebellion" or — pursuant to
postulating the said lawless elements "have paragraph (2), section 10 of Art. VII of the
entered into a conspiracy and have in fact joined Constitution — "imminent danger thereof," and
and banded their forces together for the avowed (b) "public safety" must require the suspension of
purpose of staging, undertaking, waging and are the privilege. The Presidential Proclamation
actually engaged in an armed insurrection and under consideration declares that there has been
rebellion in order to forcibly seize political power and there is actually a state of rebellion and
in this country, overthrow the duly constituted that4 "public safety requires that immediate and
government, and supplant our existing political, effective action be taken in order to maintain
social, economic and legal order with an entirely peace and order, secure the safety of the people
new one ...." Moreover, the third "whereas" in the and preserve the authority of the State."
original proclamation was, likewise, amended by
alleging therein that said lawless elements, "by Are these findings conclusive upon the Court?
their acts of rebellion and insurrection," have Respondents maintain that they are, upon the
created a state of lawlessness and disorder authority of Barcelon v. Baker5 and Montenegro
affecting public safety and the security of the v. Castañeda.6 Upon the other hand, petitioners
State. In other words, apart from adverting to the press the negative view and urge a reexamination
existence of actual conspiracy and of the intent to of the position taken in said two (2) cases, as well
rise in arms to overthrow the government, as a reversal thereof.
Proclamation No. 889-A asserts that the lawless
elements "are actually engaged in an armed
The weight of Barcelon v. Baker, as a precedent,
insurrection and rebellion" to accomplish their
is diluted by two (2) factors, namely: (a) it relied
purpose.
heavily upon Martin v. Mott7 involving the U.S.
President's power to call out the militia, which —
It may not be amiss to note, at this juncture, that he being the commander-in-chief of all the armed
the very tenor of the original proclamation and forces — may be exercised to suppress or
particularly, the circumstances under which it had prevent any lawless violence, even without
been issued, clearly suggest the intent to aver invasion, insurrection or rebellion, or imminent
that there was and is, actually, a state of rebellion danger thereof, and is, accordingly, much
in the Philippines, although the language of said broader than his authority to suspend the
proclamation was hardly a felicitous one, it having privilege of the writ of habeas corpus,
in effect, stressed the actuality of the intent to rise jeopardizing as the latter does individual liberty;
in arms, rather than of the factual existence of the and (b) the privilege had been suspended by the
rebellion itself. The pleadings, the oral arguments American Governor-General, whose act, as
and the memoranda of respondents herein have representative of the Sovereign, affecting the
consistently and abundantly emphasized — to freedom of its subjects, can hardly be equated
justify the suspension of the privilege of the writ with that of the President of the Philippines
of habeas corpus — the acts of violence and dealing with the freedom of the Filipino people, in
subversion committed prior to August 21, 1971, whom sovereignty resides, and from whom all
by the lawless elements above referred to, and government authority emanates. The pertinent
the conditions obtaining at the time of the ruling in the Montenegro case was based mainly
issuance of the original proclamation. In short, upon the Barcelon case, and hence, cannot have
We hold that Proclamation No. 889-A has more weight than the same. Moreover, in the
superseded the original proclamation and that the Barcelon case, the Court held that it could go into
flaws attributed thereto are purely formal in the question: "Did the Governor-General" —
nature. acting under the authority vested in him by the
Congress of the United States, to suspend the
II privilege of the writ of habeas corpus under
certain conditions — "act in conformance with
Let us now consider the substantive validity of the such authority?" In other words, it did determine
proclamation, as amended. Pursuant to the whether or not the Chief Executive had acted in
above-quoted provisions of the Constitution, two accordance with law. Similarly, in the Montenegro
(2) conditions must concur for the valid exercise case, the Court held that petitioner therein had
of the authority to suspend the privilege to the "failed to overcome the presumption of
correctness which the judiciary accords to acts of now unanimous in the conviction that it has the
the Executive ...." In short, the authority to inquire into the existence of said
Court considered the question whether or not factual bases in order to determine the
there really was are rebellion, as stated in the constitutional sufficiency thereof.
proclamation therein contested.
Indeed, the grant of power to suspend the
Incidentally, even the American jurisprudence is privilege is neither absolute nor unqualified. The
neither explicit nor clear on the point under authority conferred by the Constitution, both
consideration. Although some cases8 purport to under the Bill of Rights and under the Executive
deny the judicial power to "review" the findings Department, is limited and conditional. The
made in the proclamations assailed in said cases, precept in the Bill of Rights establishes a general
the tenor of the opinions therein given, rule, as well as an exception thereto. What is
considered as a whole, strongly suggests the more, it postulates the former in the negative,
court's conviction that the conditions essential for evidently to stress its importance, by providing
the validity of said proclamations or orders were, that "(t)he privilege of the writ of habeas
in fact, present therein, just as the opposite view corpus shall not be suspended ...." It is only by
taken in other cases9 had a backdrop permeated way of exception that it permits the suspension of
or characterized by the belief that said conditions the privilege "in cases of invasion, insurrection, or
were absent. Hence, the dictum of Chief Justice rebellion" — or, under Art VII of the Constitution,
Taney to the effect that "(e)very case must "imminent danger thereof" — "when the public
depend on its own circumstances." 10 One of the safety requires it, in any of which events the same
important, if not dominant, factors, in connection may be suspended wherever during such period
therewith, was intimated in Sterling v. the necessity for such suspension shall
Constantin, 11 in which the Supreme Court of the exist." 13 For from being full and plenary, the
United States, speaking through Chief Justice authority to suspend the privilege of the writ is
Hughes, declared that: thus circumscribed, confined and restricted, not
only by the prescribed setting or the conditions
.... When there is a substantial essential to its existence, but, also, as regards the
showing that the exertion of state time when and the place where it may be
power has overridden private exercised. These factors and the aforementioned
rights secured by that setting or conditions mark, establish and define
Constitution, the subject the extent, the confines and the limits of said
is necessarily one for judicial power, beyond which it does not exist. And, like
inquiry in an appropriate the limitations and restrictions imposed by the
proceeding directed against the Fundamental Law upon the legislative
individuals charged with the department, adherence thereto and compliance
transgression. To such a case therewith may, within proper bounds, be inquired
the Federal judicial power into by courts of justice. Otherwise, the explicit
extends constitutional provisions thereon would be
(Art. 3, sec. 2) and, so meaningless. Surely, the framers of our
extending, the court has all the Constitution could not have intended to engage in
authority appropriate to its such a wasteful exercise in futility.
exercise. .... 12
Much less may the assumption be indulged in
In our resolution of October 5, 1971, We stated when we bear in mind that our political system is
that "a majority of the Court" had essentially democratic and republican in
"tentatively arrived at a consensus that it may character and that the suspension of the privilege
inquire in order to satisfy itself of the existence of affects the most fundamental element of that
the factual bases for the issuance of Presidential system, namely, individual freedom. Indeed, such
Proclamations Nos. 889 and 889-A ... and freedom includes and connotes, as well as
thus determine the constitutional sufficiency of demands, the right of every single member of our
such bases in the light of the requirements of citizenry to freely discuss and dissent from, as
Article III, sec. 1, par. 14, and Article VII, sec. 10, well as criticize and denounce, the views, the
par 2, of the Philippine Constitution...." Upon policies and the practices of the government and
further deliberation, the members of the Court are the party in power that he deems unwise,
improper or inimical to the commonwealth, thirties, then aimed principally at incitement to
regardless of whether his own opinion is sedition or rebellion, as the immediate objective.
objectively correct or not. The untrammelled Upon the establishment of the Commonwealth of
enjoyment and exercise of such right — which, the Philippines, the movement seemed to have
under certain conditions, may be a civic duty of waned notably; but, the outbreak of World War II
the highest order — is vital to the democratic in the Pacific and the miseries, the devastation
system and essential to its successful operation and havoc, and the proliferation of unlicensed
and wholesome growth and development. firearms concomitant with the military occupation
of the Philippines and its subsequent liberation,
Manifestly, however, the liberty guaranteed and brought about, in the late forties, a resurgence of
protected by our Basic Law is one enjoyed and the Communist threat, with such vigor as to be
exercised, not in derogation thereof, but able to organize and operate in Central Luzon an
consistently therewith, and, hence, within the army — called HUKBALAHAP, during the
framework of the social order established by the occupation, and renamed Hukbong Mapagpalaya
Constitution and the context of the Rule of Law. ng Bayan (HMP) after liberation — which clashed
Accordingly, when individual freedom is used to several times with the armed forces of the
destroy that social order, by means of force and Republic. This prompted then President Quirino
violence, in defiance of the Rule of Law — such to issue Proclamation No. 210, dated October 22,
as by rising publicly and taking arms against the 1950, suspending the privilege of the writ
government to overthrow the same, thereby of habeas corpus, the validity of which was
committing the crime of rebellion — there upheld in Montenegro v. Castañeda. 15 Days
emerges a circumstance that may warrant a before the promulgation of said Proclamation, or
limited withdrawal of the aforementioned on October 18, 1950, members of the Communist
guarantee or protection, by suspending the Politburo in the Philippines were apprehended in
privilege of the writ of habeas corpus, when Manila. Subsequently accused and convicted of
public safety requires it. Although we must be the crime of rebellion, they served their respective
forewarned against mistaking mere dissent — no sentences. 16
matter how emphatic or intemperate it may be —
for dissidence amounting to rebellion or The fifties saw a comparative lull in Communist
insurrection, the Court cannot hesitate, much less activities, insofar as peace and order were
refuse — when the existence of such rebellion or concerned. Still, on June 20, 1957, Rep. Act No.
insurrection has been fairly established or cannot 1700, otherwise known as the Anti-Subversion
reasonably be denied — to uphold the finding of Act, was approved, upon the ground — stated in
the Executive thereon, without, in effect, the very preamble of said statute — that.
encroaching upon a power vested in him by the
Supreme Law of the land and depriving him, to ... the Communist Party of the
this extent, of such power, and, therefore, without Philippines, although purportedly
violating the Constitution and jeopardizing the a political party, is in fact an
very Rule of Law the Court is called upon to organized conspiracy to
epitomize. overthrow the Government of the
Republic of the Philippines, not
As heretofore adverted to, for the valid only by force and violence but
suspension of the privilege of the writ: (a) there also by deceit, subversion and
must be "invasion, insurrection or rebellion" or — other illegal means, for the
pursuant to paragraph (2), section 10 of Art. VII of purpose of establishing in the
the Constitution — "imminent danger thereof"; Philippines a totalitarian regime
and (b) public safety must require the subject to alien domination and
aforementioned suspension. The President control;
declared in Proclamation No. 889, as amended,
that both conditions are present. ... the continued existence and
activities of the Communist Party
As regards the first condition, our of the Philippines constitutes
jurisprudence 14 attests abundantly to the a clear,
Communist activities in the Philippines, especially present and grave danger to the
in Manila, from the late twenties to the early security of the Philippines; 17 and
 ... in the face of the organized, communists are ready to
systematic and persistent sacrifice their lives for the worthy
subversion, national in scope but cause of achieving the new type
international in direction, posed of democracy, of building a new
by the Communist Party of the Philippines that is genuinely and
Philippines and its activities, completely independent,
there is urgent need for special democratic, united, just and
legislation to cope with this prosperous ...
continuing menace to the
freedom and security of the xxx xxx xxx
country....
The central task of any
In the language of the Report on Central Luzon, revolutionary movement is to
submitted, on September 4, 1971, by the Senate seize political power. The
Ad Hoc Committee of Seven — copy of which Communist Party of the
Report was filed in these cases by the petitioners Philippines assumes this task at
herein — a time that both the international
and national situations are
The years following 1963 saw favorable of asking the road of
the successive emergence in the armed
country of several mass revolution ... 19
organizations, notably the
Lapiang Manggagawa (now the In the year 1969, the NPA had — according to the
Socialist Party of the Philippines) records of the Department of National Defense —
among the workers; the conducted raids, resorted to kidnappings and
Malayang Samahan ng mga taken part in other violent incidents numbering
Magsasaka (MASAKA) among over 230, in which it inflicted 404 casualties, and,
the peasantry; the Kabataang in turn, suffered 243 losses. In 1970, its records
Makabayan (KM) among the of violent incidents was about the same, but the
youth/students; and the NPA casualties more than doubled.
Movement for the Advancement
of Nationalism (MAN) among the
At any rate, two (2) facts are undeniable: (a) all
intellectuals/professionals. The
Communists, whether they belong to the
PKP has exerted all-out effort to
traditional group or to the Maoist faction, believe
infiltrate, influence and utilize that force and violence are indispensable to the
these organizations in promoting attainment of their main and ultimate objective,
its radical brand of
and act in accordance with such belief, although
nationalism. 18
they may disagree on the means to be used at a
given time and in a particular place; and (b) there
Meanwhile, the Communist leaders in the is a New People's Army, other, of course, that the
Philippines had been split into two (2) groups, one arm forces of the Republic and antagonistic
of which — composed mainly of young radicals, thereto. Such New People's Army is per se proof
constituting the Maoist faction — reorganized the of the existence of a rebellion, especially
Communist Party of the Philippines early in 1969 considering that its establishment
and established a New People's Army. This was announced publicly by the reorganized CPP.
faction adheres to the Maoist concept of the Such announcement is in the nature of a public
"Protracted People's War" or "War of National challenge to the duly constituted authorities and
Liberation." Its "Programme for a People's may be likened to a declaration of war, sufficient
Democratic Revolution" states, inter alia: to establish a war status or a condition of
belligerency, even before the actual
The Communist Party of the commencement of hostilities.
Philippines is determined to
implement its general We entertain, therefore, no doubts about the
programme for a people's existence of a sizeable group of men who have
democratic revolution. All Filipino publicly risen in arms to overthrow the
government and have thus been and still are vested in the Judicial Department, which, in this
engaged in rebellion against the Government of respect, is, in turn, constitutionally supreme.
the Philippines.
In the exercise of such authority, the function of
In fact, the thrust of petitioners' argument is that the Court is merely to check — not
the New People's Army proper is too small, to supplant 22 — the Executive, or to ascertain
compared with the size of the armed forces of the merely whether he had gone beyond the
Government, that the Communist rebellion or constitutional limits of his jurisdiction, not to
insurrection cannot so endanger public safety as exercise the power vested in him or to determine
to require the suspension of the privilege of the the wisdom of his act. To be sure, the power of
writ of habeas corpus. This argument does not the Court to determine the validity of the
negate, however, the existence of a rebellion, contested proclamation is far from being identical
which, from the constitutional and statutory to, or even comparable with, its power over
viewpoint, need not be widespread or attain the ordinary civil or criminal cases elevated thereto
magnitude of a civil war. This is apparent from the by ordinary appeal from inferior courts, in which
very provision of the Revised Penal Code cases the appellate court has all of the powers of
defining the crime of rebellion, 20 which may be the court of origin.
limited in its scope to "any part" of the Philippines,
and, also, from paragraph (14) of section 1, Under the principle of separation of powers and
Article III of the Constitution, authorizing the the system of checks and balances, the judicial
suspension of the privilege of the writ "wherever" authority to review decisions of administrative
— in case of rebellion — "the necessity for such bodies or agencies is much more limited, as
suspension shall exist." In fact, the case of regards findings of fact made in said decisions.
Barcelon v. Baker referred to a proclamation Under the English law, the reviewing court
suspending the privilege in the provinces of determines only whether there is some
Cavite and Batangas only. The case of In re evidentiary basis for the contested administrative
Boyle 21involved a valid proclamation suspending findings; no quantitative examination of the
the privilege in a smaller area — a country of the supporting evidence is undertaken. The
state of Idaho. administrative findings can be interfered
with only if there is no evidence whatsoever in
The magnitude of the rebellion has a bearing on support thereof, and said finding is, accordingly,
the second condition essential to the validity of arbitrary, capricious and obviously unauthorized.
the suspension of the privilege — namely, that the This view has been adopted by some American
suspension be required by public safety. Before courts. It has, likewise, been adhered to in a
delving, however, into the factual bases of the number of Philippine cases. Other cases,
presidential findings thereon, let us consider the in bothjurisdictions, have applied the "substantial
precise nature of the Court's function in passing evidence" rule, which has been construed to
upon the validity of Proclamation No. 889, as mean "more than a mere scintilla" or "relevant
amended. evidence as a reasonable mind might accept as
adequate to support a conclusion," 23 even if
Article VII of the Constitution vests in the other minds equally reasonable might
Executive the power to suspend the privilege of conceivably opine otherwise.
the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation Manifestly, however, this approach refers to the
of powers underlying our system of government, review of administrative determinations involving
the Executive is supreme within his own sphere. the exercise of quasi-judicial functions calling for
However, the separation of powers, under the or entailing the reception of evidence. It does not
Constitution, is not absolute. What is more, it and cannot be applied, in its aforesaid form, in
goes hand in hand with the system of checks and testing the validity of an act of Congress or of the
balances, under which the Executive is supreme, Executive, such as the suspension of the
as regards the suspension of the privilege, but privilege of the writ of habeas corpus, for, as a
only if and when he acts within the sphere general rule, neither body takes evidence — in
allotted to him by the Basic Law, and the authority the sense in which the term is used in judicial
to determine whether or not he has so acted is proceedings — before enacting a legislation or
suspending the writ. Referring to the test of the
validity of a statute, the Supreme Court of the actually taken place after August 21, 1971; (d)
United States, speaking through Mr. Justice that the President's alleged apprehension,
Roberts, expressed, in the leading case of because of said plan, is non-existent and
Nebbia v. New York, 24 the view that: unjustified; and (e) that the Communist forces in
the Philippines are too small and weak to
... If the laws passed are seen to jeopardize public safety to such extent as to
have a reasonable relation to a require the suspension of the privilege of the writ
proper legislative purpose, and of habeas corpus.
are neither arbitrary nor
discriminatory, the requirements As above indicated, however, the existence of a
of due process are satisfied, rebellion is obvious, so much so that counsel for
and judicial determination to that several petitioners herein have admitted it.
effect renders a court functus
officio ... With the wisdom of the With respect to the normal operation of
policy adopted, with the government, including courts, prior to and at the
adequacy or practically of the time of the suspension of the privilege, suffice it
law enacted to forward it, the to say that, if the conditions were such that courts
courts are of justice no longer functioned, a suspension of
both incompetent and unauthori the privilege would have been unnecessary, there
zed to deal ... being no courts to issue the writ of habeas
corpus. Indeed, petitioners' reference to the
Relying upon this view, it is urged by the Solicitor normal operation of courts as a factor indicative
General — of the illegality of the contested act of the
Executive stems, perhaps, from the fact that this
... that judicial inquiry into the circumstance was adverted to in some American
basis of the questioned cases to justify the invalidation therein decreed of
proclamation can go no said act of the Executive. Said cases involved,
further than to satisfy the however, the conviction by military courts of
Court not that the President's members of the civilian population charged
decision is correct and that with common crimes. It was manifestly, illegal for
public safety was endanger by military courts to assume jurisdiction over
the rebellion and justified the civilians so charged, when civil courts were
suspension of the writ, but that in functioning normally.
suspending the writ, the
President did not act arbitrarily. Then, too, the alleged absence of any untoward
incident after August 21, 1971, does not
No cogent reason has been submitted to warrant necessarily bear out petitioners' view. What is
the rejection of such test. Indeed, the co-equality more, it may have been due precisely to the
of coordinate branches of the Government, under suspension of the privilege. To be sure, one of its
our constitutional system, seems to demand that logical effects is to compel those connected with
the test of the validity of acts of Congress and of the insurrection or rebellion to go into hiding. In
those of the Executive be, mutatis mutandis, fact, most of them could not be located by the
fundamentally the same. Hence, counsel for authorities, after August 21, 1971.
petitioner Rogelio Arienda admits that the proper
standard is not correctness, but arbitrariness. The alleged July-August Plan to terrorize Manila
is branded as incredible, upon the theory that,
Did public safety require the suspension of the according to Professor Egbal Ahman of Cornell
privilege of the writ of habeas corpus decreed in University, "guerrilla use of terror ... is sociological
Proclamation No. 889, as amended? Petitioners and psychologically selective," and that the
submit a negative answer upon the ground: (a) indiscriminate resort to terrorism is bound to
that there is no rebellion; (b) that, prior to and at boomerang, for it tends to alienate the people's
the time of the suspension of the privilege, the symphaty and to deprive the dissidents of much
Government was functioning normally, as were needed mass support. The fact, however, is that
the courts; (c) that no untoward incident, the violence used is some demonstrations held in
confirmatory of an alleged July-August Plan, has Manila in 1970 and 1971 tended to terrorize the
bulk of its inhabitants. It would have been highly themselves; that conformably to such concept,
imprudent, therefore, for the Executive to discard the Party has placed special emphasis upon a
the possibility of a resort to terrorism, on a much most extensive and intensive program of
bigger scale, under the July-August Plan. subversion by the establishment of front
organizations in urban centers, the organization
We will now address our attention to petitioners' of armed city partisans and the infiltration in
theory to the effect that the New People's Army of student groups, labor unions, and farmer and
