Aquino Vs Enrile

Republic of the PhilippinesSUPREME COURTManila
EN BANC

G.R. No. L-35546 September 17, 1974
IN TE M!TTER O" TE PETITION "OR !#E!S CORPUS O" #ENIGNO S.
!$UINO, %R., R!MON MITR!, %R., "R!NCISCO RO&RIGO, !N& N!POLEON
R!M!, petitioners, vs.ON %U!N PONCE ENRILE, SECRET!R' O" N!TION!L
&E"ENSE( GEN. ROMEO ESPINO, CIE" O" ST!"", !RME& "ORCES O" TE
PILIPPINES( !N& GEN. "I&EL ). R!MOS, CIE", PILIPPINE
CONST!#UL!R', respondents.
G.R. No. L-3553* September 17, 1974
IN TE M!TTER O" TE PETITION "OR !#E!S CORPUS O" %O!$UIN P.
ROCES, TEO&ORO M. LOCSIN, SR., ROL!N&O "!&UL, ROS!LIN! G!L!NG,
GO ENG GU!N, M!+IMO ). SOLI)EN, REN!TO CONST!NTINO, !N& LUIS
R. M!URICIO, petitioners, vs.TE SECRET!R' O" N!TION!L &E"ENSE( TE
CIE" O" ST!"", !RME& "ORCES O" TE PILIPPINES( TE CIE",
PILIPPINE CONST!#UL!R', et al., respondents.
IN TE M!TTER O" TE PETITION "OR !#E!S CORPUS O" %OSE ,.
&IO-NO, C!RMEN I. &IO-NO, .1 petitioner, vs.%U!N PONCE ENRILE, TE
SECRET!R' O" N!TION!L &E"ENSE( ROMEO ESPINO, TE CIE" O"
ST!"", !RME& "ORCES O" TE PILIPPINES. respondents.
G.R. No. L-3554/ September 17, 1974
M!+IMO ). SOLI)EN, N!POLEON G. R!M!, !N& %OSE M!RI )ELE0,
petitioners, vs.ON. %U!N PONCE ENRILE, SECRET!R' O" N!TION!L
&E"ENSE( ON. "R!NCISCO T!T!&, PRESS SECRET!R'( !N& GEN. "I&EL
). R!MOS, CIE", PILIPPINE CONST!#UL!R', respondents.
G.R. No. L-35547 September 17, 1974 .1
ENRI$UE )OLT!IRE G!RCI! II, petitioner, vs.#RIG. GEN. "I&EL R!MOS,
CIE", PILIPPINE CONST!#UL!R'( GEN. ROMEO ESPINO, CIE" O"
ST!"", !RME& "ORCES O" TE PILIPPINES( !N& ON. %U!N PONCE
ENRILE, SECRET!R' O" N!TION!L &E"ENSE, respondents.
IN TE M!TTER O" TE PETITION "OR !#E!S CORPUS O" )ERONIC! L.
'U'ITUNG !N& T!N CIN I!N, petitioners, vs.%U!N PONCE ENRILE,
SECRET!R' O" N!TION!L &E"ENSE( LIEUT. GEN. ROMEO ESPINO, CIE"
O" ST!"", !RME& "ORCES O" TE PILIPPINES( !N& #RIG. GEN. "I&EL
). R!MOS, CIE" O" TE PILIPPINE CONST!#UL!R', respondents.
IN TE M!TTER O" TE PETITION "OR !#E!S CORPUS O" !M!N&O
&ORONIL! %U!N L. MERC!&O, ERN!N&O L. !#!'!, ERNESTO
GR!N!&!, LUIS &. #ELTR!N, T!N CIN I!N, #REN GUI!O, RU#EN
CUSIP!G, RO#ERTO OR&O2E0, M!NUEL !LM!RIO !N& ,ILLIE #!UN,
petitioners, vs.ON. %U!N PONCE ENRILE, SECRET!R' O" N!TION!L
&E"ENSE( LIEUT. GEN. ROMEO ESPINO, CIE" O" ST!"", !RME& "ORCES
O" TE PILIPPINES( !N& #RIG. GEN. "I&EL ). R!MOS, CIE",
PILIPPINE CONST!#UL!R', respondents.
G.R. No. L-35571 September 17, 1974. .3
IN TE M!TTER O" TE PETITION "OR !#E!S CORPUS O" #REN 0.
GUI!O, TERESIT! M. GUI!O, petitioner, vs.%U!N PONCE ENRILE, TE
SECRET!R' O" N!TION!L &E"ENSE( LT. GEN. ROMEO ESPINO, CIE" O"
ST!"" O" TE !RME& "ORCES O" TE PILIPPINES3 !N& #RIG. GEN.
"I&EL ). R!MOS, CIE" O" TE PILIPPINE CONST!#UL!R',
respondents.
ERNESTO RON&ON, petitioner, vs.ON. %U!N PONCE ENRILE, SECRET!R'
O" N!TION!L &E"ENSE( GEN. "I&EL ). R!MOS, CIE", PILIPPINE
CONST!#UL!R'( !N& M!%OR RO&UL"O MI!N!, respondents.

M!-!LINT!L, C.J.:p
These cases are all petitions for habeas corpus, the petitioners having been
arrested and detained by the ilitary by virtue of the President!s Proclaation
No. "#$", dated %epteber &", "'(&.
At the outset a )ord of clarification is in order. This is not the decision of the
Court in the sense that a decision represents a consensus of the re*uired a+ority
of its ebers not only on the +udgent itself but also on the rationali,ation of
the issues and the conclusions arrived at. -n the final result the vote is practically
unanious. this is a stateent of y individual opinion as )ell as a suary of
the voting on the a+or issues. /hy no particular 0ustice has been designated to
)rite +ust one opinion for the entire Court )ill presently be e1plained.
At one point during our deliberations on these cases it )as suggested that as
Chief 0ustice 2 should )rite that opinion. The ipracticability of the suggestion
shortly becae apparent for a nuber of reasons, only t)o of )hich need be
entioned. 3irst, the discussions, as they began to touch on particular issues,
revealed a lac4 of agreeent aong the 0ustices as to )hether soe of those
issues should be ta4en up although it )as not necessary to do so, they being
erely convenient for the purpose of ventilating ve1ing *uestions of public
interest, or )hether the decision should be liited to those issues )hich are really
aterial and decisive in these cases. %iilarly, there )as no agreeent as to the
anner the issues should be treated and developed. The sae destination )ould
be reached, so to spea4, but through different routes and by eans of different
vehicles of approach. The )riting of separate opinions by individual 0ustices )as
thus unavoidable, and understandably so for still another reason, naely, that
although little overt reference to it )as ade at the tie, the future verdict of
history )as very uch a factor in the thin4ing of the ebers, no other case of
such transcendental significance to the life of the nation having before confronted
this Court. %econd 5 and this to e )as the insuperable obstacle 5 2 )as and
a of the opinion, )hich )as shared by si1 other 0ustices
1
at the tie the
*uestion )as voted upon, that petitioner 0ose /. 6io4no!s otion of 6eceber
&$, "'(7 to )ithdra) his petition 89.R. No. :;7<<7'= should be granted, and
therefore 2 )as in no position to set do)n the ruling of the Court on each of the
arguents raised by hi, e1cept indirectly, insofar as they had been raised
li4e)ise in the other cases.
2t should be e1plained at this point that )hen the Court voted on 6io4no!s otion
to )ithdra) his petition he )as still under detention )ithout charges, and
continued to reain so up to the tie the separate opinions of the individual
0ustices )ere put in final for preparatory to their proulgation on %epteber
"&, )hich )as the last day of 0ustice >aldivars tenure in the Court.
1
Before they
could be proulgated, ho)ever, a a+or developent supervened? petitioner
6io4no )as released by the President in the orning of %epteber "", "'(@. 2n
vie) thereof all the ebers of this Court e1cept 0ustice Castro agreed to
disiss 6io4no!s petition on the ground that it had becoe oot, )ith those )ho
originally voted to grant the otion for )ithdra)al citing said otion as an
additional ground for such disissal.
The petitioners in the other cases, e1cept Benigno A*uino, 0r. 89.R. No. :;7<<@A=,
either have been peritted to )ithdra) their petitions or have been released fro
detention sub+ect to certain restrictions.
3
2n the case of A*uino, foral charges of
urder, subversion and illegal possession of firears )ere lodged against hi
)ith a Military Coission on August "", "'(7. and on the follo)ing August &7
he challenged the +urisdiction of said Coission as )ell as his continued
detention by virtue of those charges in a petition for certiorari and prohibition
filed in this Court 89.R. No. :;7(7A@=. The *uestion cae up as to )hether or not
A*uino!s petition for habeas corpus should be disissed on the ground that the
case as to hi should ore appropriately be resolved in this ne) petition. -f the
t)elve 0ustices, ho)ever, eight voted against such disissal and chose to
consider the case on the erits.
4
-n 6io4no!s otion to )ithdra) his petition 2 voted in favor of granting it for t)o
reasons. 2n the first place such )ithdra)al )ould not easculate the decisive and
fundaental issues of public interest that deanded to be resolved, for they )ere
also raised in the other cases )hich still reained pending. %econdly, since it )as
this petitioner!s personal liberty that )as at sta4e, 2 believed he had the right to
renounce the application for habeas corpus he initiated. Even if that right )ere
not absolute 2 still )ould respect his choice to reove the case fro this Court!s
cogni,ance, regardless of the fact that 2 disagreed )ith any of his reasons for so
doing. 2 could not escape a sense of irony in this Court!s turning do)n the plea to
)ithdra) on the ground, so he alleges aong others, that this is no longer the
Court to )hich he originally applied for relief because its ebers have ta4en
ne) oaths of office under the "'(7 Constitution, and then ruling adversely to hi
on the erits of his petition.
2t is true that soe of the stateents in the otion are an affront to the dignity
of this Court and therefore should not be allo)ed to pass unans)ered. Any
ans)er, ho)ever, )ould not be foreclosed by allo)ing the )ithdra)al. 3or y
part, since ost of those stateents are of a sub+ective character, being atters
of personal belief and opinion, 2 see no point in refuting the in these cases.
2ndeed y ipression is that they )ere beaed less at this Court than at the
)orld outside and designed to a4e political capital of his personal situation, as
the publicity given to the by soe segents of the foreign press and by local
underground propaganda ne)s sheets subse*uently confired. 2t )as in fact
fro that perspective that 2 deeed it proper to respond in 4ind, that is, fro a
non;+udicial foru, in an address 2 delivered on 3ebruary "', "'(@ before the
:A/A%2A, the Philippine Bar Association and the Philippine :a)yers! Association.
0ustice Teehan4ee, it ay be stated, is of the opinion that a siple a+ority of
seven votes out of t)elve is legally sufficient to a4e the )ithdra)al of 6io4no!s
petition effective, on the theory that the re*uireent of a a+ority of eight votes
applies only to a decision on the erits.
2n any event, as it turned out, after petitioner 6io4no )as released by the
President on %epteber "" all the ebers of this Court e1cept 0ustice Castro
)ere agreed that his petition had becoe oot and therefore should no longer be
considered on the erits. This not)ithstanding, soe of the opinions of the
individual ebers, particularly 0ustices Castro and Teehan4ee, should be ta4en
in the tie setting in )hich they )ere prepared, that is, before the order for the
release of 6io4no )as issued.
The Cases.
The events )hich for the bac4ground of these nine petitions are related, either
briefly or in great detail, in the separate opinions filed by the individual 0ustices.
The petitioners )ere arrested and held pursuant to 9eneral -rder No. & of the
President 8%epteber &&, "'(&=, Bfor being participants or for having given aid
and cofort in the conspiracy to sei,e political and state po)er in the country and
to ta4e over the 9overnent by force ...B
9eneral -rder No. & )as issued by the President in the e1ercise of the po)ers he
assued by virtue of Proclaation No. "#$" 8%epteber &", "'(&= placing the
entire country under artial la). The portions of the proclaation iediately in
point read as follo)s?
111 111 111
N-/, TCERE3-RE, 2, 3ER62NAN6 E. MARC-%, President of the Philippines by
virtue of the po)ers vested upon e by Article D22, %ection "#, Paragraph 8&= of
the Constitution, do hereby place the entire Philippines as defined in Article 2,
%ection " of the Constitution under artial la) and, in y capacity as their
Coander;in;Chief, do hereby coand the Ared 3orces of the Philippines, to
aintain la) and order throughout the Philippines, prevent or suppress all fors
of la)less violence as )ell as any act of insurrection or rebellion and to enforce
obedience to all the la)s and decrees, orders and regulations proulgated by e
personally or upon y direction.
2n addition, 2 do hereby order that all persons presently detained, as )ell as all
others )ho ay hereafter be siilarly detained for the cries of insurrection or
rebellion, and all other cries and offenses coitted in furtherance or on the
occasion thereof, or incident thereto, or in connection there)ith, for cries
against national security and the la) of nations, cries against public order,
cries involving usurpation of authority, ran4, title and iproper use of naes,
unifors and insignia, cries coitted by public officers, and for such other
cries as )ill be enuerated in orders that 2 shall subse*uently proulgate, as
)ell as cries as a conse*uence of any violation of any decree, order or
regulation proulgated by e personally or proulgated upon y direction shall
be 4ept under detention until other)ise ordered released by e or by y duly
designated representative.
The provision of the "'7< Constitution referred to in the proclaation reads? Bthe
President shall be coander;in;chief of all ared forces of the Philippines and,
)henever it becoes necessary, he ay call out such ared forces to prevent or
suppress la)less violence, invasion, insurrection, or rebellion. 2n case of invasion,
insurrection, or rebellion, or iinent danger thereof, )hen the public safety
re*uires it, he ay suspend the privilege of the )rit of habeas corpus, or place
the Philippines or any part thereof under artial la).B
". The first a+or issue raised by the parties is )hether this Court ay in*uire
into the validity of Proclaation No. "#$". %tated ore concretely, is the
e1istence of conditions claied to +ustify the e1ercise of the po)er to declare
artial la) sub+ect to +udicial in*uiryE 2s the *uestion political or +usticiable in
characterE
0ustices Ma4asiar, Antonio, Esguerra, 3ernande, and A*uino hold that the
*uestion is political and therefore its deterination is beyond the +urisdiction of
this Court. The reasons are given at length in the separate opinions they have
respectively signed. 0ustice 3ernande, adds that as a eber of the Convention
that drafted the "'(7 Constitution he believes that Bthe Convention put an
imprimatur on the proposition that the validity of a artial la) proclaation and
its continuation is political and non;+usticiable in character.B
0ustice Barredo, on the other hand, believes that political *uestions are not per se
beyond the Court!s +urisdiction, the +udicial po)er vested in it by the Constitution
being plenary and all;ebracing, but that as a atter of policy iplicit in the
Constitution itself the Court should abstain fro interfering )ith the E1ecutive!s
Proclaation, dealing as it does )ith national security, for )hich the responsibility
is vested by the charter in hi alone. But the Court should act, 0ustice Barredo
opines, )hen its abstention fro acting )ould result in anifest and palpable
transgression of the Constitution proven by facts of +udicial notice, no reception of
evidence being conteplated for purposes of such +udicial action.
2t ay be noted that the postulate of non;+usticiability as discussed in those
opinions involves disparate ethods of approach. 0ustice Esguerra aintains that
the findings of the President on the e1istence of the grounds for the declaration of
artial la) are final and conclusive upon the Courts. Ce disagrees veheently
)ith the ruling in Lansang vs. Garcia, @& %CRA @@$, 6eceber "", "'(", and
advocates a return to Barcelon vs. Baker, < Phil. $( 8"'#<=, and Montenegro vs.
Castaeda, '" Phil. $$& 8"'<&=. 0ustice Barredo, for his part, holds that :ansang
need not be overturned, indeed does not control in these cases. Ce dra)s a
distinction bet)een the po)er of the President to suspend the privilege of the )rit
of habeas corpus, )hich )as the issue in :ansang, and his po)er to proclai
artial la), calling attention to the fact that )hile the Bill of Rights prohibits
suspension of the privilege e1cept in the instances specified therein, it places no
such prohibition or *ualification )ith respect to the declaration of artial la).
0ustice Antonio, )ith )ho 0ustices Ma4asiar, 3ernande, and A*uino concur, finds
that there is no dispute as to the e1istence of a state of rebellion in the country,
and on that preise ephasi,es the factor of necessity for the e1ercise by the
President of his po)er under the Constitution to declare artial la), holding that
the decision as to )hether or not there is such necessity is wholly confided to hi
and therefore is not sub+ect to +udicial in*uiry, his responsibility being directly to
the people.
Arrayed on the side of +usticiability are 0ustices Castro, 3ernando, Teehan4ee and
MuFo, Pala. They hold that the constitutional sufficiency of the proclaation
ay be in*uired into by the Court, and )ould thus apply the principle laid do)n in
:ansang although that case refers to the po)er of the President to suspend the
privilege of the )rit of habeas corpus. The recognition of +usticiability accorded to
the *uestion in :ansang, it should be ephasi,ed, is there e1pressly distinguished
fro the po)er of +udicial revie) in ordinary civil or criinal cases, and is liited
to ascertaining Berely )hether he 8the President= has gone beyond the
constitutional liits of his +urisdiction, not to e1ercise the po)er vested in hi or
to deterine the )isdo of his act.B The test is not )hether the President!s
decision is correct but )hether, in suspending the )rit, he did or did not act
arbitrarily. Applying this test, the finding by the 0ustices +ust entioned is that
there )as no arbitrariness in the President!s proclaation of artial la) pursuant
to the "'7< Constitution. and 2 concur )ith the in that finding. The factual
bases for the suspension of the privilege of the )rit of habeas corpus, particularly
in regard to the e1istence of a state of rebellion in the country, had not
disappeared, indeed had been e1acerbated, as events shortly before said
proclaation clearly deonstrated. -n this Point the Court is practically
unanious. 0ustice Teehan4ee erely refrained fro discussing it.
2nsofar as y o)n opinion is concerned the cleavage in the Court on the issue of
+usticiability is of not uch ore than acadeic interest for purposes of arriving
at a +udgent. 2 a not unduly e1ercised by Aericas decisions on the sub+ect
)ritten in another age and political clie, or by theories of foreign authors in
political science. The present state of artial la) in the Philippines is peculiarly
3ilipino and fits into no traditional patterns or +udicial precedents.
2n the first place 2 a convinced 8as are the other 0ustices=, )ithout need of
receiving evidence as in an ordinary adversary court proceeding, that a state of
rebellion e1isted in the country )hen Proclaation No. "#$" )as issued. 2t )as a
atter of conteporary history )ithin the cogni,ance not only of the courts but of
all observant people residing here at the tie. Many of the facts and events
recited in detail in the different B/hereasesB of the proclaation are of coon
4no)ledge. The state of rebellion continues up to the present. The arguent that
)hile ared hostilities go on in several provinces in Mindanao there are none in
other regions e1cept in isolated poc4ets in :u,on, and that therefore there is no
need to aintain artial la) all over the country, ignores the sophisticated nature
and raifications of rebellion in a odern setting. 2t does not consist siply of
ared clashes bet)een organi,ed and identifiable groups on fields of their o)n
choosing. 2t includes subversion of the ost subtle 4ind, necessarily clandestine
and operating precisely )here there is no actual fighting. Gnderground
propaganda, through printed ne)s sheets or ruors disseinated in )hispers.
recruitent of ared and ideological adherents, raising of funds, procureent of
ars and aterial, fifth;colun activities including sabotage and intelligence 5
all these are part of the rebellion )hich by their nature are usually conducted far
fro the battle fronts. They cannot be counteracted effectively unless recogni,ed
and dealt )ith in that conte1t.
%econdly, y vie), )hich coincides )ith that of other ebers of the Court as
stated in their opinions, is that the *uestion of validity of Proclaation No. "#$"
has been foreclosed by the transitory provision of the "'(7 Constitution HArt.
ID22, %ec. 78&=J that Ball proclaations, orders, decrees, instructions, and acts
proulgated, issued, or done by the incubent President shall be part of the la)
of the land and shall reain valid, legal, binding and effective even after ... the
ratification of this Constitution ...B To be sure, there is an attept in these cases
to resuscitate the issue of the effectivity of the ne) Constitution. All that,
ho)ever, is behind us no). The *uestion has been laid to rest by our decision in
Javellana vs. !ecutive "ecretary 8:;7A"@&, <# %CRA 7#, March 7", "'(7=, and of
course by the e1isting political realities both in the conduct of national affairs and
in our relations )ith other countries.
-n the effect of the transitory provision 0ustice MuFo, Pala )ithholds her assent
to any s)eeping stateent that the sae in effect validated, in the constitutional
sense, all Bsuch proclaations, decrees, instructions, and acts proulgated,
issued, or done by the incubent President.B All that she concedes is that the
transitory provision erely gives the Bthe imprimatur of a la) but not of a
constitutional andate,B and as such therefore Bare sub+ect to +udicial revie)
)hen proper under the Constitution.
3inally, the political;or;+usticiable *uestion controversy indeed, any in*uiry by this
Court in the present cases into the constitutional sufficiency of the factual bases
for the proclaation of artial la) 5 has becoe oot and purposeless as a
conse*uence of the general referendu of 0uly &(;&$, "'(7. The *uestion
propounded to the voters )as? BGnder the 8"'(7= Constitution, the President, if
he so desires, can continue in office beyond "'(7. 6o you )ant President Marcos
to continue beyond "'(7 and finish the refors he initiated under Martial :a)EB
The over)heling a+ority of those )ho cast their ballots, including citi,ens
bet)een "< and "$ years, voted affiratively on the proposal. The *uestion )as
thereby reoved fro the area of presidential po)er under the Constitution and
transferred to the seat of sovereignty itself. /hatever ay be the nature of the
e1ercise of that po)er by the President in the beginning 5 )hether or not purely
political and therefore non;+usticiable 5 this Court is precluded fro applying its
+udicial yardstic4 to the act of the sovereign.
&. /ith respect to the petitioners )ho have been released fro detention but
have not )ithdra)n their petitions because they are still sub+ect to certain
restrictions,
5
the ruling of the Court is that the petitions should be disissed. The
po)er to detain persons even )ithout charges for acts related to the situation
)hich +ustifies the proclaation of artial la), such as the e1istence of a state of
rebellion, necessarily iplies the po)er 8sub+ect, in the opinion of the 0ustices
)ho consider :ansang applicable, to the sae test of arbitrariness laid do)n
therein=, to ipose upon the released detainees conditions or restrictions )hich
are gerane to and necessary to carry out the purposes of the proclaation.
0ustice 3ernando, ho)ever, Bis for easing the restrictions on the right to travel of
petitioner RodrigoB and others siilarly situated and so to this e1tent dissents
fro the ruling of the a+ority. )hile 0ustice Teehan4ee believes that those
restrictions do not constitute deprivation of physical liberty )ithin the eaning of
the constitutional provision on the privilege of the )rit of habeas corpus.
2t need only be added that, to y ind, iplicit in a state of artial la) is the
suspension of the said privilege )ith respect to persons arrested or detained for
acts related to the basic ob+ective of the proclaation, )hich is to suppress
invasion, insurrection, or rebellion, or to safeguard public safety against iinent
danger thereof. The preservation of society and national survival ta4e precedence.
-n this particular point, that is, that the proclaation of artial la) autoatically
suspends the privilege of the )rit as to the persons referred to, the Court is
practically unanious. 0ustice 3ernando, ho)ever, says that to hi that is still an
open *uestion. and 0ustice MuFo, Pala *ualifiedly dissents fro the a+ority in
her separate opinion, but for the reasons she discusses therein votes for the
disissal of the petitions.
2N D2E/ -3 A:: TCE 3-RE9-2N9 AN6 3-R TCE REA%-N% %TATE6 BK TCE
MEMBER% -3 TCE C-GRT 2N TCE2R %EPARATE -P2N2-N%, 0G69MENT 2% CEREBK
REN6ERE6 62%M2%%2N9 A:: TCE PET2T2-N%, EICEPT TC-%E /C2CC CADE BEEN
PRED2-G%:K /2TC6RA/N BK TCE RE%PECT2DE PET2T2-NER% /2TC TCE
APPR-DA: -3 TC2% C-GRT, A% CERE2NAB-DE MENT2-NE6. N- C-%T%.
Makasiar# sguerra# $ernande%# Muo% &alma and '(uino# JJ.# concur.
&re)atory *ote
8)ritten on %epteber "&, "'(@=
My separate opinion belo) in the nine cases at bar )as handed to Chief 0ustice
Luerube C. Ma4alintal on Monday, %epteber ', "'(@, for proulgation 8together
)ith the individual opinions of the Chief 0ustice and the other 0ustices= on
%epteber "& 8today= as agreed upon by the Court.
-n %epteber "" the petitioner 0ose /. 6io4no )as released fro ilitary
custody. The iplications of this supervening event )ere lengthily discussed by
the Court in its deliberations in the afternoon. Eleven ebers thereafter voted
to disiss 6io4no!s petition as being Boot and acadeic.B + cast the lone
dissenting vote. Although perhaps in the strictest technical sense that accords
)ith conventional legal )isdo, the petition has becoe BootB because 6io4no
has been freed fro physical confineent, 2 a nonetheless persuaded that the
grave issues of la) he has posed and the highly insulting and derogatory
iputations ade by hi against the Court and its ebers constitute an
inescapable residue of *uestions of transcendental diension to the entire nation
and its destiny and to the future of the Court 5 *uestions that cannot and should
not be allo)ed to reain unresolved and unans)ered.
2 have thus not found it needful nor even advisable to recast y separate opinion
or change a )ord of it.
2 invite the reader to assess y 7$;page separate opinion )hich iediately
follo)s, in the light of the foregoing conte1t and factual setting.
3RE6 RG2> CA%TR- Associate 0ustice.
"&','T -&+*+-* 8)ritten before %ept. ', "'(@= :;7<<7', :;7<<@A, :;7<<7$, :;
7<<@#, :;7<<A(, :;7<<<A, :;7<<(", :;7<<(7, and :;7<<@(

Sep4r4te Op565o67

C!STRO, J.:
2
These nine cases are applications for )rits of habeas corpus. The petitions aver in
substance that on %epteber &", "'(& the President of the Philippines placed the
country under artial la) 8Proclaation "#$"=. that on various dates fro
%epteber && to %epteber 7#, "'(&, the petitioners or the persons in )hose
behalf the applications )ere ade )ere arrested by the ilitary authorities and
detained, soe at 3ort Bonifacio in Ma4ati, Ri,al, others at Cap Aguinaldo and
still others at Cap Crae, both in Lue,on City. and that the arrest and
detention of the petitioners )ere illegal, having been effected )ithout a valid
order of a copetent court of +ustice.
/rits of habeas corpu% )ere issued by the Court directing the respondents
%ecretary of National 6efense, Chief of %taff of the Ared 3orces of the
Philippines, and Chief of the Philippine Constabulary, to produce the bodies of the
petitioners in Court on designated dates and to a4e returns to the )rits. 2n due
tie the respondents, through the %olicitor 9eneral, filed their returns to the
)rits and ans)ers to the petitions. Aditting that the petitioners had been
arrested and detained, the respondents nevertheless +ustified such arrest and
detention as having been legally ordered by the President of the Philippines
pursuant to his proclaation of artial la), the petitioners being regarded as
participants or as having given aid and cofort Bin the conspiracy to sei,e political
and state po)er and to ta4e over the governent by force.B The respondents
traversed the petitioners! contention that their arrest and detention )ere
unconstitutional.
Cearings )ere held on %epteber &A and &' and -ctober A, "'(&, at )hich the
petitioners )ere produced in Court. Thereafter the parties filed eoranda.
Mean)hile, soe of the petitioners, )ith leave of Court, )ithdre) their petitions.
1
others, )ithout doing so, )ere subse*uently released fro custody under
certain restrictive conditions.
1
Enri*ue Doltaire 9arcia 22, the sole petitioner in :;
7<<@( and one of those released, having died shortly after his release, the action
)as deeed abated as to hi.
As of this date only 0ose /. 6io4no, in )hose behalf the petition in :;7<<7' )as
filed, and Benigno %. A*uino, 0r. in :7<<@A, are still in ilitary custody.
-n August &7, "'(7 the petitioner A*uino filed an action for certiorari and
prohibition )ith this Court alleging that on August "", "'(7 charges of urder,
subversion and illegal possession of firears )ere filed against hi )ith a ilitary
coission. that his trial by the ilitary court )hich )as to be held on August
&(, &' and 7", "'(7 )as illegal because the proclaation of artial la) )as
unconstitutional. and that he could not e1pect a fair trial because the President of
the Philippines, having pre+udged his case, could reverse any +udgent of
ac*uittal by the ilitary court and sentence hi to death. That action, doc4eted
as :;7(7A@ and entitled BBenigno ". '(uino# Jr. vs. Military Commission No. &,B is
still pending consideration and decision.
-n the other hand, 0ose /. 6io4no, on 6eceber &$, "'(7, filed a otion to
)ithdra) the petition filed in his behalf, iputing delay in the disposition of his
case, and asseverating that because of the decision of the Court in the
Ratification Cases
3
and the action of the ebers of the Court in ta4ing an oath
to support the ne) Constitution, he cannot Breasonably e1pect to get +ustice in
this case.B The respondents oppose the otion on the grounds that there is a
public interest in the decision of these cases and that the reasons given for the
otion to )ithdra) are untrue, unfair and conteptuous.
22
The threshold *uestion is )hether to allo) the )ithdra)al of the petition in :;
7<<7' filed in behalf of 6io4no. 2n his letter to his counsel, )hich is the basis of
the otion to )ithdra), 6io4no states the follo)ing considerations? )irst, the
delay in the disposition of his case. second, the disissal of the petitions in the
Ratification Cases, contrary to the Court!s ruling that the "'(7 Constitution )as
not validly ratified. and third, the action of the ebers of the Court in ta4ing an
oath of allegiance to the ne) Constitution. 6io4no asserts that Ba conscience that
allo)s a an to rot behind bars for ore than one year and three onths )ithout
trial 5 of course, )ithout any charges at all 5 is a conscience that has becoe
stunted, if not stultifiedB and that Bin s)earing to support the ne) !Constitution,!
the five ebers of the Court )ho had held that it had not been validly ratified,
have not fulfilled our e1pectations.B Ce goes on to say? B2 do not blae the. 2
do not 4no) )hat 2 )ould have done in their place. But, at the sae tie, 2 can
not continue to entrust y case to the. and 2 have becoe thoroughly
convinced that our *uest for +ustice in y case is futile.B
As already noted, the %olicitor 9eneral, in behalf of the respondents, opposes the
)ithdra)al of the petition on the ground of public interest, adding that the otion
to )ithdra) cannot be granted by the Court )ithout in effect aditting the
Bunfair, untrue and conteptuousB stateents contained therein.
/ithout passing on the liability of any party in this case for conteptuous
stateents ade, the Court 8by a vote of < to (= denied the otion.
2 voted for the denial of the otion to )ithdra) for inescapable reasons that 2
no) proceed to e1pound.
The general rule is that in the absence of a statute e1pressly or ipliedly
prohibiting the )ithdra)al of an action, the party bringing such action ay
disiss it even )ithout the consent of the defendant or respondent )here the
latter )ill not be pre+udiced, although it ay be necessary to obtain leave of
court. But there are recogni,ed e1ceptions? )hen the public interest or (uestions
o) public importance are involved.
5
3or e1aple, the fact that a final
deterination of a *uestion involved in an action is needed or )ill be useful as a
guide for the conduct of public officers or tribunals is a sufficient reason for
retaining an action )hich )ould or should other)ise be disissed. :i4e)ise,
appeals ay be retained if the *uestions involved are li4ely to arise fre*uently in
the future unless they are settled by a court of last resort.
Thus, in Gon%ales vs. Commission on lections,
6
an action for declaratory
+udgent ipugning the validity of Republic Act No. @$$# )hich prohibits the
early noination of candidates for elective offices and early election capaigns or
partisan political activities becae oot by reason of the holding of the "'A(
elections before decision could be rendered. Nonetheless the Court treated the
petition as one for prohibition and rendered +udgent in vie) of Bthe paraount
public interest and the undeniable necessity for a ruling, the national elections Hof
"'A'J being barely si1 onths a)ay.
2n .rivenko vs. ,egister o) /eeds,
7
the Court denied the petition to )ithdra), an
appeal in vie) of the public iportance of the *uestions involved, and lest Bthe
constitutional andate Hproscribing the sale of lands to aliensJ ... be ignored or
isconceived )ith all the harful conse*uences ... upon the national econoy.B
The petitioner 6io4no has ade allegations to the effect that the President has
BarrogatedB unto hiself the po)ers of governent by BusurpingB the po)ers of
Congress and BoustingB the courts of their +urisdiction, thus establishing in this
country a Bvirtual dictatorship.B 6io4no and his Counsel have in fact stressed that
the present trend of events in this country since the proclaation of artial la)
bears a reseblance to the trend of events that led to the establishent of a
dictatorship in 9erany under Citler. There is thus a profound public interest in
the resolution of the *uestions raised in the cases at bar, *uestions that, in the
phrase of Chief 0ustice Marshall in Marbury vs. Madison,
*
are Bdeeply interesting
to the nation.B 2 apprehend that in vie) of the iport of the allegations ade by
6io4no and his counsel, incalculable har or, in the very least, great disservice
ay be caused to the national interest if these cases are not decided on the
erits. As the %olicitor 9eneral has observed,B petitioner!s H6io4no!sJ arrest and
detention have been so e1ploited in the hate capaign that the only )ay to
protect the integrity of the governent is to insist on a decision of this case in the
foru in )hich the petitioner had chosen to bring the. -ther)ise, li4e festering
sores, the issues stirred up by this litigation )ill continue to agitate the nation.B
Prescinding fro the policy considerations +ust discussed, 2 a gladdened that
the Court has not shunted aside )hat 2 regard as the inescapable oral
constraints in the petitioner 6io4no!s otion to )ithdra) his petition for habeas
corpus.
9
The Court repudiated the facile recourse of avoiding resolution of the
issues on the prete1t that 6io4no insists on )ithdra)ing his petition. 2t is thus not
a ere happenstance that, not)ithstanding that seven ebers of the Court are
of the vie) that 6io4no has an absolute right to )ithdra) his petition, the Court
has confronted the issues posed by hi, and no) resolves the s*uarely,
definitively and courageously. No respectable legal historian or responsible
chronicler of the nation!s destiny )ill therefore have any reason to level the
indictent that once upon a grave national crisis the Court abdicated its
constitutional prerogative of ad+udication and fors)ore the sacred trust reposed in
it as the nation!s ultiate arbiter on transcendental, far;reaching +usticiable
*uestions.