the Communist Party of the Philippines is too professional groups; that the CPP has managed
small to pose a danger to public safety of such to infiltrate or establish and control nine (9) major
magnitude as to require the suspension of the labor organizations; that it has exploited the youth
privilege of the writ of habeas corpus. The flaw in movement and succeeded in making Communist
petitioners' stand becomes apparent when we fronts of eleven (11) major student or youth
consider that it assumes that the Armed Forces organizations; that there are, accordingly, about
of the Philippines have no other task than to fight thirty (30) mass organizations actively advancing
the New People's Army, and that the latter is the the CPP interests, among which are the
only threat — and a minor one — to our security. Malayang Samahan ng Magsasaka (MASAKA),
Such assumption is manifestly erroneous. the Kabataang Makabayan (KM), the Movement
for the Advancement of Nationalism (MAN), the
Samahang Demokratiko ng Kabataan (SDK), the
The records before Us show that, on or before
August 21, 1971, the Executive had information Samahang Molave (SM) and the Malayang
and reports — subsequently confirmed, in many Pagkakaisa ng Kabataang Pilipino(MPKP); that,
as of August, 1971, the KM had two hundred
respects, by the abovementioned Report of the
forty-five (245) operational chapters throughout
Senate Ad-Hoc Committee of Seven 25 — to the
the Philippines, of which seventy-three (73) were
effect that the Communist Party of the Philippines
does not merely adhere to Lenin's idea of a swift in the Greater Manila Area, sixty (60) in Northern
armed uprising; that it has, also, adopted Ho Chi Luzon, forty-nine (49) in Central Luzon, forty-two
(42) in the Visayas and twenty-one (21) in
Minh's terrorist tactics and resorted to the
Mindanao and Sulu; that in 1970, the Party had
assassination of uncooperative local official; that,
recorded two hundred fifty-eight (258) major
in line with this policy, the insurgents have killed
demonstrations, of which about thirty-three (33)
5 mayors, 20 barrio captains and 3 chiefs of
police; that there were fourteen (14) meaningful ended in violence, resulting in fifteen (15) killed
bombing incidents in the Greater Manila Area in and over five hundred (500) injured; that most of
these actions were organized, coordinated or led
1970; that the Constitutional Convention Hall was
by the aforementioned front organizations; that
bombed on June 12, 1971; that, soon after the
the violent demonstrations were generally
Plaza Miranda incident, the NAWASA main pipe,
instigated by a small, but well-trained group of
at the Quezon City-San Juan boundary, was
bombed; that this was followed closely by the armed agitators; that the number of
bombing of the Manila City Hall, the COMELEC demonstrations heretofore staged in 1971 has
already exceeded those of 1970; and that twenty-
building, the Congress Building and the
four (24) of these demonstrations were violent,
MERALCO substation at Cubao, Quezon City;
and resulted in the death of fifteen (15) persons
and that the respective residences of Senator
and the injury of many more.
Jose J. Roy and Congressman Eduardo
Cojuangco were, likewise, bombed, as were the
MERALCO main office premises, along Ortigas Subsequent events — as reported — have also
Avenue, and the Doctor's Pharmaceuticals, Inc. proven that petitioners' counsel have
Building, in Caloocan City. underestimated the threat to public safety posed
by the New People's Army. Indeed, it appears
that, since August 21, 1971, it had in Northern
Petitioners, similarly, fail to take into account that
Luzon six (6) encounters and staged one (1) raid,
— as per said information and reports — the
in consequence of which seven (7) soldiers lost
reorganized Communist Party of the Philippines
their lives and two (2)others were wounded,
has, moreover, adopted Mao's concept of
whereas the insurgents suffered five (5)
protracted people's war, aimed at the
paralyzation of the will to resist of the casualties; that on August 26, 1971, a well-armed
government, of the political, economic and group of NPA, trained by defector Lt. Victor
Corpus, attacked the very command port of TF
intellectual leadership, and of the people
LAWIN in Isabela, destroying two (2) helicopters
and one (1) plane, and wounding one (1) soldier; events that happened after August 21, 1971 —
that the NPA had in Central Luzon a total of four when the Plaza Miranda bombing took place, the
(4) encounters, with two (2) killed and three (3) Court is not prepared to hold that the Executive
wounded on the side of the Government, one (1) had acted arbitrarily or gravely abused his
BSDU killed and three (3) NPA casualties; that in discretion when he then concluded that public
an encounter at Botolan, Zambales, one (1) KM- safety and national security required the
SDK leader, an unidentified dissident, and suspension of the privilege of the writ, particularly
Commander Panchito, leader of the dissident if the NPA were to strike simultaneously with
group were killed; that on August 26, 1971, there violent demonstrations staged by the two
was an encounter in the barrio of San Pedro. Iriga hundred forty-five (245) KM chapters, all over the
City, Camarines Sur, between the PC and the Philippines, with the assistance and cooperation
NPA, in which a PC and two (2) KM members of the dozens of CPP front organizations, and the
were killed; that the current disturbances in bombing or water mains and conduits, as well as
Cotabato and the Lanao provinces have been electric power plants and installations — a
rendered more complex by the involvement of the possibility which, no matter how remote, he was
CPP/NPA, for, in mid-1971, a KM group, headed bound to forestall, and a danger he was under
by Jovencio Esparagoza, contacted the Higa- obligation to anticipate and arrest.
onan tribes, in their settlement in Magsaysay,
Misamis Oriental, and offered them books, He had consulted his advisers and sought their
pamphlets and brochures of Mao Tse Tung, as views. He had reason to feel that the situation
well as conducted teach-ins in the reservation; was critical — as, indeed, it was — and
that Esparagoza an operation of the PC in said demanded immediate action. This he took
reservation; and that there are now two (2) NPA believing in good faith that public safety required
cadres in Mindanao. it. And, in the light of the circumstances adverted
to above, he had substantial grounds to entertain
It should, also, be noted that adherents of the such belief.
CPP and its front organizations are, according to
intelligence findings, definitely capable of Petitioners insist that, nevertheless, the President
preparing powerful explosives out of locally had no authority to suspend the privilege in the
available materials; that the bomb used in the entire Philippines, even if he may have been
Constitutional Convention Hall was a "clay-more" justified in doing so in some provinces or cities
mine, a powerful explosive device used by the thereof. At the time of the issuance of
U.S. Army, believed to have been one of many Proclamation No. 889, he could not be
pilfered from the Subic Naval Base a few days reasonably certain, however, about the placed to
before; that the President had received be excluded from the operation of the
intelligence information to the effect that there proclamation. He needed some time to find out
was a July-August Plan involving a wave of how it worked, and as he did so, he caused the
assassinations, kidnappings, terrorism and mass suspension to be gradually lifted, first, on
destruction of property and that an extraordinary September 18, 1971, in twenty-seven (27)
occurence would signal the beginning of said provinces, three (3) sub-provinces and twenty six
event; that the rather serious condition of peace (26) cities; then, on September 25, 1971, in order
and order in Mindanao, particularly in Cotabato fourteen (14) provinces and thirteen (13) cities;
and Lanao, demanded the presence therein of and, still later, on October 4, 1971, in seven (7)
forces sufficient to cope with the situation; that a additional provinces and four (4) cities, or a total
sizeable part of our armed forces discharge other of forty-eight (48) provinces, three (3) sub-
functions; and that the expansion of the CPP provinces and forth-three (43) cities, within a
activities from Central Luzon to other parts of the period of forty-five (45) days from August 21,
country, particularly Manila and its suburbs, the 1971.
Cagayan Valley, Ifugao, Zambales, Laguna,
Quezon and Bicol Region, required that the rest
Neither should We overlook the significance of
of our armed forces be spread thin over a wide
another fact. The President could have declared
area. a general suspension of the privilege. Instead,
Proclamation No. 889 limited the suspension to
Considering that the President was in possession persons detained "for crimes of insurrection or
of the above data — except those related to rebellion, and all other crimes and offenses
committed by them in furtherance or on the Antolin Oreta, Jr., petitioner in L-34265, were, on
occasion thereof, or incident thereto, or in said date, "temporarily released"; that Rodolfo del
connection therewith." Even this was further Rosario, one of the petitioners in
limited by Proclamation No. 889-A, which L-33964, Victor Felipe, an intervenor in L-33964,
withdrew from the coverage of the suspension L-33965 and L-33973, as well as Luzvimindo
persons detained for other crimes and offenses David, petitioner in L-33973, and Gary Olivar,
committed "on the occasion" of the insurrection or petitioner in L-34339, are still under detention
rebellion, or "incident thereto, in or connection and, hence, deprived of their liberty, they —
therewith." In fact, the petitioners in L-33964, L- together with over forty (40) other persons, who
33982 and L-34004 concede that the President are at large — having been accused, in the Court
had acted in good faith. of First Instance of Rizal, of a violation of section
4 of Republic Act No. 1700 (Anti-Subversion Act);
In case of invasion, insurrection or rebellion or and that Angelo delos Reyes and Teresito Sison,
imminent danger thereof, the President has, intervenors in said L-33964, L-33965 and
under the Constitution, three (3) courses of action L-33973, are, likewise, still detained and have
open to him, namely: (a) to call out the armed been charged — together with over fifteen (15)
forces; (b) to suspend the privilege of the writ other persons, who are, also, at large — with
of habeas corpus; and (c) to place the Philippines another violation of said Act, in a criminal
or any part thereof under martial law. He had, complaint filed with the City Fiscal's Office of
already, called out the armed forces, which Quezon City.
measure, however, proved inadequate to attain
the desired result. Of the two (2)other With respect to Vicente Ilao and Juan Carandang
alternatives, the suspension of the privilege is the — petitioners in L-33965 — who were released
least harsh. as early as August 31, 1971, as well as to
petitioners Nemesio Prudente, Teodosio
In view of the foregoing, it does not appear that Lansang, Rogelio Arienda, Antolin Oreta, Jr.,
the President has acted arbitrary in issuing Filomeno de Castro, Barcelisa C. de Castro,
Proclamation No. 889, as amended, nor that the Reynaldo Rimando, Gerardo Tomas and Bayani
same is unconstitutional. Alcala, who were released on November 13,
1971, and are no longer deprived of their liberty,
III their respective petitions have, thereby, become
moot and academic, as far as their prayer for
release is concerned, and should, accordingly, be
The next question for determination is whether dismissed, despite the opposition thereto of
petitioners herein are covered by said counsel for Nemesio Prudente and Gerardo
Proclamation, as amended. In other words, do Tomas who maintain that, as long as the privilege
petitioners herein belong to the class of persons of the writ remains suspended, these petitioners
as to whom privilege of the writ of habeas might be arrested and detained again, without
corpus has been suspended? just cause, and that, accordingly, the issue raised
in their respective petitions is not moot. In any
In this connection, it appears that Bayani Alcala, event, the common constitutional and legal
one of the petitioners in L-33964, Gerardo issues raised in these cases have, in fact, been
Tomas, petitioner in L-34004, and Reynaldo decided in this joint decision.
Rimando, petitioner in L-34013, were, on
November 13, 1971, released "permanently" — Must we order the release of Rodolfo del Rosario,
meaning, perhaps, without any intention to one of the petitioners in
prosecute them — upon the ground that, although L-33964, Angelo de los Reyes, Victor Felipe and
there was reasonable ground to believe that they Teresito Sison, intervenors in L-33964, L-33965
had committed an offense related to subversion, and L-33973, Luzvimindo David, petitioner in L-
the evidence against them is insufficient to 33973, and Gary Olivar, petitioner in L-34339,
warrant their prosecution; that Teodosio who are still detained? The suspension of the
Lansang, one of the petitioners in L-33964, privilege of the writ was decreed by Proclamation
Rogelio Arienda, petitioner in L-33965, Nemesio No. 889, as amended, for persons detained "for
Prudente, petitioner in L-33982, Filomeno de the crimes of insurrection or rebellion and other
Castro and Barcelisa C. de Castro, for whose
benefit the petition in L-34039 was filed, and
overt acts committed by them in furtherance committed subversive acts all
thereof." intended to overthrow the
government of the Republic of
The records shows that petitioners Luzvimindo the Philippines, as follows:
David, Rodolfo del Rosario, Victor Felipe, Angelo
de los Reyes, Teresito Sison and Gary Olivar are 1. By rising
accused in Criminal Case No. Q-1623 of the publicly and
Court of First Instance of Rizal with a violation of taking arms
the Anti-Subversion Act and that the similar against the
charge against petitioners Angelo de los Reyes forces of the
and Teresito Sison in a criminal complaint, government,
originally filed with the City Fiscal of Quezon City, engaging in war
has, also, been filed with said court. Do the against the
offenses so charged constitute one of the crimes forces of the
or overt acts mentioned in Proclamation No. 889, government, de
as amended? stroying
property or
In the complaint in said Criminal Case No. 1623, committing
it is alleged: serious
violence,
exacting
That in or about the year 1968
contributions or
and for sometime prior thereto
diverting public
and thereafter up to and
lands or
including August 21, 1971, in the
city of Quezon, Philippines, and property from
the law
elsewhere in the Philippines,
purposes for
within the jurisdiction of this
which they have
Honorable Court, the above-
been
named accused knowingly,
wilfully and by overt acts became appropriated;
officers and/or ranking leaders of
the Communist Party of the 2. By engaging
Philippines, a subversive by subversion
association as defined by thru expansion
Republic Act No. 1700, which and requirement
is an organized conspiracy to activities not
overthrow the government of the only of the
Republic of the Philippines by Communist
force, violence, deceit, Party of the
subversion and other illegal Philippines but
means, for the purpose of also of the
establishing in the Philippines a united front
communist totalitarian regime organizations of
subject to alien domination and the Communist
control; Party of the
Philippines as
That all the above-named the Kabataang
Makabayan
accused, as such officers and/or
(KM),
ranking leaders of the
Movement for
Communist Party of the
the Democratic
Philippines conspiring,
confederating and mutual Philippines
helping one another, did then (MDP),
Samahang
and there knowingly, wilfully, and
feloniously and by overt acts Demokratikong
Kabataan 3. Thru urban
(SDK), guerilla warfare
Students' characterized
Alliance for by
National assassinations,
Democracy bombings,
(STAND), sabotage,
MASAKA kidnapping and
Olalia-faction, arson, intended
Student Cultural to advertise the
Association of movement,
the University of build up its
the Philippines morale and
(SCAUP), prestige,
KASAMA, discredit and
Pagkakaisa ng demoralize the
Magbubukid ng authorities to
Pilipinas (PMP) use harsh and
and many repressive
others; thru measures,
agitation demoralize the
promoted by people and
rallies, weaken their
demonstration confidence in
and strikes the government
some of them and to weaken
violent in nature, the will of the
intended to government to
create social resist.
discontent,
discredit those That the following aggravating
in power and circumstances attended the
weaken the commission of the offense:
people's
confidence in
a. That the offense was
the government;
committed in contempt of and
thru consistent with insult to the public
propaganda by authorities;
publications,
writing, posters,
leaflets of b. That some of the overt acts
similar means; were committed in the Palace of
speeches, the Chief Executive;
teach-ins,
messages, c. That craft, fraud, or disguise
lectures or other was employed;
similar means;
or thru the d. That the offense was
media as the committed with the aid of armed
TV, radio or men;
newspapers, all
intended to e. That the offense was
promote the committed with the aid of
Communist persons under fifteen(15) years
pattern of old.
subversion;
Identical allegations are made in the complaint and the preliminary examination and/or
filed with the City Fiscal of Quezon City, except investigations being conducted therein?
that the second paragraph thereof is slightly more
elaborate than that of the complaint filed with the The Members of the Court, with the exception of
CFI, although substantially the same. 26 Mr. Justice Fernando, are of the opinion, and, so
hold, that, instead of this Court or its
In both complaints, the acts imputed to the Commissioner taking the evidence adverted to
defendants herein constitute rebellion and above, it is best to let said preliminary
subversion, of — in the language of the examination and/or investigation to be
proclamation — "other overt acts committed ... in completed, so that petitioners' released could be
furtherance" of said rebellion, both of which are ordered by the court of first instance, should it find
covered by the proclamation suspending the that there is no probable cause against them, or
privilege of the writ. It is clear, therefore, that the a warrant for their arrest could be issued, should
crime for which the detained petitioners are held a probable cause be established against them.
and deprived of their liberty are among those for Such course of action is more favorable to the
which the privilege of the writ of habeas petitioners, inasmuch as the preliminary
corpus has been suspended. examination or investigation requires a greater
quantum of proof than that needed to establish
Up to this point, the Members of the Court are that the Executive had not acted arbitrary in
unanimous on the legal principles enunciated. causing the petitioners to be apprehended and
detained upon the ground that they had
participated in the commission of the crime of
After finding that Proclamation No. 889, as
insurrection or rebellion. And, it is mainly for the
amended, is not invalid and that petitioners
reason that the Court has opted to allow the Court
Luzvimindo David, Victor Felipe, Gary Olivar,
Angelo de los Reyes, Rodolfo del Rosario and of First Instance of Rizal to proceed with the
determination of the existence of probable cause,
Teresito Sison are detained for and actually
although ordinarily the Court would have merely
accused of an offense for which the privilege of
determined the existence of the substantial
the writ has been suspended by said
evidence of petitioners' connection with the crime
proclamation, our next step would have been the
following: The Court, or a commissioner of rebellion. Besides, the latter alternative would
designated by it, would have received evidence require the reception of evidence by this Court
and thus duplicate the proceedings now taking
on whether — as stated in respondents' "Answer
place in the court of first instance. What is more,
and Return" — said petitioners had been
since the evidence involved in the same
apprehended and detained "on reasonable belief"
proceedings would be substantially the same and
that they had "participated in the crime of
insurrection or rebellion." the presentation of such evidence cannot be
made simultaneously, each proceeding would
tend to delay the other.
It is so happened, however, that on November 13,
1971 — or two (2) days before the proceedings
Mr. Justice Fernando is of the opinion — in line
relative to the briefing held on October 28 and 29,
with the view of Mr. Justice Tuason, in Nava v.
1971, had been completed by the filing 27 of the
Gatmaitan, 28 to the effect that "... if and when
summary of the matters then taken up — the
formal complaint is presented, the court steps
aforementioned criminal complaints were filed
in and the executive steps out. The detention
against said petitioners. What is more, the
ceases to be an executive and becomes a judicial
preliminary examination and/or investigation of
the charges contained in said complaints has concern ..." — that the filing of the above-
already begun. The next question, therefore, is: mentioned complaint against the six (6) detained
petitioners herein, has the effect of the Executive
Shall We now order, in the cases at hand, the
giving up his authority to continue holding them
release of said petitioners herein, despite the
pursuant to Proclamation No. 889, as amended,
formal and substantial validity of the proclamation
even if he did not so intend, and to place them
suspending the privilege, despite the fact that
they are actually charged with offenses covered fully under the authority of courts of justice, just
by said proclamation and despite the like any other person, who, as such, cannot be
deprived of his liberty without lawful warrant,
aforementioned criminal complaints against them
which has not, as yet, been issued against
anyone of them, and that, accordingly, We should released. Neither is necessary to express our
order their immediate release. Despite the view thereon, as regards those still detained,
humanitarian and libertarian spirit with which this inasmuch as their release without bail might still
view had been espoused, the other Members of be decreed by the court of first instance, should it
the Court are unable to accept it because: hold that there is no probable cause against them.
At any rate, should an actual issue on the right to
(a) If the proclamation suspending the privilege of bail arise later, the same may be brought up in
the writ of habeas corpus is valid — and We so appropriate proceedings.
hold it to be — and the detainee is covered by the
proclamation, the filing of a complaint or WHEREFORE, judgment is hereby rendered:
information against him does not affect the
suspension of said privilege, and, consequently, 1. Declaring that the President did not act
his release may not be ordered by Us; arbitrarily in issuing Proclamation No. 889, as
amended, and that, accordingly, the same is not
(b) Inasmuch as the filing of a formal complaint or unconstitutional;
information does not detract from the validity and
efficacy of the suspension of the privilege, it 2. Dismissing the petitions in L-33964, L-33965,
would be more reasonable to construe the filing L-33982, L-34004, L-34013, L-34039 and L-
of said formal charges with the court of first 34265, insofar as petitioners Teodosio Lansang,
instance as an expression of the President's Bayani Alcala, Rogelio Arienda, Vicentellao, Juan
belief that there are sufficient evidence to convict Carandang, Nemesio E. Prudente, Gerardo
the petitioners so charged and that hey should not Tomas, Reynaldo Rimando, Filomeno M. de
be released, therefore, unless and until said court Castro, Barcelisa C. de Castro and Antolin Oreta,
— after conducting the corresponding preliminary Jr. are concerned;
examination and/or investigation — shall find that
the prosecution has not established the existence
3. The Court of First Instance of Rizal is hereby
of a probable cause. Otherwise, the Executive
directed to act with utmost dispatch in conducting
would have released said accused, as were the
the preliminary examination and/or investigation
other petitioners herein; of the charges for violation of the Anti-Subversion
Act filed against herein petitioners Luzvimindo
(c) From a long-range viewpoint, this David, Victor Felipe, Gary Olivar, Angelo de los
interpretation — of the act of the President in Reyes, Rodolfo del Rosario and Teresito Sison,
having said formal charges filed — is, We believe, and to issue the corresponding warrants of arrest,
more beneficial to the detainees than that favored if probable cause is found to exist against them,
by Mr. Justice Fernando. His view — particularly or, otherwise, to order their release; and
the theory that the detainees should be released
immediately, without bail, even before the
4. Should there be undue delay, for any reason
completion of said preliminary examination
whatsoever, either in the completion of the
and/or investigation — would tend to induce the
aforementioned preliminary examination and/or
Executive to refrain from filing formal charges as investigation, or in the issuance of the proper
long as it may be possible. Manifestly, We should orders or resolution in connection therewith, the
encourage the early filing of said charges, so that
parties may by motion seek in these proceedings
courts of justice could assume jurisdiction over
the proper relief.
the detainees and extend to them effective
protection.
5. Without special pronouncement as to costs. It
is so ordered.
Although some of the petitioners in these cases
pray that the Court decide whether the
constitutional right to bail is affected by the Reyes, J.B.L., Makalintal, Zaldivar, Teehankee,
suspension of the privilege of the writ of habeas Barredo, Villamor and Makasiar, JJ., concur.
corpus, We do not deem it proper to pass upon
such question, the same not having been
sufficiently discussed by the parties herein.
Besides, there is no point in settling said question
with respect to petitioners herein who have been
 the opinion of Justice Tuason, one of the five, that
after the detainees had been accused in court,
Separate Opinions the question of release on bail was a matter that
the court should decide.