/ith respect to the reasons given for the otion to )ithdra), the Court is indful
that it has ta4en soe tie to resolve these cases. 2n e1planation let it be said
that the issues presented for resolution in these cases are of the utost gravity
and delicateness. No *uestion of the a)esoe agnitude of those here presented
has ever confronted the Court in all its history. 2 a not a)are that any other
court, e1cept possibly the Circuit Court in ! parte Merryman,
1/
has decided li4e
*uestions during the period of the eergency that called for the proclaation of
artial la).
But then in Merryman the Court there held that under the G.%. 3ederal
Constitution the President did not have po)er to suspend the privilege of the )rit
of habeas corpus. -ther)ise, )here the *uestion involved not po)er but rather
the e1ercise of po)er, courts have declined to rule against the duly lasted. As
Court 9lendon %chubert noted, the G.%. %upree Court B)as un)illing to Hdo soJ
until the )ar )as over and :incoln )as dead.B
Thus, in ! parte Milligan,
11
the decision voiding the petitioner!s trial by a ilitary
court )as not announced until 6eceber "@, "$AA, after the Civil /ar )as over.
The Civil /ar began on May 7, "$A" )ith the capture of 3ort %uter by
Confederate forces. :abdin Milligan )as charged before a ilitary coission
)ith aiding rebels, inciting insurrection, disloyal practices and violation of the la)s
of )ar. Cis trial ran fro %epteber to 6eceber "$A&. he )as convicted on
-ctober &", "$A@ and ordered e1ecuted on May "', "$A<. -n May "#, "$A< he
applied for a )rit of habeas corpus fro the Circuit Court of 2ndianapolis. -n May
"", 0ustice 6avis and 0udge Mc6onald certified that they differed in opinion and,
therefore, pursuant to the statute of "$#&, elevated their *uestions to the
%upree Court. -n 0une 7, "$A< the death sentence )as couted to life
iprisonent by President 0ohnson )ho had succeeded to the Presidency after
the assassination of :incoln. The %upree Court heard the parties! arguents for
eight days, on March <, A, (, $, ', "& and "7, and April 7, "$AA. -n 6eceber
"@, "$AA the decision of the %upree Court voiding Milligans trial )as
announced.
2n +n ,e Moyer,
11
artial rule )as proclaied in Colorado on March &7, "'#@.
Application for a )rit of habeas corpus )as filed )ith the %tate %upree Court on
April "@, "'#@, see4ing the release of Moyer )ho had been detained under the
Colorado governor!s proclaation. -n 0une A, "'#@ the coplaint )as disissed
and the petitioner )as reanded to the custody of the ilitary authorities. The
Court held that as an incident to the proclaation of artial la), the petitioner!s
arrest and detention )ere la)ful. Moyer subse*uently brought an action for
daages for his iprisonent fro March 7# to 0une "<, "'#@. The coplaint
)as disissed by the Circuit Court. -n )rit of error, the G.%. %upree Court
affired, holding that B%o long as such arrests are ade in good faith and in the
honest belief that they are needed in order to head the insurrection off, the
governor is the final +udge and cannot be sub+ected to an action after he is out of
office, on the ground that he had no reasonable ground for his belief.B
13
3inally, in /uncan vs. .ahanamoku,
14
Ca)aii )as placed under artial rule on
6eceber (, "'@", after the 0apanese snea4 attac4 on Pearl Carbor. The
petitioner 6uncan )as tried by a provost court on March &, "'@@, and found
guilty on April "7 of assault on t)o arine sentries. The other petitioner, /hite,
)as charged on August &<, "'@&, also before a provost court, )ith ebe,,ling
stoc4s belonging to another civilian. /hite and 6uncan *uestioned the po)er of
the ilitary tribunals in petitions for habeas corpus filed )ith the 6istrict Court of
Ca)aii on March "@ and April "@, "'@@, respectively. /rits )ere granted on May
&, "'@@, and after trial the 6istrict Court held the ilitary trials void and ordered
the release of 6uncan and /hite. -n -ctober &@, "'@@ the privilege of the )rit of
habeas corpus )as restored and artial la) )as terinated in Ca)aii. -n appeal,
the decision of the 6istrict Court )as reversed.
15
Certiorari )as granted by the
G.%. %upree Court on 3ebruary "&, "'@<. "A -n 3ebruary &<, "'@A the Court
held that the trials of /hite and 6uncan by the ilitary tribunals )ere void.
2n truth, as the Court in Milligan recogni,ed, its decision could not have been
ade )hile the Civil /ar lasted. 0ustice 6avis )rote?
6uring the /ic4ed Rebellion, the teper of the ties did not allo) that calness
in deliberation and discussion so necessary to a correct conclusion of a purely
+udicial *uestion. Then, considerations of safety )ere ingled )ith the e1ercise of
po)er. and feelings and interests prevailed )hich are happily terinated. No)
that the public safety is assured, this *uestion as )ell as all others, can be
discussed and decided )ithout passion or the adi1ture of an cleent not
re*uired to for a legal +udgent. /e approached the investigation of this case
fully sensible of the agnitude of the in*uiry and the of full and cautious
deliberation.
17
No doubt there is a point, although controversial, in the observation that in the
instances +ust e1ained a successful challenge )as possible only retroactively,
after the cessation of the hostilities )hich )ould under any circustances have
+ustified the +udgent of the ilitary.
1*
Nor did it offend against principle or ethics for the ebers of this Court to ta4e
an oath to support the "'(7 Constitution. After this Court declared that, )ith the
disissal of the petitions *uestioning the validity of the ratification of the ne)
Constitution, there )as Bno longer any +udicial obstacle to the ne) Constitution
being considered in force and effect,B
19
it becae the duty of the ebers of the
Court, let alone all other governent functionaries, to ta4e an oath to support the
ne) Constitution. /hile it is true that a a+ority of si1 +ustices declared that the
"'(7 Constitution )as not validly ratified, it is e*ually true that a a+ority of si1
+ustices held that the issue of its e))ectivity )as a political *uestion, )hich the
Court )as not e*uipped to deterine, depending as it did on factors for )hich the
+udicial process )as not fit to resolve. Resolution of this *uestion )as dispositive
of all the issues presented in the Ratification Cases. 2t thus becae untenable for
the ebers of the Court )ho held contrary opinions to press their opposition
beyond the decision of those cases. 3undaental respect for the rule of la)
dictated that the ebers of the Court ta4e an oath to uphold the ne)
Constitution. There is nothing in that solen oath that debases their individual
personal integrity or renders the un)orthy or incapable of doing +ustice in these
cases. Nor did the environental ilieu of their ad+uration in any anner deean
their high offices or detract fro the legitiacy of the Court as the highest
+udicial collegiu of the land.
222
3ro its Anglo;%a1on origin and throughout its slo) evolution, the concept, scope
and boundaries, application, liitations and other facets of artial la) have been
the sub+ect of isunderstanding, controversy and debate.
1/
To the legal scholar
interested in set legal principles and precise distinctions, artial la) could be a
frustrating sub+ect. -n the atter of its definition alone, it is 4no)n to have as
any definitions as there are nuerous authors and court decision s 8not to
discount the dissenting opinions= on the sub+ect. The doctrinal developent of
artial la) has relied ainly on case la),
11
and there have been relatively fe)
truly distinctive types of occasions )here artial la), being the e1traordinary
reedy that it is, has been resorted to.
2n the Philippines, the only other notable instance )hen artial la) )as declared
)as on %epteber &&, "'@@, per Proclaation No. &' proulgated by President
0ose P. :aurel. But this )as pursuant to the constitution of the short;lived
0apanese -ccupation Republic, and the event has not been 4no)n to be
productive of any +urisprudential pronounceents eanating fro the high court
of the land.
Not)ithstanding the confused state of +urisprudence on the sub+ect of artial la)
in England and in the Gnited %tates, and, conse*uently, in the Philippines, a
useful 4no)ledge of the la) on the sub+ect can fairly be had fro a study of its
historical bac4ground and its rationale, its doctrinal developent, applicable
constitutional and statutory provisions, and authoritative court decisions and
coentaries.
:egal scholars trace the genesis of artial la) to England starting fro the age of
the Tudors and the %tuarts in the "@th century )hen it )as first utili,ed for the
suppression of rebellions and disorders. 2t later cae to be eployed in the
British colonies and doinions )here its fre*uent e1ercise against British sub+ects
gave rise to the criticis that it )as being e1ploited as a )eapon to enhance
British iperialis.
11
2n the Gnited %tates, artial la) )as declared on nuerous occasions fro the
revolutionary period to the Civil /ar, and after the turn of the century. -ne of the
earliest instances in Aerican history )as the declaration of artial la) by 9en.
Andre) 0ac4son before the Battle of Ne) -rleans in "$"@. 3earing that the Ne)
-rleans legislature ight capitulate to the British, he placed the %tate under
Bstrict artial la)B and forbade the %tate legislature to convene. Martial la) )as
lifted after the Aerican victory over British ars. The Civil /ar period sa) the
declaration of artial la) on any occasions by both the Confederate and the
Gnion authorities. 2t has also been resorted to in cases of insurrection and
rebellion, as e1eplified by the /his4ey rebellion 8"('@ in Pennsylvania and
Dirginia= and the 6orr!s rebellion 8"$@& in Rhode 2sland=. Martial la) has also
been utili,ed during periods of disaster, such as the %an 3rancisco earth*ua4e and
fire of "'#A, and in industrial disputes involving violence and disorder. 2t has
li4e)ise been variously instituted to police elections, to ta4e charge of tic4et sales
at a football gae, to prevent the foreclosure of ortgages to close a race trac4.
2n an e1tree case, the governor of 9eorgia proclaied artial la) around a
governent building to e1clude fro its preises a public official )ho he )as
en+oined fro reoving.
13
At the close of the /orld /ar 2, the ter Bartial la)B )as erroneously eployed
to refer to the la) adinistered in eney territory occupied by the allied forces
pending the aristice . &" /illia /inthrop states that the earlier confusion
regarding the concept of artial la), resulting partly fro the )rong definition of
the ter by the 6u4e of /ellington )ho had said that Bit is nothing ore nor less
than the )ill of the general,B had isled even the %upree Court of the Gnited
%tates.
15
2n the leading case of ! &arte Milligan,
16
ho)ever, Chief 0ustice Chase,
in his dissenting opinion, clarified and laid do)n the classic distinctions bet)een
the types of military 0urisdiction in relation to the ters Bartial la),B Bilitary
la)B and Bilitary governent,B )hich to a great e1tent cleared the confusion in
the application of these ters.
These distinctions )ere later incorporated in the Manual for Courts;Martial of the
Gnited %tates Ary,
17
after )hich the Manual for Courts;Martial of the Ared
3orces of the Philippines, proulgated on 6eceber "(, "'7$ pursuant to
E1ecutive -rder No. "($, )as patterned. 2n essence, these distinctions are as
follo)s?
a. Military +urisdiction in relation to the ter military law is that e1ercised by a
governent Bin the e1ecution of that branch of its unicipal la) )hich regulates
its ilitary establishent.B 82n the G.%. and the Philippines, this refers principally
to the statutes )hich ebody the rules of conduct and discipline of ebers of
their respective ared forces. 2n the Philippines )e have for this purpose
Coon)ealth Act No. @#$, as aended, other)ise 4no)n as BThe Article of
/arB=.
b. Military +urisdiction in relation to the ter martial law is that e1ercised in tie
of rebellion and civil )ar by a governent teporarily governing the civil
population of a locality through its ilitary forces, )ithout the authority of )ritten
la), as necessity ay re*uire.
1*
c. Military +urisdiction in relation to the term military government is that
Be1ercised by a belligerent occupying an eney!s territory.B
19
8A failiar e1aple
of a ilitary governent )as, of course, that established and adinistered by the
0apanese ared forces in the Philippines fro "'@& to "'@<=.
/hat is the universally accepted fundaental +ustification of artial la)E /iener
in ' &ractical Manual Martial Law,
3/
ventures this +ustification? BMartial :a) is the
public la) of necessity. Necessity calls it forth, necessity +ustifies its e1istence,
and necessity easures the e1tent and degree to )hich it ay be eployed.B
Martial la) is founded upon the principle that the state has a right to protect itself
against those )ho )ould destroy it, and has therefore been li4ened to the right of
the individual to self;defense.
31
2t is invo4ed as an e1tree easure, and rests
upon the basic principle that every state has the po)er of self;preservation, a
po)er inherent in all states, because neither the state nor society )ould e1ist
)ithout it.
31
2D
2 no) proceed to discuss the issues posed in these cases.
2n Proclaation "#$", dated %epteber &", "'(&, the President of the Philippines
declared that la)less eleents, supported by a foreign po)er, )ere in Bared
insurrection and rebellion against the 9overnent of the Philippines in order to
forcibly sei,e political and state po)er, overthro) the duly constituted
governent and supplant our e1isting political, social, econoic and legal order
)ith an entirely ne) one ... based on the Mar1ist;:eninist;Maoist teachings and
beliefs.B Ce enuerated any and varied acts of violence coitted in
pursuance of the insurrection and rebellion. Ce therefore placed the Philippines
under artial la), coanded the ared forces to suppress the insurrection and
rebellion, enforce obedience to his decrees, orders and regulations, and arrest
and detain those engaged in the insurrection and rebellion or in other cries Bin
furtherance or on the occasion thereof, or incident thereto or in connection
there)ith.B The President invo4ed his po)ers under article D22 section "#8&= of
the "'7< Constitution Bto save the Republic and refor our society.B
33
By 9eneral -rder No. & the President directed the %ecretary of National 6efense
to Bforth)ith arrest or cause the arrest ... the individuals naed in the attached
lists for being participants or for having given aid and cofort in the conspiracy to
sei,e political and state po)er in the country and to ta4e over the governent by
force ... in order to prevent the fro further coitting acts that are iniical or
in+urious ...B The %ecretary )as directed to hold in custody the individuals so
arrested Buntil other)ise so ordered by e or by y duly designated
representative.B The arrest and detention of the petitioners in these cases appear
to have been ade pursuant to this order.
2 cannot blin4 a)ay the star4 fact of a continuing Counist rebellion in the
Philippines. The Court has repeatedly ta4en cogni,ance of this fact in several
eases decided by it. 2n "'(", in Lansang vs. Garcia,
34
the Court, after revie)ing
the history of the Counist oveent in the country since the "'7#s,
concluded? B/e entertain, therefore, no doubts about the e1istence of a si,eable
group of en )ho have publicly risen in ars to overthro) the governent and
have thus been and still are engaged in rebellion against the 9overnent of the
Philippines.B 2t affired this finding in "'(& 7< in sustaining the validity of the
Anti;%ubversion Act 8Republic Act "(##=. The Act is itself a congressional
recognition and acute a)areness of the continuing threat of Counist
subversion to deocratic institutions in this country. Enacted in "'<(, it has
reained in the statute boo4s despite periodic agitation in any *uarters for its
total e1cision.
At ties the rebellion re*uired no ore than ordinary police action, coupled )ith
criinal prosecutions. Thus the "'7& Counist trials resulted in the conviction
of the )ell;4no)n Counists of the day? Crisanto Evangelista, 0acinto 9.
Manahan, 6oinador 0. Abrosio, 9uillero Capadocia, 2gnacio Nabong and 0uan
3eleo, aong others, for cries ranging fro illegal association to rebellion and
sedition.
36
The end of /orld /ar 22 sa) the resurgence of the Counist rebellion. No)
)ith an ary forged out of the forer Cu4balahaps 8the ared resistance against
the 0apanese= and renaed 1ukbong Mapagpalaya ng Bayan or CMB, the threat
to the security of the state becae so alevolent that on -ctober &&, "'<#,
President Elpidio Luirino )as ipelled to suspend the privilege of the )rit of
habeas corpus. This enabled the 9overnent to effect the apprehension of top
Counist Party leaders 9uillero Capadocia, 3lavio Nava, Aado D. Cernande,,
0esus :ava, 0ose :ava, Angel Ba4ing and %ieon Rodrigue,, aong others.
37
/hen challenged by one of those detained under the Presidential proclaation
the suspension of the privilege of the )rit of habeas corpus )as sustained by the
Court.
3*
The beginning of the "'(#s )as ar4ed by the rise of student activis. This
phenoenon s)ept around the globe, and did not spare our o)n colleges and
universities. %oon the capuses becae staging grounds for student
deonstrations that generally ended in bloody and not infre*uently lethal street
riots.
2n *avarro vs. 2illegas,
39
in upholding the po)er of the Mayor of Manila to
deterine the place and tie for the holding of public asseblies, this Court
noted 5
That e1periences in connection )ith present asseblies and deonstrations do
not )arrant the Court!s disbelieving respondent Mayor!s appraisal that a public
rally at Pla,a Miranda, as copared to one at the %un4en 9ardens as he
suggested, poses a clearer and ore iinent danger of public disorders,
breaches of the peace, criinal acts, and even bloodshed as an afterath of such
asseblies, and petitioner has anifested that it has no eans of preventing
such disorders.
That, conse*uently, every tie that such asseblies are announced, the
counity is placed in such a state of fear and tension that offices are closed
early and eployees disissed storefronts boarded up, classes suspended, and
transportation disrupted to the general detrient of the public.
Riding on the crest of student unrest, the Counist rebellion gained
oentu. As the Court noted in Lansang vs. Garcia,
4/
HTJhe reorgani,ed Counist Party of the Philippines has, oreover, adopted
Mao!s concept of protracted people!s )ar, aied at the paraly,ation of the )ill to
resist of the governent, of the political, econoic and intellectual leadership,
and of the people theselves. that conforably to such concept the Party has
placed special ephasis upon ost e1tensive and intensive progra of
subversion by the establishent of front organi,ations in urban centers, the
organi,ation of ared city partisans and the infiltration in student groups, labor
unions, and farer and professional groups. that the CPP has anaged to
infiltrate or establish and control nine 8'= a+or labor organi,ations. that it has
e1ploited the youth oveent and succeeded in a4ing Counist fronts of
eleven 8""= a+or student or youth organi,ations. that there are, accordingly,
about thirty 87#= ass organi,ations actively advancing the CPP interests, aong
)hich are the Malayang %aahan ng Magsasa4a 8MA%AMA= the Mabataang
Ma4abayan 8MM=, the Moveent for the Advanceent of Nationalis 8MAN=, the
%aahang 6eo4rati4o ng Mabataan 8%6M=, the %aahang Molave 8%M=, and the
Malayang Pag4a4aisa ng Mabataang Pilipino 8MPMP=. that, as of August, "'(", the
MM had t)o hundred forty;five 8&@<= operational chapters throughout the
Philippines, of )hich seventy;three 8(7= )ere in the 9reater Manila Area, si1ty
8A#= in Northern :u,on, forty;nine 8@'= in Central :u,on, forty;t)o 8@&= in the
Disayas and t)enty;one 8&"= in Mindanao and %ulu. that in "'(#, the Party had
recorded t)o hundred fifty;eight 8&<$= a+or deonstrations, of )hich about
thirty;three i77= ended in violence, resulting in fifteen 8"<= 4illed and over five
hundred 8<##= in+ured. that ost of these actions )ere organi,ed, coordinated or
led by the aforeentioned front organi,ations. that the violent deonstrations
)ere generally instigated by a sall, but )ell;trained group of ared agitators.
that the nuber of deonstrations heretofore sta4ed in "'(" has already
e1ceeded those in "'(#. and that t)enty;four 8&@= of these deonstrations )ere
violent, and resulted in the death of fifteen 8"<= persons and the in+ury of any
ore.
The ounting level of violence necessitated the suspension, for the second tie,
of the privilege of the )rit of habeas corpus on August &", "'(". The
9overnent!s action )as *uestioned in Lansang vs. Garcia. This Court found that
the intensification and spread of Counist insurgency iperiled the state. The
events after the suspension of the privilege of the )rit confired the alaring
e1tent of the danger to public safety?
%ubse*uent events 5 as reported 5 have also proven that petitioner!s counsel
have underestiated the threat to public safety posed by the Ne) People!s Ary.
2ndeed, it appears that, since 'ugust 34# 4564, it had in Northern :u,on si1 8A=
encounters and staged one 8"= raid, in conse*uence of )hich seven 8(= soldiers
lost their lives and t)o 8&= others )ere )ounded, )hereas the insurgents suffered
five 8<= casualties. that on August &A, "'(", a )ell;ared group of NPA, trained
by defector :t. Dictor Corpus, attac4ed the very coand post of T3 :A/2N in
2sabela, destroying t)o 8&= helicopters and one 8"= plane, and )ounding one 8"=
soldier. that the NPA had in Central :u,on a total of four 8@= encounters, )ith t)o
8&= 4illed and three 87= )ounded on the side of the 9overnent, one 8"= MM;%6M
leader, an unidentified dissident, and Coander Panchito, leader of dissident
group, )ere 4illed. that on August &A, "'(", there )as an encounter in the Barrio
of %an Pedro, 2riga City, Caarines %ur, bet)een the PC and the NPA, in )hich a
PC and t)o 8&= MM ebers )ere 4illed. that the current disturbances in
Cotabato and the :anao provinces have been rendered ore cople1 by the
involveent of the CPPNNPA for, in id;"'(", a MM group headed by 0ovencio
Esparago,a, contacted the Ciga;onan tribes, in their settleent in Magsaysay,
Misais -riental, and offered the boo4s, paphlets and brochures of Mao Tse
Tung, as )ell as conducted teach;ins in the reservation. that Esparago,a )as
reportedly 4illed on %epteber &&, "'(", in an operation of the PC in said
reservation. and that there are no) t)o 8&= NPA cadres in Mindanao.
2t should, also, be noted that adherents of the CPP and its front organi,ation are
accordingly to intelligence findings, definitely capable of preparing po)erful
e1plosives out of locally available aterials. that the bob used in the
Constitutional Convention Call )as a !clay ore! ine, a po)erful e1plosive
device used by the G.%. Ar believed to have been one of any pilfered fro the
%ubic Naval Base a fe) days before. that the President had received intelligence
inforation to the effect that there )as a 0uly;August Plan involving a )ave of
assassinations, 4idnappings, terroris and iss destruction of property and that
an e1traordinary occurrence )ould signal the beginning of said event. that the
rather serious condition of peace and order in Mindanao, particularly in Cotabato
and :anao, deanded the presence therein of forces sufficient to cope )ith the
situation. that a si,eable part of our ared forces discharges other functions. and
that the e1pansion of the CPP activities fro Central :u,on to other parts of the
country particularly Manila and its suburbs the Cagayan Dalley, 2fugao, >abales,
:aguna, Lue,on and Bicol Region, re*uired that the rest of our ared forces be
spread thin over a )ide area.
41
By virtue of these findings, the Court, led by Chief 0ustice Roberto Concepcion,
unaniously upheld the suspension of the privilege of the )rit of habeas corpus.
The Court said?
Considering that the President )as in possession of the above data 5 e1cept
those related to events that happened after August &", "'(" 5 )hen the Pla,a
Miranda propting, too4 place, the Court is not prepared to held that the
E1ecutive had acted arbitrarily or gravely abused his discretion )hen he then
concluded that public safety and national security re*uired the suspension of the
privilege of the )rit, particularly if the NPA )ere to stri4e siultaneously )ith
violent deonstrations staged by the t)o hundred forty;five 8&@<= MM chapters,
all over the Philippines, )ith the assistance and cooperation of the do,ens of CPP
front organi,ations, and the bobing of )ater ains and conduits, as )ell as
electric po)er plants and installations 5 a possibility )hich, no atter ho)
reote, he )as bound to forestall, and a danger he )as under obligation to
anticipate and at rest.
Ce had consulted his advisers and sought their vie)s. Ce had reason to feel that
the situation )as critical 5 as, indeed, it )as 5 and deanded iediate action.
This he too4 believing in good faith that public safety re*uired it. And, in the light
of the circustances adverted to above, he had substantial grounds to entertain
such belief.B
41
The suspension of the privilege of the )rit )as lifted on 0anuary (, "'(&, but
soon thereafter chaos engulfed the nation again. A large area of the country )as
in open rebellion. The authority of the 9overnent )as frontally challenged by a
coalition of forces. 2t )as against this bac4drop of violence and anarchy that
artial la) )as proclaied on %epteber &", "'(&.
Personally 2 ta4e notice of this condition, in addition to )hat the Court has found
in cases that have coe to it for decision, and there is no cogent reason for e to
say as a atter of la) that the President e1ceeded his po)ers in declaring artial
la). Nor do 2 believe that the %olicitor 9eneral!s anifestation of May "7, "'(@ to
the effect that )hile on the )hole the ilitary challenge to the Republic has been
overcoe there are still large areas of conflict )hich )arrant the continued
iposition of la), can be satisfactorily controverted by or by any perceptive
observer of the national scene.
As 2 )ill point out in this opinion, the fact that courts are open be accepted as
proof that the rebellion and )hich copellingly called for the declaration of
artial la), no longer iperil the public safety. Nor are the any surface indicia
adverted to by the petitioners 8the increase in the nuber of tourists, the choice
of Manila as the conferences and of an international beauty contest= to be
regarded as evidence that the threat to public safe has abated. There is actual
ared cobat, attended by the sober panoply )ar, raging in %ulu and
Cotabato, not to not ention the region and Cagayan Dalley.
43
2 a hard put to
say, therefore, that the 9overnent!s clai is baseless.
2 a not insensitive to the plea ade here in the nae of individual liberty. But to
paraphrase ! parte Moyer,
44
if it )ere the liberty alone of the petitioner 6io4no
that is. in issue )e )ould probably resolve the doubt in his favor and grant his
application. But the %olicitor 9eneral, )ho ust be deeed to represent the
President and the E1ecutive 6epartent in this case,
45
has anifested that in the
President!s +udgent peace and tran*uility cannot be speedily restored in the
country unless the petitioners and others li4e the eantie reain in ilitary
custody. 3or, indeed, the central atter involved is not erely the liberty of
isolated individuals, but the collective peace, tran*uility and security of the entire
nation. D.
The "'7< Constitution coitted to the President the deterination of the public
e1igency or e1igencies re*uiring the proclaation of artial la). 2t provided in
article D22, section "#8&= that 5
The President shall be coander;in;chief of all ared forces of the Philippines
and, )henever it becoes necessary, he ay call out such ared forces to
prevent or suppress la)less violence,
46
invasion, insurrection, or rebellion. 2n
case of invasion, insurrection, or rebellion, or einent danger thereof, )hen the
public safety re*uires it, he ay suspend the privileges of the )rit of habeas
corpus# or place the Philippines or any part thereof under artial la).
47
2n the "'7@ Constitutional Convention it )as proposed to vest the po)er to
suspend the privilege of the )rit of habeas corpus in the National Assebly. The
proposal, sponsored by 6elegate Araneta, )ould give this po)er to the President
only in cases )here the Assebly )as not in session and then only )ith the
consent of the %upree Court. But the a+ority of the delegates entertained the
fear that the 9overnent )ould be po)erless in the face of danger.
4*
They
re+ected the Araneta proposal and adopted instead the provisions of the 0ones
:a) of "'"A. The fraers of the Constitution reali,ed the need for a strong
E1ecutive, and therefore chose to retain the provisions of the forer organic acts,
49
)hich, adapted to the e1igencies of colonial adinistration , naturally ade the
9overnor 9eneral a strong E1ecutive.
Construing a siilar provision of the Philippine Bill of "'#& )hich authori,ed the
9overnor 9eneral, )ith the approval of the Philippine Coission, to suspend the
privilege of the )rit of habeas corpus B)hen in cases of rebellion, insurrection, or
invasion the public safety ay re*uire it,B this Court held that the 9overnor
9eneral!s finding as to the necessity for such action )as Bconclusive and finalB on
the +udicial departent.
5/
This ruling )as affired in "'<& in Montenegro vs.
Castaeda,
51
this Court stating that 5
the authority to decide )hether the e1igency has arisen re*uiring, the suspension
belongs to the President and !his decision is final and conclusive! upon the courts
and upon all other persons.
2t is true that in Lansang vs. Garcia
51
there is language that appears to detract
fro the unifor course of +udicial construction of the Coander;in;Chief
Clause. But a close reading of the opinion in that case sho)s that in the ain
there )as adherence to precedents. To be sure, the Court there asserted the
po)er to in*uire into the Be1istence of the factual bases Hfor the suspension of
the privilege of the )rit of habeas corpusJ in order to deterine the sufficiency
thereof,B But this broad assertion of po)er is *ualified by the Court!s
unabiguous stateent that Bthe function of the Court is, erely to chec4 not to
5 supplant 5 the E1ecutive, or to ascertain merely whether he has gone beyond
the constitutional liits of his +urisdiction, not to e!ercise the power vested in
him or to deterine the )isdo of his act.B 3or this reason this Court announced
that the test )as not )hether the President acted correctly but )hether he acted
arbitrarily. 2n fact this Court read Barcelon and Montenegro as authori,ing +udicial
in*uiry into B)hether or not there really )as a rebellion, as stated in the
proclaation therein contested.B
-f course the +udicial departent can deterine the e!istence of the conditions
for the e1ercise of the President!s po)ers and is not bound by the recitals of his
proclaation. But )hether in the circustances obtaining public safety re*uires
the suspension of the privilege of the )rit of habeas corpus or the proclaation of
artial la) is initially for the President to decide. Considerations of coitent
of the po)er to the e1ecutive branch of the 9overnent and the lac4 of accepted
standards for dealing )ith incoensurable factors, suggest the )isdo of
considering the President!s finding as to necessity persuasive upon the courts.
This conclusion results fro the nature of the po)er vested in the President and
fro the evident ob+ect conteplated. 3or that po)er is intended to enable the
9overnent to cope )ith sudden eergencies and eet great occasions of state
under circustances that ay be crucial to the life of the nation.
53
The fact that courts are open and in the unobstructed discharge of their functions
is pointed to as proof of the absence of any +ustification for artial la). The ruling
in Milligan
54
and /uncan
55
is invo4ed. 2n both cases the G.%. %upree Court
reversed convictions by ilitary coissions. 2n Milligan the Court stated that
Bartial la) cannot arise fro a threatened invasion. The necessity ust be
actual and present, the invasion real, such as effectually closes the courts and
deposes the civil adinistration.B 2n /uncan a siilar e1pression )as ade? BThe
phrase !artial la)! ... )hile intended to authori,e the ilitary to act vigorously
for the aintenance of an orderly civil governent and for the defense of the
2slands against actual or threatened rebellion or invasion, )as not intended to
authori,e the supplanting of courts by ilitary tribunals.B
But Milligan and /uncan )ere decided on the basis of a )idely disparate
constitutional provision. /hat is ore, to the e1tent that they ay be regarded
as ebodying )hat the petitioners call an Bopen courtB theory, they are of
doubtful applicability in the conte1t of present7day subversion.
Gnli4e the detailed provision of our Constitution, the G.%. 3ederal Constitution
does not e1plicitly authori,e the G.%. President to proclai artial la). 2t siply
states in its article 22, section & that Bthe President shall be Coander;in;Chief
of the Ary and Navy of the Gnited %tates, and of the Militia of the several
%tates, )hen called into the actual %ervice of the Gnited %tates. ...B -n the other
hand, our Constitution authori,es the proclaation of artial la) in cases not
only of actual invasion, insurrection or rebellion but also of Biinent dangerB
thereof.
2t is true that in /uncan the G.%. %upree Court dealt )ith a G.%. statute that in
ters )as siilar to the Philippine Constitution. %ection A( of the Ca)aiian
-rganic Act provided that BHthe Territorial 9overnorJ ay, in case of invasion, or
iinent danger thereof, )hen public safety re*uires it, suspend the privilege of
the )rit of habeas corpus, or place the Territory, or any part thereof under artial
la) until counication can be had )ith the President Hof the Gnited %tatesJ and
his decision thereof ade 4no)n.B 2n fact the Ca)aiian -rganic Act, that of
Puerto Rico, and the 0ones la) of "'"A, fro )hich latter la), as 2 have earlier
noted, the Coander;in;Chief Clause of our Constitution )as adopted, )ere
part of the legislation of the G.%. Congress during the colonial period. But again,
unli4e the 0ones :a), the Ca)aiian -rganic Act also provided in its section < that
the G.%. 3ederal Constitution Bshall have the sae force and effect in the territory
Hof Ca)aiiJ as else)here in the Gnited %tates. 3or this reason it )as held in
/uncan that Biinent dangerB of invasion or rebellion )as not a ground for
authori,ing the trial of civilians by a ilitary tribunal. Cad /uncan been decided
solely on the basis of section A( of the Ca)aiian -rganic Act and had the
petitioners in that case been tried for offenses connected )ith the prosecution of
the )ar,
56
the prison sentences iposed by the ilitary tribunals )ould in all
probability had been upheld. As a atter of fact those )ho argued in /uncan that
the po)er of the Ca)aiian governor to proclai artial la) coprehended not
only actual rebellion or invasion but also Biinent danger thereofB )ere faced
)ith the proble of reconciling, the t)o parts of the Ca)aiian -rganic Act. They
contended that Bif any paint of section A( )ould other)ise be unconstitutional
section < ust be construed as e1tending the HG.%.J Constitution to Ca)aii
sub+ect to the *ualifications or liitations contained in section A(.B
57
3orsooth, if the po)er to proclai artial la) is at all recogni,ed in Aerican
federal constitutional la), it is only by iplication fro the necessity of self;
preservation and then sub+ect to the narro)est possible construction.
Nor is there any %tate Constitution in the Gnited %tates, as the appended list
indicates 8see 'ppendi!=, )hich in scope and e1plicitness can copare )ith the
Coander;in;Chief Clause of our Constitution. The Alas4a Constitution, for
e1aple, authori,es the governor to proclai artial la) )hen the public safety
re*uires it in case of rebellion or actual or iinent invasion. But even then it
also provides that artial la) shall not last longer than t)enty days unless
approved by a a+ority of the legislature in +oint session. -n the other hand, the
present Constitution of Ca)aii does not grant to the %tate governor the po)er to
suspend the )rit of habeas corpus or to proclai artial la) as did its -rganic
Act before its adission as a %tate to the Aerican Gnion.
An uncritical reading of Milligan and /uncan is li4ely to overloo4 these crucial
differences in te1tual concepts bet)een the Philippine Constitution, on the one
hand, and the 3ederal and %tate Constitutions of the Gnited %tates, on the other.
2n our case then the inclusion of the Biinent dangerB phrase as a ground for
the suspension of the privilege of the )rit of habeas corpus and for the
proclaation of artial la) )as a atter of deliberate choice and renders the
language of Milligan 8Bartial la) cannot arise fro a threatened invasionB=
inapposite and therefore inapplicable.