Upon the other hand, the question here

CASTRO and BARREDO, JJ., concurring: presented is whether the detainees should be
released forthwith upon the filing of charges
against them in court and cannot thereafter be re-
While concurring fully in the opinion of the Court, arrested except only by court order. This is a
we nevertheless write separately to answer, from totally different question. It is our submission that
our own perspective, a point which Mr. Justice they are not entitled to be released. The dissent
Fernando makes in his dissent. His view, as we is, we believe, based on the fallacy that when a
understand it, is that while an individual may be formal charge is filed against a person he is
detained beyond the maximum detention period thereby surrendered to the court and the arresting
fixed by law when the privilege of the writ officer is thereby divested of custody over him.
of habeas corpus is suspended, such individual is Except in a metaphorical sense, the detainee is
nevertheless entitled to be released from the very not delivered or surrendered at all to the judicial
moment a formal complaint is filed in court authorities. What the phrase "delivered to the
against him. The theory seems to be that from the court" simply means is that from the time a person
time the charge is filed, the court acquires, is indicted in court, the latter acquires jurisdiction
because the executive officials abdicate, over the subject-matter. 2 The detainee remains
jurisdiction. in the custody of the detaining officer, under the
same authority invoked for the detention, until the
This view is based on the separate opinion of Mr. court decides whether there is probable cause to
Justice Pedro Tuason in Nava vs. order his arrest.
Gatmaitan.1 Justice Tuason, in part, said:
Under ordinary circumstances, when a person is
All persons detained for arrested without a warrant and is charged in
investigation by the executive court, he is not released. He is held until the
department are under executive judicial authority orders either his release or his
control. It is here where the confinement. It is no argument to say that under
Constitution tells the court to Article III, section 1 (3) of the Constitution only a
keep their hands off — unless court can order the arrest of an individual. Arrests
the cause of the detention be for without warrant are familiar occurrences, and
an offense other than rebellion or they have been upheld as constitutional.3
insurrection, which is another
matter. What is more, the privilege of the writ was
suspended precisely to authorize the detention of
By the same token, if and when persons believed to be plotting against the
a formal complaint is presented, security of the State until the courts can act on
the court steps in and the their respective cases. To require their
executive steps out. The peremptory release upon the mere filing of
detention ceases to be an charges against them, without giving the proper
executive and becomes a judicial court opportunity and time to decide the question
concern... of probable cause, would obviously be to defeat
the very basic purpose of the suspension. We
But the issue to which the Supreme Court think our role as judges in the cases at bar is
Justices in Nava individually addressed clear. After finding that the Presidential decree
themselves is radically disparate from that raised was validly issued, we should give it effect. To
in these cases. There the question was whether uphold its validity and then try to dilute its efficacy
after the detainees had been formally charged in in the name of personal liberty is, we believe,
court and an order for their arrest had been actually to doubt the constitutionality of the
issued, they were entitled to bail. It was on that exercise of the Presidential prerogative.
question that the Court was split 5 to 4, and it was
Not only that. If the rule were that the detainees from this Tribunal. Skillful in its analysis,
must be released upon the mere filing of charges impressive as to its learning, comprehensive in its
against them in court, it is unlikely that the scope, and compelling in its logic, it exerts
executive officials would have filed the charges considerable persuasive force. There is much in
because of their awareness of the continuing it therefore to which concurrence is easily yielded.
danger which in the first place impelled the arrest I find it difficult however to accept the conclusion
of the detainees, and the end result would be to that the six petitioners still under detention should
inflict on the latter a much longer period of not be set free. It is for me a source of deep regret
deprivation of personal liberty than is warranted. that having gone quite far in manifesting the
utmost sympathy for and conformity with the
Whatever our personal views may be of the claims of civil liberties, it did not go farther.
power to suspend, the fact remains that the power Candor induces the admission though that the
is there, writ large and indubitable in the situation realistically viewed may not justify going
Constitution. It is far too easy to write anthologies all the way. Nonetheless the deeply-rooted
on the side of civil liberties or on the side of conviction as to the undoubted primacy of
governmental order, depending on one's constitutional rights, even under circumstances
inclination or commitment. But that is not our the least propitious, precludes me from joining my
function. Constitutional issues, it has been said, brethren in that portion of the decision reached.
do not take the form of right versus wrong, but of Nor should I let this opportunity pass without
right versus right. And the Court's function, as we acknowledging the fairness, even the generosity,
see it, is, fundamentally to moderate the clash of in the appraisal of my position in the position of
values, and not to inflate them into constitutional the Chief Justice.
dimensions.
1. The function of judicial review fitly
Where it is possible, we should avoid passing on characterized as both delicate and awesome is
a constitutional question. But where there is no never more so than when the judiciary is called
escape from the duty of abstention, our further upon to pass on the validity of an act of the
duty is to decide the question of constitutional President arising from the exercise of a power
validity on a less heroic plane. granted admittedly to cope with an emergency or
crisis situation. More specifically, with reference
And that is what we have tried to do in pointing to the petitions before us, the question that calls
for prior consideration is whether the suspension
out that the ordinary rules of criminal procedure
of the privilege of the writ of habeas corpusis
provide an adequate answer to Mr. Justice
tainted by constitutional infirmity. What the
Fernando's problem. That solution is for the
President did attested to an executive
arresting officer to hold the person detained until
the court can act, with the only difference that determination of the existence of the conditions
where the privilege of the writ of habeas corpus is that warranted such a move. For one of the
mandatory provisions of the Bill of Rights 1 is that
available, the arresting officer must release the
no such suspension is allowable, except in cases
detainee upon the expiration of the maximum
of invasion, insurrection or rebellion, when the
detention time allowed by law, if he has not
public safety requires, and, even, then, only in
delivered the detainee to the court within that
period. such places and for such period of time as may
be necessary.2 There is the further provision that
the constitutional official so empowered to take
To insist on the procedural aspect of a such a step is the President.3 The exceptional
constitutional problem as a manner of solving it character of the situation is thus underscored.
is, after all, no less to be libertarian. Insistence on The presumption would seem to be that if such a
it is, to us, and in point of fact, one of the step were taken, there must have been a
cornerstone of liberalism. conviction on the part of the Executive that he
could not, in the fulfillment of the responsibility
FERNANDO, J., concurring and dissenting: entrusted to him, avoid doing so. That decision is
his to make; it is not for the judiciary. It is therefore
The decision of the Court penned by the Chief encased in the armor of what must have been a
Justice easily ranks with his many landmark careful study on his part, in the light of relevant
opinions in Constitutional Law and is in the information which as Commander-in-Chief he is
tradition of the great judicial pronouncements furnished, ordinarily beyond the ken of the courts.
When it is considered further that the Constitution instrument and derives all its powers therefrom.
does admit that the sphere of individual freedom In the exercise of its powers and jurisdiction, this
contracts and the scope of governmental court is bound by the provisions of the
authority expands during times of emergency, it Constitution."9 Justice Tuason would thus apply
becomes manifest why an even greater degree of the constitutional rights with undeviating rigidity:
caution and circumspection must be exercised by "To the plea that the security of the State would
the judiciary when, on this matter, it is called upon be jeopardized by the release of the defendants
to discharge the function of judicial review. on bail, the answer is that the existence of danger
is never a justification for courts to tamper with
2. Not that the judiciary has any choice on the the fundamental rights expressly granted by the
matter. That view would indict itself for Constitution. These rights are immutable,
unorthodoxy if it maintains that the existence of inflexible, yielding to no pressure of convenience,
rebellion suffices to call for the disregard of the expediency, or the so-called 'judicial
applicable constitutional guarantees. Its statesmanship.' The Legislature itself can not
implication would be that the Constitution ceases infringe them, and no court conscious of its
to be operative in times of danger to national responsibilities and limitations would do so. If the
safety and security. Well has the American Bill of Rights are incompatible with stable
Supreme Court in the leading case of Ex- government and a menace to the Nation, let the
parte Milligan4 stated: "The Constitution is a law Constitution be amended, or abolished. It is trite
for rulers and for people equally in war and in to say that, while the Constitution stands, the
peace and covers with the shield of its protection courts of justice as the repository of civil liberty
all classes of men at all times and under all are bound to protect and maintain undiluted
circumstances." This ringing affirmation should at individual rights." 10
the very least give pause to those troubled by the
continuing respect that must be accorded civil It is in that context, to my mind, that the petitions
liberties under crisis conditions. The fact that the before us should be appraised, for in terms of
Constitution provides for only one situation where physical, as distinguished from intellectual,
a provision of the Bill of Rights may be liberty, the privilege of the writ of habeas
suspended, emphasizes the holding in the above- corpus occupies a place second to none. As was
cited Milligan case that the framers of the stressed in Gumabon v. Director of
Constitution "limited the suspension to one great Prisons: 11 "Rightly then could Chafee refer to the
right and left the rest to remain forever inviolable." writ 'as the most important human rights
While perhaps at times likely to give rise to provision' in the fundamental law." Care is to be
difficulties in the disposition of cases during a taken then lest in the inquiry that must be
troubled era where a suspension has been undertaken to determine whether the
decreed, such a view is to be taken into careful constitutional requisites justifying a suspension
consideration. are present, the effects thereof as to the other civil
liberties are not fully taken into account. It affords
3. For it is a truism that he Constitution is no justification to say that such a move was
paramount, and the Supreme Court has no prompted by the best motives and loftiest of
choice but to apply its provisions in the intentions. Much less can there be acceptance of
determination of actual cases and controversies the view, as contended by one of the counsel for
before it. Nor is this all. The protection of the respondents, that between the safety of the
citizen and the maintenance of his constitutional overwhelming majority of Filipinos and the claims
rights is one of the highest duties and privileges of the petitioners to liberty, the former must
of the judiciary.5The exercise thereof according to prevail. That is to indulge in the vice of over
Justice Laurel requires that it gives effect to the simplification. Our fundamental postulate is that
supreme law to the extent in clear cases of setting the state exists to assure individual rights, to
aside legislative and executive action.6 The protect which governments are instituted deriving
supreme mandates of the Constitution are not to their just powers from the consent of the
be loosely brushed aside.7 Otherwise, the Bill or governed. "The cardinal article of faith of our
Rights might be emasculated into mere civilization," according to Frank further, "is the
expressions of sentiment.8Speaking of this Court, inviolable character of the individual." 12
Justice Abad Santos once pertinently observed:
"This court owes its own existence to that great
4. With all the admitted difficulty then that the thus beyond the competence of the judiciary to
function of judicial review presents in passing pass upon. 17 Unless, clearly falling within the
upon the executive determination of suspending above formulation, the decision reached by the
the privilege of the writ, there is still no way of political branches whether in the form of a
evading such a responsibility, except on the pain congressional act or an executive order could be
of judicial abdication. It may not admit of doubt tested in court. Where private rights are affected,
that on this matter this Court, unlike the President, the judiciary has no choice but to look into its
cannot lay claim to the experience and the validity. It is not to be lost sight of that such a
requisite knowledge that would instill confidence power comes into play if there is an appropriate
in its decisions. That is no warrant for an proceeding that may be filed only after either
unquestioning and uncritical acceptance of what coordinate branch has acted. Even when the
was done. It cannot simply fold its hands and Presidency or Congress possesses plenary
evince an attitude of unconcern. It has to decide power, its improvidence exercise or the abuse
the case. This it does by applying the law to the thereof, if shown, may give rise to a justiciable
facts as found, as it would in ordinary cases. If controversy. 18 For the constitutional grant of
petitioners then can make out a case of an authority is not usually unrestricted. There are
unlawful deprivation of liberty, they are entitled to limits to what may be done and how it is to be
the writ prayed for. If the suspension of the accomplished. Necessarily then, the courts in the
privilege be the justification, they could, as they proper exercise of judicial review could inquire
did, challenge its validity. To repeat, this Court, into the question of whether or not either of the
even if denied the fullness of information and the two coordinate branches has adhered to what is
conceded grasp of the Executive still must laid down by the Constitution. The question thus
adjudicate the matter as best it can. It has to act posed is judicial rather than political. So it is in the
not by virtue of its competence but by the force of matter before us so clearly explained in the
its commission a function authenticated by opinion of the Chief Justice.
history. 13 That would be to live up to its solemn
trust, to paraphrase Cardozo, of preserving the 6. The doctrine announced in Montenegro v.
great ideals of liberty and equally against the Castañeda 19 that such a question is political has
erosion of possible encroachments, whether thus been laid to rest. It is about time too. It owed
minute or extensive. 14 Even if there be no its existence to the compulsion exerted by
showing then of constitutional infirmity, at least Barcelon v. Baker, a 1905 decision. 20 This Court
one other branch of the government, that to which was partly misled by an undue reliance in the
such an awesome duty had been conferred has latter case on what it considered to be
had the opportunity of reflecting on the matter authoritative pronouncements from such
with detachment, with objectivity, and with full illustrious American jurists as Marshall, Story,
awareness of the commands of the Constitution and Taney. That is to misread what was said by
as well as the realities of the situation. them. This is most evidence in the case of Chief
Justice Marshall, whose epochal Marbury v.
5. Nor is the power of the judiciary to so inquire, Madison 21 was cited. Why that was so is difficult
negated as contended by respondents, by to understand. For it speaks to the contrary. It was
reliance on the doctrine of political questions. The by virtue of this decision that the function of
term has been made applicable to controversies judicial review owes its origin notwithstanding the
clearly non-judicial and therefore beyond its absence of any explicit provision in the American
jurisdiction or to an issue involved in a case Constitution empowering the courts to do so.
appropriately subject to its cognizance, as to Thus: "It is emphatically the province and duty of
which there has been a prior legislative or the judicial department to say what the law is.
executive determination to which deference must Those who apply the rule to particular cases,
be paid. 15 It has likewise been employed loosely must of necessity expound and interpret that rule.
to characterize a suit where the party proceeded If two laws conflict with each other, the courts
against is the President or Congress, or any must decide on the operation of each. So if a law
branch thereof. 16 If to be de-limited with be in opposition to the constitution: if both the law
accuracy, "political questions" should refer to and the constitution apply to a particular case, so
such as would under the Constitution be decided that the court must either decide that case
by the people in their sovereign capacity or in conformably to the law, disregarding the
regard to which full discretionary authority is constitution; or conformably to the constitution,
vested either in the Presidency or Congress. It is disregarding the law; the court must determine
which of these conflicting rules governs the case. powers against which the judiciary simply cannot
This is of the very essence of judicial duty. If, the, be expected to act as the last line of
the courts are to regard the constitution, and the defense." 27 It would thus seem evidence that
constitution is superior to any ordinary act of the support for the hitherto prevailing Montenegro
legislature, the constitution, and not such ordinary ruling was rather frail. Happily, with our decision,
act, must govern the case to which they both it is no longer capable of the mischief to which it
apply." 22 does lend itself of an undue diminution of judicial
power to the prejudice of constitutional rights.
Nor is the excerpt from Justice Story, speaking for
the United States Supreme Court, in Martin v. 7. With such presidential determination of the
Mott, 23 as made clear in the opinion of the Chief existence of the conditions required by the
Justice, an authority directly in point. There, a Constitution to justify a suspension of the
militiaman had been convicted of failing to privilege of the writ no longer conclusive on the
respond to a call, made under the Act of 1795, to other branches, this Court may thus legitimately
serve during the War of 1812. His property was inquire into its validity. The question before us, it
taken to satisfy the judgment. He brought an bears repeating, is whether or not Proclamation
action of replevin. The American Constitution No. 889 as it now stands, not as it was originally
empowers its Congress "to provide for calling issued, is valid. The starting point must be a
forth the Militia" in certain cases, and Congress recognition that the power to suspend the
did provide that in those cases the President privilege of the writ belongs to the Executive,
should have authority to make the call. All that subject to limitations. So the Constitution
Justice Story did in construing the statute in the provides, and it is to be respected. The range of
light of the language and purpose of her permissible inquiry to be conducted by this
Constitution was to recognize the authority of the Tribunal is necessarily limited then to the
American President to decide whether the ascertainment of whether or not such a
exigency has arisen. In stating that such power suspension, in the light of the credible information
was exclusive and thus had a conclusive effect, furnished the President, was arbitrary. Such a
he relied on the language employed, impressed test met with the approval of the chief counsel for
with such a character. The constitutional petitioners, Senator Jose W. Diokno. To
provision on the suspension of the privilege of the paraphrase Frankfurter, the question before the
writ is, as shown, anything but that. 24 Chief judiciary is not the correctness but the
Justice Taney, in Luther v. Borden, 25 likewise reasonableness of the action taken. One who is
had to deal with a situation involving the calling not the Executive but equally knowledgeable may
out of the militia. As a matter of fact, an eminent entertain a different view, but the decision rests
commentator speaking of the two above with the occupant of the office. As would be
decisions had this apt observation: "The common immediately apparent even from a cursory
element in these opinions would seem to be a perusal of the data furnished the President, so
genuine judicial reluctance to speak in a situation impressively summarized in the opinion of the
where the voice of the Court, even if heard, could Chief Justice, the imputation of arbitrariness
not have any effect. More than this, both Story would be difficult to sustain. Moreover, the steps
and Taney seem to share the suspicion, unusual taken by him to limit the area where the
in them, that under a popular form of government suspension operates as well as his instructions
there are certain questions that the political attested to a firm resolve on his part to keep
branches must be trusted to answer with strictly within the bounds of his authority. Under
finality." 26 What was said next is even more the circumstances, the decision reached by the
pertinent. Thus: "It would be dangerous and Court that no finding of unconstitutionality is
misleading to push the principles of these cases warranted commends itself for approval. The
too far, especially the doctrine of 'political most that can be said is that there was a
questions' as implied in Luther v. Borden. Given manifestation of presidential power well-nigh
the opportunity to afford a grievously injured touching the extreme border of his conceded
citizen relief from a palpably unwarranted use of competence, beyond which a forbidden domain
presidential or military power, especially when the lies. The requisite showing of either improvidence
question at issue falls in the penumbra between or abuse has not been made.
the 'political' and the 'justiciable', the Court will act
as if it had never heard of this doctrine and its
underlying assumption that there are some
8. Why the dissent then. My basic premise is that Justice Recto, fortified by Justice Laurel, drawing
the suspension of the privilege of the writ heavily on continental juristic thought, both of
partakes of an executive action which if valid whom, having retired from the bench and
binds all who are within its operations. The thereafter having been elected to the Senate,
function of enacting a legal norm general in were invited to appear as amici curiae in the
character appertains to either Congress or the Nava case.
President. Its specific application to particular
individuals, like petitioners here, is however a It would follow to my way of thinking then that the
task incumbent on the judiciary. What is more, as petitioners still detained ought not to be further
had just been explained, its validity maybe tested deprived of their liberty in the absence of a
in courts. Even if valid, any one may seek judicial warrant of arrest for whatever offense they may
determination as to whether he is embraced be held to answer, to be issued by a judge after a
within its terms. After our declaration of the finding of probable cause. That is to comply with
validity of the Proclamation No. 889 as amended, the constitutional requirement against
the next question is its applicability to petitioners. unreasonable search and seizure. 30 Moreover,
I am the first to recognize the meticulous care with to keep them in confinement after the ordinary
which the Chief Justice, after reaching the processes of the law are to be availed of, as
conclusion that petitioners are covered by the thereafter decreed by the Executive itself is to
suspension, saw to it that their constitutional ignore the safeguard in the Bill of Rights that no
rights are duly safeguarded in whatever person shall be held to answer for a criminal
proceedings they would have thereafter to face. offense without due process of law. 31 That would
There is thus as assurance that as far as human explain why with full recognition of the sense of
foresight can anticipate matters, the possibility of realism that infuses the opinion of the Court, I
abuse is minimized. cannot, from the above standpoint, reach the
same conclusion they did. These six petitioners,
The matter, for me, could be viewed Rodolfo del Rosario, Victor Felipe, Luzvimindo,
independently of whether or not petitioners, by David, Gary Olivar, Angelo de los Reyes and
the conduct imputed to them, could be detained Teresito Sison, have, for me, become immune
further by virtue of the suspension of the privilege from the operation of the proclamation
of the writ. For admittedly, a supervening fact, the suspending the privilege of the writ of habeas
Executive's determination to have them charged corpus and are thus entitled to their liberty. I am
according to the ordinary procedural rules, did reinforced in my conviction by the well-settled
present itself. There was thus introduced an principle of constitutional construction that if there
element decisive in its consequences. They are are two possible modes of interpretation, that one
entitled to treatment no different from that which raises the least constitutional doubt should
accorded any other individual facing possible be preferred. Certainly, to my way of thinking, the
criminal charges. The opinion of the Chief Justice choice is obvious. That interpretation which would
is correct in pointing out that such an approach throw the full mantle of protection afforded by the
follows the dictum of Justice Tuason, speaking for Constitution to those unfortunate enough to be
himself in Nava v. Gatmaitan, 28 where a majority caught in the meshes of criminal law is more in
of five, lacking just one vote to enable this Court keeping with the high estate accorded
to reach a binding decision, did arrive at the constitutional rights.
conclusion that the suspension of the privilege of
the writ does not suspend the right to bail. Thus: There is another consideration that strengthens
"By the same token, if and when formal complaint my conviction on the matter. The language of the
is presented, the court steps in and the executive Constitution would seem to imply at the most that
steps out. The detention ceases to be an the suspension of the privilege of the writ renders
executive and becomes a judicial concern. it unavailable for the time being. Still there are
Thereupon the corresponding court assumes its authorities sustaining the view that preventive
role and the judicial process takes its course to detention subject to the test of good faith is
the exclusion of the executive or the legislative allowable.32Such a doctrine is no doubt partly
departments. Hence forward, the accused is traceable to Anglo-American legal history where
entitled to demand all the constitutional as pointed out by Maine: "Substantive law has at
safeguards and privileges essential to due first the look of being gradually secreted in the
process." 29 Parenthetically, it may be observed interstices of procedure." 33 The writ of habeas
that the above view reflects the stand taken by
corpus then is more than just an efficacius device as a constitutional democracy can justifiably pride
or the most speedy means of obtaining one's itself on its allegiance to ways of persuasion
liberty. It has become a most valuable rather than coercion, the most meticulous
substantive right. It would thus serve the cause of observance of the free way of life seems to me,
constitutional rights better if the Tuason dictum as even at this stage, not without its beneficent
to the judicial process supplanting executive rule influence on their future course of conduct. This
the moment charges are filed be accorded is not by any means to intimate that my brethren
acceptance. Thereby the number of individuals view matters differently. Far from it. Any
who would have to submit to further detention, difference if at all in the positions taken is a
that may well turn out to be unjustified, would be question of emphasis. Rightly, the opinion of the
reduced. What is more, greater fidelity is Chief Justice stresses the importance of the rule
manifested to the principle that liberty is the rule of law. It is to be hoped that with a proper
and restraint the exception. understanding of what has been decided by the
Court today, there would be a diminution of the
I am not of course insensible to the observation wholesale condemnation of the present system of
in the opinion of the Court that this concept could government by some sectors of the youth and
be an obstacle to the early resumption of the perhaps even lead to much-needed refinement in
ordinary judicial process as the Executive might the volume and quality of their utterances. It could
be minded to postpone resort to it, considering even conceivably, not only for them but for others
that there would necessarily be an end to the of a less radical cast of mind, but equally suffering
detention at that early stage of individuals who from disenchantment and disillusion, induce a
continue to pose risk to the safety of the reassessment and reappraisal of their position,
government. It does occur to me, however, that even if from all appearances their commitment
the presumption should be that the high executive and dedication are plain for all to see. More than
dignitaries can be trusted to act in accordance that, such a response will go a long way towards
with the dictates of good faith and the command a keener appreciation of the merits of a
of the Constitution. At least, such seems to be the constitutional democracy. For thereby, it
case now. The opinion of the Court is quite demonstrates that it lives up to its ideas; it strives
explicit as to the measures taken to minimize the to act in accordance with what it professes. Its
possibility of abuse from officials in the lower appeal for all sectors or society becomes
category, who in their zeal or even from less strengthened and vitalized. Nor do I close my
worthy motives might make a mockey of the other eyes to the risk that such an attitude towards
constitutional rights. That is as it should be. It those who constitute a source of danger entails.
should continue to be so even if there be That for me is not conclusive. With nations, as
acceptance of the doctrine enunciated by Justice with ordinary mortals, that is unavoidable.
Tuason. There is, for me at least, no undue cause Repose, in the often-quoted aphorism of Holmes,
for pessimism. is not the destiny of man.