The Philippine Bill of "'#& provided in its section &, paragraph ( 5
that the privilege of the )rit of habeas corpus shall not be suspended unless
)hen in cases of rebellion, insurrection, or invasion the public safety ay re*uire
it, in either of )hich events the sae ay be suspended by the President, or by
the 9overnor 9eneral )ith the approval of the Philippine Coission, )herever
during such period the necessity for such suspension shall e1ist.
The 0ones :a) of "'"A substantially reenacted this provision. Thus section 7,
paragraph ( thereof provided?
That the privilege of the )rit of habeas corpus shall not be suspended, unless
it, in either of )hich events the sae ay be suspended by the President or by
the 9overnor 9eneral, )herever during such period the necessity for such
suspension shall e1ist.
2n addition, the 0ones :a) provided in its section &" that 5
... HThe 9overnor 9eneralJ ay, in case of rebellion or invasion, or iinent
danger thereof, )hen the public safety re*uires it, suspend the privileges of the
)rit of habeas corpus or place the 2slands, or any part thereof, under artial la)?
&rovided That )henever the 9overnor 9eneral shall e1ercise this authority, he
shall at once notify the President of the Gnited %tates thereof, together )ith the
attending facts and circustances, and the President shall have po)er to odify
or vacate the action of the 9overnor 9eneral.
Note that )ith respect to the suspension of the privilege of the )rit of habeas
corpus, section &" entions, as ground therefor, Biinent dangerB of invasion or
rebellion. /hen the Constitution )as drafted in "'7@, its fraers, as 2 have
already noted, decided to adopt these provisions of the 0ones :a). /hat )as
section 7, paragraph (, in the 0ones :a) becae section "8"@= of article 222 8Bill
of Rights= of the Constitution. and )hat )as section &" becae article D22,
section "#8&= 8Coander;in;Chief Clause=. Thus, the Bill of Rights provision
reads?
The privilege of the )rit of habeas corpus shall not be suspended e1cept in cases
of invasion, insurrection, or rebellion, )hen the public safety re*uires it, in any of
!)hich events the sae ay be suspended )herever during such period the
necessity for such suspension shall e1ist.
-n the other hand, the Coander;in;Chief Clause states?
prevent or suppress la)less violence, invasion, insurrection, or rebellion. 2n case
of invasion, insurrection, or rebellion, or iinent danger thereof, )hen the
corpus, or place the Philippines or any part thereof under artial la).
The attention of the "'7@ Convention )as dra)n to the apparent inconsistency
bet)een the Bill of Rights provision and the Coander;in;Chief Clause. %oe
delegates tried to haroni,e the t)o provisions by inserting the phrase Biinent
danger thereofB in the Bill of Rights provision, but on reconsideration the
Convention deleted the phrase fro the draft of the Bill of Rights provision, at the
sae tie retaining it in the Coander;in Chief Clause.
/hen this apparent inconsistency )as raised in a suit
5*
*uestioning the validity of
President Luirino suspension of the privilege of the )rit of habeas corpus, this
Court sustained the President!s po)er to suspend the privilege of the )rit even on
the ground of iinent danger of invasion, insurrection or rebellion. 2t held that
as the Coander;in;Chief Clause )as last in the order of tie and local position
it should be deeed controlling. This rationali,ation has evo4ed the criticis that
the Constitution )as approved as a )hole and not in parts, but in result the
decision in that case is certainly consistent )ith the conception of a strong
E1ecutive to )hich the "'7@ Constitutional Convention )as coitted.
The "'(7 Constitution li4e)ise authori,es the suspension of the privilege of the
)rit of habeas corpus on the ground of iinent danger of invasion, insurrection
and rebellion.
The so;called Bopen courtB theory does not apply to the Philippine situation
because our "'7< and "'(7 Constitutions e1pressly authori,e the declaration of
artial la) even )here the danger to public safety arises erely fro the
iinence of invasion, insurrection, or rebellion. Moreover, the theory is too
siplistic for our day, what with the universally recogni%ed insidious nature o)
Communist subversion and its covert operations.
2ndeed the theory has been disissed as unrealistic by perceptive students of
Presidential po)ers.
Charles 3airan says?
These easures are unprecedented but so is the danger that called the into
being. -f course )e are not )ithout la), even in tie of crisis. Ket the cases to
)hich one is cited in the digests disclose such confusion of doctrine as to perple1
a la)yer )ho suddenly tries to find his bearings. Casty recollection of ! parte
Milligan recalls the dictu that !Martial rule cannot arise fro a threatened
invasion. The necessity ust be actual and present. the invasion real, such as
effectually closes the courts and deposes the civil adinistration.! Not even the
aerial attac4 upon Pearl Carbor closed the courts or of its o)n force deposed the
civil adinistration. yet it )ould be the coon understanding of en that those
agencies )hich are charged )ith the national defense surely ust have authority
to ta4e on the spot soe easures )hich in noral ties )ould be ultra vires.
And )hilst college sophoores are taught that the case stands as a constitutional
landar4, the hard fact is that of late governors have fre*uently declared !artial
la)! and !)ar! and have been +udicially sustained in their easures. Gndoubtedly,
any of these cases involving the suspension of stri4ers )ent uch too far. But
+ust as certainly 5 so it )ill be argued here 5 the doctrine of the a+ority in E1
parte Milligan does not go far enough to eet the conditions of odern )ar.
59
Clinton Rossiter )rites?
2t is siply not true that !artial la) cannot arise fro a threatened invasion,! or
that artial rule can never e1ist )here the courts are open.! These stateents do
not present an accurate definition of the allo)able liits of the artial po)ers of
the President and Congress in the face of alien threats of internal disorder. Nor
)as 6avis! dictu on the specific po)er of Congress in this atter any ore
accurate. And, ho)ever elo*uent *uotable his )ords on the untouchability of the
Constitution in tie of actual crisis, and did not then, e1press the realities of
Aerican constitutional la).
6/
/illia /inthrop a4es these thoughtful observations?
2t has been declared by the %upree Court in ! parte Milligan that artial la)! is
confined to the locality of actual )ar,! and also that it !can never e1ist )hen the
courts are open and in the proper and unobstructed e1ercise of their 0urisdiction.!
But this ruling )as ade by a bare a+ority 5 five 5 of the court, at a tie of
great political e1citeent and the opinion of the four other ebers, as delivered
by the Chief 0ustice, )as to the effect that artial la) is not necessarily liited to
tie of )ar, but ay be e1ercised at other periods of !public danger,! and that the
)act that the civil courts are open is not controlling against such e!ercise, since
they !ight be open and undisturbed in the e1ecution of their functions and yet
)holly incopetent to avert threatened danger or to punish )ith ade*uate
proptitude and certainty the guilty.! 2t is the opinion of the author that the of
the view o) the minority o) the court is the sounder and more reasonable one, and
that the dictu of the a+ority )as influenced by a confusing of artial la)
proper )ith that military government )hich e1ists only at a tie and on the
theater of )ar, and )hich )as clearly distinguished fro artial la) by the Chief
0ustice in the dissenting opinion 5 the first coplete +udicial definition of the
sub+ect.
61
8ephasis supplied=
2n 8ueen vs. Bekker 8on the occasion of the Boer /ar= 0ustice Maasdorp
categorically affired that Bthe e1istence of civil courts is no proof that artial
la) has becoe unnecessary.
61
D2
9iven then the validity of the proclaation of artial la), the arrest and
detention of those reasonably believed to be engaged in the disorder or in
forenting it is )ell nigh beyond *uestioning. Negate the po)er to a4e such
arrest and detention, and artial la) )ould be Bere parade, and rather
encourage attac4 than repel it.B
63
Thus, in Moyer vs. &eabody,
64
the Court
sustained the authority of a %tate governor to hold teporarily in custody one
)ho he believed to be engaged in forenting trouble, and denied recovery
against the governor for the iprisonent. 2t )as said that, as the governor
Bay 4ill persons )ho resist,B he ay use the ilder easure of sei,ing the
bodies of those )ho he considers in the )ay of restoring peace. %uch arrests
are not necessarily for punishent, but are by )ay of precaution to prevent the
e1ercise of hostile po)er. %o long as such arrests are ade in good faith and in
the honest belief that they are needed in order to head the insurrection off, the
9overnor is the final +udge and cannot be sub+ected to an action after he is out of
office on the ground that he had no reasonable ground for his belief.B
2t is true that in "terling vs. Contantin
65
the sae Court set aside the action of a
%tate governor ta4en under artial la). But the decision in that case rested on
the ground that the action set aside had no direct relation to the *uelling of the
uprising. There the governor of Te1as issued a proclaation stating that certain
counties )ere in a state of insurrection and declaring artial la) in that territory.
The proclaation recited that there )as an organi,ed group of oil and gas
producers in insurrection against conservation la)s of the %tate and that this
condition had brought such a state of public feeling that if the %tate governent
could not protect the public!s interest they )ould ta4e the la) into their o)n
hands. The proclaation further recited that it )as necessary that the Railroad
Coission be given tie to a4e orders regarding oil production. /hen the
Coission issued an order liiting oil production, the coplainants brought suit
iii the 6istrict Court )hich issued restraining orders, )hereupon 9overnor %terling
ordered 9eneral /olters of the Te1as National 9uards to enforce a liit on oil
production. 2t )as this order of the %tate governor that the 6istrict Court
en+oined. -n appeal the G.%. %upree Court affired. After assuing that the
governor had the po)er to declare artial la), the Court held that the order
restricting oil production )as not +ustified by the e1igencies of the situation.
... 3undaentally, the *uestion here is not the po)er of the governor to proclai
that a state of insurrection, or tuult or riot, or breach of the peace e1ists, and
that it is necessary to call ilitary force to the aid of the civil po)er. Nor does the
*uestion relate to the *uelling of disturbance and the overcoing of unla)ful
resistance to civil authority. The *uestion before us is siply )ith respect to the
9overnor!s attept to regulate by e1ecutive order the la)ful use of coplainants!
properties in the production of oil. 2nstead of affording the protection in the
e1ercise of their rights as deterined by the courts, he sought, by his e1ecutive
orders, to a4e that e1ercise ipossible.
-n the other hand, )hat is involved here is the validity of the detention order
under )hich the petitioners )ere ordered arrested. %uch order is, as 2 have
already stated, a valid incident of artial la). /ith respect to such *uestion
Constantin held that Beasures, conceived in good faith, in the face of the
eergency and directly related to the *uelling of the disorder or the prevention of
its continuance, fall )ithin the discretion of the E1ecutive in the e1ercise of his
authority to aintain peace.B
2n the cases at bar, the respondents have +ustified the arrest and detention of the
petitioners on the ground of reasonable belief in their coplicity in the rebellion
and insurrection. E1cept 6io4no and A*uino, all the petitioners have been
released fro custody, although sub+ect to defined restrictions regarding personal
oveent and e1pression of vie)s. As the danger to public safety has not
abated, 2 cannot say that the continued detention of 6io4no and A*uino and the
restrictions on the personal freedos of the other petitioners are arbitrary, +ust as
2 a not prepared to say that the continued iposition of artial rule is
un+ustified.
As the Colorado %upree Court stated in denying the )rit of habeas corpus in
Moyer9
66
Cis arrest and detention in such circustances are erely to prevent hi fro
ta4ing part or aiding in a continuation of the conditions )hich the governor, in the
discharge of his official duties and in the e1ercise of the authority conferred by
la), is endeavoring to suppress.
D22
/hile courts ay in*uire into or ta4e +udicial notice of the e!istence of conditions
claied to +ustify the e1ercise of the po)er to declare artial la),
67
the
deterination of the necessity for the e1ercise of such po)er is )ithin the
periphery of the constitutional doain of the President. and as long as the
easures he ta4es are reasonably related to the occasion involved, interference
by the courts is officious.
2 a confired in this construction of Presidential po)ers by the consensus of the
"'(" Constitutional Convention to strengthen the concept of a strong E1ecutive
and by the confiration of the validity of acts ta4en or done after the
proclaation of artial la) in this country. The "'(7 Constitution e1pressly
authori,es the suspension of the privilege of the )rit of habeas corpus as )ell as
the iposition of artial la) not only on the occasion of actual invasion,
insurrection or rebellion, but also )here the danger thereof is iinent. A$
Acrionious discussion on this atter has thus becoe pointless and should
therefore cease.
The ne) Constitution as )ell provides that 5
All proclaations, orders, decrees, instructions, and acts proulgated, issued, or
done by the incubent President shall be part of the la) of the land, and shall
reain valid, legal, binding, and effective even after lifting of artial la) or the
ratification of this constitution, unless odified, revo4ed, or superseded by
subse*uent proclaations, orders, decrees, instructions, or other acts of the
incubent President, or unless e1pressly aid e1plicitly odified or repealed by the
regular National Assebly.
69
The effectivity of the ne) Constitution is no) beyond all anner of debate in vie)
of the Court!s decision in the Ratification Cases (# as )ell as the deonstrated
ac*uiescence therein by the 3ilipino people in the historic 0uly "'(7 national
referendu.
D222
2t is thus evident that suspension of the privilege of the )rit of habeas corpus is
unavoidable subsued in a declaration of artial la), since one basic ob+ective of
artial rule is to neutrali,e effectively 5 by arrest and continued detention 8and
possibly trial at the proper and opportune tie= 5 those )ho are reasonably
believed to be in coplicity or are particeps criminis in the insurrection or
rebellion. That this is so and should be so is ineluctable to deny this postulate is
to negate the very fundaental of artial la)? the preservation of society and
the survival of the state. To recogni,e the iperativeness and reality of artial
la) and at the sae tie dissipate its efficacy by )ithdra)ing fro its abit the
suspension of the privilege of the )rit of habeas corpus is a proposition 2 regard
as fatuous and therefore repudiate.
2nvasion and insurrection, both of the conditions of violence, are the factual
prere*uisites of artial la) ... The rights of person and property present no
obstruction to the authorities acting under such a regie, if the acts )hich
encroach upon the are necessary to the preservation or restoration of public
order and safety. &rinceps et res publica e! 0usta causa possunt rem meam
au)erre. All the procedures )hich are recogni,ed ad+uncts of e1ecutive crisis
governent ... are open to the persons )ho bear official authority under artial
la). The governent ay )ield arbitrary po)ers of police to allay disorder, arrest
and detain )ithout trial all citi,ens ta4ing part in this disorder and even punish
the 8in other words# suspend the :privilege o) the; writ o) habeas corpus=,
institute searches and sei,ures )ithout )arrant, forbid public asseblies, set
curfe) hours, suppress all freedo of e1pression, institute courts artial for the
suary trial of cries perpetrated in the course of this regie and calculated to
defeat its purposes ...
71
8ephasis supplied=
The point here is )hether artial la) is siply a shorthand e1pression denoting
the suspension of the )rit, or )hether artial la) involves not only the
suspension of the )rit but uch ore besides. ... The latter vie) is probably
sounder because artial la) certainly in the present state of its developent, is
not at all dependent on a suspension of the )rit of habeas corpus. ... /here there
has been violence or disorder in fact, continued detention of offenders by the
ilitary is so far proper as to result in a denial by the courts of )rits releasing
those detained. ...
71
2I.
Although the respondents, in their returns to the )rits and in their ans)ers to the
several petitions, have insisted on a disclaier of the +urisdiction of this Court, on
the basis of 9eneral -rders Nos. 7 and 7;A,
73
their subse*uent anifestations
urging decision of these cases aount to an abandonent of this defense. 2n
point of fact President Marco has )ritten, in unista4able phrase, that B-ur
artial la) is uni*ue in that it is based on the supreacy of the civilian authority
over the ilitary and on coplete subission of the decision of the %upree
Court. ... 3or )ho is the dictator )ho )ould subit hiself to a higher body li4e
the %upree Court on the *uestion of the constitutionality or validity of his
actionsEB
74
Construing this avo)al of the President and the repeated urgings of
the respondents in the light of the above*uoted provision of the "'(7 Constitution
8Art. ID22, sec. 78&==, it is y subission that 9eneral -rders Nos. 7 and 7;A
ust be deeed revo4ed in so far as they tended to oust the +udiciary of
+urisdiction over cases involving the constitutionality of proclaations, decrees,
orders or acts issued or done by the President.
I
2n su and substance, 2 firly adhere to these vie)s? 8"= that the proclaation
of artial la) in %epteber "'(& by the President )as )ell )ithin the aegis of
the "'7< Constitution. 8&= that because the Counist rebellion had not abated
and instead the evil ferent of subversion had proliferated throughout the
archipelago and in any places had e1ploded into the roar of ared and searing
conflict )ith all the sophisticated panoply of )ar, the iposition of artial la) )as
an Biperative of national survival.B 87= that the arrest and detention of persons
)ho )ere Bparticipants or gave aid and cofort in the conspiracy to sei,e political
and state po)er and to ta4e over the governent by force,B )ere not
unconstitutional nor arbitrary. 8@= that subsued in the declaration of artial la)
is the suspension of the privilege of the )rit of habeas corpus. 8<= that the fact
that the regular courts of +ustice are open cannot be accepted as proof that the
rebellion. and insurrection, )hich copellingly called for the declaration of artial
la), no longer iperil the public safety. 8A= that actual ared cobat has been
and still is raging in Cotabato, :anao, %ulu and >aboanga, not to ention the
Bicol Region and Cagayan Dalley, and nation)ide Counist subversion continues
unabated. 8(= that the host of doubts that had plagued this Court )ith respect to
the validity of the ratification and conse*uent effectivity of the "'(7 Constitution
has been copletely dispelled by every rational evaluation of the national
referendu of 0uly "'(7, at )hich the people conclusively albeit *uietly,
deonstrated nation)ide ac*uiescence in. the ne) Constitution. and 8$= that the
issue of the validity and constitutionality of the arrest and detention of all the
petitioners and of the restrictions iposed upon those )ho )ere subse*uently
freed, is no) foreclosed by the transitory provision of the "'(7 Constitution 8Art,
ID22. %ec. 78&== )hich efficaciously validates all acts ade, done or ta4en by the
President, or by others upon his instructions, under the regie of artial la),
prior to the ratification of the said Constitution.
I2
2t is not a ere surreal suspicion on the part of the petitioner 6io4no that the
incubent ebers of this highest Tribunal of the land have reoved theselves
fro a level of conscience to pass +udgent upon his petition for habeas corpus
or afford hi relief fro his predicaent. Ce has actually articulated it as a
foral indictent. 2 venture to say that his obsessional preoccupation on the
ability of this Court to reach a fair +udgent in relation to hi has been, in no
sall easure, engendered by his elancholy and bitter and even perhaps
trauatic detention. And even as he a4es this serious indictent, he at the
sae tie )ould )ithdra) his petition for habeas corpus 5 hoping thereby to
achieve artyrdo, albeit dubious and aorphous. As a coentary on this
indictent, 2 here that for y part 5 and 2 a persuaded that all the other
ebers of this Court are situated siilarly 5 2 avo) fealt to the full intendent
and eaning of the oath 2 have ta4en as a +udicial agistrate. Gtili,ing the
odest endo)ents that 9od has granted e, 2 have endeavored in the past
eighteen years of y +udicial career 5 and in the future )ill al)ays endeavor 5
to discharge faithfully the responsibilities appurtenant to y high office, never
fearing, )avering or hesitating to reach +udgents that accord )ith y
conscience.
ACC-R62N9:K, 2 vote to disiss all the petitions.
APPEN62I to %eparate -pinion of 0ustice 3red Rui, Castro
"T'T C-*"T+T<T+-*'L &,-2+"+-*" ,G',/+*G M',T+'L L'=
A:A%MA C-N%T., art. 222, sec. &#?
%ec. &#. Martial Law. The governor ay proclai artial la) )hen the public
safety re*uires it in case of rebellion or actual or iinent invasion. Martial la)
shall not continue for longer than t)enty days )ithout the approval of a a+ority
of the ebers of the legislature in +oint session.
MA2NE C-N%T., art. 2, sec. "@?
%ec. "@. Corporal punishment under military law. No person shall be sub+ect to
corporal punishent under ilitary la), e1cept such as are eployed in the ary
or navy, or in the ilitia )hen in actual service in tie of )ar or public danger.
MARK:AN6 C-N%T., art. 7&?
Art. 7&. Martial Law. That no person e1cept regular soldiers, arines, and
ariners in the service of this %tate, or ilitia, )hen in actual service, ought in
any case, to be sub+ect to, or punishable by Martial :a).
MA%%ACCG%ETT% C-N%T., art. IID222?
Art. IID222. Citi%ens e!empt )rom law martial. No person can in any case be
sub+ected to la) artial, or to any penalties or pains, by virtue of that la), e1cept
those eployed in the ary or navy, and e1cept the ilitia in actual service, but
by authority of the legislature.
NE/ CAMP%C2RE, Pt 22, arts. 7@ and <"?
Art. 7@th. Martial law limited. No person can, in any case, be sub+ected to la)
artial, or to any pains or penalties by virtue of that la), e1cept those eployed
in the ary or navy, and e1cept the ilitia in actual service, but by authority of
the legislature.
Art. <"st. &owers and duties o) governor as commander7in7chie)> limitation. The
governor of this state for the tie being. shall be coander;in;chief of the ary
and navy, and all the ilitary forces of the state by sea and land. and shall have
full po)er by hiself, or by any chief coander, or other officer, or officers,
fro tie to tie, to train, instruct, e1ercise and govern the ilitia and navy.
and for the special defense and safety of this state, to asseble in artial array,
and put in )ar;li4e posture, the inhabitants thereof, and to lead and conduct
the, and )ith the to encounter, repulse, repel resist and pursue by force of
ars, as )ell by sea as by land, )ithin and )ithout the liits of this state? and
also 4ill, slay. destroy, if necessary, and con*uer by all fitting )ays, enterprise and
eans, all and every such person and persons as shall, at any tie hereafter, in a
hostile anner, attept or enterprise the destruction, invasion, detrient or
annoyance of this state. and to use and e1ercise over the ary and navy, and
over the ilitia in actual service, the la) artial in tie of )ar invasion, and also
in rebellion, declared by the legislature to e1ist, as occasion shall necessarily
re*uire? And surprise, by all )ays and eans )hatsoever, all and every such
person or persons, )ith their ships, ars, aunition, and other goods, as shall
in a hostile anner invade, or attept the invading, con*uering or annoying this
state. and in fine the governor hereby is entrusted )ith all other po)ers incident
to the office of the captain;general and coander;in;chief, and adiral, to be
e1ercised agreeably to the rules and regulations of the constitution, and the la)s
of the land. provided, that the 9overnor shall not, at any tie hereafter, by virtue
of any po)er by this constitution granted, or hereafter to be granted to hi by
the legislature, transport any of the inhabitants of this state, or oblige the to
arch out of the liits of the sae, )ithout their free and voluntary consent, or
the consent of the general court, nor grant coissions for e1ercising the la)
artial in any case, )ithout the advise and the consent of the council.
RC-6E 2%:AN6 C-N%T., art. 2, sec. "$? .
%ec. "$. Military subordinate> martial law. The ilitary shall be held in strict
subordination to the civil authority. And the la) artial shall be used and
e1ercised in such cases only as occasion shall necessarily re*uire.
TENNE%%EE C-N%T., art. ", sec. &<?
%ec. &<. &unishment under martial and military law. That no citi,en of this %tate,
e1cept such as are eployed in the ary of the Gnited %tates, or ilitia in actual
service, shall be sub+ected to punishent under the artial or ilitary la). That
artial la), in the sense of the unrestricted po)er of ilitary officers, or others,
to dispose of the persons, liberties or property of the citi,en, is inconsistent )ith
the principles of free governent, and is not confided to any departent of the
governent of this %tate.
2,M-*T C-*"T.# ch. 4# art. 469
'rt. 46th. Martial law restricted. That no person in this state can in any case be
sub+ected to la) artial, or to any penalties or pains by virtue of that la) e1cept
those eployed in the ary and the ilitia in actual service.
/E%T D2R92N2A, art, 222, sec. "&?
Art. 222, sec. "&. Military subordinate to civil power. %tanding aries, in tie of
peace, should be avoided as dangerous to liberty. The ilitary shall be
subordinate to the civil po)er. and no citi,en, unless engaged in the ilitary
service of the %tate, shall be tried or punished by any ilitary court, for any
offense that is cogni,able by the civil courts of the %tate. No soldier shall, in tie
of peace, be *uartered in any house, )ithout the consent of the o)ner, nor in
tie of )ar, e1cept in the anner to be prescribed by la). .

"ERN!N&O, J., concurring and dissenting?
The issue involved in these habeas corpus petitions is the pre;einent proble of
the ties 5 the priacy to be accorded the clais of liberty during periods of
crisis. There is uch that is novel in )hat confronts the Court. A traditional
orientation ay not suffice. The approach ta4en cannot be characteri,ed by
rigidity and infle1ibility. There is roo, plenty of it, for novelty and innovation.
6octrines deeply rooted in the past, that have stood the test of tie and
circustance, ust be ade adaptable to present needs and, hopefully,
serviceable to an un4no)n future, the events of )hich, to recall %tory, are loc4ed
tip in the inscrutable designs of a erciful Providence. 2t is essential then that in
the consideration of the petitions before us there be ob+ectivity, calness, and
understanding. The deeper the disturbance in the atosphere of security, the
ore copelling is the need for tran*uility of ind, if reason is to prevail. No
legal carrier is to be interposed to th)art the efforts of the E1ecutive to restore
noralcy. Ce is not to be denied the po)er to ta4e that for hi ay be necessary
easures to eet eergency conditions. %o the realities of the situation dictate.
There should be on the part of the +udiciary then, sensitivity to the social forces at
)or4, creating conditions of grave unrest and turbulence and threatening the very
stability not to say e1istence, of the political order. 2t is in that setting that the
crucial issue posed by these petitions is to be appraised. 2t ay be that this clash
bet)een the priacy of liberty and the legitiate defense of authority is not
susceptible of an definite, clear;cut solution. Nonetheless, an attept has to be
ade. /ith all due recognition of the erit apparent in the e1haustive, scholarly
and elo*uent dissertations of 0ustice Barredo and y other brethren as )ell as
the ease and lucidity )ith )hich the Chief 0ustice clarified the cople1 issues and
the vie)s of ebers of the Court, 2 )ould li4e to give a brief e1pression to y
thoughts to render clear the points on )hich 2 find yself, )ith regret, unable to
be of the sae persuasion.
2 concur in the disissal of the habeas corpus petition of Benigno %. A*uino, 0r.
solely on the ground that charges had been filed and dissent in part in the
disissal of the petition of 3rancisco Rodrigo and others, . )ho +oined hi in his
plea for the reoval of the conditions on their release, on the vie) that as far as
freedo of travel is concerned, it should be, on principle, left unrestricted. As
originally prepared, this opinion li4e)ise e1plained his dissent in the denial of the
otion to )ithdra) in the petition filed on behalf of 0ose /. 6io4no, a atter no)
oot and acadeic.
". /e have to pass on habeas corpus petitions. The great )rit of liberty is
involved. Rightfully, it is latitudinarian in scope. 2t is )ide;ranging and all;
ebracing in its reach. 2t can dig deep into the facts to assure that there be no
toleration of illegal restraint. 6etention ust be for a cause recogni,ed by la).
The )rit iposes on the +udiciary the grave responsibility of ascertaining )hether
a deprivation of physical freedo is )arranted. The party )ho is 4eeping a person
in custody has to produce hi in court as soon as possible. /hat is ore, he
ust +ustify the action ta4en. -nly if it can be deonstrated that there has been
no violation of one!s right to liberty )ill he be absolved fro responsibility. 3ailing
that, the confineent ust thereby cease. Nor does it suffice that there be a
court process, order, or decision on )hich it is ade to rest. 2f there be a sho)ing
of a violation of constitutional rights, the +urisdiction of the tribunal issuing it is
ousted. Moreover, even if there be a valid sentence, it cannot, even for a
oent, be e1tended beyond the period provided for by la). /hen that tie
coes, he is entitled to be released. 2t is in that sense then, as so )ell put by
Coles, that this great )rit Bis the usual reedy for unla)ful iprisonent.B
1
2t
does afford to borro) fro the language of Bir4enhead Ba s)ift and iperative
reedy in all cases of illegal restraint or confineent.B
1
Not that there is need for
actual incarceration. A custody for )hich there is no support in la) suffices for its
invocation. The party proceeded against is usually a public official, the run;of;the;
ill petitions often coing fro individuals )ho for one reason or another have
run afoul of the penal la)s. Confineent could li4e)ise coe about because of
contept citations,
3
)hether fro the +udiciary or fro the legislature. 2t could
also be due to statutory coands, )hether addressed to cultural inorities
4
or
to persons diseased.
5
Then, too, this proceeding could be availed of by citi,ens
sub+ected to ilitary discipline
6
as )ell as aliens see4ing entry into or to be
deported fro the country.
7
Even those outside the governent service ay be
ade to account for their action as in the case of )ives restrained by their
husbands or children )ithheld fro the proper parent or guardian.
*
2t is thus
apparent that any deviation fro the legal nors calls for the restoration of
freedo. 2t cannot be other)ise. 2t )ould be sheer oc4ery of all that such a
legal order stands for, if any person!s right to live and )or4 )here he is inded
to, to ove about freely, and to be rid of any un)arranted fears that he )ould
+ust be pic4ed up and detained, is not accorded full respect. The significance of
the )rit then for a regie of liberty cannot be overephasi,ed.
9
&. Nor does the fact that, at the tie of the filing of these petitions artial la)
had been declared, call for a different conclusion. There is of course iparted to
the atter a higher degree of cople1ity. 3or it cannot be gainsaid that the
reasonable assuption is that the President e1ercised such an a)esoe po)er,
one granted adittedly to cope )ith an eergency or crisis situation, because in
his +udgent the situation as thus revealed to hi left hi )ith no choice. /hat
the President did attested to an e1ecutive deterination of the e1istence of the
conditions that called for such a ove. There )as, in his opinion, an insurrection
or rebellion of such agnitude that public safety did re*uire placing the country
under artial la). That decision )as his to a4e it. it is not for the +udiciary. The
assessent thus ade, for all the sypathetic consideration it is entitled to, is
not, ho)ever, ipressed )ith finality. This Court has a liited sphere of authority.
That, for e, is the teaching of :ansang.
1/
The +udicial role is difficult, but it is
unavoidable. The )rit of liberty has been invo4ed by petitioners. They ust be
heard, and )e ust rule on their petitions.
7. This Court has to act then. The liberty enshrined in the Constitution, for the
protection of )hich habeas corpus is the appropriate reedy, iposes that
obligation. 2ts tas4 is clear. 2t ust be perfored. That is a trust to )hich it
cannot be recreant /henever the grievance coplained of is deprivation of
liberty, it is its responsibility to in*uire into the atter and to render the decision
appropriate under the circustances. Precisely, a habeas corpus petition calls for
that response. 3or the significance of liberty in a constitutional regie cannot be
sufficiently stressed. /itness these )ords fro the then 0ustice, later Chief
0ustice, Concepcion? B3urtherore, individual freedo is too basic, to be denied
upon ere general principles and abstract consideration of public safety. 2ndeed,
the preservation of liberty is such a a+or preoccupation of our political syste
that, not satisfied )ith guaranteeing its en+oyent in the very first paragraph of
section 8"= of the Bill of Rights, the fraers of our Constitution devoted Ht)elve
otherJ paragraphs HthereofJ to the protection of several aspect of freedo.B
11
A
siilar sentient )as given e1pression by the then 0ustice, later Chief 0ustice,
Beng,on? B:et the rebels have no reason to apprehend that their corades no)
under custody are being railroaded into Muntinlupa )ithout benefit of those
fundaental privileges )hich the e1perience of the ages has deeed essential for
the protection of all persons accused of crie before the tribunals of +ustice. 9ive
the the assurance that the +udiciary, ever indful of its sacred ission )ill not,
thru faulty cogitation or isplaced devotion, uphold any doubtful clais of
9overnental po)er in diinution of individual rights, but )ill al)ays cling to the
principle uttered long ago by Chief 0ustice Marshall that )hen in doubt as to the
construction of the Constitution, !the Courts )ill favor personal liberty! ....B
11
The
pertinence of the above e1cerpt becoes *uite anifest )hen it is recalled that
its utterance )as in connection )ith a certiorari proceeding )here the precise
point at issue )as )hether or not the right to bail could be availed of )hen the
privilege of the )rit of habeas corpus )as suspended. There )as no decisive
outcoe, although there )ere five votes in favor of an affirative ans)er to only
four against.
13
%uch pronounceents in cases arising under the "'7<
Constitution should occasion. no surprise. They erely underscore )hat )as so
vigorously ephasi,ed by the then 6elegate 0ose P. :aurel, Chairan of the
Coittee on the Bill of Rights, in his sponsorship address of the draft provisions.
Thus? BThe history of the )orld is the history of an and his ardous struggle for
liberty. ... 2t is the history of those brave and able souls )ho, in the ages that are
past, have labored, fought and bled that the governent of the lash 5 that
sybol of slavery and despotis ; ight endure no ore. 2t is the history of
those great self;sacrificing en )ho lived and suffered in an age of cruelty, pain
and desolation so that every an ight stand, under the protection of great
rights and privileges, the e*ual of every other an.
14
%o should it be under the
present Constitution. No less a person than President Marcos during the early
onths of the "'(" Constitutional Convention categorically affired in his Todays
,evolution? 6eocracy? B/ithout freedo, the )hole concept of deocracy falls
apart.B
15
%uch a vie) has support in history. A stateent fro 6r. Ri,al has a
conteporary ring? B9ive liberties, so that no one ay have a right to conspire.B
16
Mabini listed as an accoplishent of the ill;fated revolution against the
Aericans the anifestation of Bour love of freedo guaranteeing to each citi,en
the e1ercise of certain rights )hich a4e our counal life less constricted, ....B
17
@. E*ually so, the decisive issue is one of liberty not only because of the nature of
the petitions but also because that is the andate of the Constitution. That is its
philosophy. 2t is a regie of liberty to )hich our people are so deeply and firly
coitted.
1*
The fate of the individual petitioners hangs in the balance. That is
of great concern. /hat is at sta4e ho)ever, is ore than that 5 uch ore.