These is to my mind another reinforcement to this 9. One last observation. It would appear to me
approach to the question before us, perhaps one that if there is really a resolve to maintain inviolate
based more on policy rather than strictly legal constitutional rights for all, more especially so for
considerations. The petitioners who have not those inclined and disposed to differ and to be
been released are youth leaders, who for motives vocal, perhaps even intemperate, in their
best known to them, perhaps excess of idealism, criticism, that serious thought should be given to
impatience with existing conditions, even the desirability of removing from the President his
overweening ambition, clamor for change, power to suspend the privilege of the writ
apparently oblivious at times that it could be of habeas corpus as well as the power to declare
accomplished through means of which the law martial law. Nor would the government be lacking
does not disapprove. It would be premature at this in authority to cope with the crisis of invasion,
stage to say whether or not their activities have insurrection, or rebellion or lawless violence, as
incurred for them a penal sanction, which the President as commander-in-chief can
certainly would be appropriate if their conduct is summon the aid of the armed forces to meet the
beyond the pale. Even they should recognize that danger posed to public safety. If the privilege of
the existing order has the right to defendant itself the writ cannot be suspended and martial law
against those who would destroy it. Nonetheless beyond the power of the President to declare,
there is a greater likelihood as far as the rights of
the individual are concerned, of the Constitution All persons detained for
remaining at all times supreme, as it ought to be, investigation by the executive
whether it be in peace or in war or under other department are under executive
crisis conditions. As long, however, as such a control. It is here where the
presidential prerogative exists, it would not be Constitution tells the court to
proper for the courts not to accord recognition to keep their hands off — unless
its exercise, if there be observance of the the cause of the detention be for
limitations imposed by the Constitution. At the an offense other than rebellion or
most, they can only through construction nullify insurrection, which is another
what would amount to an unconstitutional matter.
application. How desirable it would be then, to my
way of thinking, if the Constitution would strip the By the same token, if and when
President of such power. That would be a formal complaint is presented,
constitutionalism triumphant. In terms of Lincoln's the court steps in and the
memorable dilemma, the government would be executive steps out. The
neither too strong for the liberties of the people detention ceases to be an
nor too weak to maintain its existence. This is a executive and becomes a judicial
matter though appropriately addressed to the concern...
Constitutional Convention.
But the issue to which the Supreme Court
On the purely legal aspect, however, let me Justices in Nava individually addressed
reiterate that my acceptance of the Tuason themselves is radically disparate from that raised
dictum in the Nava case did result in my inability in these cases. There the question was whether
to concur fully with the opinion of the Chief after the detainees had been formally charged in
Justice, which, as pointed out at the outset, is court and an order for their arrest had been
possessed of a high degree of merit. issued, they were entitled to bail. It was on that
question that the Court was split 5 to 4, and it was
the opinion of Justice Tuason, one of the five, that
after the detainees had been accused in court,
the question of release on bail was a matter that
the court should decide.
Separate Opinions
Upon the other hand, the question here
CASTRO and BARREDO, JJ., concurring: presented is whether the detainees should be
released forthwith upon the filing of charges
against them in court and cannot thereafter be re-
While concurring fully in the opinion of the Court, arrested except only by court order. This is a
we nevertheless write separately to answer, from totally different question. It is our submission that
our own perspective, a point which Mr. Justice they are not entitled to be released. The dissent
Fernando makes in his dissent. His view, as we is, we believe, based on the fallacy that when a
understand it, is that while an individual may be formal charge is filed against a person he is
detained beyond the maximum detention period thereby surrendered to the court and the arresting
fixed by law when the privilege of the writ officer is thereby divested of custody over him.
of habeas corpus is suspended, such individual is Except in a metaphorical sense, the detainee is
nevertheless entitled to be released from the very not delivered or surrendered at all to the judicial
moment a formal complaint is filed in court authorities. What the phrase "delivered to the
against him. The theory seems to be that from the court" simply means is that from the time a person
time the charge is filed, the court acquires, is indicted in court, the latter acquires jurisdiction
because the executive officials abdicate, over the subject-matter. 2 The detainee remains
jurisdiction. in the custody of the detaining officer, under the
same authority invoked for the detention, until the
This view is based on the separate opinion of Mr. court decides whether there is probable cause to
Justice Pedro Tuason in Nava vs. order his arrest.
Gatmaitan.1 Justice Tuason, in part, said:
Under ordinary circumstances, when a person is duty is to decide the question of constitutional
arrested without a warrant and is charged in validity on a less heroic plane.
court, he is not released. He is held until the
judicial authority orders either his release or his And that is what we have tried to do in pointing
confinement. It is no argument to say that under out that the ordinary rules of criminal procedure
Article III, section 1 (3) of the Constitution only a provide an adequate answer to Mr. Justice
court can order the arrest of an individual. Arrests Fernando's problem. That solution is for the
without warrant are familiar occurrences, and arresting officer to hold the person detained until
they have been upheld as constitutional.3 the court can act, with the only difference that
where the privilege of the writ of habeas corpus is
What is more, the privilege of the writ was available, the arresting officer must release the
suspended precisely to authorize the detention of detainee upon the expiration of the maximum
persons believed to be plotting against the detention time allowed by law, if he has not
security of the State until the courts can act on delivered the detainee to the court within that
their respective cases. To require their period.
peremptory release upon the mere filing of
charges against them, without giving the proper To insist on the procedural aspect of a
court opportunity and time to decide the question constitutional problem as a manner of solving it
of probable cause, would obviously be to defeat is, after all, no less to be libertarian. Insistence on
the very basic purpose of the suspension. We it is, to us, and in point of fact, one of the
think our role as judges in the cases at bar is cornerstone of liberalism.
clear. After finding that the Presidential decree
was validly issued, we should give it effect. To FERNANDO, J., concurring and dissenting:
uphold its validity and then try to dilute its efficacy
in the name of personal liberty is, we believe,
actually to doubt the constitutionality of the The decision of the Court penned by the Chief
exercise of the Presidential prerogative. Justice easily ranks with his many landmark
opinions in Constitutional Law and is in the
tradition of the great judicial pronouncements
Not only that. If the rule were that the detainees from this Tribunal. Skillful in its analysis,
must be released upon the mere filing of charges impressive as to its learning, comprehensive in its
against them in court, it is unlikely that the
scope, and compelling in its logic, it exerts
executive officials would have filed the charges
considerable persuasive force. There is much in
because of their awareness of the continuing
it therefore to which concurrence is easily yielded.
danger which in the first place impelled the arrest
I find it difficult however to accept the conclusion
of the detainees, and the end result would be to that the six petitioners still under detention should
inflict on the latter a much longer period of not be set free. It is for me a source of deep regret
deprivation of personal liberty than is warranted.
that having gone quite far in manifesting the
utmost sympathy for and conformity with the
Whatever our personal views may be of the claims of civil liberties, it did not go farther.
power to suspend, the fact remains that the power Candor induces the admission though that the
is there, writ large and indubitable in the situation realistically viewed may not justify going
Constitution. It is far too easy to write anthologies all the way. Nonetheless the deeply-rooted
on the side of civil liberties or on the side of conviction as to the undoubted primacy of
governmental order, depending on one's constitutional rights, even under circumstances
inclination or commitment. But that is not our the least propitious, precludes me from joining my
function. Constitutional issues, it has been said, brethren in that portion of the decision reached.
do not take the form of right versus wrong, but of Nor should I let this opportunity pass without
right versus right. And the Court's function, as we acknowledging the fairness, even the generosity,
see it, is, fundamentally to moderate the clash of in the appraisal of my position in the position of
values, and not to inflate them into constitutional the Chief Justice.
dimensions.
1. The function of judicial review fitly
Where it is possible, we should avoid passing on characterized as both delicate and awesome is
a constitutional question. But where there is no never more so than when the judiciary is called
escape from the duty of abstention, our further upon to pass on the validity of an act of the
President arising from the exercise of a power a provision of the Bill of Rights may be
granted admittedly to cope with an emergency or suspended, emphasizes the holding in the above-
crisis situation. More specifically, with reference cited Milligan case that the framers of the
to the petitions before us, the question that calls Constitution "limited the suspension to one great
for prior consideration is whether the suspension right and left the rest to remain forever inviolable."
of the privilege of the writ of habeas corpusis While perhaps at times likely to give rise to
tainted by constitutional infirmity. What the difficulties in the disposition of cases during a
President did attested to an executive troubled era where a suspension has been
determination of the existence of the conditions decreed, such a view is to be taken into careful
that warranted such a move. For one of the consideration.
mandatory provisions of the Bill of Rights1 is that
no such suspension is allowable, except in cases 3. For it is a truism that he Constitution is
of invasion, insurrection or rebellion, when the paramount, and the Supreme Court has no
public safety requires, and, even, then, only in choice but to apply its provisions in the
such places and for such period of time as may determination of actual cases and controversies
be necessary.2 There is the further provision that before it. Nor is this all. The protection of the
the constitutional official so empowered to take citizen and the maintenance of his constitutional
such a step is the President.3 The exceptional rights is one of the highest duties and privileges
character of the situation is thus underscored. of the judiciary.5The exercise thereof according to
The presumption would seem to be that if such a Justice Laurel requires that it gives effect to the
step were taken, there must have been a supreme law to the extent in clear cases of setting
conviction on the part of the Executive that he aside legislative and executive action.6 The
could not, in the fulfillment of the responsibility supreme mandates of the Constitution are not to
entrusted to him, avoid doing so. That decision is be loosely brushed aside.7 Otherwise, the Bill or
his to make; it is not for the judiciary. It is therefore Rights might be emasculated into mere
encased in the armor of what must have been a expressions of sentiment.8Speaking of this Court,
careful study on his part, in the light of relevant Justice Abad Santos once pertinently observed:
information which as Commander-in-Chief he is "This court owes its own existence to that great
furnished, ordinarily beyond the ken of the courts. instrument and derives all its powers therefrom.
When it is considered further that the Constitution In the exercise of its powers and jurisdiction, this
does admit that the sphere of individual freedom court is bound by the provisions of the
contracts and the scope of governmental Constitution."9 Justice Tuason would thus apply
authority expands during times of emergency, it the constitutional rights with undeviating rigidity:
becomes manifest why an even greater degree of "To the plea that the security of the State would
caution and circumspection must be exercised by be jeopardized by the release of the defendants
the judiciary when, on this matter, it is called upon on bail, the answer is that the existence of danger
to discharge the function of judicial review. is never a justification for courts to tamper with
the fundamental rights expressly granted by the
2. Not that the judiciary has any choice on the Constitution. These rights are immutable,
matter. That view would indict itself for inflexible, yielding to no pressure of convenience,
unorthodoxy if it maintains that the existence of expediency, or the so-called 'judicial
rebellion suffices to call for the disregard of the statesmanship.' The Legislature itself can not
applicable constitutional guarantees. Its infringe them, and no court conscious of its
implication would be that the Constitution ceases responsibilities and limitations would do so. If the
to be operative in times of danger to national Bill of Rights are incompatible with stable
safety and security. Well has the American government and a menace to the Nation, let the
Supreme Court in the leading case of Ex- Constitution be amended, or abolished. It is trite
parte Milligan4 stated: "The Constitution is a law to say that, while the Constitution stands, the
for rulers and for people equally in war and in courts of justice as the repository of civil liberty
peace and covers with the shield of its protection are bound to protect and maintain undiluted
all classes of men at all times and under all individual rights." 10
circumstances." This ringing affirmation should at
the very least give pause to those troubled by the It is in that context, to my mind, that the petitions
continuing respect that must be accorded civil before us should be appraised, for in terms of
liberties under crisis conditions. The fact that the physical, as distinguished from intellectual,
Constitution provides for only one situation where
liberty, the privilege of the writ of habeas minute or extensive. 14 Even if there be no
corpus occupies a place second to none. As was showing then of constitutional infirmity, at least
stressed in Gumabon v. Director of one other branch of the government, that to which
Prisons: 11 "Rightly then could Chafee refer to the such an awesome duty had been conferred has
writ 'as the most important human rights had the opportunity of reflecting on the matter
provision' in the fundamental law." Care is to be with detachment, with objectivity, and with full
taken then lest in the inquiry that must be awareness of the commands of the Constitution
undertaken to determine whether the as well as the realities of the situation.
constitutional requisites justifying a suspension
are present, the effects thereof as to the other civil 5. Nor is the power of the judiciary to so inquire,
liberties are not fully taken into account. It affords negated as contended by respondents, by
no justification to say that such a move was reliance on the doctrine of political questions. The
prompted by the best motives and loftiest of term has been made applicable to controversies
intentions. Much less can there be acceptance of clearly non-judicial and therefore beyond its
the view, as contended by one of the counsel for jurisdiction or to an issue involved in a case
respondents, that between the safety of the appropriately subject to its cognizance, as to
overwhelming majority of Filipinos and the claims which there has been a prior legislative or
of the petitioners to liberty, the former must executive determination to which deference must
prevail. That is to indulge in the vice of over be paid. 15 It has likewise been employed loosely
simplification. Our fundamental postulate is that to characterize a suit where the party proceeded
the state exists to assure individual rights, to against is the President or Congress, or any
protect which governments are instituted deriving branch thereof. 16 If to be de-limited with
their just powers from the consent of the accuracy, "political questions" should refer to
governed. "The cardinal article of faith of our such as would under the Constitution be decided
civilization," according to Frank further, "is the by the people in their sovereign capacity or in
inviolable character of the individual." 12 regard to which full discretionary authority is
vested either in the Presidency or Congress. It is
4. With all the admitted difficulty then that the thus beyond the competence of the judiciary to
function of judicial review presents in passing pass upon. 17 Unless, clearly falling within the
upon the executive determination of suspending above formulation, the decision reached by the