There is a paraount public interest involved. The oentous *uestion is ho) far
in ties of stress fidelity can be anifested to the clais of liberty. %o it is
ordained by the Constitution, and it is the highest la). 2t ust be obeyed. Nor
does it a4e a crucial difference, to y ind, that artial la) e1ists. 2t ay call
for a ore cautious approach. The siplicity of constitutional fundaentalis
ay not suffice for the cople1 probles of the day. %till the duty reains to
assure that the supreacy of the Constitution is upheld. /hether in good ties
or bad, it ust be accorded the utost respect and deference. That is )hat
constitutionalis connotes. 2t is its distinctive characteristic. 9reater restraints
ay of course be iposed. 6etention, to cite the obvious e1aple, is not ruled
out under artial la), but even the very proclaation thereof is dependent on
public safety a4ing it iperative. The po)ers, rather e1pansive, perhaps at
ties even latitudinarian, allo)able the adinistration under its aegis, )ith the
conse*uent diinution of the sphere of liberty, are +ustified only under the
assuption that thereby the beleaguered state is in a better position to protect,
defend and preserve itself. They are hardly ipressed )ith the eleent of
peranence. They cannot endure longer than the eergency that called for the
e1ecutive having to a4e use of this e1traordinary prerogative. /hen it is a thing
of the past, artial la) ust be at an end. 2t has no ore reason for being. 2f its
proclaation is open to ob+ection, or its continuance no longer )arranted, there is
all the ore reason, to follo) :as4i, to respect the traditional liitation of legal
authority that freedo deands.
19
/ith these habeas corpus petitions precisely
rendering pereptory action by this Court, there is the opportunity for the
assessent of liberty considered in a concrete social conte1t. /ith full
appreciation then of the cople1ities of this era of turoil and dis*uiet, it can
hopefully contribute to the delineation of constitutional boundaries. 2t ay even
be able to deonstrate that la) can be tieless and yet tiely.
<. There are relevant *uestions that still reain to be ans)ered. 6oes not the
proclaation of artial la) carry )ith it the suspension of the privilege of the )rit
of habeas corpusE 2f so, should not the principle above enunciated be sub+ected
to further refineentE 2 a not too certain that the first *uery. necessarily calls
for an affirative ans)er. Preventive detention is of course allo)able. 2ndividuals
)ho are lin4ed )ith invasion or rebellion ay pose a danger to the public be
safety. There is nothing inherently unreasonable in their being confined. Moreover,
)here it is the President hiself, as in the case of these petitioners, )ho
personally directed that they be ta4en in, it is not easy to ipute arbitrariness. 2t
ay happen though that officers of lesser stature not ipressed )ith the high
sense of responsibility )ould utili,e the situation to cause the apprehension of
persons )ithout sufficient +ustification. Certainly it )ould be, to y ind, to
sanction oppressive acts if the validity of such detention cannot be in*uired into
through habeas corpus petitions. 2t is ore than +ust desirable therefore that if
such be the intent, there be a specific decree concerning the suspension of the
privilege of the )rit of habeas corpus. Even then, ho)ever, such proclaation
could be challenged. 2f vitiated by constitutional infirity, the release ay be
ordered. Even if it )ere other)ise, the applicant ay not be aong those as to
)ho the privilege of the )rit has been suspended. 2t is pertinent to note in this
connection that Proclaation No. "#$" specifically states Bthat all persons
presently detained as )ell as all others )ho ay hereafter be siilarly detained
for the cries of insurrection or rebellion, and all other cries and offenses
coitted in furtherance or on the occasion thereof, or incident thereto, or in
connection there)ith, for cries against national security and the la) of nations,
crie against the fundaental la)s of the %tate, cries against public order,
cries as )ill be enuerated in -rders that 2 shall subse*uently proulgate, as
be 4ept under detention until other)ise ordered released by e or by duly
designated representative.B
1/
The iplication appears at unless the individual
detained is included aong those to )ho any of the above crie or offense ay
be iputed, he is entitled to +udicial protection. :astly, the *uestion of )hether or
not there is )arrant for the vie) that artial la) is at an end ay be deeed
proper not only in the light of radically altered conditions but also because of
certain e1ecutive acts clearly incopatible )ith its continued e1istence. Gnder
such circustances, an eleent of a +usticiable controversy ay be discerned.
A. That brings e to the political *uestion doctrine. 2ts accepted signification is
that )here the atter involved is left to a decision by the people acting in their
sovereign capacity or to the sole deterination by either or both the legislative or
e1ecutive branch of the governent, it is beyond +udicial cogni,ance.
11
Thus it
)as that in suits )here the party proceeded against )as either the President or
Congress, or any of its branches for that atter, the courts refused to act.
11
Gnless such be the case, the action ta4en by any or both the political branches
)hether in the for of a legislative act or an e1ecutive order could be tested in
court. /here private rights are affected, the +udiciary has the duty to loo4 into its
validity. There is this further iplication of the doctrine. A sho)ing that plenary
po)er is granted either departent of governent ay not be an obstacle to
+udicial in*uiry. 2ts iprovident e1ercise or the abuse thereof ay give rise to a
+usticiable controversy.
13
/hat is ore, a constitutional grant of authority is not
usually unrestricted.
14
:iitations are provided for as to )hat ay be done and
ho) it is to he accoplished. Necessarily then, it becoes the responsibility of
the courts to ascertain )hether the t)o coordinate branches have adhered to the
andate of the fundaental la). The *uestion thus posed is +udicial rather than
political.
(. Reference at this point to the epochal opinion in the aforecited Lansang v.
Garcia decision, )here the validity of the suspension of the privilege of the )rit of
habeas corpus )as sustained by this Court, is not aiss. 3or in both in the "'7<
and in the present Constitutions, the po)er to declare artial la) is ebraced in
the sae provision )ith the grant of authority to suspend the privilege of the )rit
of habeas corpus, )ith the sae liits to be observed in the e1ercise thereof.
15
2t )ould follo), therefore, that a siilar approach coends itself on the
*uestion of )hether or not the finding ade by the President in Proclaation No.
"#$" as to the e1istence of Brebellion and ared action underta4en by these
la)less eleents of the counist and other ared aggrupations organi,ed to
overthro) the Republic of the Philippines by ared violence and force Hipressed
)ith theJ agnitude of an actual state of )ar against HtheJ people and the
Republic ...B
16
is open to +udicial in*uiry. Reference to the opinion of Chief 0ustice
Concepcion )ould prove illuinating? B2ndeed, the grant of po)er to suspend the
privilege is neither absolute nor un*ualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the E1ecutive 6epartent, is
liited and conditional. The precept in the Bill of Rights establishes a general rule,
as )ell as an e1ception thereto. /hat is ore, it postulates the forer in the
negative, evidently to stress its iportance, by providing that !8t=he privilege of
the )rit of habeas corpus shall not be suspended. ....! 2t is only by )ay of
e1ception that it perits the suspension of the privilege !in cases of invasion,
insurrection, or rebellion! 5 or, under Art. D22 of the Constitution, Biinent
danger thereofB 5 !)hen the public safety re*uires it, in any of )hich events the
sae ay be suspended )herever during such period the necessity for such
suspension shall e1ist.! 3ar fro being full and plenary, the authority to suspend
the privilege of the )rit is thus circuscribed, confined and restricted not only by
the prescribed setting or the conditions essential to its e1istence, but also as
regards the tie )hen and the place )here it ay be e1ercised. These factors
and the aforeentioned setting or conditions ar4, establish and define the
e1tent, the confines and the liits of said po)er, beyond )hich it does not e1ist.
And, li4e the liitations and restrictions iposed by the 3undaental :a) upon
the legislative departent, adherence thereto and copliance there)ith ay,
)ithin proper bounds, be in*uired into by courts of +ustice. -ther)ise, the e1plicit
constitutional provisions thereon )ould be eaningless. %urely, the fraers of
our Constitution could not have intended to engage in such a )asteful e1ercise in
futility.B
17
%uch a vie) )as fortified by the high estate accorded individual
freedo as ade clear in the succeeding paragraph of his opinion? BMuch less
ay the assuption be indulged in )hen )e bear in ind that our political
syste is essentially deocratic and republican in character and that the
suspension of the privilege affects the ost fundaental eleent of that syste,
naely, individual freedo. 2ndeed, such freedo includes and connotes, as )ell
as deands, the right of every single eber of our citi,enry to freely discuss
and dissent fro, as )ell as critici,e and denounce, the vie)s, the policies and
the practices of the governent and the party in po)er that he dees un)ise,
iproper or iniical to the coon)ealth, regardless of )hether his o)n opinion
is ob+ectively correct or not. The untraelled en+oyent and e1ercise of such
right 5 )hich, under certain conditions, ay be a civic duty of the highest order
5 is vital to the deocratic syste and essential to its successful operation and
)holesoe gro)th and developent.B
1*
The )riter )rote a concurring and dissenting opinion. Ce )as fully in agreeent
)ith the rest of his brethren as to the lac4 of conclusiveness attached to the
presidential deterination. Thus? BThe doctrine announced in Montenegro v.
Castaeda that such a *uestion is political has thus been laid to rest. 2t is about
tie too. 2t o)ed its e1istence to the copulsion e1erted by Barcelon v. Baker, a
"'#< decision. This Court )as partly isled by an undue reliance in the latter
case on )hat is considered to be authoritative pronounceent fro such
illustrious Aerican +urists as Marshall, %tory, and Taney. That is to isread )hat
)as said by the. This is ost evident in the case of Chief 0ustice Marshall,
)hose epochal Marbury v. Madison )as cited. /hy that )as so is difficult to
understand. 3or it spea4s to the contrary. 2t )as by virtue of this decision that the
function of +udicial revie) o)es its origin not)ithstanding the absence of any
e1plicit provision in the Aerican Constitution epo)ering the courts to do so.
Thus? !2t is ephatically the province and duty of the +udicial departent to say
)hat the la) is. Those )ho apply the rule to particular cases, ust of necessity
e1pound and interpret that rule. 2f t)o la)s conflict )ith each other, the courts
ust decide on the operation of each. %o if a la) be in opposition to the
constitution. if both the la) and the constitution apply to a particular case, so
that the court ust either decide that case conforably to the la) disregarding
the constitution. or conforably to the constitution, disregarding the la), the
court ust deterine )hich of these conflicting rules governs the case. This is of
the very essence of +udicial duty. 2f, then, the courts are to regard the
constitution, and the constitution is superior to any ordinary act of legislature, the
constitution, and not such ordinary act, ust govern the case to )hich they both
apply.B
19
$. To refer to :ansang ane), this Court sustained the presidential proclaation
suspending the privilege of the )rit of habeas corpus as there )as no sho)ing of
arbitrariness in the e1ercise of a prerogative belonging to the e1ecutive, the
+udiciary erely acting as a chec4 on the e1ercise of such authority. %o Chief
0ustice Concepcion ade clear in this portion of his opinion? BArticle D22 of the
Constitution vests in the E1ecutive po)er to suspend the privilege of the )rit of
habeas c under specified conditions. Pursuant to the principle of separation of
po)ers underlying our syste of governent, the E1ecutive is supree )ithin his
o)n sphere. Co)ever, the separation of po)ers, under the Constitution, is not
absolute. /hat is ore, it goes hand in hand )ith the syste of chec4s and
balances, under )hich the E1ecutive is supree, as regards the suspension of the
privilege, but only if and )hen he acts )ithin the sphere allotted to hi by the
Basic :a), and the authority to deterine )hether or not he has so acted is
vested in the 0udicial 6epartent, )hich, in this respect, is, in turn,
constitutionally supreme. 2n the e1ercise of such authority, the function of the
Court is erely to chec4 not to supplant 5 the E1ecutive, or to ascertain merely
whether he has gone beyond the constitutional liits of his +urisdiction, not to
e!ercise the power vested in him or to deterine the )isdo of his act. To be
sure, the po)er of the Court to deterine the validity of the contested
proclaation is far fro being identical to, or even coparable )ith, its po)er
over ordinary civil or criinal cases elevated thereto by ordinary appeal fro
inferior courts, in )hich cases the appellate court has all of the po)ers of the
court of origin.B
3/
The test then to deterine )hether the presidential action
should be nullified according to the %upree Court is that of arbitrariness. Absent
such a sho)ing, there is no +ustification for annulling the presidential
proclaation.
-n this point, the )riter, in a separate opinion, had this to say? B/ith such
presidential deterination of the e1istence of the conditions re*uired by the
Constitution to +ustify a suspension of the privilege of the )rit no longer
conclusive on the other branches, this Court ay thus legitiately in*uire into its
validity. The *uestion before us, it bears repeating, is )hether or not Proclaation
No. $$' as it no) stands, not as it )as originally issued, is valid. The starting
point ust be a recognition that the po)er to suspend the privilege of the )rit
belongs to the E1ecutive, sub+ect to liitations. %o the Constitution provides, and
it is to be respected. The range of perissible in*uiry to be conducted by this
Tribunal is necessarily liited then to the ascertainent of )hether or not such a
suspension, in the light of the credible inforation furnished the President, )as
arbitrary. %uch a test et )ith the approval of the chief counsel for petitioners,
%enator 0ose /. 6io4no. To paraphrase 3ran4furter, the *uestion before the
+udiciary is not the correctness but the reasonableness of the action ta4en. -ne
)ho is not the E1ecutive but e*ually 4no)ledgeable ay entertain a different
vie), but the decision rests )ith the occupant of the office. As )ould be
iediately apparent even fro a cursory perusal of the data furnished the
President, so ipressively suari,ed in the opinion of the Chief 0ustice, the
iputation of arbitrariness )ould be difficult to sustain. Moreover, the steps ta4en
by hi to liit the area )here the suspension operates as )ell as his instructions
attested to a fir resolve on his part to 4eep strictly )ithin the bounds of his
authority. Gnder the circustances, the decision reached by the Court that no
finding of unconstitutionality is )arranted coends itself for approval. The ost
that can be said is that there )as a anifestation of presidential po)er )ell;nigh
touching the e1tree borders of his conceded copetence, beyond )hich a
forbidden doain lies. The re*uisite sho)ing of either iprovidence or abuse has
not been ade.B
31
'. The :ansang doctrine for e is decisive on the various issues raised in this
case, y discussion being confined to petitioner Rodrigo, as )ell as others
siilarly situated, for under y vie) that the petition in A*uino should be
disissed because charges had been filed, and the petition in 6io4no should be
considered )ithdra)n, there need be no further in*uiry as to the erits of their
respective contentions.
No), first as to the validity of the proclaation itself. 2t )ould see that it is
beyond *uestion in the light of this particular transitory provision in the present
Constitution? BAll proclaations, orders, decrees, instructions, and acts
of the land, and shall reain valid, legal, binding, and effective even after lifting
of artial la) or the ratification of this Constitution, unless odified, revo4ed, or
superseded by subse*uent proclaations, orders, decrees, instructions, or other
acts of the incubent President, or unless e1pressly and e1plicitly odified or
repealed by the regular National Assebly.B
31
2ndependently of such provision,
such presidential proclaation could not be characteri,ed as arbitrary under the
standard set forth in the :ansang decision. Ce did act Bon the basis of carefully
evaluated and verified inforation, H)hichJ definitely established that la)less
eleents )ho are oved by a coon or siilar ideological conviction, design
strategy and goal and en+oying the active oral and aterial support of a foreign
po)er and being guided and directed by intensely devoted, )ell;trained,
deterined and ruthless groups of en and see4ing refuge :inder the protection
of our constitutional liberties to proote and attain their ends, have entered into
a conspiracy and have in fact +oined and banded their resources and forces
together for the prie purpose of, and in fact they have been and are actually
staging, underta4ing and )aging an ared insurrection and rebellion against the
9overnent of the Republic of the Philippines in order to forcibly sei,e political
state po)er in the country overthro) the duly constituted and supplant our
e1isting political, social, econoic, and legal order )ith an entirely ne) one
)hose for of governent, )hose syste of la)s, )hose conception of 9od and
religion, )hose notion of individual rights and faily relations, and )hose
political, social, econoic, legal and oral precepts are based on the Mar1ist;
:eninist;Maoist teachings and beliefs. ....B
33
%ubse*uent events did confir the validity of such appraisal. Even no), fro the
pleadings of the %olicitor 9eneral, the assuption that the situation has not in
certain places radically changed for the better cannot be stigati,ed as devoid of
factual foundation. As of the present, even on the vie) that the courts ay
declare that the crisis conditions have ended and public safety does not re*uire
the continuance of artial la), there is not enough evidence to )arrant such a
+udicial declaration. This is not to deny that in an appropriate case )ith the proper
parties, and, in the language of 0ustice :aurel, )ith such issue being the very lis
mota, they ay be copelled to assue such an a)esoe responsibility. A sense
of realis as )ell as sound 0uristic theory )ould place such delicate tas4 on the
shoulders of this Tribunal, the only constitutional court. %o 2 )ould read ,utter v.
steban.
34
There, )hile the Moratoriu Act
35
)as at first assued to be valid,
)ith this Court in such suit being persuaded that its Bcontinued operation and
enforceentB under circustances that developed later, becae Bunreasonable
and oppressive,B and should not be prolonged a inute longer, ... Hit )asJ
Bdeclared null and void and )ithout effect.B
36
2t goes )ithout saying that before it
should ta4e such a step, e1tree care should be ta4en lest the aintenance of
public peace and order, the priary duty of the E1ecutive, be attended )ith
e1tree difficult . 2t is li4e)ise essential that the evidence of public safety no
longer re*uiring artial la) be of the clearest and ost satisfactory character. 2t
cannot be too strongly stressed that )hile liberty is a prie ob+ective and the
+udiciary is charged )ith the duty of safeguarding it, on a atter of such gravity
during periods of eergency, the e1ecutive appraisal of the situation is deserving
of the utost credence. 2t suffices to recall the stress laid by Chief 0ustice
Concepcion in :ansang that its function Bis erely to check 5 not to supplantB the
latter. The allocation of authority in the Constitution ade by the people
theselves to the three departents of governent ust be respected. There is
to be no intrusion by any one into the sphere that belongs to another. Precisely
because of such fundaental postulate in those cases, and there ay be such,
but perhaps rather rare, it could aount to +udicial abdication if no in*uiry )ere
deeed perissible and the *uestion considered political.
The last point is, )hile the detention of petitioners could have been validly
ordered, as dictated by the very proclaation itself, if it continued for an
unreasonable length of tie, then his release ay be sought in a habeas corpus
proceeding. This contention is not devoid of plausibility. Even in ties of stress, it
cannot +ust be assued that the indefinite restraint of certain individuals as a
preventive easure is unavoidable. 2t is not to be denied that )here such a state
of affairs could be traced to the )ishes of the President hiself, it carries )ith it
the presuption of validity. The test is again arbitrariness as defined in :ansang.
2t ay happen that the continued confineent ay be at the instance erely of a
ilitary official, in )hich case there is ore lee)ay for +udicial scrutiny.
"#. A )ord ore on the )ithdra)al of a habeas corpus petition. -n the basic
assuption that precisely the great )rit of liberty is available to a person
sub+ected to restraint so that he could challenge its validity, 2 find it difficult not to
yield assent to a plea by the applicant hiself that he is no longer desirous or
pursuing such reedy. Ce had a choice of )hether or not to go to court. Ce )as
free to act either )ay. The fact that at first he did so, but that later he )as of a
different ind, does not, in y opinion, alter the situation. The atter, for e, is
still one left to his free and unfettered )ill. The conclusion then for e at least, is
that a court ust accede to his )ishes. 2t could li4e)ise be based on his belief
that the realities of the situation copel the conclusion that relief could coe
fro the E1ecutive. That decision )as his to a4e. 2t ust be respected.
Moreover, if only because of huanitarian considerations, considering the ill;
effects of confineent on his state of health, there is e*ually legal support for the
vie) that his conditional release as in the case of the other detainees )ould not
be inappropriate.
2f his otion for )ithdra)al contained phraseology that is offensive to the dignity
of the court, then perhaps the corresponding disciplinary action ay be ta4en. 3or
that purpose, and for that purpose alone, the petition ay be considered as still
)ithin +udicial cogni,ance. 2t is true in certain cases that the issues raised ay be
so transcendental that there is )isdo in continuing the proceeding. The
)ithdra)al, even then, for e, is not fraught )ith pernicious conse*uences. 2f the
atter )ere that significant or iportant, the probability is that the *uestion )ill
soon be ventilated in another petition. There is, to deal briefly )ith another point,
the atter of the rather harsh and bitter language in )hich the otion for
)ithdra)al )as couched. That is a atter of taste. Even if it )ent beyond the
bounds of the perissible, the )ithdra)al should be granted. This for e is the
principle that should obtain. The rather uncharitable vie) e1pressed concerning
the ability of certain ebers of the Court to act +ustly on the atter should not
give rise, in y opinion, to undue concern. That is one!s belief, and one is entitled
to it. 2t does not follo) that thereby the person thus un+ustifiably aligned should
suffer any loss of self;estee. After all, it is a truis to say that a an on the
bench is accountable only to his conscience and, in the ultiate analysis, to his
Ma4er. There is all the ore reason then not to be unduly bothered by the
rear4s in *uestion. Moreover, they eanated fro a source suffering fro the
pangs of desperation born of his continued detention. 2t could very )ell be that
the disappointent of e1pectations and frustration of hopes did lead to such an
inteperate outburst. There is, for eat least, relevance to this e1cerpt fro an
opinion by 0ustice 3ran4furter? B%ince courts, although representing the la), ...
are also sitting in +udgent, as it )ere, on their o)n function in e1ercising their
po)er to punish for contept, it should be used only in flagrant cases and )ith
the utost forbearance. 2t is al)ays better to err on the side of tolerance and
even of disdainful indifference.B
37
"". There is novelty in the *uestion raised by petitioner Rodrigo. Nor is that the
only reason )hy it atters. 2t is fraught )ith significance not only for hi but also
for *uite a nuber of others in a li4e predicaent. They belong to a group
released fro confineent. They are no longer detained. -rdinarily that should
suffice to preclude resort to the reedy of habeas corpus. -ffhand, it ay be
plausibly asserted that the need no longer e1ists. The prison )all, to paraphrase
Chafee is no longer there. it has on function in e1ercising their po)er to punish
for contept, it should be used only in flagrant cases and )ith the utost
forbearance. 2t is al)ays better to err on the side of tolerance and even of
disdainful indifference.B
37
Chafee is no longer there. it has fallen do)n. /hat is there to penetrateE That is
+ust the point, petitioner Rodrigo coplains. That is not really true, or only true
partially. There are physical as )ell as intellectual restraints on his freedo. Cis
release is conditional. There are things he cannot say places he cannot go. That is
not liberty in a eaningful sense. This great )rit then has not lost its significance
for hi, as )ell as for others siilarly situated. The )ay he developed his
arguent calls to ind Cardo,o!s )arning that in a )orld of reality, a +uridical
concept ay not al)ays be pressed to the liit of its logic. There are
countervailing considerations. The fact that he )as aong those )hose detention
)as ordered by the President is one of the. There )as then an e1ecutive
deterination on the highest level that the state of affairs ar4ed by rebellious
activities did call for certain individuals being confined as a preventive easure.
Gnless there is a sho)ing of the arbitrariness of such a ove, the +udiciary has to
respect the actuation. 2t ust be assued that )hat )as to be done )ith the
thereafter ust have been given soe attention. At one e1tree, their
preventive detention could be terinated and their full freedo restored. At the
other, it could be continued if circustances did so )arrant. Cere, there )as a
iddle )ay chosen. Petitioner Rodrigo as )ell as several others )ere released
sub+ect to conditions. 2t cannot be dogatically aintained that such a solution
)as an affront to reason. Not only for the person loc4ed up, but perhaps even
ore so for his faily, the end of the incarceration )as an eagerly a)aited and
highly )elcoe event. That is *uite understandable. 2t did +ustify petitioner!s
assertion that in so agreeing to the conditions iposed, he )as not acting of his
o)n free )ill. Realistically, be had no choice or one inial at ost. Nonetheless,
it cannot be denied that he )as a recipient of )hat at the very least )as a clear
anifestation of the Philippine brand of artial la) being ipressed )ith a ild
character.
This being a habeas corpus petition, the appropriate *uestion for +udicial in*uiry is
the validity of the liits set to the conditional release of petitioner Rodrigo. The
guiding principle is supplied by this ringing affiration of 0ustice Malcol? BAny
restraint )hich )ill preclude freedo of action is sufficient.B
3*
The iplication for
e is that there ay be instances of the propriety of the invocation of the )rit
even )ithout actual incarceration. This is one of the. 2t is heartening that the
Court so vie) it. 2t is, to y ind, regrettable though that there appears to be
full acceptance of the po)er of the ilitary to ipose restrictions on petitioner
Rodrigo!s physical liberty. There is need, it )ould see to e, for a ore
discriinating appraisal, especially )here it could be sho)n that the order to that
effect proceeds fro a source lo)er than the President. The e1treely high
respect +ustifiably accorded to the action ta4en by the highest official of the land,
)ho by hiself is a separate and independent departent, not to ention the
one constitutional official authori,ed to proclai artial la), is not indicated.
There should be, of course, no casual or unreasoned disregard for )hat the
ilitary ay dee to be the appropriate easure under the circustances. This
reflection, though, gives e pause. Petitioner Rodrigo and others siilarly
situated )ere released. That step )ould not have been ta4en if circustances did
not +ustify it. 2t sees then reasonable to assue that full, rather than restricted,
freedo )as )arranted. The atter ay be put forth ore categorically, but 2
refrain fro doing so. The reason is practical. To insist that it should be thus ay
curb )hat appears to be the coendable tendency to put an end to the
preventive detention of those in actual confineent. As for restraints on
intellectual liberty ebraced in freedo of speech and of press, of assebly, and
of association, deference to controlling authorities copel e to say that the )rit
of habeas corpus is not the proper case for assailing the. 2t does not ean that
+udicial in*uiry is foreclosed. 3ar fro it. All that is intended to be conveyed is
that this reedy does not lend itself to that purpose. 2n so advocating this
approach, 2 a not unindful that it ight be loo4ed upon as lac4 of a)areness
for the ischief that ay be caused by irresponsible eleents, not to say the
rebels theselves. The )ords of /illoughby, )hose vie) on artial la) is the
ost sypathetic to the priacy of liberty, furnish the antidote? BAs long as the
eergency lasts then, they ust upon pain of arrest and subse*uent punishent
refrain fro coitting acts that )ill render ore difficult the restoration of a
state of noralcy and the enforceent of la).
39
"&. Reliance, as is *uite evident fro the foregoing, is )ellnigh solely placed on
Philippine authorities. /hile the persuasive character of Aerican Constitutional
la) doctrines is not entirely a thing of the past, still, the novelty of the *uestion
before us, copels in y vie) deference to the trend indicated by our past
decisions, read in the light not only of specific holdings but also of the broader
principles on )hich they are based. Even if they do not precisely control, they do
furnish a guide. Moreover, there sees to be a dearth of Gnited %tates %upree
Court pronounceents on the sub+ect of artial la), due no doubt to absence in
the Aerican Constitution of any provision concerning it. 2t is understandable )hy
no reference )as ade to such sub+ect in the earliest classic on Aerican
constitutional la) )ritten by 0ustice %tory.
4/
/hen the landar4 "$AA Milligan
case
41
ade its appearance, and uch ore so after %terling
41
follo)ed in "'7&
and 6uncan
43
in "'@A, a discussion thereof becae unavoidable. %o it is evident
fro subse*uent coentaries and case boo4s.
44
Cooley though, in his e*ually
faous )or4 that )as first published in "$A$ contented hiself )ith footnote
references to Milligan.
45
/atson vie)ed it in connection )ith the suspension of
the privilege of the )rit of habeas corpus.
46
2n the nineteen t)enties, there )as a
fuller treatent of the *uestion of artial la). Burdic4 anticipated /illoughby
)ith this appraisal? B%o;called artial la), e1cept in occupied territory of an
eney, is erely the calling in of the aid of ilitary forces by the e1ecutive, )ho
is charged )ith the enforceent of the la), )ith or )ithout special authori,ation
by the legislature. %uch declaration of artial la) does not suspend the civil la),
though it ay interfere )ith the e1ercise of one!s ordinary rights. The right to call
out the ilitary forces to aintain order and enforce the la) is siply part of the
police po)er. 2t is only +ustified )hen it reasonably appears necessary, and only
+ustifies such acts as reasonably appear necessary to eet the e1igency, including
the arrest, or in e1tree cases the 4illing of those )ho create the disorder or
oppose the authorities. /hen the e1igency is over the ebers of the ilitary
forces are criinally and civilly liable for acts done beyond the scope of
reasonable necessity. /hen honestly and reasonably coping )ith a situation of
insurrection or riot a eber of the ilitary forces cannot be ade liable for his
acts, and persons reasonably arrested under such circustances )ill not, during
the insurrection or riot, be free by )rit of habeas corpus.
47
/illoughby, as already noted, )as partial to the clais of liberty. This is *uite
evident in this e1cerpt in his opus? BThere is, then, strictly spea4ing, no such
thing in Aerican la) as a declaration of artial la) )hereby ilitary la) is
substituted for civil la). %o;called declarations of artial la) are, indeed, often
ade but their legal effect goes no further than to )arn citi,ens that the ilitary
po)ers have been called upon by the e1ecutive to assist hi in the aintenance
of la) and order, and that, )hile the eergency lasts, they ust, upon pain of
arrest and punishent not coit any acts )hich )ill in any )ay render ore
difficult the restoration of order and the enforceent of la). %oe of the
authorities stating substantially this doctrine are *uoted in the footnote belo).B
4*
/illis spo4e siilarly? BMartial la) proper, that is, ilitary la) in case of
insurrection, riots, and invasions, is not a substitute for the civil la), but is rather
an aid to the e1ecution of civil la). 6eclarations of artial la) go no further than
to )arn citi,ens that the e1ecutive has called upon the ilitary po)er to assist
hi in the aintenance of la) and order. /hile artial la) is in force, no ne)
po)ers are given to the e1ecutive and no civil rights of the individual, other than
the )rit of habeas corpus, are suspended. The relations bet)een the citi,en and
his state are unchanged.B
49
2t is readily evident that even )hen Milligan supplied the only authoritative
doctrine, Burdic4 and /illoughby did not ignore the priacy of civil liberties. /illis
)rote after %terling. 2t )ould indeed be surprising if his opinion )ere other)ise.
After 6uncan, such an approach becoes even ore strongly fortified. %ch)art,,
)hose treatise is the latest to be published, has this suary of )hat he
considers the present state of Aerican la)? BThe Milligan and /uncan cases
sho) plainly that artial la) is the public la) of necessity. Necessity alone calls it
forth. necessity +ustifies its e1ercise. and necessity easures the e1tent and
degree to )hich it ay be eployed. 2t is, the high Court has affired, an
unbending rule of la) that the e1ercise of ilitary po)er, )here the rights of the
citi,en are concerned, ay never be pushed beyond )hat the e1igency re*uires.
2f artial rule survives the necessity on )hich alone it rests, for even a single
inute, it becoes a ere e1ercise of la)less violence.B
5/
3urther? B"terling v.
Constantin is of basic iportance. Before it, a nuber of decisions, including one
by the highest Court, )ent on the theory that the e1ecutive had a free hand in
ta4ing artial;la) easures. Gnder the, it had been )idely supposed that a
artial;la) proclaation )as so far conclusive that any action ta4en under it )as
iune fro +udicial scrutiny. "terling v. Constantin, definitely discredits these
earlier decisions and the doctrine of conclusiveness derived fro the. Gnder
"terling v. Constantin, )here artial la) easures ipinge upon personal or
property rights 5 norally beyond the scope of ilitary po)er, )hose
intervention is la)ful only because an abnoral situation has ade it necessary
5 the e1ecutive!s ipse di1it is not of itself conclusive of the necessity.B
51
2t is not to be lost sight of that the basis for the declaration of artial la) in the
Philippines is not ere necessity but an e1plicit constitutional provision. -n the
other hand, Milligan, )hich furnished the foundation for %terling
51
and 6uncan
53
had its roots in the English coon la). There is pertinence therefore in
ascertaining its significance under that syste. According to the noted English
author, 6icey? B !Martial la),! in the proper sense of that ter, in )hich it eans
the suspension of ordinary la) and the teporary governent of a country or
parts of it by ilitary tribunals, is un4no)n to the la) of England. /e have
nothing e*uivalent to )hat is called in 3rance the !6eclaration of the %tate of
%iege,! under )hich the authority ordinarily vested in the civil po)er for the
aintenance of order and police passes entirely to the ary 8autorite ilitaire=.
This is an unista4able proof of the peranent supreacy of the la) under our
constitution.B
54
There )as this *ualification? BMartial la) is soeties eployed
as a nae for the coon la) right of the Cro)n and its servants to repel force
by force in the case of invasion, insurrection, riot, or generally of any violent
resistance to the la). This right, or po)er, is essential to the very e1istence of
orderly governent, and is ost assuredly recogni,ed in the ost aple anner
by the la) of England. 2t is a po)er )hich has in itself no special connection )ith
the e1istence of an ared force. The Cro)n has the right to put do)n breaches of
the peace. Every sub+ect, )hether a civilian or a soldier, )hether )hat is called a
!servant of the governent,! such for e1aple as a policean, or a person in no
)ay connected )ith the adinistration, not only has the right, but is, as a atter
of legal duty, bound to assist in putting do)n breaches of the peace. No doubt
policeen or soldiers are the persons )ho, as being specially eployed in the
aintenance of order, are ost generally called upon to suppress a riot, but it is
clear that all loyal sub+ects are bound to ta4e their part in the suppression of
riots.B
55
The picture )ould be incoplete, of course, if no reference )ere ade to
Rossiter. 2n his )or4 on Constitutional 6ictatorship, )here he discussed crisis
governents in the 3rench Republic, in 9reat Britain and in the Gnited %tate he
spo4e of artial rule. 3or hi, it Bis an eergency device designed for use in the
crises of invasion or rebellion. 2t ay be ost precisely defined as an e1tension of
ilitary governent to the civilian population, the substitution of the )ill of a
ilitary coander for the )ill of the people!s elected governent. 2n the event
of an actual or iinent invasion b a hostile po)er, a constitutional governent
ay declare artial rule in the enaced area. The result is the transfer of all
effective po)ers of governent fro the civil authorities to the ilitary, or often
erely the assuption of such po)ers by the latter )hen the regular governent
has ceased to function. 2n the event of a rebellion its initiation aounts to a
governental declaration of )ar on those citi,ens in insurrection against the
state. 2n either case it eans ilitary dictatorship 5 governent by the ary,
courts;artial, suspension of civil liberties, and the )hole range of dictatorial
action of an e1ecutive nature. 2n the odern deocracies the ilitary e1ercises
such dictatorship )hile reaining subordinate and responsible to the e1ecutive
head of the civil governent. Martial rule has a variety of fors and pseudonys,
the ost iportant of )hich are martial law, as it is 4no)n in the civil la)
countries of the British Epire and the Gnited %tates, and the state o) siege, as it
is 4no)n in the civil la) countries of continental Europe and :atin Aerica. The
state of siege and artial la) are t)o edges to the sae s)ord, and in action
they can hardly be distinguished. The institution of artial rule is a recognition
that there are ties in the lives of all counities )hen crisis has so copletely
disrupted the noral )or4ings of governent that the ilitary is the only po)er
reaining that can restore public order and secure the e1ecution of the la)s.
56
Cappily for the Philippines, the declaration of artial la) lends itself to the
interpretation that the Burdic4, /illoughby, /illis, %ch)art, forulations paying
due regard to the priacy of liberty possess relevance. 2t cannot be said that the
artial rule concept of Rossiter, latitudinarian in scope, has been adopted, even
on the assuption that it can be reconciled )ith our Constitution. /hat is
undeniable is that President Marcos has repeatedly aintained that Proclaation
No. "#$" )as precisely based on the Constitution and that the validity of acts
ta4en thereunder could be passed upon by the %upree Court. 3or e, that is
*uite reassuring, persuaded as 2 a li4e)ise that the vie) of Rossiter is opposed
to the fundaental concept of our polity, )hich puts a preiu on freedo. No
undue concern need then be felt as to the continuing reliance on Moyer v.
&eabody,
57
)here 0ustice Coles spea4ing for the Court, stated that the test of
the validity of e1ecutive arrest is that they be ade Bin good faith and in the
honest belief that they are needed in order to head the insurrection off ...B
5*
Ce
did state li4e)ise? B/hen it coes to a decision by the head of the state upon a
atter involving its life, the ordinary rights of individuals ust yield to )hat he
dees the necessities of the oent. Public danger )arrants the substitution of
e1ecutive process for +udicial process. %ee .eely v. "anders, '' G% @@", @@A, &<
: ed. 7&(, 7&$, This )as aditted )ith regard to 4illing en in the actual clash of
ars and )e thin4 it obvious, although it )as disputed, that the sae is true of
teporary detention to prevent apprehended har.B
59
Nor )as this to anifest
less than full regard for civil liberties. Cis other opinions indicated the contrary.
More specifically, it )as fro his pen, in Chastleton Corporation v. "inclair,
6/
)here the doctrine that the +udiciary ay in*uire into )hether the eergency
)as at an end, )as given e1pression. Thus? B/e repeat )hat )as stated in Block
v. 1irsh, ..., as to the respect due to a declaration of this 4ind by the legislature
so far as it relates to present facts. But, even as to the, a court is not a liberty
to shut its eyes to an obvious ista4e, )hen the validity of the la) depends upon
the truth of )hat is declared. ... And still ore obviously, so far as this declaration
loo4s to the future, it can be no ore than prophecy, and is liable to be controlled
by events. A la) depending upon the e1istence of an eergency or other certain
state of facts to uphold it ay cease to operate if the eergency ceases or the
facts change, even though valid )hen passed.B
61
"7. 2t ay safely be concluded therefore that the role of Aerican courts
concerning the legality of acts ta4en during a period of artial la) is far fro
inial. /hy it ust he so )as e1plained by 6ean Rosto) in this )ise? BGnless
the courts re*uire a sho)ing, in cases li4e these, of an intelligible relationship
bet)een eans and ends, society has lost its basic protection against the abuse
of ilitary po)er. The general!s good intention ust be irrelevant. There should
be evidence in court that his ilitary +udgent had a suitable basis in fact. As
Colonel 3airan, a strong proponent of )idened ilitary discretion, points out?
!/hen the e1ecutive fails or is unable to satisfy the court of the evident necessity
for the e1traordinary easures it has ta4en, it can hardly e1pect the court to
assue it on faith.B
61
This is the )ay :ass)ell )ould suari,e the atter? B-n
the )hole, )e can conclude that the courts of this country have a body of ancient
principles and recent precedents that can be used to 4eep at a iniu
unnecessary encroachents upon private rights by the e1ecutive, civil or ilitary.
The vigor and sensitiveness )ith )hich the due process clause has been affired
in the last t)o decades is, in particular, an iportant developent.B
63
"@. 2t ay be that the approach follo)ed ay for soe be indicative of lac4 of full
a)areness of today!s stern realities. 2t is y subission that to so vie) the
transcendental issues before us is to adhere as closely as possible to the ideal
envisioned in E1 parte Milligan? BThe Constitution is a la) for rulers and for people
e*ually in )ar and peace and covers )ith the shield of its protection all classes of
en at all ties and under all circustances.B
64
2t is ever tiely to reiterate that
at the core of constitutionalis is a robust concern for individual rights. This is
not to deny that the +udicial process does not ta4e place in a social void. The
*uestions that call for decision are to be e1ained in the total social conte1t )ith
full appreciation of the environental facts, )hether vie)ed in its teporal or
other relevant aspects. They have to reconcile tie;tested principles to
conteporary probles. :egal nors cannot al)ays stand up against the
pressure of events. The great un*uestioned verities ay thus prove to be less
than ade*uate. %o uch is conceded. Nonetheless, even )ith the additional
difficulty that the Court today is copelled to enter terrain )ith boundaries not so
clearly defined, carrying )ith it the ris4 of e1ceeding the noral liits of +udicial
iprecision, 2 find yself unable to resist the copulsion of constitutional history
and traditional doctrines. The facts and issues of the petitions before us and the
andates of the fundaental la), as 2 vie) the in the light of accepted
concepts, blunt the edge of )hat other)ise could be considerations of decisive
ipact. 2 find yself troubled by the thought that, )ere it other)ise, it )ould
aount to free,ing the flu1 of the turbulent present )ith its grave and critical
probles in the icy peranence of +uristic doctrines. As of no), such an
uncofortable thought intrudes. Cence this brief concurring and dissenting
opinion.
O The other petitioners are 0oa*uin P. Roces, Teodoro M. :ocsin, Rolando 3adul,
Rosalina 9alang, 9o Eng 9uan, Ma1io D. %oliven, Renato Constantino, :uis R.
Mauricio, Napoleon 9. Raa, 0ose Mari Dele,, Raon D. Mitra, 0uan :. Mercado,
Roberto -rdoFe,, Manuel Alario, and Ernesto Rondon.

TEE!N-EE, J.:
&re)atory statement? This separate opinion )as prepared and scheduled to be
proulgated )ith the +udgent of the Court 8penned by the Chief 0ustice= on
%epteber "&, "'(@. %uch proulgation )as ho)ever overta4en by the )elcoe
ne)s of the release fro detention on %epteber "", "'(@ of petitioner 0ose /.
6io4no upon the order of President 3erdinand E. Marcos, and the Court then
resolved to defer proulgation until the follo)ing )ee4. Cence, Part 2 of this
opinion dealing )ith the 6io4no petition should be read in such tie conte1t.
The t)o other parts thereof dealing )ith the A*uino and Rodrigo cases are to be
read as of the actual date of proulgation, since they reiterate a ain thee of
the opinion that the Court should adhere to the )ell;grounded principle of not
ruling on constitutional issues e1cept )hen necessary in an appropriate case. 2n
the )riter!s vie), the gratifying developent in the 6io4no case )hich rendered
his petition oot by virtue of his release once ore deonstrates the validity of
this principle.
2. -n the /iokno petition? 2 vote for the granting of petitioner 0ose /. 6io4no!s
otion of 6eceber &', "'(7 to )ithdra) the petition for habeas corpus filed on
%epteber &7, "'(& on his behalf and the suppleental petition and otions for
iediate release and for oral arguent of 0une &', "'(7 and August "@, "'(7
filed in support thereof, as prayed for.
". The present action is one of habeas corpus and the detainee!s o)n )ithdra)al
of his petition is decisive. 2f the detainee hiself )ithdra)s his petition and no
longer )ishes this Court to pass upon the legality of his detention and cites the
other pending habeas corpus cases )hich have not been )ithdra)n and )herein
the Court can rule on the constitutional issues if so inded,
1
such )ithdra)al of a
habeas corpus petition should be granted practically as a atter of absolute right
8)hatever be the otivations therefor= in the sae anner that the )ithdra)al
otions of the petitioners in the other; cases )ere previously granted by the
Court.
1
%ince there )ere seven 8(= ebers of the Court )ho voted for granting the
)ithdra)al otion as against five 8<= ebers )ho voted for denying the sae
and rendering a decision,
3
subit that this a+ority of seven 8(= out of the
Court!s ebership of t)elve 8"&= is a sufficient a+ority for granting the
withdrawal prayed for. A siple a+ority of seven is legally sufficient for the
granting of a )ithdra)al of a petition, since it does not involve the rendition of a
decision, on the erits. 2t is only )here a decision is to be rendered on the erits
by the Court en banc that the "'(7 Constitution re*uires the concurrence of at
least eight 8$= ebers.
4
2 therefore dissent fro the a+ority!s adhering to the five;eber inority vie)
that the a+ority of seven ebers is not legally sufficient for granting
)ithdra)al and that a decision on the erits be rendered not)ithstanding the
)ithdra)al of the petition.
&. The granting of the )ithdra)al of the petition is but in consonance )ith the
fundaental principle on the e1ercise of +udicial po)er )hich, in the )ords of the
%olicitor;9eneral, Bas 0ustice :aurel ephasi,ed, is +ustifiable only as a necessity
for the resolution of an actual case and controversy and therefore should be
confined to the very lis ota presented.B
5
%uch )ithdra)al is furtherore in accord )ith the respondents! stand fro the
beginning urging the Court not to ta4e cogni,ance 8for )ant of +urisdiction or as a
atter of +udicial restraint citing Brandeis! in+unction that BThe ost iportant
thing )e decide is )hat not to decideB
6
= or that Bat the very least, this Court
should postpone consideration of this case until the present eergency is over.B
7
Many of the other petitioners in the habeas corpus cases at bar )ere granted
leave to )ithdra) their petitions. Petitioner 6io4no!s )ithdra)al otion should
li4e)ise be granted in line )ith the )ell;established doctrine that the Court )ill
not rule on constitutional issues e1cept )hen necessary in an appropriate case.
7. But the %olicitor;9eneral no) ob+ects to the )ithdra)al on the ground of public
interest and that Bthis Tribunal ... has been used as the open foru for
underground propaganda by those )ho have political a1es to grindB )ith the
circulation of the )ithdra)al otion and that this Court )ould be Bputting the seal
of approvalB and in effect adit the Bunfair, untrue and conteptuousB
stateents ade in the )ithdra)al otion should this Court grant the
)ithdra)al.
*
2 see no point in the position ta4en by the %olicitor;9eneral of urging
the Court to deny the )ithdra)al otion only to render a decision that )ould
after all disiss the petition and sustain respondents! defense of political (uestion
and have the Court declare itself without 0urisdiction to ad+udicate the
constitutional issues presented
9
and as4ing the Court to ebrace the Bpragatic
ethodB of /illia 0aes )hich Bre+ects ... the a priori assuption that there are
iutable principles of +ustice. 2t tests a proposition by its practical
conse*uences.B
1/
The ob+ections are untenable.
The public interest ob+ection is et by the fact that there are still pending. other
cases 8principally the prohibition case of petitioner Benigno %. A*uino, 0r. in
another case, :;7(7A@ *uestioning the filing of grave charges under the Anti;
%ubversion Act, etc. against hi )ith a ilitary coission
11
and )hich is not
yet subitted for decision= )here the sae constitutional issues ay be resolved.
The other ob+ections are tenuous? The %olicitor;9eneral refutes his o)n
ob+ections in his closing stateent in his coent that Bfor their part,
respondents are confident that in the end they )ould be upheld in their defense,
as indeed petitioner and counsel have practically con)essed 0udgment in this
case.B
11
The propaganda ob+ection is not a valid ground for denying the )ithdra)al of the
petition and should not be held against petitioner )ho had nothing )hatsoever to
do )ith it. The ob+ection that granting the )ithdra)al otion )ould aount to an
adission of the Bunfair, untrue and conteptuous stateentsB ade therein is
untenable since it is patent that granting the )ithdra)al otion per se
8regardless of petitioner!s reasons= does not aount to an adission of the truth
or validity of such reasons and as conceded by the %olicitor;9eneral, neither )ill
denying the )ithdra)al otion per se disprove the reasons.
13
The untruth,
unfairness or costuacy of such reasons ay best be dealt )ith, clarified or
e1pounded by the Court and its ebers in the Court!s resolution granting
)ithdra)al or in the separate opinions of the individual 0ustices 8as has actually
been done and )hich the )riter )ill no) proceed to do=.
@. Petitioner!s first reason for )ithdra)al is sub+ective. After entioning various
factors, particularly, the fact that five of the si1 0ustices 8including the )riter= )ho
held in the Ratification cases
14
that the "'(7 Constitution had not been validly
ratified had ta4en on -ctober &', "'(7 an oath to iport and defend the ne)
Constitution, he e1presses his feeling that B82= cannot reasonably e1pect either
right or reason, la) or +ustice, to prevail in y case,B that Bthe unusual length of
the struggle also indicates that its conscience is losing the battleB and that Bsince
2 do not )ish to be Pa party to an 2 adverse decision, 2 ust renounce every
possibility of favorable +udgent.B
15
A party!s sub+ective evaluation of the Court!s
action is actually of no oent, for it has al)ays been recogni,ed that this Court,
possessed of neither the s)ord nor the purse, ust ultiately and ob+ectively
rest its authority on sustained public confidence in the truth, +ustice, integrity and
oral force of its +udgents.B
16
Petitioner!s second reason for )ithdra)al reads? B8%=econd, in vie) of the ne)
oath that its ebers have ta4en, the present %upree Court is a ne) Court
functioning under a ne) !Constitution,! different fro the Court and the
Constitution under )hich 2 applied for y release. 2 )as )illing to be +udged by
the old Court under the old Constitution, but not by the ne) Court under the ne)
Constitution, ....B
17
Petitioner is in error in his assuption that this Court is Bne) Court functioning
under a ne) Constitution different fro the Court and the Constitution under
)hich HheJ applied for HhisJ release.B The sae %upree Court has continued
save that it no) operates under Article I of the "'(7 Constitution )hich inter alia
increased its coponent ebership fro eleven to fifteen and transferred to it
adinistrative supervision over all courts and personnel thereof )ith the po)er of
discipline and disissal over +udges of inferior courts, in the sae anner that
the sae Republic of the Philippines 8of )hich the %upree Court is but a part=
has continued in e1istence but no) operates under the "'(7 Constitution.
1*
6uring the period of ninety days that the Ratification cases )ere pending before
the Court until its disissal of the cases per its resolution of March 7", "'(7
becae final on April "(, "'(7, the E1ecutive 6epartent )as operating under
the "'(7 Constitution in accordance )ith President 3erdinand E. Marcos!
Proclaation No. ""#& on 0anuary "(, "'(7 announcing the ratification and
corning into effect of the "'(7 Constitution )hile this Court as the only other
governental departent continued to operate tinder the "'7< Constitution
pending its final resolution on the said cases challenging the validity of
Proclaation No. ""#& and enforceent of the ne) Constitution. 8As per the
Court resolution of 0anuary &7, "'(7, it declined to ta4e over fro the
6epartent of 0ustice the adinistrative supervision over all inferior courts
e1pressing its sense that Bit is best that the status (uo be aintained until the
case aforeentioned 80avellana vs. E1ec. %ecretary= shall have been finally
resolved...B=
%uch a situation could not long endure )herein the only t)o great departents of
governent, the E1ecutive and the 0udicial,
19
for a period of three onths )ere
operating under t)o different Constitutions 8presidential and parliaentary=.
/hen this Court!s resolution of disissal of the Ratification cases by a a+ority of
si1 to four 0ustices becae final and )as entered on April "$, "'(7 B)ith the
result that there 8)ere= not enough votes to declare that the ne) Constitution is
not in force,B
1/
the Court and particularly the reaining three dissenting 0ustices
8not)ithstanding their vote )ith three others that the ne) Constitution had not
been validly ratified
11
had to abide under the Rule of :a) by the decision of the
a+ority disissing the cases brought to en+oin the enforceent by the E1ecutive
of the ne) Constitution and had to operate under it as the fundaental charter of
the governent, unless they )ere to turn fro legitiate dissent to internecine
dissidence for )hich they have neither the inclination nor the capability.
The Court as the head of the 0udicial 6epartent thenceforth assued the po)er
of adinistrative supervision over all courts and all other functions and liabilities
iposed on it under the ne) Constitution. Accordingly, this and all other e1isting
inferior courts continue to discharge their +udicial function and to hear and
deterine all pending cases under the old 8"'7<=Constitution
11
as )ell as ne)
cases under the ne) 8"'(7= Constitution )ith the full support of the ebers of
the 2ntegrated Bar of the Philippines 8none of )ho has ade petitioner!s clai
that this is a Bne) CourtB different fro the Bold CourtB=.
A a+or liability iposed upon all ebers of the Court and all other officials and
eployees )as that under Article ID22, section ' of the Transitory Provisions
13
)hich )as destructive of their tenure and called upon the Bto vacate their
respective offices upon the appointent and *ualification of their successors.B
Their ta4ing the oath on -ctober &', "'(7 Bto preserve and defend the ne)
ConstitutionB by virtue of their Bhaving been continued in officeB
14
on the
occasion of the oath;ta4ing of three ne) ebers of the Court
15
pursuant to
Article ID, section @
16
)as eant to assure their Bcontinuity of tenureB by )ay of
the President having e1ercised the po)er of replaceent under the cited
provision and in effect replaced the )ith theselves as ebers of the Court
)ith the sae order of seniority.
17
<. The )ithdra)al in effect gives cause for +udicial abstention and further
opportunity 8pending subittal for decision of the A*uino prohibition case in :;
7(7A@= to ponder and deliberate upon the host of grave and fundaental
constitutional *uestions involved )hich have thereby been rendered unnecessary
to resolve here and no).
2n the benchar4 case of Lansang vs. Garcia
1*
)hen the Court declared that the
President did not act arbitrarily in issuing in August, "'(" Proclaation No. $$',
as aended, suspending the privilege of the )rit of habeas corpus for persons
detained for the cries of insurrection or rebellion and other overt acts
coitted by the in furtherance thereof, the Court held through then Chief
0ustice Concepcion that Bour ne1t step )ould have been the follo)ing? The Court,
or a coissioner designated by it, )ould have received evidence on )hether 5
as stated in respondents! !Ans)er and Return! 5 said petitioners had been
apprehended and detained !on reasonable belief! that they had !participated in the
crie of insurrection or rebellion.!
8Co)ever, since in the interval of t)o onths during the pendency of the case,
criinal coplaints had been filed in court against the petitioners;detainees
8:u,viindo 6avid, 9ary -livar, et al.=, the Court found that Bit is best to let said
preliinary e1aination andNor investigation be copleted, so that petitioners!
release could be ordered by the court of first instance, should it find that there is
no probable cause against the, or a )arrant for their arrest could be issued
should a probable cause be established against the .B
19
The Court accordingly
ordered the trial court Bto act )ith utost dispatchB in conducting the preliinary
investigation for violation of the Anti;%ubversion Act and Bto issue the
corresponding )arrants of arrest, if probable cause is found to e1ist against the,
or other)ise, to order their release.B=
Can such a procedure for reception of evidence on the controverted allegations
concerning the detention as indicated in Lansang be li4e)ise applied to
petitioner!s case considering his prolonged detention for alost t)o years no)
)ithout chargesE
3/
2t should also be considered that it is conceded that even
though the privilege of the )rit of habeas corpus has been suspended, it is
suspended only as to certain specific cries and the Bans)er and returnB of the
respondents )ho hold the petitioner under detention is not conclusive upon the
courts )hich ay receive evidence and deterine as held in Lansang 8and as also
provided in the Anti;%ubversion Act HRepublic Act "(##J= )hether a petitioner has
been in )act apprehended and detained arbitrarily or Bon reasonable beliefB that
he has Bparticipated in the crie of insurrection or rebellionB or other related
offenses as ay be enuerated in the proclaation suspending the privilege of
the )rit.
Pertinent to this *uestion is the Court!s adoption in Lansang of the doctrine of
"terling vs. Constantin
31
enunciated through G.%. Chief 0ustice Cughes that even
)hen the state has been placed under artial la) B... 8/=hen there is a
substantial showing that the e!ertion o) state power has overridden private rights
secured by that Constitution, the sub+ect is necessarily one )or 0udicial in(uiry in
an appropriate proceeding directed against the individuals charged )ith the
transgression. To such a case the 3ederal +udicial po)er e1tends 8Art. 7, sec. &=
and, so e1tending, the court has all the authority appropriate to its e!ercise. ...
E*ually pertinent is the Court!s stateent therein announcing the ebers!
unanious conviction that Bit has the authority to in*uire into the e1istence of
said factual bases Hstated in the proclaation suspending the privilege of the )rit
of habeas corpus or placing the country under artial la) as the case ay be,
since the re*uireents for the e1ercise of these po)ers are the sae and are
provided in the very sae clauseJ in order to deterine the constitutional
sufficiency thereof.B
31
The Court stressed therein that Bindeed, the grant of po)er
to suspend the privilege is neither absolute nor un*ualified. The authority
conferred upon by the Constitution, both under the Bill of Rights and under the
E1ecutive 6epartent, is liited and conditional. The precept in the Bill of Rights
establishes a general rule, as )ell as an e1ception thereto. )hat is ore, it
postulates the forer in the negative, evidently to stress its iportance, by
providing that !8t=he privilege of the )rit of habeas corpus shall not be
suspended ....! 2t is only by )ay of e!ception that it perits the suspension of the
privilege !in cases of invasion, insurrection, or rebellion! 5 or under Art. D22 of the
Constitution, !iinent danger thereof! 5 !)hen the public safety re*uires it, in
any of )hich events the sae ay be suspended )herever during such period the
necessity for such suspension shall e1ist.! 3ar fro being full and plenary, the
authority to suspend the privilege of the )rit is thus circuscribed, confined and
restricted, not only by the prescribed setting or the conditions essential to its
e1istence, but also, as regards the tie )hen and the place )here it ay be
e1ercised. These factors and the aforeentioned setting or conditions ar4,
establish and define the e1tent, the confines and the liits of said po)er, beyond
)hich it does not e1ist. And, li4e the liitations and restrictions iposed by the
3undaental :a) upon the legislative departent, adherence thereto and
copliance there)ith ay, )ithin proper bounds, be in*uired into by the courts of
+ustice. -ther)ise, the e1plicit constitutional provisions thereon )ould be
eaningless. %urely, the fraes of our Constitution could not have intended to
engage in such a )asteful e1ercise in futility.B
33
/hile a state of artial la) ay bar such +udicial in*uiries under the )rit of
habeas corpus in the actual theater of )ar, )ould the proscription apply )hen
artial la) is aintained as an instruent of social refor and the civil courts
8as )ell as ilitary coissions= are open and freely functioningE /hat is the
e1tent and scope of the validating provision of Article ID22, section 7 8&= of the
Transitory Provisions of the "'(7 ConstitutionE
34
9ranting the validation of the initial preventive detention, )ould the validating
provision cover indefinite detention thereafter or ay in*uiry be ade as to its
reasonable relation to eeting the eergency situationE
/hat rights under the Bill of Rights, e.g. the rights to due process and to Bspeedy,
ipartial and public trialB
35
ay be invo4ed under the present state of artial
la)E
2s the e1ercise of artial la) po)ers for the institutionali,ation of refors
incopatible )ith recogni,ing the fundaental liberties granted in the Bill of
RightsE
The President is )ell a)are of the layan!s vie) of the Bcentral proble of
constitutionalis in our conteporary society ... )hether or not the Constitution
reains an efficient instruent for the oderation of conflict )ithin society. There
are t)o aspects of this proble. -ne is the regulation of freedo in order to
prevent anarchy. The other is the liitation of po)er in order to prevent tyranny.B
36
Cence, he has declared that BThe Ne) %ociety loo4s to individual rights as a
atter of paraount concern, reoved fro the vicissitudes of political
controversy and beyond the reach of a+orities. /e are pledged to uphold the Bill
of Rights and as the e1igencies ay so allo), )e are deterined that each
provision shall be e1ecuted to the fullest,B
37
and has ac4no)ledged that Bartial
la) necessarily creates a coand society ... HandJ is a temporary constitutional
e1pedient of safeguarding the republic ...B
3*
Ce has thus described the proclaation of artial la) and Bthe setting up of a
corresponding crisis governentB as constitutional authoritarianis,B )hich is a
recognition that )hile his governent is authoritarian it is essentially
constitutional and recogni,es the supreacy of the ne) Constitution.
Ce has further declared that Bartial la) should have legally terinated on
0anuary "(, "'(7 )hen the ne) Constitution )as ratifiedB but that Bthe Popular
claor anifested in the referendu H)asJ that the National Assebly he
teporarily suspendedB and the reaction in the 0uly, "'(7 referendu B)as
violently against stopping the use of artial la) po)ers,B adding that B2 intend to
subit this atter at least notice a year to the people, and )hen they say )e
should shift to the noral functions of governent, then )e )ill do so.B
39
The reali,ation of the prospects for restoration of noralcy and full
ipleentation of each and every provision of the Bill of Rights as pledged by the
President )ould then hopefully coe sooner rather than later and provides an
additional )eighty reason for the e1ercise of +udicial abstention under the
environental circustances and for the granting of the )ithdra)al otion.
22. +n the '(uino case? 2 aintain y original vote as first unaniously agreed by
the Court for disissal of the habeas corpus petition of Benigno %. A*uino, 0r. on
the ground that grave charges against hi for violation of the Anti;%ubversion Act
8Republic Act "(##=, etc. )ere filed in August, "'(7 and hence the present
petition has been superseded by the prohibition case then filed by hi
*uestioning the filing of the charges against hi )ith a ilitary coission
rather than )ith the civil courts 8)hich case is not yet subitted for decision=.
The said prohibition case involves the sae constitutional issues raised in the
6io4no case and ore, concerning the constitutionality of having hi tried by a
ilitary coission for offenses allegedly coitted by hi long before the
declaration of artial la). This is evident fro the special and affirative
defenses raised in respondents! ans)er )hich filed +ust last August &", "'(@ by
the %olicitor )hich reiterate the sae defenses in his ans)er to the petition at
bar. Cence, the sae constitutional issues ay )ell be resolved if necessary in
the decision yet to be rendered by the Court in said prohibition case.
2 therefore dissent fro the subse*uent vote of the a+ority to instead pass upon
and resolve in advance the said constitutional issues unnecessarily in the present
case.
222. +n the ,odrigo case? 2 subit that the habeas corpus petition of 3rancisco
B%ocB Rodrigo as )ell as the petitions of those others siilarly released should be
disissed for having been rendered oot and acadeic by virtue of their release
fro physical confineent and detention. That their release has been ade
sub+ect to certain conditions 8e.g. not being allo)ed to leave the 9reater Manila
area )ithout specific authori,ation of the ilitary authorities= does not ean that
their action )ould survive, since B8T=he restraint of liberty )hich )ould +ustify the
issuance of the )rit ust be ore than a ere oral restraint. it ust be actual
or physical .B
4/
They ay have soe other +udicial recourse for the reoval of
such restraints but their action for habeas corpus cannot survive since they are no
longer deprived of their physical liberty. 3or these reasons and those already
e1pounded hereinabove, 2 dissent fro the a+ority vote to pass upon and
resolve in advance the constitutional issues unnecessarily in the present case.

#!RRE&O, J., concurring?
2t is to y ind very unfortunate that, for reasons 2 cannot coprehend or do
not dee convincing, the a+ority of the Court has agreed that no ain opinion
be prepared for the decision in these, cases. Conestly, 2 feel that the grounds
given by the Chief 0ustice do not +ustify a deviation fro the regular practice of a
ain opinion being prepared by one 0ustice even )hen the ebers of the Court
are not all agreed as to the grounds of the +udgent as long as at least a
substantial nuber of 0ustices concur in the basic ones and there are enough
other 0ustices concurring in the result to for the re*uired a+ority. 2 do not see
such varying substantial disparity in the vie)s of the ebers of the Court
regarding the different issues here as to call for a suari,ation li4e the one that
)as done, )ith controversial conse*uences, in 0avellana. . Actually, the
suari,ation ade by the Chief 0ustice does not in y opinion portray
accurately the spectru of our vie)s, if one is to assay the doctrinal value of this
decision. The divergence!s stated are 2 thin4 ore apparent than real.
2n any event, it is y considered vie) that a historical decision li4e this, one li4ely
to be sui generis, at the sae tie that it is of utost transcendental iportance
because it revolves around the proper construction of the constitutional provisions
securing individual rights as they ay be, affected by those epo)ering the
9overnent to defend itself against the threat of internal and e1ternal
aggression, as these are actually operating in the setting of the -fficial
proclaation of the E1ecutive that rebellion endangering public safety actually
e1ists, deserves better treatent fro the Court. 2ndeed, 2 believe that our
points of seeing variance respecting the *uestions before us could have been
threshed out, if only enough effort in that direction had been e1erted by all. The
trouble is that fro the very beginning any ebers of the Court, yself
included, announced our desire to have our vie)s recorded for history, hence,
individuali,ation rather than consensus becae the order of the day. 2n
conse*uence, the convenient solution )as forged that as long as there )ould be
enough votes to support a legally binding +udgent, there need not be any
opinion of the Court, everyone could give his o)n vie)s and the Chief 0ustice
)ould +ust try to analy,e the opinions of those )ho )ould care to prepare one
and then a4e a certification of the final result of the voting. 2t )as only at the
last inute that, at y suggestion, supported by 0ustice Castro, the Chief!s
prepared certification )as odified to assue the for of a +udgent, thereby
giving this decision a better seblance of respectability.
As )ill be seen, this separate opinion of concurrence is not due to any
irreconcilable conflict of conviction bet)een e and any other eber of the
Court. Truth to tell, at the early stages of our efforts to decide these but after the
Court had ore or less already arrived at a consensus as to the result, 2 )as
ade to understand that 2 could prepare the opinion for the Court. Apparently,
ho)ever, for one reason or another, soe of our colleagues felt that it is
unnecessary to touch on certain atters contained in the draft 2 had subitted,
incoplete and unedited as it )as, hence, the plan )as abandoned. My
e1planation that a decision of this iport should be addressed in part to the
future and should attept to ans)er, as best )e can, not only the *uestions
raised by the parties but also the relevant ones that )e are certain are bothering
any of our countryen, not to spea4 of those )ho are interested in the correct
+uridical iplications of the unusual political developents being )itnessed in the
Philippines these days, failed to persuade the. 2 still feel very strongly, ho)ever,
the need for articulating the thoughts that )ill enable the )hole )orld to visuali,e
and coprehend the e1act length, breath and depth of the +uridical foundations of
the current constitutional order and thus be better positioned to render its verdict
thereon.
The follo)ing then is the draft of the opinion 2 prepared for the Court. 2 feel 2
need not ad+ust it to give it the tenor of an individual opinion. %oething inside
e dictates that 2 should let it stand as 2 had originally prepared it. 2 a
eboldened to do this by the conviction that actually, )hen properly analy,ed, it
)ill be reali,ed that )hatever differences there ight be in the various opinions
)e are subitting individually, such differences lie only in the distinctive ethods
of approach )e have each preferred to adopt rather than in any basically
substantial and irreconcilable disagreeent. 2f )e had only striven a little ore, 2
a confident, )e could have even found a coon ode of approach. 2 a
referring, of course, only to those of us )ho sincerely feel the urgency of
resolving the fundaental issues herein, regardless of purely technical and
strained reasons there ight be to apparently +ustify an attitude of indifference, if
not concealed antagonis, to the need for authoritative +udicial clarification of the
+uridical aspects of the Ne) %ociety in the Philippines.
-n %epteber "", "'(@, petitioner 6io4no )as released by the order of the
President, Bunder e1isting rules and regulations.B The Court has, therefore,
resolved that his particular case has becoe oot and acadeic, but this
developent has not affected the issues insofar as the other petitioners,
particularly %enator A*uino, are concerned. And inasuch as the principal
arguents of petitioner 6io4no, although presented only in the pleadings filed on
his behalf, apply )ith ore or less e*ual force to the other petitioners, 2 feel that
y reference to and discussion of said arguents in y draft ay )ell be
preserved, if only to aintain the purported coprehensiveness of y treatent
of all the iportant aspects of these cases.
Before proceeding any further, 2 )ould li4e to e1plain )hy 2 a saying )e have no
basic disagreeents.
E1cept for 0ustices Ma4asiar and Esguerra )ho consider the recitals in the
Proclaation to be absolutely conclusive upon the courts and of 0ustice
Teehan4ee )ho considers it unnecessary to e1press any opinion on the atter at
this point, the rest or eight of us have actually in*uired into the constitutional
sufficiency of the Proclaation. /here )e have differed is only as to the e1tent
and basis of the in*uiry. /ithout coitting theselves e1pressly as to )hether
the issue is +usticiable or other)ise, the Chief 0ustice and 0ustice Castro
unista4ably appear to have actually conducted an in*uiry )hich as far as 2 can
see is based on facts )hich are uncontradicted in the record plus additional facts
of +udicial notice. No independent evidence has been considered, nor is any
reference ade to the evidence on )hich the President had acted. -n their part,
0ustices Antonio, 3ernande, and A*uino are of the vie) that the Proclaation is
not sub+ect to in*uiry by the courts, but assuing it is, they are of the conviction
that the record aply supports the reasonableness, or lac4 of arbitrariness, of the
President!s action. Again, in arriving at this latter conclusion, they have relied
e1clusively on the sae factual bases utili,ed by the Chief 0ustice and 0ustice
Castro. 0ustices 3ernando and MuFo, Pala categorically hold that the issue is
+usticiable and, on that preise, they ade their o)n in*uiry, but )ith no other
basis than the sae undisputed facts in the record and facts of +udicial notice
fro )hich the others have dra)n their conclusions. 3or yself, 2 a +ust a4ing
it very clear that the in*uiry )hich the Constitution conteplates for the
deterination of the constitutional sufficiency of a proclaation of artial la) by
the President should not go beyond facts of +udicial notice and those that ay be
stated in the proclaation, if these are by their very nature capable of
un*uestionable deonstration. 2n other )ords, eight of us virtually hold that the
E1ecutive!s Proclaation is not absolutely conclusive 5 but it is not to be
interfered )ith )henever it )ith facts undisputed in the record as )ell as those of
+udicial notice or capable of un*uest deonstration. Thus, it is obvious that
although )e are split bet)een upholding +usticiability or non;+usticiability, those
)ho believe in the latter have nonetheless conducted an in*uiry, )hile those )ho
adhere to the forer theory, insisting on follo)ing :ansang, have liited their
in*uiry to the uncontroverted facts and facts of +udicial notice. 2ndeed, the truth
is that no one has as4ed for in*uiry into the evidence before the President )hich
is )hat the real iport of +usticiability eans. 2n the final analysis, none of us has
gone beyond )hat in y huble opinion the Constitution perits in the preises.
2n other )ords, )hile a declaration of artial la) is not absolutely conclusive, the
Court!s in*uiry into its constitutional sufficiency ay not, contrary to )hat is
iplied in :ansang, involve the reception of evidence to be )eighed against those
on )hich the President has acted, nor ay it e1tend to the investigation of )hat
evidence the President had before hi. %uch in*uiry ust be liited to )hat is
undisputed in the record and to )hat accords or does not accord )ith facts of
+udicial notice.