the privilege of the writ, there is still no way of political branches whether in the form of a
evading such a responsibility, except on the pain congressional act or an executive order could be
of judicial abdication. It may not admit of doubt tested in court. Where private rights are affected,
that on this matter this Court, unlike the President, the judiciary has no choice but to look into its
cannot lay claim to the experience and the validity. It is not to be lost sight of that such a
requisite knowledge that would instill confidence power comes into play if there is an appropriate
in its decisions. That is no warrant for an proceeding that may be filed only after either
unquestioning and uncritical acceptance of what coordinate branch has acted. Even when the
was done. It cannot simply fold its hands and Presidency or Congress possesses plenary
evince an attitude of unconcern. It has to decide power, its improvidence exercise or the abuse
the case. This it does by applying the law to the thereof, if shown, may give rise to a justiciable
facts as found, as it would in ordinary cases. If controversy. 18 For the constitutional grant of
petitioners then can make out a case of an authority is not usually unrestricted. There are
unlawful deprivation of liberty, they are entitled to limits to what may be done and how it is to be
the writ prayed for. If the suspension of the accomplished. Necessarily then, the courts in the
privilege be the justification, they could, as they proper exercise of judicial review could inquire
did, challenge its validity. To repeat, this Court, into the question of whether or not either of the
even if denied the fullness of information and the two coordinate branches has adhered to what is
conceded grasp of the Executive still must laid down by the Constitution. The question thus
adjudicate the matter as best it can. It has to act posed is judicial rather than political. So it is in the
not by virtue of its competence but by the force of matter before us so clearly explained in the
its commission a function authenticated by opinion of the Chief Justice.
history. 13 That would be to live up to its solemn
trust, to paraphrase Cardozo, of preserving the 6. The doctrine announced in Montenegro v.
great ideals of liberty and equally against the Castañeda 19 that such a question is political has
erosion of possible encroachments, whether
thus been laid to rest. It is about time too. It owed with such a character. The constitutional
its existence to the compulsion exerted by provision on the suspension of the privilege of the
Barcelon v. Baker, a 1905 decision. 20 This Court writ is, as shown, anything but that. 24 Chief
was partly misled by an undue reliance in the Justice Taney, in Luther v. Borden, 25 likewise
latter case on what it considered to be had to deal with a situation involving the calling
authoritative pronouncements from such out of the militia. As a matter of fact, an eminent
illustrious American jurists as Marshall, Story, commentator speaking of the two above
and Taney. That is to misread what was said by decisions had this apt observation: "The common
them. This is most evidence in the case of Chief element in these opinions would seem to be a
Justice Marshall, whose epochal Marbury v. genuine judicial reluctance to speak in a situation
Madison 21 was cited. Why that was so is difficult where the voice of the Court, even if heard, could
to understand. For it speaks to the contrary. It was not have any effect. More than this, both Story
by virtue of this decision that the function of and Taney seem to share the suspicion, unusual
judicial review owes its origin notwithstanding the in them, that under a popular form of government
absence of any explicit provision in the American there are certain questions that the political
Constitution empowering the courts to do so. branches must be trusted to answer with
Thus: "It is emphatically the province and duty of finality." 26 What was said next is even more
the judicial department to say what the law is. pertinent. Thus: "It would be dangerous and
Those who apply the rule to particular cases, misleading to push the principles of these cases
must of necessity expound and interpret that rule. too far, especially the doctrine of 'political
If two laws conflict with each other, the courts questions' as implied in Luther v. Borden. Given
must decide on the operation of each. So if a law the opportunity to afford a grievously injured
be in opposition to the constitution: if both the law citizen relief from a palpably unwarranted use of
and the constitution apply to a particular case, so presidential or military power, especially when the
that the court must either decide that case question at issue falls in the penumbra between
conformably to the law, disregarding the the 'political' and the 'justiciable', the Court will act
constitution; or conformably to the constitution, as if it had never heard of this doctrine and its
disregarding the law; the court must determine underlying assumption that there are some
which of these conflicting rules governs the case. powers against which the judiciary simply cannot
This is of the very essence of judicial duty. If, the, be expected to act as the last line of
the courts are to regard the constitution, and the defense." 27 It would thus seem evidence that
constitution is superior to any ordinary act of the support for the hitherto prevailing Montenegro
legislature, the constitution, and not such ordinary ruling was rather frail. Happily, with our decision,
act, must govern the case to which they both it is no longer capable of the mischief to which it
apply." 22 does lend itself of an undue diminution of judicial
power to the prejudice of constitutional rights.
Nor is the excerpt from Justice Story, speaking for
the United States Supreme Court, in Martin v. 7. With such presidential determination of the
Mott, 23 as made clear in the opinion of the Chief existence of the conditions required by the
Justice, an authority directly in point. There, a Constitution to justify a suspension of the
militiaman had been convicted of failing to privilege of the writ no longer conclusive on the
respond to a call, made under the Act of 1795, to other branches, this Court may thus legitimately
serve during the War of 1812. His property was inquire into its validity. The question before us, it
taken to satisfy the judgment. He brought an bears repeating, is whether or not Proclamation
action of replevin. The American Constitution No. 889 as it now stands, not as it was originally
empowers its Congress "to provide for calling issued, is valid. The starting point must be a
forth the Militia" in certain cases, and Congress recognition that the power to suspend the
did provide that in those cases the President privilege of the writ belongs to the Executive,
should have authority to make the call. All that subject to limitations. So the Constitution
Justice Story did in construing the statute in the provides, and it is to be respected. The range of
light of the language and purpose of her permissible inquiry to be conducted by this
Constitution was to recognize the authority of the Tribunal is necessarily limited then to the
American President to decide whether the ascertainment of whether or not such a
exigency has arisen. In stating that such power suspension, in the light of the credible information
was exclusive and thus had a conclusive effect, furnished the President, was arbitrary. Such a
he relied on the language employed, impressed test met with the approval of the chief counsel for
petitioners, Senator Jose W. Diokno. To of the writ. For admittedly, a supervening fact, the
paraphrase Frankfurter, the question before the Executive's determination to have them charged
judiciary is not the correctness but the according to the ordinary procedural rules, did
reasonableness of the action taken. One who is present itself. There was thus introduced an
not the Executive but equally knowledgeable may element decisive in its consequences. They are
entertain a different view, but the decision rests entitled to treatment no different from that
with the occupant of the office. As would be accorded any other individual facing possible
immediately apparent even from a cursory criminal charges. The opinion of the Chief Justice
perusal of the data furnished the President, so is correct in pointing out that such an approach
impressively summarized in the opinion of the follows the dictum of Justice Tuason, speaking for
Chief Justice, the imputation of arbitrariness himself in Nava v. Gatmaitan, 28 where a majority
would be difficult to sustain. Moreover, the steps of five, lacking just one vote to enable this Court
taken by him to limit the area where the to reach a binding decision, did arrive at the
suspension operates as well as his instructions conclusion that the suspension of the privilege of
attested to a firm resolve on his part to keep the writ does not suspend the right to bail. Thus:
strictly within the bounds of his authority. Under "By the same token, if and when formal complaint
the circumstances, the decision reached by the is presented, the court steps in and the executive
Court that no finding of unconstitutionality is steps out. The detention ceases to be an
warranted commends itself for approval. The executive and becomes a judicial concern.
most that can be said is that there was a Thereupon the corresponding court assumes its
manifestation of presidential power well-nigh role and the judicial process takes its course to
touching the extreme border of his conceded the exclusion of the executive or the legislative
competence, beyond which a forbidden domain departments. Hence forward, the accused is
lies. The requisite showing of either improvidence entitled to demand all the constitutional
or abuse has not been made. safeguards and privileges essential to due
process." 29 Parenthetically, it may be observed
8. Why the dissent then. My basic premise is that that the above view reflects the stand taken by
the suspension of the privilege of the writ Justice Recto, fortified by Justice Laurel, drawing
partakes of an executive action which if valid heavily on continental juristic thought, both of
binds all who are within its operations. The whom, having retired from the bench and
function of enacting a legal norm general in thereafter having been elected to the Senate,
character appertains to either Congress or the were invited to appear as amici curiae in the
President. Its specific application to particular Nava case.
individuals, like petitioners here, is however a
task incumbent on the judiciary. What is more, as It would follow to my way of thinking then that the
had just been explained, its validity maybe tested petitioners still detained ought not to be further
in courts. Even if valid, any one may seek judicial deprived of their liberty in the absence of a
determination as to whether he is embraced warrant of arrest for whatever offense they may
within its terms. After our declaration of the be held to answer, to be issued by a judge after a
validity of the Proclamation No. 889 as amended, finding of probable cause. That is to comply with
the next question is its applicability to petitioners. the constitutional requirement against
I am the first to recognize the meticulous care with unreasonable search and seizure. 30 Moreover,
which the Chief Justice, after reaching the to keep them in confinement after the ordinary
conclusion that petitioners are covered by the processes of the law are to be availed of, as
suspension, saw to it that their constitutional thereafter decreed by the Executive itself is to
rights are duly safeguarded in whatever ignore the safeguard in the Bill of Rights that no
proceedings they would have thereafter to face. person shall be held to answer for a criminal
There is thus as assurance that as far as human offense without due process of law. 31 That would
foresight can anticipate matters, the possibility of explain why with full recognition of the sense of
abuse is minimized. realism that infuses the opinion of the Court, I
cannot, from the above standpoint, reach the
The matter, for me, could be viewed same conclusion they did. These six petitioners,
independently of whether or not petitioners, by Rodolfo del Rosario, Victor Felipe, Luzvimindo,
the conduct imputed to them, could be detained David, Gary Olivar, Angelo de los Reyes and
further by virtue of the suspension of the privilege Teresito Sison, have, for me, become immune
from the operation of the proclamation
suspending the privilege of the writ of habeas possibility of abuse from officials in the lower
corpus and are thus entitled to their liberty. I am category, who in their zeal or even from less
reinforced in my conviction by the well-settled worthy motives might make a mockey of the other
principle of constitutional construction that if there constitutional rights. That is as it should be. It
are two possible modes of interpretation, that one should continue to be so even if there be
which raises the least constitutional doubt should acceptance of the doctrine enunciated by Justice
be preferred. Certainly, to my way of thinking, the Tuason. There is, for me at least, no undue cause
choice is obvious. That interpretation which would for pessimism.
throw the full mantle of protection afforded by the
Constitution to those unfortunate enough to be These is to my mind another reinforcement to this
caught in the meshes of criminal law is more in approach to the question before us, perhaps one
keeping with the high estate accorded based more on policy rather than strictly legal
constitutional rights. considerations. The petitioners who have not
been released are youth leaders, who for motives
There is another consideration that strengthens best known to them, perhaps excess of idealism,
my conviction on the matter. The language of the impatience with existing conditions, even
Constitution would seem to imply at the most that overweening ambition, clamor for change,
the suspension of the privilege of the writ renders apparently oblivious at times that it could be
it unavailable for the time being. Still there are accomplished through means of which the law
authorities sustaining the view that preventive does not disapprove. It would be premature at this
detention subject to the test of good faith is stage to say whether or not their activities have
allowable.32Such a doctrine is no doubt partly incurred for them a penal sanction, which
traceable to Anglo-American legal history where certainly would be appropriate if their conduct is
as pointed out by Maine: "Substantive law has at beyond the pale. Even they should recognize that
first the look of being gradually secreted in the the existing order has the right to defendant itself
interstices of procedure." 33 The writ of habeas against those who would destroy it. Nonetheless
corpus then is more than just an efficacius device as a constitutional democracy can justifiably pride
or the most speedy means of obtaining one's itself on its allegiance to ways of persuasion
liberty. It has become a most valuable rather than coercion, the most meticulous
substantive right. It would thus serve the cause of observance of the free way of life seems to me,
constitutional rights better if the Tuason dictum as even at this stage, not without its beneficent
to the judicial process supplanting executive rule influence on their future course of conduct. This
the moment charges are filed be accorded is not by any means to intimate that my brethren
acceptance. Thereby the number of individuals view matters differently. Far from it. Any
who would have to submit to further detention, difference if at all in the positions taken is a
that may well turn out to be unjustified, would be question of emphasis. Rightly, the opinion of the
reduced. What is more, greater fidelity is Chief Justice stresses the importance of the rule
manifested to the principle that liberty is the rule of law. It is to be hoped that with a proper
and restraint the exception. understanding of what has been decided by the
Court today, there would be a diminution of the
I am not of course insensible to the observation wholesale condemnation of the present system of
in the opinion of the Court that this concept could government by some sectors of the youth and
be an obstacle to the early resumption of the perhaps even lead to much-needed refinement in
ordinary judicial process as the Executive might the volume and quality of their utterances. It could
be minded to postpone resort to it, considering even conceivably, not only for them but for others
that there would necessarily be an end to the of a less radical cast of mind, but equally suffering
detention at that early stage of individuals who from disenchantment and disillusion, induce a
continue to pose risk to the safety of the reassessment and reappraisal of their position,
government. It does occur to me, however, that even if from all appearances their commitment
the presumption should be that the high executive and dedication are plain for all to see. More than
dignitaries can be trusted to act in accordance that, such a response will go a long way towards
with the dictates of good faith and the command a keener appreciation of the merits of a
of the Constitution. At least, such seems to be the constitutional democracy. For thereby, it
case now. The opinion of the Court is quite demonstrates that it lives up to its ideas; it strives
explicit as to the measures taken to minimize the to act in accordance with what it professes. Its
appeal for all sectors or society becomes
strengthened and vitalized. Nor do I close my Republic of the Philippines
eyes to the risk that such an attitude towards SUPREME COURT
those who constitute a source of danger entails. Manila
That for me is not conclusive. With nations, as
with ordinary mortals, that is unavoidable. EN BANC
Repose, in the often-quoted aphorism of Holmes,
is not the destiny of man. G.R. No. 153675 April 19, 2007