3ollo)ing no) is y separate concurring opinion )hich as 2 have said is the draft
2 subitted to the Court!s approval?
This is a cluster of petitions for habeas corpus see4ing the release of petitioners
fro detention, upon the ain ground that, allegedly, Proclaation "#$" issued
by President 3erdinand E. Marcos on %epteber &", "'(& placing the )hole
country under artial la) as )ell as the general orders subse*uently issued also
by the President by virtue of the said proclaation, pursuant to )hich petitioners
have been apprehended and detained, t)o of the until the present, )hile the
rest have been released conditionally, are unconstitutional and null and void,
hence their arrest and detention have no legal basis.
The petitioners in 9. R. No. :;7<<7$ are all +ournalists, naely, 0oa*uin P. Roces,
Teodoro M. :ocsin, Rolando 3adul, Rosalind 9alang, 9o Eng 9uan, Ma1io M.
%oliven, Renato Constantino and :uis R. Mauricio. Their petition )as filed at about
noon of %epteber &7, "'(&.
Alost three hours later of the sae day, the petition in 9. R. No. :;7<<7' )as
filed, )ith Caren 2. 6io4no, as petitioner, acting on behalf of her husband, 0ose
/. 6io4no, a senator, )ho is one of those still detained.
T)o days later, early in the orning of %epteber &<, "'(&, the petition of
Ma1io D. %oliven, Napoleon 9. Raa and 0ose Mari Dele,, all edia en, )as
doc4eted as 9. R. No. :;7<<@#. The last t)o )ere also delegates to the
Constitutional Convention of "'(".
2n all the three foregoing cases, the proper )rits of habeas corpus )ere issued
returnable not later than @?## p.. of %epteber &<, "'(&, and hearing of the
petitions )as held on %epteber &A, "'(&.
1
:ate in the afternoon of %epteber &<, "'(&, another petition )as filed on behalf
of %enators Benigno %. A*uino, 0r. and Raon D. Mitra, 0r., and forer %enator
3rancisco B%ocB Rodrigo, also a TD coentator. 86elegate Napoleon Raa also
appears as petitioner in this case.= 2t )as doc4eted as 9. R. No. :;7<<@A.
The ne1t day, %epteber &A, "'(&, a petition )as filed by Doltaire 9arcia 22,
another delegate to the Constitutional Convention, as 9. R. No. :; 7<<@(.
1
2n this t)o cases the )rits prayed for )ere also issued and the petitions )ere
heard together on %epteber &', "'(&.
2n 9. R. No. :;7<<<A, the petition )as filed by Tan Chin Cian and Deronica :.
Kuyitung on %epteber &(, "'(&, but the sae )as )ithdra)n by the latter on
-ctober A, "'(& and the forer on -ctober ', "'(&, since they )ere released
fro custody on %epteber 7#, "'(& and -ctober ', "'(&, respectively. The
Court allo)ed the )ithdra)als by resolution on -ctober "", "'(&.
-n -ctober &, "'(&, the petition of +ournalists Aando 6oronila, 0uan :.
Mercado, Cernando 0. Abaya, Ernesto 9ranada, :uis Beltran, Tan Chin Cian,
8already a petitioner in 9. R. No. :;7<<<A= Bren 9uiao, 8for )ho a subse*uent
petition )as also filed by his )ife in 9. R. No. :;7<<(", but both petitions on his
behalf )ere iediately )ithdra)n )ith the approval of the Court )hich )as
given by resolution on -ctober "", "'(&= Ruben Cusipag, Roberto -rdoFe,,
Manuel Alario and /illie Baun )as filed in 9. R. No. :;7<<A(. All these
petitioners, e1cept 0uan :. Mercado, Manuel Alario, and Roberto -rdoFe,
)ithdre) their petition and the Court allo)ed the )ithdra)als by resolution of
-ctober 7, "'(&.
And on -ctober 7, "'(&, Ernesto Rondon, also a delegate to the Constitutional
Convention and a radio coentator, filed his petition in 9. R. No. :;7<<(7.
Again, in all these last four cases, 9. R. Nos., :;7<<<A, 7<<A(, 7<<(" and 7<<(7,
the corresponding )rits )ere issued and a +oint hearing of the petition )as held
-ctober A, "'(&, e1cept as to the petitioners )ho had as of then announced the
)ithdra)al of their respective petitions.
The returns and ans)ers of the %olicitor 9eneral in all these nine cases, filed on
behalf of the principal respondents, the secretary of National 6efense, Con. 0uan
Ponce Enrile, the Chief of %taff of the Ared 3orces of the Philippines, 9eneral
Roeo Espino, and the Chief of the Philippine Constabulary, 9eneral 3idel D.
Raos, )ere practically identical as follo)s?
,T<,* T- =,+Tand '*"=, T- T1 &T+T+-*
C-ME N-/ respondents, by the undersigned counsel, and appearing before this
Conorable Court only for purposes of this action, as hereunder set forth, hereby
state by )ay of return to the )rit and ans)er to the petition, as follo)s?
'/M+""+-*"?/*+'L"
". They A6M2T the allegation in paragraphs 2 and D of the Petition.
&. They A6M2T the allegations in paragraph 22 of the Petition that the petitioners
)ere arrested on %epteber &&, "'(& and are presently detained at 3ort
Bonifacio, Ma4ati, Ri,al, but %PEC232CA::K 6ENK the allegation that their
detention is illegal, the truth being that stated in %pecial and Affirative 6efenses
of this Ans)er and Return.
7. They %PEC232CA::K 6ENK the allegations in paragraphs 222, 2D, D2 and D22, of
the Petition, the truth of the atter being that stated in the %pecial and
Affirative 6efenses of this Ans)er and Return.
Respondents state by )ay of
"&C+'L '*/ '$$+,M'T+2 /$*""
@. -n %epteber &", "'(&, the President of the Philippines, in the e1ercise of the
po)ers vested in hi by Article D22, section "#, paragraph & of the Constitution,
issued Proclaation No. "#$" placing the entire Philippines under artial la).
<. Pursuant to said Proclaation , the President issued 9eneral -rders Nos. ", &,
7, 7;A, @, <, A, and ( and :etters of 2nstruction Nos. ", & and 7. True copies of
these docuents are hereto attached and ade integral parts hereof as Anne1es
&, 7, @, <, A, (, $, ', "# and "". A copy of the President!s stateent to the
country on %epteber &7, "'(& is also attached as Anne1 "&.
A. 3inally, the petition states no cause of action.
& , ' @ ,
2N D2E/ /CERE-3, it is respectfully prayed of this Conorable %upree Court that
the petition be disissed.Manila, Philippines, %epteber &(, "'(&.
At the hearings, the follo)ing )ell;4no)n and distinguished ebers of the bar
appeared and argued for the petitioners? Petitioner 6io4no argued on his o)n
behalf to suppleent the arguents of his counsel of record. Attys. 0o4er 6.
Arroyo appeared and argued for the petitioners in :;7<<7$ and :7<<A(. 3rancis E.
9architorena, assisted by -scar 6io4no Pere,, appeared and argued for the
petitioner in :;7<<7'. Raon A. 9on,ales, assisted by Manuel B. 2bong
appeared and argued for the petitioners in :;7<<@#. %enators 9erardo Ro1as and
0ovito R. %alonga, assisted by Attys. Pedro :. Kap, %edfrey A. -rdoFe,, Custodio
-. Parlade, :eopoldo :. Africa, 3rancisco Rodrigo 0r., Magdaleno Palacol and 6a4ila
3. Castro, appeared and argued for the petitioners in :;7<<@A. Atty. E. Doltaire
9arcia %r. appeared and argued in behalf of his petitioner son in :;7<<@(. Attys.
Raul 2. 9oco and Teodulo R. 6ino appeared for the petitioners in :;7<<<A. Atty.
Roberto P. Tolentino appeared for the petitioner in :;7<<(". and Atty. A*uilino
Pientel 0r. assisted by Atty. Modesto R. 9alias 0r. appeared and argued for the
petitioner in :;7<<($.
-n -ctober 7", "'(&, forer %enator :oren,o M. TaFada, together )ith his
la)yer;sons, Attorneys Renato and /igberto TaFada, entered their appearance as
counsel for all the petitioners in 9. R. No. :;7<<7$, e1cept 3adul, 9alang and 9o
Eng 9uan, for petitioner 6io4no in 9. R. No. :;7<<7' and for petitioners A*uino,
Mitra, Rodrigo and Raa in 9. R. No. :7<<@A.
3or the respondents, %olicitor 9eneral Estelito P. Mendo,a, Assistant %olicitors
9eneral Bernardo P. Pardo and Rosalio A. de :eon 8both of )ho are +udges
no)=, %olicitor Reynato %. Puno 8no) Assistant %olicitor 9eneral= and %olicitors
0ose A. R. Melo and 0ose A. 0anolo appeared in all the cases, but only the %olicitor
9eneral argued. :ater, Assistant %olicitor 9eneral Dicente D. Mendo,a also
appeared and co;signed all the subse*uent pleadings and eoranda for
respondents.
After the hearings of %epteber &A and &' and -ctober A, "'(&, the parties )ere
re*uired to file their respective eoranda. -n Noveber ', "'(& petitioners in
all the filed their consolidated "#';page eorandu, together )ith the
ans)ers, contained in $A pages, to soe 77 *uestions posed by the Court in its
resolution of %epteber &', "'(&, and later, on 6eceber ", "'(&, an $$;page
reply to the eorandu of respondents, )ith anne1es. 2n a separate
Manifestation of Copliance and %ubission filed siultaneously )ith their reply,
petitioners stressed that?
@. That undersigned counsel for Petitioners did not as4 for any e1tension of the
period )ithin )hich to file the Reply Meorandu for Petitioners, despite
over)heling pressure of )or4, because 5
a. every day of delay )ould ean one day ore of indescribable isery and
anguish on the part of Petitioners and their failies. .
b. any further delay )ould only diinish )hatever tie is left 5 ore than a
onth!s tie 5 )ithin )hich this Court can deliberate on and decide these
petitions, having in ind soe irreversible events )hich ay plunge this nation
into an entirely ne) constitutional order, naely, the approval of the draft of the
proposed Constitution by the Constitutional Convention and the !plebiscite! )as
scheduled on 0anuary "<, "'(7.
c. the proposed Constitution, if !ratified! ight pre+udice these petitions, in vie) of
the follo)ing transitory provision?
All proclaations, orders, decrees , instructions, and acts proulgated, issued, or
reain valid, legal, binding, and effective even after the lifting of artial la) or
the ratification of this Constitution, unless odified, revo4ed, or superseded by
subse*uent proclaations, decrees, instructions, or other acts of the incubent
President, or unless e1pressly and e1plicitly odified or repealed by the regular
National Assebly. 8Article ID22, sec. 7, par. & of the proposed Constitution=.
<. 2n vie) of the fact that they )ere arrested and detained allegedly in 4eeping
)ith the e1isting Constitution, it is only huane and +ust that these petitions 5 to
be accorded preference under Rule &&, section " of the Rules of Court 5 be
disposed of )hile there is still tie left, in accordance )ith the present
Constitution and not in accordance )ith a ne) constitutional order being ushered
in, under the aegis of a artial rule, the constitutionality and validity of )hich is
the very point at issue in the instant petitions.
A. %ince, according to the unanious vie) of the authorities, as cited in their
Meorandu, 5 the overriding purpose of artial la) is 5 and cannot go
beyond 5 the preservation of the constitutional status (uo, and not to alter it or
hasten its alteration, it )ould be e1treely un+ust and inhuan, to say the least,
to allo) these petitions for the great )rit of liberty to be iperiled, by virtue of a
ne) Constitution 5 !subission! and !ratification of )hich are being pressed under
artial la) 5 that )ould purportedly ratify all E1ecutive edicts issued and acts
done under said regie soething that has never been done as far as is 4no)n in
the entire history of the Anglo;Aerican legal syste. 8pp. @"@;@"A, Rollo, :;
7<<7'.=
At this +uncture, it ay be stated that as of -ctober "", "'(&, the follo)ing
petitioners had already )ithdra)n? Aando 6oronila, Cernando 0. Abaya, Ernesto
9ranada, :uis Beltran, Bren 9uiao, Ruben Cusipag, /illie Baun, Tan Chin Cian and
Deronica :. Kuyitung. hence, of the original nine cases )ith a total of 7&
petitioners,
3
only the si1 above;entitled cases reain )ith "$ petitioners.
4
The
reaining petitioners are? 0oa*uin P. Roces, Teodoro M. :ocsin, %r., Rolando 3adul,
Rosalind 9alang, 9o Eng 9uan, Ma1io D. %oliven, Renato Constantino, :uis R.
Mauricio, 0ose /. 6io4no thru Caren 6io4no, Napoleon 9. Raa, 0ose Mari
Dele,, Benigno %. A*uino, Raon D. Mitra, 0r., 3rancisco %. Rodrigo, 0uan :.
Mercado, Roberto -rdoFe,, Manuel Alario and Ernesto Rondon but only
%enators 6io4no and A*uino are still in confineent, the rest having been
released under conditions hereinafter to be discussed. The case of petitioner
9arcia in 9. R. No. :;7<<@( is deeed abated on account of his death.
-ver the opposition of these reaining petitioners, respondents! counsel )as
given several e1tensions of their period to file their eorandu, and it )as not
until 0anuary "#, "'(7 that they )ere able to file their reply of 7< pages.
Previously, their eorandu of (( pages )as filed on Noveber "(, "'(&.
Thus, the cases )ere declared subitted for decision only on 3ebruary &A, "'(7,
per resolution of even date, only to be reopened later, as )ill be stated anon.
2n the ean)hile, practically the sae counsel for petitioners in these cases
engaged the governent la)yers in another and separate transcendental +udicial
tussle of t)o stages relative to the Ne) Constitution. -n 6eceber (, "'(&, the
first of the so;called Plebiscite Cases 89. R. No. :;7<'&<, Charito Planas vs.
Coelec, 9. R. No. :;7<'&', Pablo C. %anidad vs. Coelec, 9. R. No. :;7<'@#,
9erardo Ro1as et al. vs. Coelec, 9. R. No. :;7<'@", Eddie B. Monteclaro vs.
Coelec, 9. R. No. :;7<'@&, %edfrey A. -rdoFe, vs. Treasurer, 9. R. No. :;7<'@$,
Didal Tan vs. Coelec, 9. R. No. :;7<'<7, 0ose /. 6io4no et als. vs. Coelec, 9.
R. No. :;7<'A", 0acinto 0iene, vs. Coelec, 9. R. No. :;7<'A<, Raul M.
9on,ales vs. Coelec and 9. R. No. :;7<'(', Ernesto Cidalgo vs. Coelec= )as
filed. These cases too4 ost of the tie of the Court until 0anuary &&, "'(7,
)hen they )ere declared oot and acadeic because of the issuance of
Proclaation ""#& on 0anuary "(, "'(7, but on 0anuary &#, "'(7, as a se*uel to
the Plebiscite Cases, 0osue 0avellana filed Case No. 9. R. No. :;7A"@& against the
E1ecutive %ecretary and the %ecretaries of National 6efense, 0ustice and 3inance.
This started the second series of cases 4no)n as the Ratification Cases, naely,
said 9. R. No. :7A"@& and 9. R. No. :;7A"A@, 2idal Tan vs. The !ecutive
"ecretary et al.# 9. R. No. :;7A"A<, Gerardo ,o!as et al. vs. 'le0andro Melchor
etc. et al.# 9. R. No. :;7A&7A, ddie B. Monteclaro vs. The !ecutive "ecretary,
and 9. R. No. :;7A&$7, *apoleon 2. /ilag vs. The 1onorable !ecutive "ecretary.
The ain thrust of these petitions )as that the Ne) Constitution had not been
validly ratified, hence the -ld Constitution continued in force and, therefore,
)hatever provisions the Ne) Constitution ight contain tending to validate the
proclaations, orders, decrees, and acts of the incubent President )hich are
being relied upon for the apprehension and detention of petitioners, have no legal
effect. 2n any event, the advent of a ne) constitution naturally entailed the
conse*uence that any *uestion as to the legality of the continued detention of
petitioners or of any restraint of their liberties ay not be resolved )ithout ta4ing
into account in one )ay or another the pertinent provisions of the ne) charter.
Accordingly, the resolution of these t)o series of cases becae a pre+udicial
atter )hich the Court had to resolve first. 2t )as not until March 7", "'(7 that
they )ere decided adversely to the petitioners therein and it )as only on April "(,
"'(7 that entry of final +udgent )as ade therein.
3ro April "$, "'(7, the ebership of the Court )as depleted to nine, in vie)
of the retireent, effective on said date, of then Chief 0ustice Roberto
Concepcion. /ith its nine reaining ebers, doubts )ere e1pressed as to
)hether or not the Court could act on constitutional atters of the nature and
agnitude of those raised in these cases, the re*uired *uoru for the resolution
of issues of unconstitutionality under the Ne) Constitution being ten ebers.
8%ection & 8&=, Article 2I, Constitution of the Philippines of "'(7=. Prescinding
fro this point, it is a fact that even if it is not re*uired e1pressly by the
Constitution, by the Court!s o)n policy )hich the Constitution authori,es it to
adopt, all cases involving constitutional *uestions are beard en banc in )hich the
*uoru and at the sae tie the binding vote is of eight 0ustices. /ith only nine
ebers out of a possible ebership of fifteen, it )as not e1actly fair for all
concerned that the court should act, particularly in a case )hich in truth does not
involve only those )ho are actual parties therein but the )hole people as )ell as
the 9overnent of the Philippines. %o, the Court, even as it )ent on inforally
discussing these cases fro tie to tie, preferred to )ait for the appointent
and *ualification of ne) ebers, )hich too4 place only on -ctober &', "'(7,
)hen 0ustices Estanislao 3ernande,, Cecilia MuFo, Pala and Raon A*uino
+oined the Court.
Meantie, subse*uent to the resolution of 3ebruary &A, "'(7, declaring these
cases subitted for decision, or, ore particularly on 0une &', "'(7, counsel for
petitioner Caren 2. 6io4no in 9. R. No. filed a '';page %uppleental Petition
and Motion for 2ediate Release )hich the Court had to refer to the
respondents, on )hose behalf, the %olicitor 9eneral filed an ans)er on 0uly 7#,
"',(7. -n August "@, "'(7, counsel for petitioner 6io4no filed a otion as4ing
that the said petition and otion be set for hearing, )hich the Court could not do,
in vie) precisely of the *uestion of *uoru. As a atter of fact, in the related
case of Benigno ". '(uino# Jr. vs. Military Commission No. & et al., 9. R. No. :;
7(7A@, further reference to )hich )ill be ade later, a preliinary hearing had to
be held by the Court on %unday, August &@, "'(7, on the sole *uestion of
)hether or not )ith its ebership of nine then, the Court could act on issues of
constitutionality of the acts of the President.
At this point, it ay be entioned incidentally that thru several repeated
anifestations and otions, Counsel 3rancis E. 9architorena of Petitioner 6io4no
invited the attention of the Court not only to alleged denial to his client of Bthe
essential access of and freedo to confer and counicate )ith counselB but
also to alleged deplorable sub;huan conditions surrounding his detention. And in
relation to said anifestations and otions, on 3ebruary "',"'(7, said petitioner,
6io4no, together )ith petitioner Benigno %. A*uino and +oined by their coon
counsel, %enator :oren,o M. TaFada filed )ith this Court a petition for andaus
praying that respondents be coanded Bto perit petitioner TaFada to visit and
confer freely and actively )ith petitioners 6io4no and A*uino at reasonable hours
pursuant to the provisions of RA $<( and RA "#$7 and in pursuance of such
decision, 8to direct said respondents= 8"= to clear the conference roo of
petitioners of all representatives of the Ared 3orces and all un)anted third
persons, and prohibit their presence. 8&= to reove or cause the reoval of all
listening devices and other siilar electronic e*uipent fro the conference roo
of petitioners, )ith the further direction that no such instruents be hereafter
installed, and 87= to desist fro the practice of e1aining 8a= the notes ta4en by
petitioner TaFada of his conferences )ith petitioners 6io4no and A*uino. and 8b=
such other legal docuents as petitioner TaFada ay bring )ith hi for
discussion )ith said petitioners.B 89. R. No. :;7A7"<=. 3or obvious reasons, said
petition )ill be resolved in a separate decision. 2t ay be stated here, ho)ever,
that in said 9. R. No. :;7A7"<, in attention to the coplaint ade by %enator
TaFada in his Reply dated April &, "'(7, that Mesdaes 6io4no and A*uino )ere
not being allo)ed to visit their husbands, and, )orse, their very )hereabouts
)ere not being ade 4no)n to the, on April A, "'(7, after hearing the
e1planations of counsel for therein respondents, the Court issued the follo)ing
resolution?
Gpon huanitarian considerations the Court RE%-:DE6 unaniously to grant,
pending further action by this Court, that portion of the prayer in petitioners!
%uppleent andNor Aendent to Petition! filed on April A, "'(7 that the )ives
and inor children of petitioners 6io4no and A*uino be allo)ed to visit the,
sub+ect to such precautions as respondents ay dee necessary.
/e have ta4en pains to recite all the circustances surrounding the progress of
these cases fro their inception in order to correct the ipression conveyed by
the pleadings of petitioner 6io4no, that their disposition has been unnecessarily, it
not deliberately, delayed. The Court cannot yield to anyone in being concerned
that individual rights and liberties guaranteed by the fundaental la) of the land
are duly protected and safeguarded. 2t is fully cogni,ant of ho) iportant not
only to the petitioners but also to the aintainance of the rule of la) is the issue
of legality of the continued constraints on the freedos of petitioners. Gnder
ordinary circustances, it does not really ta4e the Court uch tie to deterine
)hether a deprivation of personal liberty is legal or illegal. But, aside fro the
unusual procedural setbac4s related above, it +ust happens that the basic issues
to resolve here do not affect only the individual rights of petitioners. 2ndeed, the
iportance of these cases transcends the interests of those )ho, li4e petitioners,
have coe to the Court. Actually, )hat is directly involved here is the issue of the
legality of the e1isting governent itself. Accordingly, /e have to act )ith utost
care. Besides, in a sense, the legality of the Court!s o)n e1istence is also involved
here, and /e do not )ant anyone to even suspect /e have hurried precipitately
to uphold -urselves.
2n addition to these considerations, it ust be borne in ind that there are
thousands of other cases in the Court needing its continued attention. /ith its
clogged doc4et. the Court, could ill afford to give petitioners any preference that.
)ould entail corresponding in+ustice to other litigants before it.
/hat is ore, under the Ne) Constitution, the adinistrative +urisdiction overall
lo)er courts, including the Court Appeals, has been transferred fro the
6epartent of 0ustice to the %upree Court, and because that 6epartent
refrained fro attending to any adinistrative function over the courts since
0anuary "(, "'(7, on April "$, "'(7, after the Ratification Cases becae final,
/e found in -ur hands a vast accuulation of adinistrative atters )hich had
to be acted upon )ithout further delay, if the sooth and orderly functioning of
the courts had to be aintained. And, of course. the Court has to continuously
attend to its ne) adinistrative )or4 fro day to day, )hat )ith all 4inds of
coplaints and charges being filed daily against +udges, cler4s of court and other
officers and eployees of the different courts all over the country, )hich the
Court en banc has to tac4le. 2t should not be surprising at all that a great portion
of our sessions en banc has to be devoted to the consideration and disposition of
such adinistrative atters.
3urtherore, in this sae connection, account ust also be ta4en of the fact that
the transfer of the adinistrative functions of the 6epartent to the Court
naturally entailed probles and difficulties )hich consued -ur tie, if only
because soe of the personnel had to ac*uaint theselves )ith the ne)
functions entrusted to the, )hile corresponding ad+ustents had to be ade in
the duties and functions of the personnel affected by the transfer.
PRE:2M2NARK 2%%GE%
No), before proceeding to the discussion and resolution of the issues in the
pending petitions, t)o preliinary atters call for disposition, naely, first, the
otion of petitioner 0ose /. 6io4no, thru counsel %enator TaFada, to be allo)ed
to )ithdra) his basic petition and second, the ob+ection of petitioner, 3rancisco
B%ocB Rodrigo, to the Court!s considering his petition as oot and acadeic as a
conse*uence of his having been released fro his place of confineent in 3ort
Bonifacio. Related to the latter is the e1press anifestation of the other
petitioners? 0oa*uin P. Roces, Teodoro M. :ocsin, %r., Rolando 3adul, Rosalind
9alang, 9o Eng 9uan, Ma1io D. %oliven, Renato Constantino, :uis R. Mauricio,
Napoleon 9. Raa, 0ose Mari Dele,. Raon D. Mitra, 0r., 0uan :. Mercado, Roberto
-rdoFe,, Manuel Alario and Ernesto Rondon to the effect that they reain as
petitioners, not)ithstanding their having been released 8under the sae
conditions as those iposed on petitioner Rodrigo thereby iplying that they are
not )ithdra)ing, as, in fact, they have not )ithdra)al their petitions and )ould
)ish the resolved on their erits.8Manifestation of counsel for petitioners dated
March "<, "'(@.=
2
Anent petitioner 6io4no!s otion to )ithdra), only seven ebers of the Court,
naely, Chief 0ustice Ma4alintal and 0ustices >aldivar, 3ernando, Teehan4ee,
MuFo, Pala, A*uino and the )riter of this opinion, voted to grant the sae. %aid
nuber being short of the eight votes re*uired for binding action of the Court en
banc even in an incident, pursuant to %ection "" of Rule <A, the said otion is
denied, )ithout pre+udice to the right of each eber of the Court to render his
individual opinion in regard to said otion.
5
-ne of the reason vigorously advanced by petitioner 6io4no in his otion to
)ithdra) is that he cannot subit his case to the %upree Court as it is presently
constituted, because it is different fro the one in )hich he filed his petition, and
that, furtherore, he is invo4ing, not the present or Ne) Constitution of the
Philippines the incubent 0ustices have no) s)orn to protect and defend but the
Constitution of "'7<
6
under )hich they )ere serving before. 2ndeed, in the
BManifestation of Copliance and %ubissionB filed by his counsel as early as
6eceber ", "'(7, a siilar feeling )as already indicated, as ay be gathered
fro the portions thereof *uoted earlier in this opinion.
Cad petitioner reiterated and insisted on the position asserted by hi in said
anifestation shortly after the ratification of the Ne) Constitution on 0anuary "(,
"'(7 or even later, after the decision of this Court in the Ratification Cases
becae final on April "(, "'(7, perhaps, there could have been soe 4ind of
+ustification for -ur then and there declaring his petition oot and acadeic,
considering his personal attitude of refusing to recogni,e the passing out of the
"'7< constitution and of the %upree Court under it. But the fact is that as late
as 0une &', "'(7, ore than si1 onths after the ratification of the Ne)
Constitution and ore than t)o onths after this Court had declared that Bthere
is no ore +udicial obstacle to the Ne) Constitution being considered as in force
and effectB, petitioner 6io4no, thru counsel TaFada, riled a B%uppleental Petition
and Motion for 2ediate ReleaseB )herein nary a )ord ay be found suggesting
the point that both the Constitution he is invo4ing and the Court he has subitted
his petition to have already passed into ine1istence. -n the contrary, he insisted
in this last otion that Ban order be issued 8by this Court= directing respondents
to iediately file charges against hi if they have evidence supporting the
sae.B Be it noted, in this connection, that by resolution of the Court of 0une ",
"'(7, it had already ipleented the provisions on the 0udiciary of the Ne)
Constitution and had constituted itself )ith its nine ebers into the 3irst
6ivision, thereby a4ing it unista4ably clear that it )as already operating as
the %upree Court under the Ne) Constitution. The fact no) capitali,ed by
petitioner that the 0ustices too4 the oath only on -ctober &', "'(7 is of no signer,
the truth being that neither the 0ustices! continuation in office after the Ne)
Constitution too4 effect nor the validity or propriety of the Court!s resolution of
0une ", "'(7 +ust entioned )ere *uestioned by hi before. Accordingly, the
Motion in his otion to )ithdra) relative to the Ne) Constitution and the present
%upree Court appear to be obvious afterthoughts intended only to tend color to
his refusal to have the issue of alleged illegality of his detention duly resolved,
reali,ing perchance the untenability thereof and the inevitability of the denial of
his petition, albeit none of this )ill ever be aditted, as ay be gathered fro his
anifestation that he )ould not )ant to have anything to do )ith any ruling of
the Court adverse to his pretensions. 0ust the sae, the ne) oaths of the 0ustices
and the applicability hereto of the -ld and the Ne) Constitution )ill be discussed
in another part of this opinion, if only to satisfy the curiosity of petitioner.
Although the other petitioners have not +oined the sub+ect )ithdra)al otion, it
ight +ust as )ell be stated, for )hatever relevant purpose it ay serve, that,
)ith particular reference to petitioner Rodrigo, as late as Noveber &(,"'(7,
after three ne) +ustices )ere added to the ebership of the Court in partial
obedience to the andate of the Ne) Constitution increasing its total
ebership to fifteen, and after the Court had, by resolution of Noveber "<,
"'(7, already constituted itself into t)o divisions of si1 0ustices each, said
petitioner filed a Manifestation Bfor the purpose of sho)ing that, insofar as 8he=
herein petitioner is concerned, his petition for habeas corpus is not oot and
acadeic.B Notably, this anifestation deals specifically )ith the atter of his
Bconditional releaseB as being still a ground for habeas corpus but does not even
suggest the fundaental change of circustances relied upon in petitioner
6io4no!s otion to )ithdra). -n the contrary, said anifestation indicates
unconditional subission of said petitioner to the +urisdiction of this Court as
presently constituted. -f siilar tenor is the anifestation of counsel for the
reaining petitioners in these cases dated March "<, "'(@. 2n other )ords, it
appears *uite clearly that petitioners should be deeed as having subitted to
the +urisdiction of the %upree Court as it is presently constituted in order that it
ay resolve their petitions for habeas corpus even in the light of the provisions of
the Ne) Constitution.
22
Coing no) to the conditions attached to the release of the petitioners other
than %enators 6io4no and A*uino, it is to be noted that they )ere all given
identical release papers reading as follo)s?
CEA6LGARTER% <TC M2:2TARK 2NTE::29ENCE 9R-GP, 2%A3P Cap 9eneral
Eilio Aguinaldo Lue,on City
M<AP < 6eceber "'(&
%GB0ECT? Conditional Release T-? 3rancisco %oc Rodrigo
". After having been arrested and detained for subversion pursuant to
Proclaation No. "#$" of the President of the Philippines in his capacity as
Coander;in;Chief of the Ared 3orces of the Philippines, dated &" %epteber
"'(&, you are hereby conditionally released.
&. Kou are advised to abide strictly )ith the provisions of Proclaation No. "#$"
and the ensuing :#2s. Any violation of these provisions )ould sub+ect you to
iediate arrest and confineent.
7. Kour investigation )ill continue follo)ing a schedule )hich you )ill later on be
infored. Kou are advised to follo) this schedule strictly.
@. Kou are not allo)ed to leave the confines of 9reater Manila Area unless
specifically authori,ed by this -ffice indicating the provincial address and
e1pected duration of stay thereat. Contact this -ffice through telephone No. '(;
"(;<A )hen necessary.
<. Kou are prohibited fro giving or participating in any intervie) conducted by
any local or foreign ass edia representative for purpose of publication andNor
radioNTD broadcast.
A. Be guided accordingly.
8%96.= MAR2AN- 9. M2RAN6A :t. Colonel PA 9roup Coander
& L / G
TC2% 2% T- CERT23K that 2 have read and understood the foregoing conditional
release.
2 CEREBK P:E69E to conduct yself accordingly and )ill not engage in any
subversive activity. 2 )ill iediately report any subversive activity that )ill coe
to y 4no)ledge.
8%96.= 3. R-6R29- Address? A# 0uana Rodrigue, Lue,on City Tel No. (#;&<;AA.
(#@';&# (#;&(;<<
2t is the subission of these petitioners that their release under the foregoing
conditions is not absolute, hence their present cases before the Court have not
becoe oot and acadeic and should not be disissed )ithout consideration of
the erits thereof. They clai that in truth they have not been freed, because
actually, )hat has been done to the is only to enlarge or e1pand the area of
their confineent in order to include the )hole 9reater Manila area instead of
being liited by the boundaries of the ary caps )herein they )ere previously
detained. They say that although they are allo)ed to go else)here, they can do
so only if e1pressly and specifically peritted by the ary authorities, and this is
nothing ne), since they could also go out of the caps before )ith proper passes.
They aintain that they never accepted the above conditions voluntarily. 2n other
)ords, it is their position that they are in actual fact being still so detained and
restrained of their liberty against their )ill as to entitle the in la) to the reedy
of habeas corpus.
/e find erit in this particular subittal regarding the reach of habeas corpus.
/e readily agree that the fundaental la) of the land does not countenance the
diinution or restriction of the individual freedos of any person in the
Philippines )ithout due process of la). No one in this country ay suffer, against
his )ill, any 4ind or degree of constraint upon his right to go to any place not
prohibited by la), )ithout being entitled to this great )rit of liberty, for it has not
been designed only against illegal and involuntary detention in +ails, prisons and
concentration caps, but for all fors and degrees of restraint, )ithout authority
of la) or the consent of the person concerned, upon his freedo to ove freely,
irrespective of )hether the area )ithin )hich he is confined is sall or large, as
long as it is not co;e1tensive )ith that )hich ay be freely reached by anybody
else, given the desire and the eans. More than half a century ago in "'"', this
Court already dre) the broad and all;encopassing scope of habeas corpus in
these une*uivocal )ords? BA prie specification of an application for a )rit of
habeas corpus is restraint of liberty. The essential ob+ect and purpose of the )rit
of habeas corpus is to in*uire into all anners of involuntary restraint as
distinguished fro voluntary, and to relieve a person therefro if such restraint is
illegal. Any restraint )hich )ill preclude freedo of action is sufficient.B
6
. There
is no reason at all at this tie, hopefully there )ill never be any in the future, to
detract a )hit fro this noble attitude. 6efinitely, the conditions under )hich
petitioners have been released fall short of restoring to the the freedo to
)hich they are constitutionally entitled. -nly a sho)ing that the iposition of said
conditions is authori,ed by la) can stand in the )ay of an order that they be
iediately and copletely )ithdra)n by the proper authorities so that the
petitioners ay again be free en as )e are.
And so, /e coe to the basic *uestion in these cases? Are petitioners being
detained or other)ise restrained of liberty, evidently against their )ill, )ithout
authority of la) and due processE
T1 $'CT"
Aside fro those already ade reference to above, the other bac4ground facts of
these cases are as follo)s?
-n %epteber &", "'(&, President 3erdinand E. Marcos
7
signed the follo)ing
proclaation?
&,-CL'M'T+-* *-. 4AB4
PR-C:A2M2N9 A %TATE -3 MART2A: :A/ 2N TCE PC2:2PP2NE%
/CEREA%, on the basis of carefully evaluated and verified inforation, it is
definitely established that la)less eleents )ho are oved by a coon or
siilar ideological conviction, design, strategy and goal and en+oying the active
oral and aterial support of a foreign po)er and being guided and directed by
intensely devoted, )ell trained, deterined and ruthless groups of en and
see4ing refuge under the protection of our constitutional liberties to proote and
attain their ends, have entered into a conspiracy and have in fact +oined and
banded their resources and forces together for the prie purpose of, and in fact
they have been and are actually staging, underta4ing and )aging an ared
insurrection and rebellion against the 9overnent of the Republic of the
Philippines in order to forcibly sei,e political and state po)er in this country,
overthro) the duly constituted 9overnent, and supplant our e1isting political,
social, econoic and legal order )ith an entirely ne) one )hose for of
governent, )hose syste of la)s, )hose conception of 9od and religion, )hose
notion of individual rights and faily relations, and )hose political, social,
econoic, legal and oral precepts are based on the Mar1ist;:eninist;Maoist
teachings and beliefs.
/CEREA%, these la)less eleents, acting in concert through seeingly innocent
and harless, although actually destructive, front organi,ations )hich have been
infiltrated or deliberately fored by the, have continuously and systeatically
strengthened and broadened their eberships through sustained and careful
recruiting and enlistent of ne) adherents fro aong our peasantry, laborers,
professionals, intellectuals, students, and ass edia personnel, and through
such sustained and careful recruitent and enlistent have succeeded in
spreading and e1panding their control and influence over alost every segent
and level of our society throughout the land in their ceaseless effort to erode and
)ea4en the political, social, econoic, legal and oral foundations of our e1isting
9overnent, and to influence, anipulate and ove peasant, labor, student and
terroristic organi,ations under their influence or control to coit, as in fact they
have coitted and still are coitting, acts of violence, depredations, sabotage
and in+uries against our duly constituted authorities, against the ebers of our
la) enforceent agencies, and )orst of all, against the peaceful ebers of our
society.
/CEREA%, in the fanatical pursuit of their conspiracy and )idespread acts of
violence, depredations, sabotage and in+uries against our people, and in order to
provide the essential instruent to direct and carry out their criinal design and
unla)ful activities, and to achieve their ultiate sinister ob+ectives, these la)less
eleents have in fact organi,ed, established and are no) aintaining a Central
Coittee, coposed of young and dedicated radical students and intellectuals,
)hich is charged )ith guiding and directing the ared struggle and propaganda
assaults against our duly constituted 9overnent, and this Central Coittee is
no) iposing its )ill and asserting its sha authority on certain segents of our
population, especially in the rural areas, through varied eans of subterfuge,
deceit, coercion, threats, intiidation!s, achinations, treachery, violence and
other odes of terror, and has been and is illegally e1acting financial and other
fors of contributes fro our people to raise funds and aterial resources to
support its insurrectionary and propaganda activities against our duly constituted
9overnent and against our peace;loving people.
/CEREA%, in order to carry out, as in fact they have carried out, their
preeditated plan to stage, underta4e and )age a full scale ared insurrection
and rebellion in this country, these la)less eleents have organi,ed, established
and are no) aintaining a )ell trained, )ell ared and highly indoctrinated and
greatly e1panded insurrectionary force, popularly 4no)n as the !Ne) People!s
Ary! )hich has since vigorously pursued and still is vigorously pursuing a
relentless and ruthless ared struggle against our duly constituted 9overnent
and )hose unitigated forays, raids, abuscades assaults and reign of terror and
acts of la)lessness in the rural areas and in our urban centers brought about the
treacherous and cold;blooded assassination of innocent civilians, ilitary
personnel of the 9overnent and local public officials in any parts of the
country, notably in the Cagayan Dalley, in Central :u,on, in the %outhern Tagalog
Region, in the Bicol Area, in the Disayas and in Mindanao and )hose daring and
)anton guerrilla activities have generated and fear and panic aong our people,
have created a cliate of chaos and disorder, produced a state of political, social,
psychological and econoic instability in our land, and have inflicted great
suffering and irreparable in+ury to persons and property in our society.
/CEREA%, these la)less eleents, their cadres, fello)en, friends, sypathi,ers
and supporters have for any years up to the present tie been ounting
sustained, assive and destructive propaganda assaults against our duly
constituted 9overnent its intruentalities, agencies and officials, and also
against our social, political, econoic and religious institutions, through the
publications, broadcasts and disseination!s of deliberately slanted and overly
e1aggerated ne)s stories and ne)s coentaries as )ell as false , vile, foul and
scurrilous stateents, utterances, )ritings and pictures through the press;radio;
television edia and through leaflets, college capus ne)spapers and soe
ne)spapers published and still being published by these la)less eleents,
notably the !Ang Bayan,! !Pulang Bandila! and the !Ang Mounista,! all of )hich are
clearly )ell;conceived, intended and calculated to align and discredit our duly
constituted 9overnent, its instruentalities, agencies and officials before our
people, and thus underine and destroy the faith and loyalty and allegiance of
our people in and alienate their support for their duly constituted 9overnent, its
instruentalities, agencies and officials, and thereby gradually erode and )ea4en
as in fact they had so eroded and )ea4ened the )ill of our people to sustain and
defend our 9overnent and our deocratic )ay of life.
/CEREA%, these la)less eleents having ta4en up ars against our duly
constituted 9overnent and against our people, and having coitted and are
still coitting acts of ared insurrection and rebellion consisting of ared raids,
forays, sorties, abushes, )anton acts of urders, spoilage, plunder, looting,
arsons, destruction of public and private buildings, and attac4s against innocent
and defenseless civilian lives and property, all of )hich activities have seriously
endangered and continue to endanger public order and safety and the security of
the nation, and acting )ith cunning and anifest precision and deliberation and
)ithout regard to the health, safety and )ell;being of the people, are no)
ipleenting their plan to cause )ide spread, assive and systeatic
destruction and paraly,ation of vital public utilities and service particularly )ater
systes, sources of electrical po)er, counication and transportation facilities,
to the great detrient, suffering, in+ury and pre+udice of our people and the
nation and to generate a deep psychological fear and panic aong our people.
/CEREA%, the %upree Court in the cases brought before it, doc4eted as 9. R.
Nos. :;77'A@, :;77'A<, :;77'(7, :;77'$&, :;7@##@, :;7@#"7, :;7@#7', :;7@&A<,
and :;7@77', as a conse*uence of the suspension of the privilege of the )rit of
habeas corpus by e as President of the Philippines in y Proclaation No. $$',
dated August &", "'(", as aended, has found that in truth and in fact there
e1ists an actual insurrection and rebellion in the country by a si,eable group of
en )ho have publicly risen in ars to overthro) the 9overnent. Cere is )hat
the %upree Court said in its decision proulgated on 6eceber "", "'("?
... our +urisprudence attests abundantly to the Counist activities in the
Philippines, especially in Manila, fro the late t)enties to the early thirties, then
aied principally at inciteent to sedition or rebellion, as the iediate
ob+ective. Gpon the establishent of the Coon)ealth of the Philippines, the
oveent seeed to have )arned notably. but, the outbrea4 of /orld /ar 22 in
the Pacific and the iseries, the devastation and havoc, and the proliferation of
unlicensed firears concoitant )ith the ilitary occupation of the Philippines
and its subse*uent liberation, brought about, in the late forties, a resurgence of
the Counist threat, )ith such vigor as to be able to organi,e and operate in
Central :u,on an ary 5 called CGMBA:ACAP, during the occupation, and
renaed Cu4bong Mapagpalaya ng Bayan 8CMB= after liberation 5 )hich clashed
several ties )ith the Ared 3orces of the Republic. This propted then
President Luirino to issue Proclaation No. &"#, dated -ctober &&, "'<#,
suspending the privilege of the )rit of habeas corpus the validity of )hich )as
upheld in Montenegro v. Castaeda. 6ays before the proulgation of said
Proclaation, or on -ctober "$, "'<#, ebers of the Counist Politburo in
the Philippines )ere apprehended in Manila. %ubse*uently accused and convicted
of the crie of rebellion, they served their respective sentences.
The fifties sa) a coparative lull in Counist activities, insofar as peace and
order )ere concerned. %till, on 0une &#, "'<(, Republic Act No. "(##, other)ise
4no)n as the Anti;%ubversion Act, )as approved, upon the grounds stated in the
very preable of said statute 5 that
... the Counist Party of the Philippines, although purportedly a political party,
is in fact an organi,ed conspiracy to overthro) the 9overnent of the Republic of
the Philippines, not only by force and violence but also by deceit, subversion and
other illegal eans, for the purpose of establishing in the Philippines a totalitarian
regie sub+ect to alien doination and control,
... the continued e1istence and activities of the Counist Party of the
Philippines constitutes a clear, present and grave danger to the security of the
Philippines. and
... in the face of the organi,ed, systeatic and persistent subversion, national in
scope but international in direction, posed by the Counist Party of the
Philippines and its activities, there is urgent need for special legislation to cope
)ith this continuing enace to the freedo and security of the country ....
2n the language of the Report on Central :u,on, subitted, on %epteber @,
"'(", by the %enate Ad Coc Coittee of %even 5 copy of )hich Report )as
filed in these cases by the petitioners herein 5
The years follo)ing "'A7 sa) the successive eergence in the country of several
ass organi,ations, notably the :apiang Manggaga)a 8no) the %ocialist Party of
the Philippines= aong the )or4ers, the Malayang %aahan ng ga Magsasa4a
8MA%AMA= aong the peasantry. the Mabataang Ma4abayan 8MM= aong the
youthNstudents. and the Moveent for the Advanceent of Nationalis 8MAN=
aong the intellectualsNprofessionals, the PMP has e1erted all;out effort to
infiltrate, influence and utili,e these organi,ations in prooting its radical brand
of nationalis.
Mean)hile, the Counist leaders in the Philippines had been split into t)o 8&=
groups, one of )hich 5 coposed ainly of young radicals, constituting the
Maoist faction 5 reorgani,ed the Counist Party of the Philippines early in "'A'
and established a Ne) People!s Ary. This faction adheres to the Maoist concept
of the !Protracted People!s /ar! or !/ar of National :iberation.! 2ts !Prograe for
a People!s 6eocratic Revolution states, inter alia?
The Counist Party of the Philippines is deterined to ipleent its general
prograe for a people!s deocratic revolution. All 3ilipino counists are
ready to sacrifice their lives for the )orthy cause of achieving the ne) type of
deocracy, of building a ne) Philippines that is genuinely and copletely
independent, deocratic, united, +ust and prosperous ...
The central tas4 of any revolutionary oveent is to sei,e political po)er. The
Counist Party of the Philippines assues this tas4 at a tie that both the
international and national situations are favorable, to ta4ing the road of ared
revolution ...
2n the year "'A', the NPA had 5 according to the records of the 6epartent of
National 6efense 5 conducted raids, resorted to 4idnappings and ta4en part in
other violent incidents nubering over &7#, in )hich it inflicted @#@ casualties,
and, in turn, suffered &@7 losses. 2n "'(#, its record of violent incidents )as
about the sae, but the NPA casualties ore than doubled.
At any rate, t)o 8&= facts are undeniable? 8a= all Counists, )hether they
belong to the traditional group or to the Maoist faction, believe that force and
violence are indispensable to the attainent of their ain and ultiate ob+ective,
and act in accordance )ith such belief, although they disagree on the eans to be
used at a given tie and in a particular place. and 8b= there is a Ne) People!s
Ary, other, of course, than the Ared 3orces of the Republic and antagonistic
thereto. %uch Ne) People!s Ary is per se proof of the e1istence of the rebellion,
especially considering that its establishent )as announced publicly by the
reorgani,ed CPP. %uch announceent is in the nature of a public challenge to the
duly constitution Authorities and ay be li4ened to a declaration of )ar, sufficient
to establish a )ar status or a condition of belligerency even before the actual
coenceent of hostilities.
/e entertain therefore, no doubts about the e1istence of a si,eable group of en
)ho have publicly risen in ars to overthro) the 9overnent and have thus been
and still are engage in rebellion against the 9overnent of the Philippines.
/CEREA%, these la)less eleents have to a considerable e1tent succeeded in
ipeding our duly constituted authorities fro perforing their functions and
discharging their duties and responsibilities in accordance )ith our la)s and our
Constitution to the great daage, pre+udice and detrient of the people and the
nation.
/CEREA%, it is evident that there is throughout the land a state of anarchy and
la)lessness, chaos and disorder, turoil and destruction of a agnitude
e*uivalent to an actual )ar bet)een the forces of our duly constituted
9overnent and the Ne) People!s Ary and their satellite organi,ations because
of the unitigated forays, raids, abuscades, assaults, violence, urders,
assassinations, acts of terror, deceits, coercions, threats, intiidation!s, treachery,
achinations, arsons, plunders and depredations coitted and being coitted
by the aforesaid la)less eleents )ho have pledged to the )hole nation that they
)ill not stop their dastardly effort and schee until and unless they have fully
attained their priary and ultiate purpose of forcibly sei,ing political and state
po)er in this country by overthro)ing our present duly constituted 9overnent,
by destroying our deocratic )ay of life and our established secular and religious
institutions and beliefs, and by supplanting our e1isting political, social, econoic,
legal and oral order )ith an entirely ne) one )hose for of governent, )hose
otion of individual rights and faily relations, and )hose political, social,
econoic and oral precepts are based on the Mar1ist;:eninist;Maoist teachings
and beliefs.
/CEREA%, the %upree Court in its said decision concluded that the unla)ful
activities of the aforesaid la)less eleents actually pose a clear, present and
grave danger to public safety and the security of the nation and in support of that
conclusion found that?
... the E1ecutive had inforation and reports 5 subse*uently confired, in any
by the above;entioned Report of the %enate Ad Coc Coittee of %even ; to
the effect that the Counist Party of the Philippines does not erely adhere to
:enin!s idea of a s)ift ared uprising that it has, also, adopted Co Chi Minh!s
terrorist tactics and resorted to the assassination of uncooperative local officials
that, in line )ith this policy, the insurgents have 4illed < ayors, &# barrio
captains and 7 chiefs of police. that there )ere fourteen 8"@= eaningful bobing
incidents in the 9reater Manila Area in "'(#. that the Constitutional Convention
Call )as bobed on 0une "&, "'(". that, soon after the Pla,a Miranda incident,
the NA/A%A ain pipe at the Lue,on City;%an 0uan boundary )as bobed. that
this )as follo)ed closely by the bobing of the Manila City Call, the C-ME:EC
Building, the Congress Building and the MERA:C- sub;station at Cubao, Lue,on
City. and that the respective residences of %enator 0ose 0. Roy and Congressan
Eduardo Co+uangco )ere, li4e)ise, bobed, as )ere the MERA:C- ain office
preises, along -rtigas Avenue, and the 6octor!s Pharaceuticals, 2nc. Building,
in Caloocan City.
... the reorgani,ed Counist Party of the Philippines has, oreover, adopted
resist of the 9overnent, of the political, econoic and intellectual leadership,
and of the people theselves. that conforably to such concept, the Party has
placed special ephasis upon a ost e1tensive and intensive progra of
subversion be the establishent of front organi,ations in urban centers, the
)hich are the Malayang %aahan ng Magsasa4a8MA%AMA=, the Mabataang
%aahang 6eo4rati4o ng Mabataan 8%6M=, the %aahang Molave 8%M= and the
Philippines of )hich seventy;three 8(7= )ere in the 9reater Manila Area, si1ty
thirty;three 877= ended in violence, resulting in fifteen 8"<= 4illed and over five
that the nuber of deonstrations heretofore staged in "'(" has already
e1ceeded those of "'(#. and that t)enty;four 8&@= of these deonstrations )ere
ore.
%ubse*uent events ... have also proven ... the threat to public safety posed by
the Ne) People!s Ary. 2ndeed, it appears that, since August &", "'(", it had in
Northern :u,on si1 8A= encounters and staged one 8"= raid, in conse*uences of
)hich seven soldiers lost their lives and t)o 8&= others )ere )ounded, )hereas
the insurgents suffered five 8<= casualties. that on August &A, "'(", a )ell;ared
group of NPA, trained by defector :t. Dictor Corpus, attac4ed the very coand
post of T3 :A/2N in 2sabela, destroying t)o 8&= helicopters and one 8"= plane,
and )ounding one 8"= soldier. that the NPA had in Central :u,on a total of four
8@= encounters, )ith t)o 8&= 4illed and three 87= )ounded on the side of the
9overnent, one 8"= B%6G 4illed and three 87= MM%6M leader, an unidentified
dissident, and Coander Panchito, leader of the dissident group )ere 4illed that
on August &A, "'(", there )as an encounter in the barrio of %an Pedro, 2riga City,
Caarines %ur, bet)een the PC and the NPA, in )hich a PC and t)o 8&= MM
ebers )ere 4illed. that the current disturbances in Cotabato and the :anao
provinces have been rendered ore cople1 by the involveent of the CPPNNPA,
for, in id;"'(", a MM group, headed by 0ovencio Esparago,a, contacted the
Cigaonan tribes, in their settleent in Magsaysay, Misais -riental, and offered
the boo4s, paphlets and brochures of Mao Tse Tung, as )ell as conducted
teach;ins in the reservation. that Esparago,a )as reportedly 4illed on %epteber
&&, "'(", in an operation of the PC in said reservation. and that there are no)
t)o 8&= NPA cadres in Mindanao.
2t should, also be noted that adherents of the CPP and its front organi,ations are,
according to intelligence findings, definitely capable of preparing po)erful
Constitutional Convention Call )as a !Clayore! ine, a po)erful e1plosive device
used by the G.%. Ary, believed to have been one of any pilfered fro the
assassinations, 4idnappings, terroris and ass destruction of property and that
situation. that a si,eable part of our ared forces discharges other functions, and
country, particularly Manila and its suburbs, the Cagayan Dalley, 2fugao,
>abales, :aguna, Lue,on and the Bicol Region, re*uired that the rest of our
ared forces be spread thin over a )ide area.
/CEREA%, in the un)avering prosecution of their revolutionary )ar against the
3ilipino people and their duly constituted 9overnent, the aforesaid la)less
eleents have, in the onths of May, 0une and 0uly, "'(&, succeeded in bringing
and introducing into the country at 6igoyo Point, Palanan, 2sabela and at other
undeterined points along the Pacific coastline of :u,on, a substantial *uantity of
)ar aterial consisting of M;"@ rifles estiated to be soe 7,<## pieces, several
do,ens of @# roc4et launchers )hich are said to be Chico copies of a
Russian prototype roc4et launcher, large *uantities of $# roc4ets and
aunitions, and other cobat paraphernalia, of )hich )ar aterial soe had
been discovered and captured by governent ilitary forces, and the bringing
and introduction of such *uantity and type of )ar aterial into the country is a
ute but elo*uent proof of the sinister plan of the aforesaid la)yers eleents to
hasten the escalation of their present revolutionary )ar against the 3ilipino people
and their legitiate 9overnent.
/CEREA%, in the e1ecution of their overall revolutionary plan, the aforesaid
la)less eleents have prepared and released to their various field coanders
and Party )or4ers a docuent captioned !RE92-NA: PR-9RAM -3 ACT2-N "'(&,!
a copy of )hich )as captured by eleents of the ""Ath and ""'th Philippine
Constabulary Copanies on 0une "$, "'(& at Barrio Taringsing, Cordon, 2sabela,
the te1t of )hich reads as follo)s?
RE92-NA: PR-9RAM -3 ACT2-N "'(&
The follo)ing Regional Progra of Action "'(& is prepared to be carried out as
part of the overall plan of the party to foent discontent and precipitate the tide
of nation)ide ass revolution. The fascist Marcos and his reactionary of Congress
is e1pected to prepare theselves for the "'(7 hence?
0anuary 5 0une?
". 2ntensify recruitent of ne) party ebers especially fro the )or4ers;
farers class. Cadres are being trained in order to organi,e the different regional
bureaus. These bureaus ust concentrate on ass action and organi,ation to
advanceent of the ass revolutionary oveent. Reference is to the !Borador
ng Prograa sa Pag4ilos at Glat ng Panlipunang Pagsisiyasat! as approved by the
Central Coittee.
&. Recruit and train ared city partisans and urban guerrillas and organi,e the
into units under Party cadres and activities of ass organi,ations. These units
ust undergo speciali,ed training on e1plosives and deolition and other and
other fors of sabotage.
7. 2ntensify recruitent and training of ne) ebers for the Ne) People!s Ary
in preparation for liited offensive in selected areas in the regions.
@. %upport a ore aggressive progra of agitation and proraganda against the
reactionary ared forces and against the Con;Con.
0uly 5 August?
6uring this period the Party e1pects the puppet Marcos governent to allo)
increase in bus rates thus aggravating further the plight of students, )or4ers and
the farers.
". All Regional Party Coittees ust plan for a general stri4e oveent. The
Regional -perational Coands ust plan for ared support if the fascist forces
of Marcos )ill try to intiidate the oppressed 3ilipino asses.
&. Conduct sabotage against schools, colleges and universities hi4ing tuition fees.
7. Conduct sabotage and agitation against puppet +udges and courts hearing
cases against top party leaders.
@. Create regional chaos and disorder to draati,e the inability of the fascist
Marcos 9overnent to 4eep and aintain peace and order thru?
a= Robbery and hold;up of ban4s controlled by Aerican iperialists and those
belonging to the eneies of the people.
b= Attac4 ilitary caps, G% bases and to)ns.
c= More violent stri4es and deonstrations.
%epteber 5 -ctober?
2ncrease intensity of violence, disorder and confusion?
". 2ntensify sabotage and bobing of governent buildings and ebassies and
other utilities?
a= Congress.
b= %upree Court.
c= Con;Con.
d= City Call.
e= G% Ebassy.
f= 3acilities of G% Bases.
g= Provincial Capitols.
h= Po)er Plants.
i= P:6T.
+= Radio %tations.
&. %poradic attac4s on caps, to)ns and cities.
7. Assassinate high 9overnent officials of Congress, 0udiciary, Con;Con and
private individuals sypathetic to puppet Marcos.
@. Establish provisional revolutionary governent in to)ns and cities )ith the
support of the asses.
<. /ith the sypathetic support of our allies, establish provisional provincial
revolutionary governents.
CENTRA: C-MM2TTEE C-MMGN2%T PARTK -3 TCE PC2:2PP2NE%
/CEREA%, in line )ith their !RE92-NA: PR-9RAM -3 ACT2-N "'(&,! the
aforesaid la)less eleents have of late been conducting intensified acts of
violence and terroris!s during the current year in the 9reater Manila Area such
as the bobing of the Arca building at Taft Avenue, Pasay City, on March "<. of
the 3ilipinas -rient Air)ays board roo at 6oestic Road, Pasay City on April &7.
of the Dietnaese Ebassy on May 7#. of the Court of 2ndustrial Relations on
0une &7. of the Philippine Trust Copany branch office in Cubao, Lue,on City on
0une &@. of the Philalife building at Gnited Nations Avenue, Manila, on 0uly 7. of
the Tabacalera Cigar Q Cigarette 3actory Copound at Mar*ue, de Coillas,
Manila on 0uly &(. of the P:6T e1change office at East Avenue, Lue,on City, and
of the Philippine %ugar 2nstitute building at North Avenue, 6ilian, Lue,on City,
both on August "<. of the 6epartent of %ocial /elfare building at %an Rafael
%treet, %apaloc, Manila, on August "(. of a )ater ain on Aurora Boulevard
and Madison Avenue, Lue,on City on August "'. of the Philalife building again
on August 7#. this tie causing severe destruction on the 3ar East Ban4 and
Trust Copany building nearby of the arored car and building of the Philippine
Ban4ing Corporation as )ell as the buildings of the 2nvestent 6evelopent, 2nc.
and the 6aily %tar Publications )hen another e1plosion too4 place on Railroad
%treet, Port Area, Manila also on August 7#. of 0oe!s 6epartent %tore on Cariedo
%treet, Luiapo, Manila, on %epteber <, causing death to one )oan and in+uries
to soe 7$ individuals. and of the City Call of Manila on %epteber $. of the
)ater ains in %an 0uan, Ri,al on %epteber "&. of the %an Miguel Building in
Ma4ati, Ri,al on %epteber "@. and of the Lue,on City Call on %epteber "$,
"'(&, as )ell as the attepted bobing of the Congress Building on 0uly "$,
)hen an une1ploded bob )as found in the %enate Publication 6ivision and the
attepted bobing of the 6epartent of 3oreign Affairs on August 7#.
/CEREA%, in line )ith the sae !RE92-NA: PR-9RAM -3 ACT2-N "'(&,! the
aforesaid la)less eleents have also fielded in the 9reater Manila area several of
their !%parro) Gnits! or !%ibad Gnits! to underta4e li*uidation issions against
ran4ing governent officials, ilitary personnel and proinent citi,ens and to
further heighten the destruction!s and depredations already inflicted by the
upon our innocent people, all of )hich are being deliberately done to so) terror,
fear and chaos aongst our population and to a4e the 9overnent loo4 so
helpless and incapable of protecting the lives and property of our people.
/CEREA%, in addition to the above;described social disorder, there is also the
e*ually serious disorder in Mindanao and %ulu resulting fro the unsettled conflict
bet)een certain eleents of the Christian and Musli population of Mindanao and
%ulu, bet)een the Christian !2lagas! and the Musli !Barracudas,! and bet)een
our 9overnent troops, and certain la)less organi,ations such as the Mindanao
2ndependence Moveent.
/CEREA%, the Mindanao 2ndependence Moveent )ith the active aterial and
financial assistance of foreign political and econoic interests, is engaged in an
open and unconcealed attept to establish by violence and force a separate and
independent political state out of the islands of Mindanao and %ulu )hich are
historically, politically and by la) parts of the territories and )ithin the +urisdiction
and sovereignty of the Republic of the Philippines.
/CEREA%, because of the aforesaid disorder resulting fro ared clashes,
4illings, assacres, arsons, rapes, pillages, destruction of )hole villages and
to)ns and the inevitable cessation of agricultural and industrial operations, all of
)hich have been brought about by the violence inflicted by the Christians, the
Muslis, the !2lagas,! the !Barracudas,! and the Mindanao 2ndependence
Moveent against each other and against our governent troops, a great any
parts of the islands of Mindanao and %ulu are virtually no) in a state of actual
)ar.
/CEREA%, the violent disorder in Mindanao and %ulu has to date resulted in the
4illing of over ",### civilians and about &,### ared Muslis and Christians, not
to ention the ore than five hundred thousand of in+ured displaced and
hoeless persons as )ell as the great nuber of casualties aong our
governent troops, and the paraly,ation of the econoy of Mindanao and %ulu.
/CEREA%, because of the foregoing acts of ared insurrection, )anton
destruction of huan and lives and property, unabated and unrestrained
propaganda attac4s against the 9overnent and its institutions,
instruentalities, agencies and officials, and the rapidly e1panding ran4s of the
aforesaid la)less eleents, and because of the spreading la)lessness and
anarchy throughout the land all of )hich prevented the 9overnent to e1ercise
its authority, e1tend its citi,enry the protection of its la)s and in general e1ercise
its sovereignty overall of its territories, caused serious deorali,ation aong our
people and have ade the apprehensive and fearful, and finally because public
order and safety and the security of this nation deand that iediate, s)ift,
decisive and effective action be ta4en to protect and insure the peace, order and
security of the country and its population and to aintain the authority of the
9overnent.
/CEREA%, in cases of invasion, insurrection or rebellion or iinent danger
thereof, 2, as President of the Philippines, have under the Constitution, three
course of action open to e, naely? 8a= call out the ared forces to suppress
the present la)less violence. 8b= suspend the privilege of the )rit of habeas
corpus to a4e the arrest and apprehension of these la)less eleents easier and
ore effective. or 8c= place the Philippines or any part thereof under artial la).
/CEREA%, 2 have already utili,ed the first t)o courses of action, first, by calling
upon the ared forces to suppress the aforesaid la)less violence, coitting to
that specific +ob alost <#R of the entire ared forces of the country and
creating several tas4 forces for that purpose such as Tas4 3orce %aranay, Tas4
3orce Palanan, Tas4 3orce 2sarog, Tas4 3orce Pag4a4aisa and Tas4 3orce :ancaf
and, second, by suspending the privilege of the )rit of habeas corpus on August
&", "'(" up to 0anuary "", "'(&, but in spite of all that, both courses of action
)ere found inade*uate and ineffective to contain, uch less solve, the present
rebellion and la)lessness in the country as sho)n by the fact that?
". The radical left has increased the nuber and area of operation of its front
organi,ations and has intensified the recruitent and training of ne) adherents in
the urban and rural areas especially fro aong the youth.
&. The Mabataang Ma4abayan 8MM=, the ost ilitant and outspo4en front
organi,ation of the radical left, has increased the nuber of its chapters fro &##
as of the end of "'(# to 7"( as of 0uly 7", "'(& and its ebership fro "#,###
as of the end of "'(# to "<,### as of the end of 0uly, "'(&, sho)ing very clearly
the rapid gro)th of the counist oveent in this country.
7. The %aahang 6eo4rati4o ng Mabataan 8%6M=, another ilitant and
outspo4en front organi,ation of the radical left, has also increased the nuber of
its chapters fro an insignificant nuber at the end of "'(# to "<' as of the end
of 0uly, "'(& and has no) a ebership of soe ",@'< highly indoctrinated,
intensely coitted and alost fanatically devoted individuals.
@. The Ne) People!s Ary, the ost active and the ost violent and ruthless
ilitary ar of the radical left, has increased its total strength fro an estiated
A,<## coposed of <A# regulars, ",<## cobat support and @,@## service
support= as of 0anuary ", "'(& to about (,'## 8coposed of ",#&$ regulars,
",$## cobat support and <,#&< service support= as of 0uly 7", "'(&, sho)ing a
ar4ed increase in its regular troops of over "##R in such a short period of si1
onths.
<. The establishent of sanctuaries for the insurgents in 2sabela, in >abales, in
Caarines %ur, and in soe parts of Mindanao, a developent heretofore
un4no)n in our capaign against subversion and insurgency in this country.
A. The disappearance and dropping out of school of soe 7,### high school and
college students and )ho are reported to have +oined )ith the insurgents for
training in the handling of firears and e1plosives.
(. The bringing and introduction into the country of substantial )ar aterial
consisting of ilitary hard)are and supplies through the MD Maragatan at 6igoyo
Point, Palanan, 2sabela, and the fact that any of these ilitary hard)are and
supplies are no) in the hands of the insurgents and are being used against our
9overnent troops.
$. The infiltration and control of the edia by persons )ho are sypathetic to the
insurgents and the conse*uent intensification of their propaganda assault against
the 9overnent and the ilitary establishent of the 9overnent.
'. The foration at the grass;root level of !political po)er organs,! heretofore
un4no)n in the history of the Counist oveent in this country, coposed of
Barrio -rgani,ing Coittees 8B-Cs= to obili,e the barrio people for active
involveent in the revolution. the Barrio Revolutionary Coittees 8BRCs= to act
as !local governents in barrios considered as CPPNNPA baili)ic4s. the /or4ers
-rgani,ing Coittees 8/-Cs= to organi,e )or4ers fro all sectors. the %chool
-rgani,ing Coittees 8%-Cs= to conduct agitation and propaganda activities
and help in the e1pansion of front groups aong the studentry. and the
Counity -rgani,ing Coittees 8C-Cs= )hich operate in the urban areas in
the sae anner as the 8B-Cs=.
/CEREA%, the rebellion and ared action underta4en by these la)less eleents
of the counist and other ared aggrupations organi,ed to overthro) the
Republic of the Philippines by ared violence and force have assued the
agnitude of an actual state of )ar against our people and the Republic of the
Philippines.
N-/, TCERE3-RE, 2, 3ER62NAN6 E. MARC-%, President of the Philippines, by
2N /2TNE%% /CERE-3, 2 have hereunto set y hand and caused the seal of the
Republic of the Philippines to be affi1ed.
6one in the City of Manila, this &"st day of %epteber, in the year of -ur :ord,
nineteen hundred and seventy;t)o,
8%96.= 3ER62NAN6 E. MARC-% President Republic of the Philippines
-n %epteber &&, "'(& at ' o!cloc4 in the evening, clearance for the
ipleentation of the proclaation )as granted, and for )ith, the follo)ing
general order, aong others, )as issued?
G*,'L -,/, *-. 3
8-R6ER2N9 TCE %ECRETARK -3 NAT2-NA: 6E3EN%E T- ARRE%T TCE PER%-N%
NAME6 2N TCE ATTACCE6 :2%T, A% /E:: A% -TCER PER%-N% /C- MAK CADE
C-MM2TTE6 CR2ME% AN6 -33EN%E% ENGMERATE6 2N TCE -R6ER=.
Pursuant to Proclaation No. "#$", dated %epteber &", "'(&, in y capacity as
Coander;in;Chief of all the Ared 3orces of the Philippines and for being
active participants in the conspiracy and state po)er in the country and to ta4e
over the 9overnent by force, the e1tent of )hich has no) assued the
proportion of an actual )ar against our people and their legitiate 9overnent
and in order to prevent the fro further coitting acts that are iniical or
in+urious to our people, the 9overnent and our national interest, 2 hereby order
you as %ecretary of National 6efense to for )ith arrest or cause the arrest and
ta4e into your custody the individuals naed in the attached list and to hold the
until other)ise so ordered by e or by y duly designated representative.
:i4e)ise, 2 do hereby order you to arrest and ta4e into custody and to hold the
until other)ise ordered released by e or by y duly authori,ed representative,
such persons as ay have coitted cries and offenses in furtherance or on
the occasion of or incident to or in connection )ith the cries of insurrection or
rebellion, as )ell as persons )ho have coitted cries against national security
and the la) of nations, cries against the fundaental la)s of the state, cries
against public order, cries involving usurpation of authority, title, iproper use
of nae, unifor and insignia, including persons guilty of cries as public
officers, as )ell as those persons )ho ay have violated any decree or order
proulgated by e personally or proulgated upon y direction.
6one in the City of Manila, this &&nd day of %epteber, in the year of -ur :ord,
nineteen hundred and seventy;t)o.