9. One last observation. It would appear to me GOVERNMENT OF HONG KONG SPECIAL

that if there is really a resolve to maintain inviolate ADMINISTRATIVE REGION, represented by
constitutional rights for all, more especially so for the Philippine Department of
those inclined and disposed to differ and to be Justice, Petitioner,
vocal, perhaps even intemperate, in their vs.
criticism, that serious thought should be given to HON. FELIXBERTO T. OLALIA, JR. and JUAN
the desirability of removing from the President his ANTONIO MUÑOZ, Respondents.
power to suspend the privilege of the writ
of habeas corpus as well as the power to declare
martial law. Nor would the government be lacking DECISION
in authority to cope with the crisis of invasion,
insurrection, or rebellion or lawless violence, as SANDOVAL-GUTIERREZ, J.:
the President as commander-in-chief can
summon the aid of the armed forces to meet the For our resolution is the instant Petition for
danger posed to public safety. If the privilege of Certiorari under Rule 65 of the 1997 Rules of Civil
the writ cannot be suspended and martial law Procedure, as amended, seeking to nullify the
beyond the power of the President to declare, two Orders of the Regional Trial Court (RTC),
there is a greater likelihood as far as the rights of Branch 8, Manila (presided by respondent Judge
the individual are concerned, of the Constitution Felixberto T. Olalia, Jr.) issued in Civil Case No.
remaining at all times supreme, as it ought to be, 99-95773. These are: (1) the Order dated
whether it be in peace or in war or under other December 20, 2001 allowing Juan Antonio
crisis conditions. As long, however, as such a Muñoz, private respondent, to post bail; and (2)
presidential prerogative exists, it would not be the Order dated April 10, 2002 denying the motion
proper for the courts not to accord recognition to to vacate the said Order of December 20, 2001
its exercise, if there be observance of the filed by the Government of Hong Kong Special
limitations imposed by the Constitution. At the Administrative Region, represented by the
most, they can only through construction nullify Philippine Department of Justice (DOJ),
what would amount to an unconstitutional petitioner. The petition alleges that both Orders
application. How desirable it would be then, to my were issued by respondent judge with grave
way of thinking, if the Constitution would strip the abuse of discretion amounting to lack or excess
President of such power. That would be of jurisdiction as there is no provision in the
constitutionalism triumphant. In terms of Lincoln's Constitution granting bail to a potential extraditee.
memorable dilemma, the government would be
neither too strong for the liberties of the people The facts are:
nor too weak to maintain its existence. This is a
matter though appropriately addressed to the
On January 30, 1995, the Republic of the
Constitutional Convention.
Philippines and the then British Crown Colony of
Hong Kong signed an "Agreement for the
On the purely legal aspect, however, let me Surrender of Accused and Convicted Persons." It
reiterate that my acceptance of the Tuason took effect on June 20, 1997.
dictum in the Nava case did result in my inability
to concur fully with the opinion of the Chief
On July 1, 1997, Hong Kong reverted back to the
Justice, which, as pointed out at the outset, is
People’s Republic of China and became the
possessed of a high degree of merit.
Hong Kong Special Administrative Region.
----------------------------------------------------------------
Private respondent Muñoz was charged before
the Hong Kong Court with three (3) counts of the
offense of "accepting an advantage as agent," in case,- a petition for bail which was opposed by
violation of Section 9 (1) (a) of the Prevention of petitioner.
Bribery Ordinance, Cap. 201 of Hong Kong. He
also faces seven (7) counts of the offense of After hearing, or on October 8, 2001, Judge
conspiracy to defraud, penalized by the common Bernardo, Jr. issued an Order denying the
law of Hong Kong. On August 23, 1997 and petition for bail, holding that there is no Philippine
October 25, 1999, warrants of arrest were issued law granting bail in extradition cases and that
against him. If convicted, he faces a jail term of private respondent is a high "flight risk."
seven (7) to fourteen (14) years for each charge.
On October 22, 2001, Judge Bernardo, Jr.
On September 13, 1999, the DOJ received from inhibited himself from further hearing Civil Case
the Hong Kong Department of Justice a request No. 99-95733. It was then raffled off to Branch 8
for the provisional arrest of private respondent. presided by respondent judge.
The DOJ then forwarded the request to the
National Bureau of Investigation (NBI) which, in
On October 30, 2001, private respondent filed a
turn, filed with the RTC of Manila, Branch 19 an
motion for reconsideration of the Order denying
application for the provisional arrest of private
his application for bail. This was granted by
respondent.
respondent judge in an Order dated December
20, 2001 allowing private respondent to post bail,
On September 23, 1999, the RTC, Branch 19, thus:
Manila issued an Order of Arrest against private
respondent. That same day, the NBI agents
In conclusion, this Court will not contribute to
arrested and detained him.
accused’s further erosion of civil liberties. The
petition for bail is granted subject to the following
On October 14, 1999, private respondent filed conditions:
with the Court of Appeals a petition for certiorari,
prohibition and mandamus with application for
1. Bail is set at Php750,000.00 in cash
preliminary mandatory injunction and/or writ with the condition that accused hereby
of habeas corpus questioning the validity of the
undertakes that he will appear and
Order of Arrest.
answer the issues raised in these
proceedings and will at all times hold
On November 9, 1999, the Court of Appeals himself amenable to orders and
rendered its Decision declaring the Order of processes of this Court, will further
Arrest void. appear for judgment. If accused fails in
this undertaking, the cash bond will be
On November 12, 1999, the DOJ filed with this forfeited in favor of the government;
Court a petition for review on certiorari, docketed
as G.R. No. 140520, praying that the Decision of 2. Accused must surrender his valid
the Court of Appeals be reversed. passport to this Court;

On December 18, 2000, this Court rendered a 3. The Department of Justice is given
Decision granting the petition of the DOJ and immediate notice and discretion of filing
sustaining the validity of the Order of Arrest its own motion for hold departure order
against private respondent. The Decision before this Court even in extradition
became final and executory on April 10, 2001. proceeding; and

Meanwhile, as early as November 22, 1999, 4. Accused is required to report to the

petitioner Hong Kong Special Administrative government prosecutors handling this
Region filed with the RTC of Manila a petition for case or if they so desire to the nearest
the extradition of private respondent, docketed as office, at any time and day of the week;
Civil Case No. 99-95733, raffled off to Branch 10, and if they further desire, manifest before
presided by Judge Ricardo Bernardo, Jr. For his this Court to require that all the assets of
part, private respondent filed, in the same accused, real and personal, be filed with
this Court soonest, with the condition that
 if the accused flees from his undertaking, extradition proceedings. It is "available only in
said assets be forfeited in favor of the criminal proceedings," thus:
government and that the corresponding
lien/annotation be noted therein x x x. As suggested by the use of the word
accordingly. "conviction," the constitutional provision on bail
quoted above, as well as Section 4, Rule 114 of
SO ORDERED. the Rules of Court, applies only when a person
has been arrested and detained for violation of
On December 21, 2001, petitioner filed an urgent Philippine criminal laws. It does not apply to
motion to vacate the above Order, but it was extradition proceedings because extradition
denied by respondent judge in his Order dated courts do not render judgments of conviction or
April 10, 2002. acquittal.

Hence, the instant petition. Petitioner alleged that Moreover, the constitutional right to bail "flows
the trial court committed grave abuse of from the presumption of innocence in favor of
discretion amounting to lack or excess of every accused who should not be subjected to the
jurisdiction in admitting private respondent to bail; loss of freedom as thereafter he would be entitled
that there is nothing in the Constitution or to acquittal, unless his guilt be proved beyond
statutory law providing that a potential extraditee reasonable doubt" (De la Camara v. Enage, 41
has a right to bail, the right being limited solely to SCRA 1, 6, September 17, 1971, per
criminal proceedings. Fernando, J., later CJ). It follows that the
constitutional provision on bail will not apply to a
case like extradition, where the presumption of
In his comment on the petition, private
respondent maintained that the right to bail innocence is not at issue.
guaranteed under the Bill of Rights extends to a
prospective extraditee; and that extradition is a The provision in the Constitution stating that the
harsh process resulting in a prolonged "right to bail shall not be impaired even when the
deprivation of one’s liberty. privilege of the writ of habeas corpus is
suspended" does not detract from the rule that
the constitutional right to bail is available only in
Section 13, Article III of the Constitution provides
criminal proceedings. It must be noted that the
that the right to bail shall not be impaired, thus:
suspension of the privilege of the writ of habeas
corpus finds application "only to persons judicially
Sec. 13. All persons, except those charged with charged for rebellion or offenses inherent in or
offenses punishable by reclusion perpetua when directly connected with invasion" (Sec. 18, Art.
evidence of guilt is strong, shall, before VIII, Constitution). Hence, the second sentence in
conviction, be bailable by sufficient sureties, or be the constitutional provision on bail merely
released on recognizance as may be provided by emphasizes the right to bail in criminal
law. The right to bail shall not be impaired even proceedings for the aforementioned offenses. It
when the privilege of the writ of habeas corpus is cannot be taken to mean that the right is available
suspended. Excessive bail shall not be required. even in extradition proceedings that are not
criminal in nature.
Jurisprudence on extradition is but in its infancy
in this jurisdiction. Nonetheless, this is not the first At first glance, the above ruling applies squarely
time that this Court has an occasion to resolve the to private respondent’s case. However, this Court
question of whether a prospective extraditee may cannot ignore the following trends in international
be granted bail. law: (1) the growing importance of the individual
person in public international law who, in the 20th
In Government of United States of America v. century, has gradually attained global
Hon. Guillermo G. Purganan, Presiding Judge, recognition; (2) the higher value now being given
RTC of Manila, Branch 42, and Mark B. Jimenez, to human rights in the international sphere; (3) the
a.k.a. Mario Batacan Crespo,1 this Court, corresponding duty of countries to observe these
speaking through then Associate Justice Artemio universal human rights in fulfilling their treaty
V. Panganiban, later Chief Justice, held that the obligations; and (4) the duty of this Court to
constitutional provision on bail does not apply to balance the rights of the individual under our
fundamental law, on one hand, and the law on Philippines, therefore, has the responsibility of
extradition, on the other. protecting and promoting the right of every
person to liberty and due process, ensuring that
The modern trend in public international law those detained or arrested can participate in the
is the primacy placed on the worth of the proceedings before a court, to enable it to decide
individual person and the sanctity of human without delay on the legality of the detention and
rights. Slowly, the recognition that the individual order their release if justified. In other words, the
person may properly be a subject of international Philippine authorities are under obligation to
law is now taking root. The vulnerable doctrine make available to every person under detention
that the subjects of international law are limited such remedies which safeguard their
only to states was dramatically eroded towards fundamental right to liberty. These remedies
the second half of the past century. For one, the include the right to be admitted to bail. While this
Nuremberg and Tokyo trials after World War II Court in Purganan limited the exercise of the right
resulted in the unprecedented spectacle of to bail to criminal proceedings, however, in light
individual defendants for acts characterized as of the various international treaties giving
violations of the laws of war, crimes against recognition and protection to human rights,
peace, and crimes against humanity. Recently, particularly the right to life and liberty, a
under the Nuremberg principle, Serbian leaders reexamination of this Court’s ruling
have been persecuted for war crimes and crimes in Purganan is in order.
against humanity committed in the former
Yugoslavia. These significant events show that First, we note that the exercise of the
the individual person is now a valid subject of State’s power to deprive an individual of
international law. his liberty is not necessarily limited to
criminal proceedings. Respondents in
On a more positive note, also after World War II, administrative proceedings, such as
both international organizations and states gave deportation and quarantine,4 have
recognition and importance to human rights. likewise been detained.
Thus, on December 10, 1948, the United Nations
General Assembly adopted the Universal Second, to limit bail to criminal
Declaration of Human Rights in which the right to proceedings would be to close our eyes
life, liberty and all the other fundamental rights of to our jurisprudential history. Philippine
every person were proclaimed. While not a jurisprudence has not limited the
treaty, the principles contained in the said exercise of the right to bail to criminal
Declaration are now recognized as proceedings only. This Court has
customarily binding upon the members of the admitted to bail persons who are not
international community. Thus, in Mejoff v. involved in criminal proceedings. In fact,
Director of Prisons,2 this Court, in granting bail bail has been allowed in this jurisdiction
to a prospective deportee, held that under the to persons in detention during the
Constitution,3the principles set forth in that pendency of administrative proceedings,
Declaration are part of the law of the land. In taking into cognizance the obligation of
1966, the UN General Assembly also adopted the the Philippines under international
International Covenant on Civil and Political conventions to uphold human rights.
Rights which the Philippines signed and ratified.
Fundamental among the rights enshrined therein The 1909 case of US v. Go-Sioco5 is illustrative.
are the rights of every person to life, liberty, and In this case, a Chinese facing deportation for
due process. failure to secure the necessary certificate of
registration was granted bail pending his appeal.
The Philippines, along with the other members of After noting that the prospective deportee had
the family of nations, committed to uphold the committed no crime, the Court opined that "To
fundamental human rights as well as value the refuse him bail is to treat him as a person who has
worth and dignity of every person. This committed the most serious crime known to law;"
commitment is enshrined in Section II, Article II of and that while deportation is not a criminal
our Constitution which provides: "The State proceeding, some of the machinery used "is the
values the dignity of every human person and machinery of criminal law." Thus, the provisions
guarantees full respect for human rights." The
relating to bail was applied to deportation obligations between different nations.11 It is not a
proceedings. trial to determine the guilt or innocence of the
potential extraditee.12 Nor is it a full-blown civil
In Mejoff v. Director of Prisons6 and Chirskoff v. action, but one that is merely administrative in
Commission of Immigration,7 this Court ruled that character.13 Its object is to prevent the escape of
foreign nationals against whom no formal criminal a person accused or convicted of a crime and to
charges have been filed may be released on bail secure his return to the state from which he fled,
pending the finality of an order of deportation. As for the purpose of trial or punishment.14
previously stated, the Court in Mejoff relied upon
the Universal declaration of Human Rights in But while extradition is not a criminal proceeding,
sustaining the detainee’s right to bail. it is characterized by the following: (a) it entails a
deprivation of liberty on the part of the potential
If bail can be granted in deportation cases, we extraditee and (b) the means employed to
see no justification why it should not also be attain the purpose of extradition is also "the
allowed in extradition cases. Likewise, machinery of criminal law." This is shown by
considering that the Universal Declaration of Section 6 of P.D. No. 1069 (The Philippine
Human Rights applies to deportation cases, there Extradition Law) which mandates the "immediate
is no reason why it cannot be invoked in arrest and temporary detention of the
extradition cases. After all, both are accused" if such "will best serve the interest of
administrative proceedings where the innocence justice." We further note that Section 20 allows
or guilt of the person detained is not in issue. the requesting state "in case of urgency" to ask
for the "provisional arrest of the accused,
pending receipt of the request for extradition;"
Clearly, the right of a prospective extraditee to
and that release from provisional arrest "shall not
apply for bail in this jurisdiction must be viewed in
the light of the various treaty obligations of the prejudice re-arrest and extradition of the accused
if a request for extradition is received
Philippines concerning respect for the promotion
subsequently."
and protection of human rights. Under these
treaties, the presumption lies in favor of human
liberty. Thus, the Philippines should see to it that Obviously, an extradition proceeding, while
the right to liberty of every individual is not ostensibly administrative, bears all earmarks of a
impaired. criminal process. A potential extraditee may be
subjected to arrest, to a prolonged restraint of
liberty, and forced to transfer to the
Section 2(a) of Presidential Decree (P.D.) No.
demanding state following the
1069 (The Philippine Extradition Law) defines
proceedings. "Temporary detention" may be a
"extradition" as "the removal of an accused from
the Philippines with the object of placing him at necessary step in the process of extradition, but
the length of time of the detention should be
the disposal of foreign authorities to enable the
reasonable.
requesting state or government to hold him in
connection with any criminal investigation
directed against him or the execution of a penalty Records show that private respondent was
imposed on him under the penal or criminal law arrested on September 23, 1999, and remained
of the requesting state or government." incarcerated until December 20, 2001, when the
trial court ordered his admission to bail. In other
words, he had been detained for over two (2)
Extradition has thus been characterized as the
years without having been convicted of any
right of a foreign power, created by treaty, to
crime. By any standard, such an extended period
demand the surrender of one accused or
of detention is a serious deprivation of his
convicted of a crime within its territorial
fundamental right to liberty. In fact, it was this
jurisdiction, and the correlative duty of the other
prolonged deprivation of liberty which prompted
state to surrender him to the demanding state.8 It
the extradition court to grant him bail.
is not a criminal proceeding.9 Even if the potential
extraditee is a criminal, an extradition proceeding
is not by its nature criminal, for it is not While our extradition law does not provide for the
punishment for a crime, even though such grant of bail to an extraditee, however, there is no
punishment may follow extradition.10 It is sui provision prohibiting him or her from filing a
generis, tracing its existence wholly to treaty
motion for bail, a right to due process under the higher than preponderance of evidence. The
Constitution. potential extraditee must prove by "clear and
convincing evidence" that he is not a flight risk
The applicable standard of due process, and will abide with all the orders and processes
however, should not be the same as that in of the extradition court.
criminal proceedings. In the latter, the standard of
due process is premised on the presumption of In this case, there is no showing that private
innocence of the accused. As Purganancorrectly respondent presented evidence to show that he
points out, it is from this major premise that the is not a flight risk. Consequently, this case
ancillary presumption in favor of admitting to bail should be remanded to the trial court to determine
arises. Bearing in mind the purpose of extradition whether private respondent may be granted bail
proceedings, the premise behind the issuance of on the basis of "clear and convincing evidence."
the arrest warrant and the "temporary detention"
is the possibility of flight of the potential WHEREFORE, we DISMISS the petition. This
extraditee. This is based on the assumption that case is REMANDED to the trial court to
such extraditee is a fugitive from justice.15 Given determine whether private respondent is entitled
the foregoing, the prospective extraditee thus to bail on the basis of "clear and convincing
bears the onus probandi of showing that he or evidence." If not, the trial court should order the
she is not a flight risk and should be granted bail. cancellation of his bail bond and his immediate
detention; and thereafter, conduct the extradition
The time-honored principle of pacta sunt proceedings with dispatch.
servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered SO ORDERED.
into with the Hong Kong Special Administrative
Region. Failure to comply with these obligations ----------------------------------------------------------------
is a setback in our foreign relations and defeats
the purpose of extradition. However, it does not
necessarily mean that in keeping with its treaty Republic of the Philippines
obligations, the Philippines should diminish a SUPREME COURT
potential extraditee’s rights to life, liberty, and due Baguio City
process. More so, where these rights are
guaranteed, not only by our Constitution, but also EN BANC
by international conventions, to which the
Philippines is a party. We should not, therefore, G.R. No. 190582 April 8, 2010
deprive an extraditee of his right to apply for bail,
provided that a certain standard for the grant is ANG LADLAD LGBT PARTY represented
satisfactorily met. herein by its Chair, DANTON
REMOTO, Petitioner,
An extradition proceeding being sui generis, the vs.
standard of proof required in granting or denying COMMISSION ON ELECTIONS Respondent.
bail can neither be the proof beyond reasonable
doubt in criminal cases nor the standard of proof DECISION
of preponderance of evidence in civil cases.
While administrative in character, the standard of
DEL CASTILLO, J.:
substantial evidence used in administrative cases
cannot likewise apply given the object of
extradition law which is to prevent the prospective ... [F]reedom to differ is not limited to things that
extraditee from fleeing our jurisdiction. In his do not matter much. That would be a mere
Separate Opinion in Purganan, then Associate shadow of freedom. The test of its substance is
Justice, now Chief Justice Reynato S. Puno, the right to differ as to things that touch the heart
proposed that a new standard which he termed of the existing order.
"clear and convincing evidence" should be
used in granting bail in extradition Justice Robert A. Jackson
cases. According to him, this standard should be
lower than proof beyond reasonable doubt but
West Virginia State Board of Education v. denied on the ground that the organization had no
Barnette1 substantial membership base. On August 17,
2009, Ang Ladlad again filed a Petition5 for
One unavoidable consequence of everyone registration with the COMELEC.
having the freedom to choose is that others may
make different choices – choices we would not Before the COMELEC, petitioner argued that the
make for ourselves, choices we may disapprove LGBT community is a marginalized and under-
of, even choices that may shock or offend or represented sector that is particularly
anger us. However, choices are not to be legally disadvantaged because of their sexual
prohibited merely because they are different, and orientation and gender identity; that LGBTs are
the right to disagree and debate about important victims of exclusion, discrimination, and violence;
questions of public policy is a core value that because of negative societal attitudes,
protected by our Bill of Rights. Indeed, our LGBTs are constrained to hide their sexual
democracy is built on genuine recognition of, and orientation; and that Ang Ladlad complied with
respect for, diversity and difference in opinion. the 8-point guidelines enunciated by this Court in
Ang Bagong Bayani-OFW Labor Party v.
Since ancient times, society has grappled with Commission on Elections.6 Ang Ladlad laid out
deep disagreements about the definitions and its national membership base consisting of
demands of morality. In many cases, where moral individual members and organizational
convictions are concerned, harmony among supporters, and outlined its platform of
those theoretically opposed is an insurmountable governance.7
goal. Yet herein lies the paradox – philosophical
justifications about what is moral are On November 11, 2009, after admitting the
indispensable and yet at the same time petitioner’s evidence, the COMELEC (Second
powerless to create agreement. This Court Division) dismissed the Petition on moral
recognizes, however, that practical solutions are grounds, stating that:
preferable to ideological stalemates;
accommodation is better than intransigence; x x x This Petition is dismissible on moral
reason more worthy than rhetoric. This will allow grounds. Petitioner defines the Filipino Lesbian,
persons of diverse viewpoints to live together, if Gay, Bisexual and Transgender (LGBT)
not harmoniously, then, at least, civilly. Community, thus:

Factual Background x x x a marginalized and under-represented

sector that is particularly disadvantaged because
This is a Petition for Certiorari under Rule 65 of of their sexual orientation and gender identity.
the Rules of Court, with an application for a writ
of preliminary mandatory injunction, filed by Ang and proceeded to define sexual orientation as
Ladlad LGBT Party (Ang Ladlad) against the that which:
Resolutions of the Commission on Elections
(COMELEC) dated November 11, 20092 (the x x x refers to a person’s capacity for profound
First Assailed Resolution) and December 16,
emotional, affectional and sexual attraction to,
20093 (the Second Assailed Resolution) in SPP
and intimate and sexual relations with, individuals
No. 09-228 (PL) (collectively, the Assailed
of a different gender, of the same gender, or more
Resolutions). The case has its roots in the
than one gender."
COMELEC’s refusal to accredit Ang Ladlad as a
party-list organization under Republic Act (RA)
No. 7941, otherwise known as the Party-List This definition of the LGBT sector makes it crystal
System Act.4 clear that petitioner tolerates immorality which
offends religious beliefs. In Romans 1:26, 27,
Paul wrote:
Ang Ladlad is an organization composed of men
and women who identify themselves as lesbians,
gays, bisexuals, or trans-gendered individuals For this cause God gave them up into vile
(LGBTs). Incorporated in 2003, Ang Ladlad first affections, for even their women did change the
applied for registration with the COMELEC in natural use into that which is against nature: And
2006. The application for accreditation was likewise also the men, leaving the natural use of
the woman, burned in their lust one toward publications and exhibitions and indecent shows’
another; men with men working that which is as follows:
unseemly, and receiving in themselves that
recompense of their error which was meet. Art. 201. Immoral doctrines, obscene publications
and exhibitions, and indecent shows. — The
In the Koran, the hereunder verses are pertinent: penalty of prision mayor or a fine ranging from six
thousand to twelve thousand pesos, or both such
For ye practice your lusts on men in preference to imprisonment and fine, shall be imposed upon:
women "ye are indeed a people transgressing
beyond bounds." (7.81) "And we rained down on 1. Those who shall publicly expound or
them a shower (of brimstone): Then see what was proclaim doctrines openly contrary to
the end of those who indulged in sin and crime!" public morals;
(7:84) "He said: "O my Lord! Help Thou me
against people who do mischief" (29:30). 2. (a) The authors of obscene literature,
published with their knowledge in any
As correctly pointed out by the Law Department form; the editors publishing such
in its Comment dated October 2, 2008: literature; and the owners/operators of
the establishment selling the same;
The ANG LADLAD apparently advocates sexual
immorality as indicated in the Petition’s par. 6F: (b) Those who, in theaters, fairs,
‘Consensual partnerships or relationships by cinematographs or any other
gays and lesbians who are already of age’. It is place, exhibit indecent or
further indicated in par. 24 of the Petition which immoral plays, scenes, acts or
waves for the record: ‘In 2007, Men Having Sex shows, it being understood that
with Men or MSMs in the Philippines were the obscene literature or
estimated as 670,000 (Genesis 19 is the history indecent or immoral plays,
of Sodom and Gomorrah). scenes, acts or shows, whether
live or in film, which are
Laws are deemed incorporated in every contract, prescribed by virtue hereof, shall
permit, license, relationship, or accreditation. include those which: (1) glorify
Hence, pertinent provisions of the Civil Code and criminals or condone crimes; (2)
the Revised Penal Code are deemed part of the serve no other purpose but to
requirement to be complied with for accreditation. satisfy the market for
violence, lust or pornography; (3)
offend any race or religion; (4)
ANG LADLAD collides with Article 695 of the Civil
tend to abet traffic in and use of
Code which defines nuisance as ‘Any act,
prohibited drugs; and (5) are
omission, establishment, business, condition of
contrary to law, public
property, or anything else which x x x (3) shocks,
defies; or disregards decency or morality x x x order, morals, good
customs, established policies,
lawful orders, decrees and
It also collides with Article 1306 of the Civil Code: edicts.
‘The contracting parties may establish such
stipulations, clauses, terms and conditions as
they may deem convenient, provided they are not 3. Those who shall sell, give away or
contrary to law, morals, good customs, public exhibit films, prints, engravings, sculpture
or literature which are offensive to
order or public policy. Art 1409 of the Civil Code
morals.
provides that ‘Contracts whose cause, object or
purpose is contrary to law, morals, good customs,
public order or public policy’ are inexistent and Petitioner should likewise be denied accreditation
void from the beginning. not only for advocating immoral doctrines but
likewise for not being truthful when it said that it
"or any of its nominees/party-list representatives
Finally to safeguard the morality of the Filipino
have not violated or failed to comply with laws,
community, the Revised Penal Code, as
amended, penalizes ‘Immoral doctrines, obscene rules, or regulations relating to the elections."
Furthermore, should this Commission grant the individuals whose interests are also the nation’s –
petition, we will be exposing our youth to an only that their interests have not been brought to
environment that does not conform to the the attention of the nation because of their under
teachings of our faith. Lehman Strauss, a famous representation. Until the time comes when Ladlad
bible teacher and writer in the U.S.A. said in one is able to justify that having mixed sexual
article that "older practicing homosexuals are a orientations and transgender identities is
threat to the youth." As an agency of the beneficial to the nation, its application for
government, ours too is the State’s avowed duty accreditation under the party-list system will
under Section 13, Article II of the Constitution to remain just that.
protect our youth from moral and spiritual
degradation.8 II. No substantial differentiation

When Ang Ladlad sought reconsideration,9 three In the United States, whose equal protection
commissioners voted to overturn the First doctrine pervades Philippine jurisprudence,
Assailed Resolution (Commissioners Gregorio Y. courts do not recognize lesbians, gays,
Larrazabal, Rene V. Sarmiento, and Armando homosexuals, and bisexuals (LGBT) as a "special
Velasco), while three commissioners voted to class" of individuals. x x x Significantly, it has also
deny Ang Ladlad’s Motion for Reconsideration been held that homosexuality is not a
(Commissioners Nicodemo T. Ferrer, Lucenito N. constitutionally protected fundamental right, and
Tagle, and Elias R. Yusoph). The COMELEC that "nothing in the U.S. Constitution discloses a
Chairman, breaking the tie and speaking for the comparable intent to protect or promote the social
majority in his Separate Opinion, upheld the First or legal equality of homosexual relations," as in
Assailed Resolution, stating that: the case of race or religion or belief.

I. The Spirit of Republic Act No. 7941 xxxx

Ladlad is applying for accreditation as a sectoral Thus, even if society’s understanding, tolerance,
party in the party-list system. Even assuming that and acceptance of LGBT’s is elevated, there can
it has properly proven its under-representation be no denying that Ladlad constituencies are still
and marginalization, it cannot be said that males and females, and they will remain either
Ladlad’s expressed sexual orientations per se male or female protected by the same Bill of
would benefit the nation as a whole. Rights that applies to all citizens alike.

Section 2 of the party-list law unequivocally states xxxx

that the purpose of the party-list system of
electing congressional representatives is to
IV. Public Morals
enable Filipino citizens belonging to marginalized
and under-represented sectors, organizations
and parties, and who lack well-defined political x x x There is no question about not imposing on
constituencies but who could contribute to the Ladlad Christian or Muslim religious practices.
formulation and enactment of appropriate Neither is there any attempt to any particular
legislation that will benefit the nation as a whole, religious group’s moral rules on Ladlad. Rather,
to become members of the House of what are being adopted as moral parameters and
Representatives. precepts are generally accepted public morals.
They are possibly religious-based, but as a
society, the Philippines cannot ignore its more
If entry into the party-list system would depend
than 500 years of Muslim and Christian
only on the ability of an organization to represent
upbringing, such that some moral precepts
its constituencies, then all representative
espoused by said religions have sipped [sic] into
organizations would have found themselves into society and these are not publicly accepted moral
the party-list race. But that is not the intention of norms.
the framers of the law. The party-list system is not
a tool to advocate tolerance and acceptance of
misunderstood persons or groups of persons. V. Legal Provisions
Rather, the party-list system is a tool for the
realization of aspirations of marginalized
But above morality and social norms, they have or to Appear as Amicus Curiae, attaching thereto
become part of the law of the land. Article 201 of its Comment-in-Intervention.17 The CHR opined
the Revised Penal Code imposes the penalty of that the denial of Ang Ladlad’spetition on moral
prision mayor upon "Those who shall publicly grounds violated the standards and principles of
expound or proclaim doctrines openly contrary to the Constitution, the Universal Declaration of
public morals." It penalizes "immoral doctrines, Human Rights (UDHR), and the International
obscene publications and exhibition and indecent Covenant on Civil and Political Rights (ICCPR).
shows." "Ang Ladlad" apparently falls under On January 19, 2010, we granted the CHR’s
these legal provisions. This is clear from its motion to intervene.
Petition’s paragraph 6F: "Consensual
partnerships or relationships by gays and On January 26, 2010, Epifanio D. Salonga, Jr.
lesbians who are already of age’ It is further filed his Motion to Intervene18 which motion was
indicated in par. 24 of the Petition which waves granted on February 2, 2010.19
for the record: ‘In 2007, Men Having Sex with
Men or MSMs in the Philippines were estimated The Parties’ Arguments
as 670,000. Moreoever, Article 694 of the Civil
Code defines "nuisance" as any act, omission x x
x or anything else x x x which shocks, defies or Ang Ladlad argued that the denial of
disregards decency or morality x x x." These are accreditation, insofar as it justified the exclusion
all unlawful.10 by using religious dogma, violated the
constitutional guarantees against the
establishment of religion. Petitioner also claimed
On January 4, 2010, Ang Ladlad filed this
that the Assailed Resolutions contravened its
Petition, praying that the Court annul the Assailed
constitutional rights to privacy, freedom of speech
Resolutions and direct the COMELEC to
and assembly, and equal protection of laws, as
grant Ang Ladlad’s application for
well as constituted violations of the Philippines’
accreditation. Ang Ladlad also sought the
international obligations against discrimination
issuance ex parte of a preliminary mandatory
based on sexual orientation.
injunction against the COMELEC, which had
previously announced that it would begin printing
the final ballots for the May 2010 elections by The OSG concurred with Ang Ladlad’s petition
January 25, 2010. and argued that the COMELEC erred in denying
petitioner’s application for registration since there
was no basis for COMELEC’s allegations of
On January 6, 2010, we ordered the Office of the
immorality. It also opined that LGBTs have their
Solicitor General (OSG) to file its Comment on
own special interests and concerns which should
behalf of COMELEC not later than 12:00 noon of have been recognized by the COMELEC as a
January 11, 2010.11 Instead of filing a Comment, separate classification. However, insofar as the
however, the OSG filed a Motion for Extension,
purported violations of petitioner’s freedom of
requesting that it be given until January 16, 2010
speech, expression, and assembly were
to Comment.12 Somewhat surprisingly, the OSG
concerned, the OSG maintained that there had
later filed a Comment in support of petitioner’s
been no restrictions on these rights.
application.13 Thus, in order to give COMELEC
the opportunity to fully ventilate its position, we
required it to file its own comment.14 The In its Comment, the COMELEC reiterated that
COMELEC, through its Law Department, filed its petitioner does not have a concrete and genuine
Comment on February 2, 2010.15 national political agenda to benefit the nation and
that the petition was validly dismissed on moral
grounds. It also argued for the first time that the
In the meantime, due to the urgency of the
LGBT sector is not among the sectors
petition, we issued a temporary restraining order
enumerated by the Constitution and RA 7941,
on January 12, 2010, effective immediately and
and that petitioner made untruthful statements in
continuing until further orders from this Court,
its petition when it alleged its national existence
directing the COMELEC to cease and desist from contrary to actual verification reports by
implementing the Assailed Resolutions.16 COMELEC’s field personnel.

Also, on January 13, 2010, the Commission on Our Ruling

Human Rights (CHR) filed a Motion to Intervene
We grant the petition. and a serious violation of petitioner’s right to
procedural due process.
Compliance with the Requirements of the
Constitution and Republic Act No. 7941 Nonetheless, we find that there has been no
misrepresentation. A cursory perusal of Ang
The COMELEC denied Ang Ladlad’s application Ladlad’s initial petition shows that it never
for registration on the ground that the LGBT claimed to exist in each province of the
sector is neither enumerated in the Constitution Philippines. Rather, petitioner alleged that the
and RA 7941, nor is it associated with or related LGBT community in the Philippines was
to any of the sectors in the enumeration. estimated to constitute at least 670,000 persons;
that it had 16,100 affiliates and members around
the country, and 4,044 members in its electronic
Respondent mistakenly opines that our ruling in
discussion group.22 Ang Ladlad also represented
Ang Bagong Bayani stands for the proposition
that only those sectors specifically enumerated in itself to be "a national LGBT umbrella
organization with affiliates around the Philippines
the law or related to said sectors (labor, peasant,
composed of the following LGBT networks:"
fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women,
youth, veterans, overseas workers, and § Abra Gay Association
professionals) may be registered under the party-
list system. As we explicitly ruled in Ang Bagong § Aklan Butterfly Brigade (ABB) – Aklan
Bayani-OFW Labor Party v. Commission on
Elections,20 "the enumeration of marginalized § Albay Gay Association
and under-represented sectors is not exclusive".
The crucial element is not whether a sector is § Arts Center of Cabanatuan City –
specifically enumerated, but whether a particular
Nueva Ecija
organization complies with the requirements of
the Constitution and RA 7941.
§ Boys Legion – Metro Manila
Respondent also argues that Ang Ladlad made
untruthful statements in its petition when it § Cagayan de Oro People Like Us (CDO
alleged that it had nationwide existence through PLUS)
its members and affiliate organizations. The
COMELEC claims that upon verification by its § Can’t Live in the Closet, Inc. (CLIC) –
field personnel, it was shown that "save for a few Metro Manila
isolated places in the country, petitioner does not
exist in almost all provinces in the country."21 § Cebu Pride – Cebu City

This argument that "petitioner made untruthful § Circle of Friends

statements in its petition when it alleged its
national existence" is a new one; previously, the § Dipolog Gay Association – Zamboanga
COMELEC claimed that petitioner was "not being del Norte
truthful when it said that it or any of its
nominees/party-list representatives have not
§ Gay, Bisexual, & Transgender Youth
violated or failed to comply with laws, rules, or
Association (GABAY)
regulations relating to the elections." Nowhere
was this ground for denial of petitioner’s
accreditation mentioned or even alluded to in the § Gay and Lesbian Activists Network for
Assailed Resolutions. This, in itself, is quite Gender Equality (GALANG) – Metro
curious, considering that the reports of Manila
petitioner’s alleged non-existence were already
available to the COMELEC prior to the issuance § Gay Men’s Support Group (GMSG) –
of the First Assailed Resolution. At best, this is Metro Manila
irregular procedure; at worst, a belated
afterthought, a change in respondent’s theory, § Gay United for Peace and Solidarity
(GUPS) – Lanao del Norte
§ Iloilo City Gay Association – Iloilo City Since the COMELEC only searched for the
names ANG LADLAD LGBT or LADLAD LGBT, it
§ Kabulig Writer’s Group – Camarines is no surprise that they found that petitioner had
Sur no presence in any of these regions. In fact, if
COMELEC’s findings are to be believed,
petitioner does not even exist in Quezon City,
§ Lesbian Advocates Philippines, Inc.
which is registered as Ang Ladlad’s principal
(LEAP)
place of business.
§ LUMINA – Baguio City
Against this backdrop, we find that Ang
Ladlad has sufficiently demonstrated its
§ Marikina Gay Association – Metro compliance with the legal requirements for
Manila accreditation. Indeed, aside from COMELEC’s
moral objection and the belated allegation of non-
§ Metropolitan Community Church existence, nowhere in the records has the
(MCC) – Metro Manila respondent ever found/ruled that Ang Ladlad is
not qualified to register as a party-list organization
§ Naga City Gay Association – Naga City under any of the requisites under RA 7941 or the
guidelines in Ang Bagong Bayani. The difference,
§ ONE BACARDI COMELEC claims, lies in Ang Ladlad’s morality,
or lack thereof.
§ Order of St. Aelred (OSAe) – Metro
Manila Religion as the Basis for Refusal to Accept Ang
Ladlad’s Petition for Registration
§ PUP LAKAN
Our Constitution provides in Article III, Section 5
that "[n]o law shall be made respecting an
§ RADAR PRIDEWEAR
establishment of religion, or prohibiting the free
exercise thereof." At bottom, what our non-
§ Rainbow Rights Project (R-Rights), Inc. establishment clause calls for is "government
– Metro Manila neutrality in religious matters."24 Clearly,
"governmental reliance on religious justification is
§ San Jose del Monte Gay Association – inconsistent with this policy of neutrality."25 We
Bulacan thus find that it was grave violation of the non-
establishment clause for the COMELEC to utilize
§ Sining Kayumanggi Royal Family – the Bible and the Koran to justify the exclusion
Rizal of Ang Ladlad.

§ Society of Transexual Women of the Rather than relying on religious belief, the
Philippines (STRAP) – Metro Manila legitimacy of the Assailed Resolutions should
depend, instead, on whether the COMELEC is
§ Soul Jive – Antipolo, Rizal able to advance some justification for its rulings
beyond mere conformity to religious doctrine.
Otherwise stated, government must act for
§ The Link – Davao City secular purposes and in ways that have primarily
secular effects. As we held in Estrada v.
§ Tayabas Gay Association – Quezon Escritor:26

§ Women’s Bisexual Network – Metro x x x The morality referred to in the law is public
Manila and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. "Religious
§ Zamboanga Gay Association – teachings as expressed in public debate may
Zamboanga City23 influence the civil public order but public moral
disputes may be resolved only on grounds
articulable in secular terms." Otherwise, if
government relies upon religious beliefs in Public Morals as a Ground to Deny Ang Ladlad’s
formulating public policies and morals, the Petition for Registration
resulting policies and morals would require
conformity to what some might regard as religious Respondent suggests that although the moral
programs or agenda. The non-believers would condemnation of homosexuality and homosexual
therefore be compelled to conform to a standard conduct may be religion-based, it has long been
of conduct buttressed by a religious belief, i.e., to transplanted into generally accepted public
a "compelled religion," anathema to religious morals. The COMELEC argues:
freedom. Likewise, if government based its
actions upon religious beliefs, it would tacitly
Petitioner’s accreditation was denied not
approve or endorse that belief and thereby also
necessarily because their group consists of
tacitly disapprove contrary religious or non-
LGBTs but because of the danger it poses to the
religious views that would not support the policy.
people especially the youth. Once it is recognized
As a result, government will not provide full by the government, a sector which believes that
religious freedom for all its citizens, or even make there is nothing wrong in having sexual relations
it appear that those whose beliefs are
with individuals of the same gender is a bad
disapproved are second-class citizens.1avvphi1
example. It will bring down the standard of morals
we cherish in our civilized society. Any society
In other words, government action, including its without a set of moral precepts is in danger of
proscription of immorality as expressed in losing its own existence.28
criminal law like concubinage, must have a
secular purpose. That is, the government
We are not blind to the fact that, through the
proscribes this conduct because it is "detrimental
years, homosexual conduct, and perhaps
(or dangerous) to those conditions upon which
homosexuals themselves, have borne the brunt
depend the existence and progress of human of societal disapproval. It is not difficult to imagine
society" and not because the conduct is
the reasons behind this censure – religious
proscribed by the beliefs of one religion or the
beliefs, convictions about the preservation of
other. Although admittedly, moral judgments
marriage, family, and procreation, even dislike or
based on religion might have a compelling
distrust of homosexuals themselves and their
influence on those engaged in public perceived lifestyle. Nonetheless, we recall that
deliberations over what actions would be the Philippines has not seen fit to criminalize
considered a moral disapprobation punishable by
homosexual conduct. Evidently, therefore, these
law. After all, they might also be adherents of a
"generally accepted public morals" have not been
religion and thus have religious opinions and
convincingly transplanted into the realm of law.29
moral codes with a compelling influence on them;
the human mind endeavors to regulate the
temporal and spiritual institutions of society in a The Assailed Resolutions have not identified any
uniform manner, harmonizing earth with heaven. specific overt immoral act performed by Ang
Succinctly put, a law could be religious or Kantian Ladlad. Even the OSG agrees that "there should
or Aquinian or utilitarian in its deepest roots, but it have been a finding by the COMELEC that the
must have an articulable and discernible secular group’s members have committed or are
purpose and justification to pass scrutiny of the committing immoral acts."30 The OSG argues:
religion clauses. x x x Recognizing the religious
nature of the Filipinos and the elevating influence x x x A person may be sexually attracted to a
of religion in society, however, the Philippine person of the same gender, of a different gender,
constitution's religion clauses prescribe not a or more than one gender, but mere attraction
strict but a benevolent neutrality. Benevolent does not translate to immoral acts. There is a
neutrality recognizes that government must great divide between thought and action.
pursue its secular goals and interests but at the Reduction ad absurdum. If immoral thoughts
same time strive to uphold religious liberty to the could be penalized, COMELEC would have its
greatest extent possible within flexible hands full of disqualification cases against both
constitutional limits. Thus, although the morality the "straights" and the gays." Certainly this is not
contemplated by laws is secular, benevolent the intendment of the law.31
neutrality could allow for accommodation of
morality based on religion, provided it does not Respondent has failed to explain what societal ills
offend compelling state interests.27 are sought to be prevented, or why special
protection is required for the youth. Neither has Despite the absolutism of Article III, Section 1 of
the COMELEC condescended to justify its our Constitution, which provides "nor shall any
position that petitioner’s admission into the party- person be denied equal protection of the laws,"
list system would be so harmful as to irreparably courts have never interpreted the provision as an
damage the moral fabric of society. We, of absolute prohibition on classification. "Equality,"
course, do not suggest that the state is wholly said Aristotle, "consists in the same treatment of
without authority to regulate matters concerning similar persons."33 The equal protection clause
morality, sexuality, and sexual relations, and we guarantees that no person or class of persons
recognize that the government will and should shall be deprived of the same protection of laws
continue to restrict behavior considered which is enjoyed by other persons or other
detrimental to society. Nonetheless, we cannot classes in the same place and in like
countenance advocates who, undoubtedly with circumstances.34
the loftiest of intentions, situate morality on one
end of an argument or another, without bothering Recent jurisprudence has affirmed that if a law
to go through the rigors of legal reasoning and neither burdens a fundamental right nor targets a
explanation. In this, the notion of morality is suspect class, we will uphold the classification as
robbed of all value. Clearly then, the bare long as it bears a rational relationship to some
invocation of morality will not remove an issue legitimate government end.35 In Central Bank
from our scrutiny. Employees Association, Inc. v. Banko Sentral ng
Pilipinas,36 we declared that "[i]n our jurisdiction,
We also find the COMELEC’s reference to the standard of analysis of equal protection
purported violations of our penal and civil laws challenges x x x have followed the ‘rational basis’
flimsy, at best; disingenuous, at worst. Article 694 test, coupled with a deferential attitude to
of the Civil Code defines a nuisance as "any act, legislative classifications and a reluctance to
omission, establishment, condition of property, or invalidate a law unless there is a showing of a
anything else which shocks, defies, or disregards clear and unequivocal breach of the
decency or morality," the remedies for which are Constitution."37
a prosecution under the Revised Penal Code or
any local ordinance, a civil action, or abatement The COMELEC posits that the majority of the
without judicial proceedings.32 A violation of Philippine population considers homosexual
Article 201 of the Revised Penal Code, on the conduct as immoral and unacceptable, and this
other hand, requires proof beyond reasonable constitutes sufficient reason to disqualify the
doubt to support a criminal conviction. It hardly petitioner. Unfortunately for the respondent, the
needs to be emphasized that mere allegation of Philippine electorate has expressed no such
violation of laws is not proof, and a mere blanket belief. No law exists to criminalize homosexual
invocation of public morals cannot replace the behavior or expressions or parties about
institution of civil or criminal proceedings and a homosexual behavior. Indeed, even if we were to
judicial determination of liability or culpability. assume that public opinion is as the COMELEC
describes it, the asserted state interest here – that
As such, we hold that moral disapproval, without is, moral disapproval of an unpopular minority –
more, is not a sufficient governmental interest to is not a legitimate state interest that is sufficient
justify exclusion of homosexuals from to satisfy rational basis review under the equal
participation in the party-list system. The denial protection clause. The COMELEC’s
of Ang Ladlad’s registration on purely moral differentiation, and its unsubstantiated claim
grounds amounts more to a statement of dislike that Ang Ladlad cannot contribute to the
and disapproval of homosexuals, rather than a formulation of legislation that would benefit the
tool to further any substantial public interest. nation, furthers no legitimate state interest other
Respondent’s blanket justifications give rise to than disapproval of or dislike for a disfavored
the inevitable conclusion that the COMELEC group.
targets homosexuals themselves as a class, not
because of any particular morally reprehensible From the standpoint of the political process, the
act. It is this selective targeting that implicates our lesbian, gay, bisexual, and transgender have the
equal protection clause. same interest in participating in the party-list
system on the same basis as other political
Equal Protection parties similarly situated. State intrusion in this
case is equally burdensome. Hence, laws of deliberation on moral judgments is finally
general application should apply with equal force crystallized into law, the laws will largely reflect
to LGBTs, and they deserve to participate in the the beliefs and preferences of the majority, i.e.,
party-list system on the same basis as other the mainstream or median groups. Nevertheless,
marginalized and under-represented sectors. in the very act of adopting and accepting a
constitution and the limits it specifies – including
It bears stressing that our finding that protection of religious freedom "not only for a
COMELEC’s act of differentiating LGBTs from minority, however small – not only for a majority,
heterosexuals insofar as the party-list system is however large – but for each of us" – the majority
concerned does not imply that any other law imposes upon itself a self-denying ordinance. It
distinguishing between heterosexuals and promises not to do what it otherwise could do: to
homosexuals under different circumstances ride roughshod over the dissenting minorities.
would similarly fail. We disagree with the OSG’s
position that homosexuals are a class in Freedom of expression constitutes one of the
themselves for the purposes of the equal essential foundations of a democratic society,
protection clause.38 We are not prepared to single and this freedom applies not only to those that are
out homosexuals as a separate class meriting favorably received but also to those that offend,
special or differentiated treatment. We have not shock, or disturb. Any restriction imposed in this
received sufficient evidence to this effect, and it is sphere must be proportionate to the legitimate
simply unnecessary to make such a ruling today. aim pursued. Absent any compelling state
Petitioner itself has merely demanded that it be interest, it is not for the COMELEC or this Court
recognized under the same basis as all other to impose its views on the populace. Otherwise
groups similarly situated, and that the COMELEC stated, the COMELEC is certainly not free to
made "an unwarranted and impermissible interfere with speech for no better reason than
classification not justified by the circumstances of promoting an approved message or discouraging
the case." a disfavored one.

Freedom of Expression and Association This position gains even more force if one
considers that homosexual conduct is not illegal
Under our system of laws, every group has the in this country. It follows that both expressions
right to promote its agenda and attempt to concerning one’s homosexuality and the activity
persuade society of the validity of its position of forming a political association that supports
through normal democratic means.39 It is in the LGBT individuals are protected as well.
public square that deeply held convictions and
differing opinions should be distilled and Other jurisdictions have gone so far as to
deliberated upon. As we held in Estrada v. categorically rule that even overwhelming public
Escritor:40 perception that homosexual conduct violates
public morality does not justify criminalizing
In a democracy, this common agreement on same-sex conduct.41 European and United
political and moral ideas is distilled in the public Nations judicial decisions have ruled in favor of
square. Where citizens are free, every opinion, gay rights claimants on both privacy and equality
every prejudice, every aspiration, and every grounds, citing general privacy and equal
moral discernment has access to the public protection provisions in foreign and international
square where people deliberate the order of their texts.42 To the extent that there is much to learn
life together. Citizens are the bearers of opinion, from other jurisdictions that have reflected on the
including opinion shaped by, or espousing issues we face here, such jurisprudence is
religious belief, and these citizens have equal certainly illuminating. These foreign authorities,
access to the public square. In this representative while not formally binding on Philippine courts,
democracy, the state is prohibited from may nevertheless have persuasive influence on
determining which convictions and moral the Court’s analysis.
judgments may be proposed for public
deliberation. Through a constitutionally designed In the area of freedom of expression, for instance,
process, the people deliberate and decide. United States courts have ruled that existing free
Majority rule is a necessary principle in this speech doctrines protect gay and lesbian rights to
democratic governance. Thus, when public expressive conduct. In order to justify the
prohibition of a particular expression of opinion, favorable to gay rights claims and we neither
public institutions must show that their actions attempt nor expect to affect individual perceptions
were caused by "something more than a mere of homosexuality through this Decision.
desire to avoid the discomfort and
unpleasantness that always accompany an The OSG argues that since there has been
unpopular viewpoint."43 neither prior restraint nor subsequent punishment
imposed on Ang Ladlad, and its members have
With respect to freedom of association for the not been deprived of their right to voluntarily
advancement of ideas and beliefs, in Europe, with associate, then there has been no restriction on
its vibrant human rights tradition, the European their freedom of expression or association. The
Court of Human Rights (ECHR) has repeatedly OSG argues that:
stated that a political party may campaign for a
change in the law or the constitutional structures There was no utterance restricted, no publication
of a state if it uses legal and democratic means censored, or any assembly denied. [COMELEC]
and the changes it proposes are consistent with simply exercised its authority to review and verify
democratic principles. The ECHR has the qualifications of petitioner as a sectoral party
emphasized that political ideas that challenge the applying to participate in the party-list system.
existing order and whose realization is advocated This lawful exercise of duty cannot be said to be
by peaceful means must be afforded a proper a transgression of Section 4, Article III of the
opportunity of expression through the exercise of Constitution.
the right of association, even if such ideas may
seem shocking or unacceptable to the authorities
xxxx
or the majority of the population.44 A political
group should not be hindered solely because it
seeks to publicly debate controversial political A denial of the petition for registration x x x does
issues in order to find solutions capable of not deprive the members of the petitioner to freely
satisfying everyone concerned.45 Only if a take part in the conduct of elections. Their right to
political party incites violence or puts forward vote will not be hampered by said denial. In fact,
policies that are incompatible with democracy the right to vote is a constitutionally-guaranteed
does it fall outside the protection of the freedom right which cannot be limited.
of association guarantee.46
As to its right to be elected in a genuine periodic
We do not doubt that a number of our citizens election, petitioner contends that the denial of
may believe that homosexual conduct is Ang Ladlad’s petition has the clear and
distasteful, offensive, or even defiant. They are immediate effect of limiting, if not outrightly
entitled to hold and express that view. On the nullifying the capacity of its members to fully and
other hand, LGBTs and their supporters, in all equally participate in public life through
likelihood, believe with equal fervor that engagement in the party list elections.
relationships between individuals of the same sex
are morally equivalent to heterosexual This argument is puerile. The holding of a public
relationships. They, too, are entitled to hold and office is not a right but a privilege subject to
express that view. However, as far as this Court limitations imposed by law. x x x47
is concerned, our democracy precludes using the
religious or moral views of one part of the The OSG fails to recall that petitioner has, in fact,
community to exclude from consideration the established its qualifications to participate in the
values of other members of the community. party-list system, and – as advanced by the OSG
itself – the moral objection offered by the
Of course, none of this suggests the impending COMELEC was not a limitation imposed by law.
arrival of a golden age for gay rights litigants. It To the extent, therefore, that the petitioner has
well may be that this Decision will only serve to been precluded, because of COMELEC’s action,
highlight the discrepancy between the rigid from publicly expressing its views as a political
constitutional analysis of this Court and the more party and participating on an equal basis in the
complex moral sentiments of Filipinos. We do not political process with other equally-qualified
suggest that public opinion, even at its most party-list candidates, we find that there has,
liberal, reflect a clear-cut strong consensus
indeed, been a transgression of petitioner’s Article 21.
fundamental rights.
(1) Everyone has the right to take part in the
Non-Discrimination and International Law government of his country, directly or through
freely chosen representatives.
In an age that has seen international law evolve
geometrically in scope and promise, international Likewise, the ICCPR states:
human rights law, in particular, has grown
dynamically in its attempt to bring about a more Article 25
just and humane world order. For individuals and
groups struggling with inadequate structural and
Every citizen shall have the right and the
governmental support, international human rights opportunity, without any of the distinctions
norms are particularly significant, and should be mentioned in article 2 and without unreasonable
effectively enforced in domestic legal systems so
restrictions:
that such norms may become actual, rather than
ideal, standards of conduct.
(a) To take part in the conduct of public
affairs, directly or through freely chosen
Our Decision today is fully in accord with our representatives;
international obligations to protect and promote
human rights. In particular, we explicitly
recognize the principle of non-discrimination as it (b) To vote and to be elected at genuine
relates to the right to electoral participation, periodic elections which shall be by
enunciated in the UDHR and the ICCPR. universal and equal suffrage and shall be
held by secret ballot, guaranteeing the
free expression of the will of the electors;
The principle of non-discrimination is laid out in
Article 26 of the ICCPR, as follows:
(c) To have access, on general terms of
equality, to public service in his country.
Article 26
As stated by the CHR in its Comment-in-
All persons are equal before the law and are
Intervention, the scope of the right to electoral
entitled without any discrimination to the equal participation is elaborated by the Human Rights
protection of the law. In this respect, the law shall Committee in its General Comment No. 25
prohibit any discrimination and guarantee to all
(Participation in Public Affairs and the Right to
persons equal and effective protection against
Vote) as follows:
discrimination on any ground such as race,
colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or 1. Article 25 of the Covenant recognizes and
other status. protects the right of every citizen to take part in
the conduct of public affairs, the right to vote and
to be elected and the right to have access to
In this context, the principle of non-discrimination
public service. Whatever form of constitution or
requires that laws of general application relating
government is in force, the Covenant requires
to elections be applied equally to all persons, States to adopt such legislative and other
regardless of sexual orientation. Although sexual measures as may be necessary to ensure that
orientation is not specifically enumerated as a
citizens have an effective opportunity to enjoy the
status or ratio for discrimination in Article 26 of the
rights it protects. Article 25 lies at the core of
ICCPR, the ICCPR Human Rights Committee
democratic government based on the consent of
has opined that the reference to "sex" in Article
the people and in conformity with the principles of
26 should be construed to include "sexual the Covenant.
orientation."48Additionally, a variety of United
Nations bodies have declared discrimination on
the basis of sexual orientation to be prohibited xxxx
under various international agreements.49
15. The effective implementation of the right and
The UDHR provides: the opportunity to stand for elective office ensures
that persons entitled to vote have a free choice of Using even the most liberal of lenses,
candidates. Any restrictions on the right to stand these Yogyakarta Principles, consisting of a
for election, such as minimum age, must be declaration formulated by various international
justifiable on objective and reasonable criteria. law professors, are – at best – de lege ferenda –
Persons who are otherwise eligible to stand for and do not constitute binding obligations on the
election should not be excluded by unreasonable Philippines. Indeed, so much of contemporary
or discriminatory requirements such as international law is characterized by the "soft law"
education, residence or descent, or by reason of nomenclature, i.e., international law is full of
political affiliation. No person should suffer principles that promote international cooperation,
discrimination or disadvantage of any kind harmony, and respect for human rights, most of
because of that person's candidacy. States which amount to no more than well-meaning
parties should indicate and explain the legislative desires, without the support of either State
provisions which exclude any group or category practice or opinio juris.53
of persons from elective office.50
As a final note, we cannot help but observe that
We stress, however, that although this Court the social issues presented by this case are
stands willing to assume the responsibility of emotionally charged, societal attitudes are in flux,
giving effect to the Philippines’ international law even the psychiatric and religious communities
obligations, the blanket invocation of international are divided in opinion. This Court’s role is not to
law is not the panacea for all social ills. We refer impose its own view of acceptable behavior.
now to the petitioner’s invocation of the Rather, it is to apply the Constitution and laws as
Yogyakarta Principles (the Application of best as it can, uninfluenced by public opinion, and
International Human Rights Law In Relation to confident in the knowledge that our democracy is
Sexual Orientation and Gender Identity),51 which resilient enough to withstand vigorous debate.
petitioner declares to reflect binding principles of
international law. WHEREFORE, the Petition is
hereby GRANTED. The Resolutions of the
At this time, we are not prepared to declare that Commission on Elections dated November 11,
these Yogyakarta Principles contain norms that 2009 and December 16, 2009 in SPP No. 09-228
are obligatory on the Philippines. There are (PL) are hereby SET ASIDE. The Commission on
declarations and obligations outlined in said Elections is directed to GRANT petitioner’s
Principles which are not reflective of the current application for party-list accreditation.
state of international law, and do not find basis in
any of the sources of international law SO ORDERED.
enumerated under Article 38(1) of the Statute of
the International Court of Justice.52 Petitioner has
not undertaken any objective and rigorous
analysis of these alleged principles of
international law to ascertain their true status.

We also hasten to add that not everything that

society – or a certain segment of society – wants
or demands is automatically a human right. This
is not an arbitrary human intervention that may be
added to or subtracted from at will. It is
unfortunate that much of what passes for human
rights today is a much broader context of needs
that identifies many social desires as rights in
order to further claims that international law
obliges states to sanction these innovations. This
has the effect of diluting real human rights, and is
a result of the notion that if "wants" are couched
in "rights" language, then they are no longer
controversial.1avvphi1