8%96.= 3ER62NAN6 E. MARC-% PRE%26ENT REPGB:2C -3 TCE PC2:2PP2NE%
2n the list referred to in this order )ere the naes, aong others, of all the
petitioners herein. Thus, fro shortly after idnight of %epteber &&, "'(& until
they )ere all apprehended, petitioners )ere ta4en one by one, either fro their
hoes or places of )or4, by officers and en of the Ared 3orces of the
Philippines, )ithout the usual )arrant of arrest, and only upon orders of the
respondent %ecretary of National 6efense directed to his co;respondent, the Chief
of %taff of the Ared 3orces. They have been since then confined either at Cap
Bonifacio, Cap Crae or soe other ilitary cap, until, as earlier adverted to,
they )ere released sub+ect to certain conditions, )ith the e1ception of petitioners
6io4no and A*uino, )ho are still in custody up to the present.
The particular case o) petitioner# '(uino.
As regards petitioner A*uino, it appears fro his allegations in his petition and
suppleental petition for prohibition in 9. R. No. :;7(7A@, already referred to
earlier, 8"= that on August "", "'(7, si1 criinal charges, for illegal possession of
firears, etc., urder and violation of RA "(## or the Anti;%ubversion Act, )ere
filed against hi )ith Military Coission No. &, created under 9eneral -rders
Nos. $, "& and 7', 8&= that on August &$, "'(7, the President created, thru
Adinistrative -rder No. 7<<, a special coittee to underta4e the preliinary
investigation or reinvestigation of said charges, and 87= that he *uestions the
legality of his prosecution in a ilitary coission instead of in a regular civilian
court as )ell as the creation of the special coittee, not only because of alleged
invalidity of Proclaation "#$" and 9eneral -rder No. & and the orders
authori,ing the creation of ilitary coissions but also because Adinistrative
-rder No. 7<< constitutes allegedly a denial of the e*ual protection of the la)s to
hi and to the others affected thereby.
3ro the procedural standpoint, these developents did not )arrant the filing of
a separate petition. A suppleental petition in 9.R. No. :;7<<@A, )herein he is
one of the petitioners, )ould have sufficed. But inasuch as petitioner A*uino has
chosen to file an independent special civil action for prohibition in said 9.R. No. :;
7(7A@ )ithout )ithdra)ing his petition for habeas corpus in 9.R. No. :;7<<@A,
/e )ish to a4e it clear that in this decision, the Court is going to resolve, for
purposes of the habeas corpus petition of said petitioner, only the issues he has
raised that are coon )ith those of the rest of the petitioners in all these cases,
thereby leaving for resolution in 9.R. No. :;7(7A@ all the issues that are peculiar
only to hi. 2n other )ords, insofar as petitioner A*uino is concerned, the Court
)ill resolve in this decision the *uestion of legality of his detention by virtue of
Proclaation "#$" and 9eneral -rder No. &, such that in 9.R. No. :;7(7A@, )hat
)ill be resolved )ill be only the constitutional issues related to the filing of
charges against hi )ith Military Coission No. &, preised already on
)hatever )ill be the Court!s resolution in the instant cases regarding
Proclaation "#$" and 9eneral -rder No. &.
/ith respect to the other petitioners, none of the stands charged )ith any
offense before any court or ilitary coission. 2n fact, they all contend that
they have not coitted any act for )hich they can be held criinally liable.
9oing bac4 to the facts, it ay be entioned, at this +uncture, that on the day
Proclaation "#$" )as signed, the Congress of the Philippines )as actually
holding a special session scheduled to end on %epteber &&, "'(&. 2t had been in
uninterrupted session since its regular opening in 0anuary, "'(&. 2ts regular
session )as ad+ourned on May "$, "'(&, follo)ed by three special session of
thirty days each,
*
fro May "' to 0une &&, 0une &7 to 0uly &( and 0uly &$ to
August 7", and one special session of t)enty days, fro %epteber " to
%epteber &&. As a atter of fact, petitioner A*uino )as in a conference of a
+oint coittee of the %enate and the Couse of Representatives )hen he )as
arrested in one of the roos of the Cilton Cotel in Manila.
2t ust also be stated at this point that on Noveber 7#, "'(&, the Constitutional
Convention of "'(", )hich convened on 0une ", "'(" and had been in continuous
session since then, approved a Ne) Constitution. that on 0anuary "(, "'(7,
Proclaation ""#& )as issued proclaiing the ratification thereof. and that in the
Ratification Cases aforeentioned, the %upree Court rendered on March 7",
"'(7, a +udgent holding that Bthere is no further +udicial obstacle to the Ne)
Constitution being considered in force and effect.B Aong the pertinent provisions
of the Ne) Constitution is %ection 7 8&= of Article ID22 )hich reads thus?
8&= All proclaations, orders, decrees, instructions, and acts proulgated, issued,
or done by the incubent President shall be part of the la) of the land, and shall
reain valid legal, binding, and effective even after lifting of artial la) or the
ratification of this Constitution, unless odified, revo4ed, or superseded by
incubent President, or unless e1pressly and e1plicitly odified or repeated by
the regular National Assebly.
Before closing this narration of facts, it is relevant to state that relative to
petitioner 6io4no!s otion to )ithdra), respondent filed under date of May "7,
"'(@ the follo)ing Manifestation?
C-ME N-/ respondents, by the undersigned counsel, and to this Conorable
Court respectfully subit this anifestation?
". 2n a Motion dated 6eceber &', "'(7 petitioner, through counsel, prayed for
the )ithdra)al of the above;entitled case, ore particularly the pleadings filed
therein, Respondents! Coents dated 0anuary "(, "'(@, petitioners! Reply
dated March (, "'(@, and respondents! Re+oinder dated March &(, "'(@ )ere
subse*uently subitted to this Conorable Court?
&. The otion to )ithdra) has been used for propaganda purposes against the
9overnent, including the %upree. Court :ately, the propaganda has been
intensified and the detention of petitioner and the pendency of his case in this
Court have been e1ploited.
7. /e are a)are that the issues raised in this case are of the utost gravity and
delicacy. This is the reason )e said that the decision in these cases should be
postponed until the eergency, )hich called for the proclaation of artial la),
is over. /hile this position is aply supported by precedents and is based on
sound policy considerations, )e no) feel that to protect the integrity of
governent institutions, including this Court, fro scurrilous propaganda no)
being )aged )ith relentlessness, it )ould be in the greater interest of the Nation
to have the otion to )ithdra) resolved and if denied, to have the petition itself
decided.
@. This is not to say that the eergency is over, but only to e1press a +udgent
that in vie) of recent tactics eployed in the propaganda against the
9overnent, it is preferable in the national interest to have the issues stirred by
this litigation settled in this foru. 3or, indeed, )e ust state and reiterate that?
a. Pursuant to the President!s constitutional po)ers, functions, and responsibilities
in a state of artial la), he periodically re*uires to be conducted a continuing
assessent of the factual situation )hich necessitated the proulgation of
Proclaation No. "#$" on %epteber &", "'(& and the continuation of artial
la) through Proclaation No. ""#@, dated 0anuary "(, "'(7.
b. The 9overnent!s current and latest assessent of the situation, including
evidence of the subversive activities of various groups and individuals, indicates
that there are still poc4ets of actual ared insurrection and rebellion in certain
parts of the country. /hile in the a+or areas of the active rebellion the ilitary
challenge to the Republic and its duly constituted 9overnent has been overcoe
and effective steps have been and are being ta4en to redress the centuries;old
and deep;seated causes upon )hich the fires of insurrection and rebellion have
fed, the essential process of rehabilitation and renascence is a slo) and delicate
process. -n the basis of said current assessent and of consultations )ith the
people, the President believes that the e1igencies of the situation, the continued
threat to peace, order, and security, the dangers to stable governent and to
deocratic processes and institutions, the re*uireents of public safety, and the
actual and iinent danger of insurrection and rebellion all re*uire the
continuation of the e1ercise of po)ers incident to artial la).
c. The a+ority of persons )ho had to be detained upon the proclaation of
artial la) have been released and are no) engaged in their noral pursuits.
Co)ever, the President has deeed that, considering the overall situation
described above and in vie) of ade*uate evidence )hich can not no) be
declassified, the continued detention of certain individuals )ithout the filing of
foral charges in court for subversive and other criinal acts is necessary in the
interest of national security and defense to enable the 9overnent to successfully
eet the grave threats of rebellion and insurrection. 2n this regard, the %ecretary
of National 6efense and his authori,ed representatives have acted in accordance
)ith guidelines relating to national security )hich the President has prescribed.
Respectfully subitted. Manila, Philippines, May "7, "'(@. 8Dol. 22, Rollo, :;
7<<7'.=
and that earlier, in connection )ith the issue of +urisdiction of the %upree Court
over the instant cases, the respondents invo4ed 9eneral -rders Nos. 7 and 7;A
reading, as follo)s?
G*,'L -,/, *-. C
/CEREA%, artial la) having been declared under Proclaation No. "#$", dated
%epteber &", "'(& and is no) in effect throughout the land.
/CEREA%, artial la), having been declared because of )anton destruction of
lives and property, )idespread la)lessness and anarchy and chaos and disorder
no) prevailing throughout the country, )hich condition has been brought about
by groups of en )ho are actively engaged in a criinal conspiracy to sei,e
political and state po)er in the Philippines in order to ta4e over the 9overnent
by force and violence, they e1tent of )hich has no) assued the proportion of an
actual )ar against our people and their legitiate 9overnent. and
/CEREA%, in order to a4e ore effective the ipleentation of the aforesaid
Proclaation No. "#$" )ithout unduly affecting the operations of the
9overnent, and in order to end the present national eergency )ithin the
shortest possible tie.
N-/, TCERE3-RE, 2, 3ER62NAN6 E. MARC-%, Coander;in;Chief of all the
Ared 3orces of the Philippines, and pursuant to Proclaation No. "#$", dated
%epteber &", "'(&, do hereby order that henceforth all e1ecutive departents,
bureaus, offices, agencies and instruentalities of the National 9overnent,
governent;o)ed or controlled corporations, as )ell as all governents of all the
provinces, cities, unicipalities and barrios throughout the land shall continue to
function under their present officers and eployees and in accordance )ith
e1isting la)s, until other)ise ordered by e or by y duly designated
representative.
2 do hereby further order that the 0udiciary shall continue to function in
accordance )ith its present organi,ation and personnel, and shall try and decide
in accordance )ith e1isting la)s all criinal and civil cases, e1cept the follo)ing
cases?
". Those involving the validity, legality or constitutionality of any decree, order or
acts issued, proulgated or perfored by e or by y duly designated
representative pursuant to Proclaation No. "#$", dated %epteber &", "'(&.
&. Those involving the validity or constitutionality of any rules, orders, or acts
issued, proulgated or perfored by public servants pursuant to decrees, orders,
rules and regulations issued and proulgated by e or by y duly designated
7. Those involving cries against national security and the la) of nations.
@. Those involving cries against the fundaental la)s of the %tate.
<. Those involving cries against public order.
A. Those cries involving usurpation of authority, ran4, title, and iproper use of
naes, unifors, and insignia.
(. Those involving cries coitted by public officers.
G*,'L -,/, *-. C7' .
%ub;paragraph " of the second paragraph of the dispositive portion of 9eneral
-rder No. 7, dated %epteber &&, "'(&, is hereby aended to read as follo)s?
111 111 111
". Those involving the validity, legality, or constitutionality of Proclaation No.
"#$", dated %epteber &", "'(&, or of any decree, order or acts issued,
proulgated or perfored by e or by y duly designated representative
pursuant thereto.
111 111 111
6one in the City of Manila, this &@th day of %epteber, in the year of -ur :ord,
:i4e)ise relevant are the issuance by the President on 0anuary "(, "'(7 of
Proclaation ""#@ reading thus?
&,-CL'M'T+-* *-. 44AD
6EC:AR2N9 TCE C-NT2NGAT2-N -3 MART2A: :A/.
/CEREA%, Barangays 8Citi,ens Asseblies= )ere created in barrios in
unicipalities and in districtsN)ards in chartered cities pursuant to Presidential
6ecree No. $A, dated 6eceber 7", "'(&, coposed of all persons )ho are
residents of the barrio, district or )ard for at least si1 onths, fifteen years of
age or over, citi,ens of the Philippines and )ho are registered in the list of Citi,en
Assebly ebers 4ept by the barrio, district or )ard secretary.
/CEREA%, the said Barangays )ere established precisely to broaden the base of
citi,en participation in the deocratic process and to afford aple opportunities
for the citi,enry to e1press their vie)s on iportant national issues.
/CEREA%, pursuant to Presidential 6ecree No. $A;A, dated 0anuary <, "'(7 and
Presidential 6ecree No. $A;B, dated 0anuary (, "'(7, the *uestion )as posed
before the Barangays? 6o you )ant artial la) to continueE
/CEREA%, fifteen illion t)o hundred t)enty;four thousand five hundred
eighteen 8"<,&&@,<"$= voted for the continuation of artial la) as against only
eight hundred forty;three thousand fifty;one 8$@7,#<"= )ho voted against it.
virtue of the po)ers in e vested by the Constitution, do hereby declare that
artial la) shall continue in accordance )ith the needs of the tie and the desire
of the 3ilipino people.
6one in the City of Manila, this "(th day of 0anuary, in the year of -ur :ord,
nineteen hundred and seventy;three.
and the holding of a referendu on 0uly &(;&$, "'(7 )hich as evidenced by the
C-ME:EC proclaation of August 7, "'(7 resulted in the follo)ing?
Gnder the present constitution the President, if he so desires, can continue in
office beyond "'(7.
6o you )ant President Marcos to continue beyond "'(7 and finish the refors he
has initiated under Martial :a)E
"$,#<&,#"A ; KE%
",$<A,(@@ ; N-
8Phil. 6aily E1press, August @, "'(7=
T1 $<*/'M*T'L +""<"
3irst of all, petitioners challenge the factual preises and constitutional
sufficiency of Proclaation "#$". 2nvo4ing the Constitution of "'7< under )hich it
)as issued, they vigorously aintain that B)hile there ay be rebellion in soe
reote as in 2sabela, there is no basis for the nation)ide iposition of artial
la), since? 8a= no large scale rebellion or insurrection e1ists in the Philippines. 8b=
public safety does not re*uire it, inasuch as no departent of the civil
governent 5 is sho)n to have been unable to open or function because of or
due to, the activities of the la)less eleents described in the Proclaation. 8c=
the E1ecutive has given the nation to understand 5 and there e1ists no evidence
to the contrary 5 that the ared forces can handle the situation )ithout !utili,ing
the e1traordinary of the President etc.!. and 8d= the proble in the 9reater Manila
Area ... )here petitioners )ere sei,ed and arrested )as, at the tie artial la)
)as, plain la)lessness and criinality.B 8pp. A';(# Petitioners! Meorandu=. 2n
his suppleental petition, petitioner 6io4no individually posits that especially
these days, )ith the iproved conditions of peace and order, there is no ore
constitutional +ustification for the continuance of artial la). 2n other )ords,
petitioners *uestion not only the constitutional sufficiency both in fact and in la)
of the proclaation but also the legality of their detention and constraints,
independently of any finding of validity of the proclaation, )hile in his
suppleental petition petitioner 6io4no individually subits that the Court should
declare that it has already becoe illegal to continue the present artial la)
regie because the eergency for )hich it )as proclaied, if it ever e1isted, has
already ceased, as attested by various public and official declaration of no less
than the President hiself. -n the other hand, respondents )ould )ant the Court
to lay its hands off the instant petitions, claiing that under 9eneral -rders Nos.
7 and 7;A, afore*uoted, the President has ordered that the 0udiciary shall not try
and decide cases Binvolving the validity, legality or constitutionalityB of
Proclaation "#$" and any order, decree or acts issued or done pursuant to said
Proclaation. They contend ost veheently that this Court has no +urisdiction
to in*uire into the factual bases of the proclaation, any *uestion as to the
propriety or constitutional sufficiency of its issuance being, according to the,
political and non;+usticiable. They point out, in this connection, that in the above;
entioned referendu of 0anuary "#;"<, "'(7 and ore so in that of 0uly &(;&$,
"'(7, the sovereign people ipressed their seal of approval on the continuation
of artial la) for as long as the President ay dee it )ise to aintain the
sae. And on the assuption the Court can a4e an in*uiry into the factual
bases of the Proclaation, they clai there )as ore than efficient +ustification
for its issuance, in the light of the criterion of arbitrariness sanctioned by Gs in
Lansang vs. Garcia, @& %CRA @@$. Respondents further aintain that it is only by
another official proclaation by the President, not by a declaration, that artial
la) ay be lifted. Additionally, in their ans)er of 0uly &A, "'(7 to petitioner
6io4no!s suppleental petition, respondents contend that the e1press provisions
of the above;*uoted transitory provision of the Ne) Constitution, have ade
indubitable that Proclaation "#$" as )ell as all the ipugned 9eneral -rders
are constitutional and valid.
Thus, the fundaental *uestions presented for the Court!s resolution are?
". 6oes the %upree Court have +urisdiction to resolve the erits of the instant
petitionsE Put differently, are not the issues herein related to the propriety or
constitutional sufficiency of the issuance of the Proclaation purely political,
)hich are not for the +udiciary, but for the people and the political departents of
the governent to deterineE And vie)ed fro e1isting +urisprudence in the
Philippines, is not the doctrine laid do)n by this Court in Lansang vs. Garcia#
supra, applicable to these casesE
&. Even assuing :ansang to be applicable, and on the basis of the criterion of
arbitrariness sanctioned therein, can it be said that the President acted arbitrarily,
capriciously or )hisically in issuing Proclaation "#$"E
7. Even assuing also that said proclaation )as constitutionally issued, ay not
the %upree Court declare upon the facts of record and those +udicially 4no)n to
it no) that the necessity for artial la) originally found by the President to e1ist
has already ceased so as to a4e further continuance of the present artial la)
regie unconstitutionalE
@. Even assuing again that the placing of the country under artial la) is
constitutional until the President hiself declares other)ise, is there any legal
+ustification for the arrest and detention as )ell as the other constraints upon the
individual liberties of the petitioners, and, in the affirative, does such
+ustification continue up to the present, alost t)o years fro the tie of their
apprehension, there being no criinal charges of any 4ind against the nor any
)arrants of arrest for their apprehension duly issued pursuant to the procedure
prescribed by la)E
<. 3inally, can there still be any doubt regarding the constitutionality of the
issuance of Proclaation "#$" and all the other proclaations and orders,
decrees, instructions and acts of the President issued or done by hi pursuant to
said Proclaation, considering that by the ters of %ection 7 8&= of Article ID22 of
the Constitution of the Philippines of "'(7, Ball proclaations, orders, decrees,
instructions and acts proulgated, issued or done by the incubent President
shall be part of the la) of the land, and shall reain valid, legal, binding and
effectiveB until revo4ed or superseded by the incubent President hiself or by
the regular National Assebly established under the sae ConstitutionE
2
T1 +""< -$ J<,+"/+CT+-*
By its very nature, the issue of +urisdiction vigorously urged by the %olicitor
9eneral calls for prior resolution. 2ndeed, )henever the authority of the Court to
act is seriously challenged, it should not proceed any further until that authority is
clearly established. And it goes )ithout saying that such authority ay be found
only in the e1isting la)s andNor the Constitution.
3or a oent, ho)ever, there )as a feeling aong soe ebers of the Court
that the iport of the transitory provisions of the Ne) Constitution referred to in
the fifth above has ade the issue of +urisdiction posed by the *uestion
respondents of secondary iportance, if not entirely acadeic. Gntil, upon further
reflection, a consensus eerged that for Gs to declare that the transitory
provision invo4ed has rendered oot and acadeic any controversy as to the
legality of the ipugned acts of the President is to assue that the issue is
+usticiable, thereby bypassing the very issue of +urisdiction. /e are as4ed to
resolve. /e feel that )hile perhaps, such reliance on the transitory provision
referred to ay legally suffice to dispose of the cases at bar, it cannot ans)er
persistent *ueries regarding the po)ers of the %upree Court in a artial la)
situation. 2t )ould still leave unsettled a host of controversies related to the
continued e1ercise of e1traordinary po)ers by the President. /ithal, such
assuption of +usticiability )ould leave the Court open to successive petitions
as4ing that artial la) be lifted, )ithout -ur having resolved first the correctness
of such assuption. 2ndeed, nothing short of a categorical and definite ruling of
this Court is iperative regarding the pretended non;+usticiability of the issues
herein, if the people are to 4no), as they ust, )hether the present
governental order has legitiate constitutional foundations or it is supported by
nothing ore than na4ed force and self;created stilts to 4eep it above the ur4y
)aters of unconstitutionality. Thus, it is but proper that /e tac4le first the
*uestions about the authority of the Court to entertain and decide these cases
before discussing the ateriality and effects of the transitory provision relied
upon by respondents.
As a atter of fact, it is not alone the atter of +urisdiction that /e should
decide. Beyond the purely legal issues placed before Gs by the parties, ore
fundaental probles are involved in these proceedings. There are all;iportant
atters )hich a historical decision li4e this cannot ignore on the prete1t that -ur
duty in the preises is e1clusively +udicial. /hether all the ebers of the Court
li4e it or not, the Court has to play its indispensable and decisive role in resolving
the probles confronting our people in the critical circustances in )hich they
find theselves. After all, )e cannot dissociate ourselves fro the, for )e are
3ilipinos )ho ust share the coon fate to )hich the denoueent of the
current situation )ill consign our nation. The priority issue before Gs is )hether
/e )ill sub+ect the assailed acts of the President to +udicial scrutiny as to its
factual bases or /e )ill defer to his findings predicated on evidence )hich are in
the very nature of things officially available only to hi, but in either case, our
people ust 4no) that -ur decision has deocratic foundations and confors
)ith the great principles for )hich our nation e1ists.
The Ne) Constitution itself is in a large sense a product of the political convulsion
no) sha4ing precariously the unity of the nation. Gpon the other hand, that those
presently in authority had a hand in one )ay or another in its forulation,
approval and ratification can hardly be denied. To +ustify, therefore, the restraint
upon the liberties of petitioners through an e1clusive reliance on the andates of
the ne) charter, albeit logically and technically tenable, ay not suffice to 4eep
our people united in the faith that there is genuine deocracy in the e1isting
order and that the rule of la) still prevails in our land. %oeho) the disturbing
thought ay 4eep lingering )ith soe, if not )ith any, of our countryen that
by predicating -ur decision on the basis alone of )hat the Ne) Constitution
ordains, /e are in effect allo)ing those presently in authority the dubious
privilege of legali,ing their acts and e1culpating theselves fro their supposed
constitutional transgressions through a device )hich ight yet have been of their
o)n furtive a4ing.
Besides, /e should not be as naive as to ignore that in troublous ties li4e the
present, siplistic solutions, ho)ever solidly based, of constitutional
controversies li4ely to have grave political conse*uences )ould not sound cogent
enough unless they ring in coplete harony )ith the tune set by the founders
of our nation )hen they solenly consecrated it to the ideology they considered
best conducive to the contentent and prosperity of all our people. And the
coitent of the Philippines to the ideals of deocracy and freedo is ever
evident and indubitable. 2t is )rit in the artyrdo of our revolutionary forbears
)hen they violently overthro) the yo4e of %panish dispotis. 2t is an indelible
part of the history of our passionate and ,ealous observance of deocratic
principles and practices during the ore than four decades that Aerica )as )ith
us. 2t is reaffired in bright crison in the blood and the lives of the countless
3ilipinos )ho fought and died in order that our country ay not be sub+ugated
under the ilitaris and totalitarianis of the 0apanese then, )ho )ere even
enticing us )ith the idea of a 9reater East Asia Co;Prosperity %phere. And today,
that our people are sho)ing considerable disposition to suffer the iposition of
artial la) can only be e1plained by their belief that it is the last recourse to save
theselves fro the inroads of ideologies antithetic to those they cherish and
uphold.
/ithal, the eyes of all the peoples of the )orld on both sides of the baboo and
iron curtains are focused on )hat has been happening in our country since
%epteber &", "'(&. Martial la) in any country has such a)esoe iplications
that any nation under it is naturally an interesting study sub+ect for the rest of
an4ind. Those )ho consider theselves to be our ideological allies ust be
4eeping apprehensive )atch on ho) steadfastly )e shall reain living and
cherishing our coon fundaental political tenets and )ays of life, )hereas
those of the opposite ideology ust be eagerly anticipating ho) soon )e )ill +oin
the in the conviction that, after all, real progress and developent cannot be
achieved )ithout giving up individual freedo and liberty and unless there is
concentration of po)er in the e1ercise of governent authority. 2t is true the
Philippines continues to en+oy recognition of all the states )ith )ho it had
diploatic relations before artial la) )as proclaied but it is not difficult to
iagine that soon as it has becae definite or any)ay apparent to those
concerned that the Philippines has ceased to adhere to the iutable concepts of
freedo and deocracy enshrined in its o)n fundaental la) corresponding
reactions )ould anifest theselves in the treatent that )ill be given us by
these states.
2n our chosen for of governent, the %upree Court is the departent that
ost authoritatively spea4s the language of the Constitution. Cence, ho) the
present artial la) and the constraints upon the liberties of petitioners can be
+ustified under our Constitution )hich provides for a republican deocratic
governent )ill be read by the )hole )orld in the considerations of this decision.
3ro the they )ill 4no) )hither )e are going as a nation. More iportantly, by
the sae to4en, history and the future generations of 3ilipinos )ill render their
o)n +udgent on all of us )ho by the )ill of 6ivine Providence have to play our
respective roles in this epochal chapter of our national life. By this decision,
everyone concerned )ill deterine ho) truly or other)ise, the Philippines of
today is 4eeping faith )ith the fundaental precepts of deocracy and liberty to
)hich the nation has been irrevocably coitted by our heroes and artyrs since
its birth.
And )e should not gloss over the fact that petitioners have coe to this Court for
the protection of their rights under the provisions of the -ld Charter that have
reained unaltered by the Ne) Constitution. 2t )ould not be fair to the, if the
provisions invo4ed by the still ean )hat they had al)ays eant before, to
deterine the fate of their petitions on the basis erely of a transitory provision
)hose consistency )ith deocratic principles they vigorously challenge.
2n this delicate period of our national life, )hen faith in each other and unity
aong all of the coponent eleents of our people are indispensable, /e cannot
treat the attitude and feelings of the petitioners, especially %enator 6io4no . )ho
is still under detention )ithout foral charges, )ith apathy and indifferent
unconcern. Their pleadings evince *uite distinctly an apprehensive, nay a fast
d)indling faith in the capacity of this Court to render the +ustice. Bluntly put,
their pose is that the +ustice they see4 ay be found only in the correct
construction of the "'7< Constitution, and they a4e no secret of their fears that
because the incubent ebers of the Court have ta4en an oath to defend and
protect the Ne) Constitution, their hopes of due protection under the Bill of
Rights of the -ld Charter ay fall on deaf ears. Petitioner 6io4no, in particular,
)ith the undisguised concurrence of his chief counsel, forer %enator TaFada,
despairingly be)ails that although they are Bconvinced beyond any nagging doubt
that 8they are= on the side of right and reason and la) and +ustice, 8they are=
e*ually convinced that 8they= cannot reasonably e1pect either right or reason, la)
or +ustice, to prevail in 8these= case8s=.B
To be sure, /e do not feel bound to soothe the sub+ective despondency nor to
cool do)n the infuriated feelings of litigants and la)yers by eans other than the
sheer ob+ectiveness and deonstrated technical accuracy of our decisions. Gnder
the peculiar ilieu of these cases, ho)ever, it is perhaps best that /e do not
spare any effort to a4e everyone see that in discharging the grave responsibility
incubent upon Gs in the best light that 9od has given Gs to see it, /e have
e1plored every angle the parties have indicated and that /e have e1hausted all
+urisprudential resources )ithin our coand before arriving at our conclusions
and rendering our verdict. 2n a )ay, it could indeed be part of the nobility that
should never be lost in any court of +ustice that no party before it is left sul4ing
)ith the thought that he lost because not all his iportant arguents in )hich he
sincerely believes have been duly considered or )eighed in the balance.
But, of course, petitioners! eotional isgivings are anifestly baseless. 2t is too
evident for anyone to ignore that the provisions of the -ld Constitution petitioners
are invo4ing reain unaltered in the Ne) Constitution and that )hen it coes to
the basic precepts underlying the ain portions of both fundaental la)s, there
is no disparity, uch less any antagonis bet)een the, for in truth, they are
the sae identical tenets to )hich our country, our governent and our people
have al)ays been ineradicably coitted. 2nsofar, therefore, as said provisions
and their underlying principles are concerned, the ne) oath ta4en by the
ebers of the Court ust be understood, not in the disturbing sense petitioners
ta4e the, but rather as a continuing guarantee of the 0ustices! uns)erving fealty
and steadfast adherence to the self;sae tenets and ideals of deocracy and
liberty ebodied in the oaths of loyalty they too4 )ith reference to the "'7<
Constitution.
Contrary to )hat is obviously the erroneous ipression of petitioner 6io4no, the
fundaental reason that ipelled the ebers of the Court to ta4e the ne)
oaths that are causing hi un)arranted agony )as precisely to regain their
independence fro the E1ecutive, inasuch as the transitory provisions of the
"'(7 Constitution had, as a atter of course, sub+ected the +udiciary to the usual
rules attendant in the reorgani,ation of governents under a ne) charter. Gnder
%ections ' and "# of Article ID22, Bincubent ebers of the 0udiciary ay
continue in office until they reach the age of seventy years unless sooner
replacedB by the President, but Ball officials )hose appointents are by this
Constitution vested in the 8President= shall vacate their offices upon the
appointent and *ualification of their successors.B 2n other )ords, under said
provisions, the 0ustices ceased to be peranent. And that is precisely )hy our
ne) oaths containing the phrase Bna pinagpapatuloy sa panunung4ulanB, )hich
petitioner 6io4no uncharitably ridicules ignoring its real iport, )as prepared by
the %ecretary of 0ustice in consultation )ith the Court, and not by the President
or any other subordinate in the E1ecutive office, purposely to a4e sure that the
oath ta4ing cereony )hich )as to be presided by the President hiself )ould
connote and signify that thereby, in fact and in conteplation of la), the
President has already e1ercised the po)er conferred upon hi by the afore*uoted
transitory constitutional provisions to replace anyone of us )ith a successor at
anytie.
There )as no Presidential edict at all for the 0ustices to ta4e such an oath. The
President infored the Court that he )as deterined to restore the peranence
of the respective tenures of its ebers, but there )as a feeling that to e1tend
ne) appointents to the as successors to theselves )ould sound soeho)
absurd, And so, in a conference aong the President, the %ecretary of 0ustice and
all the 0ustices, a utually acceptable construction of the pertinent transitory
provision )as adopted to the effect that an official public announceent )as to
be ade that the incubent 0ustices )ould be continued in their respective
offices )ithout any ne) appointent, but they )ould ta4e a fittingly )orded oath
the te1t of )hich )as to be prepared in consultation bet)een the %ecretary of
0ustice and the Court. Thus, by that oath ta4ing, all the ebers of the Court,
other than the Chief 0ustice and the three ne) Associate 0ustices, )ho because of
their ne) appointent are not affected by the transitory provisions, are no)
e*ually peranent )ith the in their constitutional tenures, as officially and
publicly announced by the President hiself on that occasion. -ther)ise stated,
the reorgani,ation of the %upree Court conteplated in the transitory provisions
referred to, )hich, incidentally )as also a feature of the transitory provisions of
the "'7< Constitution, albeit, liited then e1pressly to one year, 8%ection @,
Article ID2= has already been accoplished, and all the 0ustices are no)
unreachably beyond the presidential prerogative either e1plicit or iplicit in the
ters of the ne) transitory provisions.
2t is, therefore, in these faith and spirit and )ith this understanding, supported
)ith prayers for guidance of 6ivine Providence, that /e have deliberated and
voted on the issues in these cases 5 certainly, )ithout any clai of onopoly of
)isdo and patriotis and of loyalty to all that is sacred to the Philippines and
the 3ilipino people.
22
As already stated, the 9overnent!s insistent posture that the %upree Court
should abstain fro in*uiring into the constitutional sufficiency of Proclaation
"#$" is predicated on t)o fundaental grounds, naely, 8"= that under 9eneral
-rder No. 7, as aended by 9eneral -rder No. 7;A, Bthe 0udiciary8)hich includes
the %upree Court= shall continue to function in accordance )ith its present
organi,ation and personnel, and shall try and decide in accordance )ith e1isting
la)s all criinal and civil cases, e1cept the follo)ing? ". Those involving the
validity, legality or constitutionality of Proclaation "#$" dated %epteber &",
"'(& or of any decree, order or acts issued, proulgated or perfored by 8the
President= or by 8his= duly designated representative pursuant thereto,B and 8&=
the *uestions involved in these cases are political and non;+usticiable and,
therefore, outside the doain of +udicial in*uiry.
5 A 5
9ENERA: -R6ER% N-%. 7 AN6 7;A CADE CEA%E6 T- BE -PERAT2DE 2N%-3AR A%
TCEK EN0-2N TCE 0G62C2ARK -3 0GR2%62CT2-N -DER CA%E% 2ND-:D2N9 TCE
DA:262TK -3 TCE PR-C:AMAT2-N%, -R6ER% -R ACT% -3 TCE PRE%26ENT.
Anent the first ground thus invo4ed by the respondents, it is not )ithout
iportance to note that the %olicitor 9eneral relies barely on the provisions of the
general orders cited )ithout elaborating as to ho) the %upree Court can be
bound thereby. Considering that the totality of the +udicial po)er is vested in the
Court by no less than the Constitution, both the -ld and the Ne), the absence of
any independent sho)ing of ho) the President ay by his o)n fiat
constitutionally declare or order other)ise is certainly significant. 2t ay be that
the %olicitor 9eneral considered it ore prudent to tone do)n any possible frontal
clash )ith the Court, but as /e see it, the siplistic tenor of the %olicitor
9eneral!s defense ust be due to the fact too )ell 4no)n to re*uire any
evidential proof that by the President!s o)n acts, publici,ed here and abroad, he
had ade it plainly understood that 9eneral -rders Nos. 7 and 7;A are no longer
operative insofar as they )ere intended to divest the 0udiciary of +urisdiction to
pass on the validity, legality or constitutionality of his acts under the aegis of
artial la). 2n fact, according to the President, it )as upon his instructions given
as early as %epteber &@, "'(&, soon after the filing of the present petitions, that
the %olicitor 9eneral subitted his return and ans)er to the )rits /e have issued
herein. 2t is a atter of public 4no)ledge that the president!s repeated avo)al of
the 9overnent!s subission to the Court is being proudly acclaied as the
distinctive characteristic of the so;called Bartial la) 5 Philippine styleB, since
such attitude endo)es it )ith the deocratic flavor so disally absent in the
artial la) prevailing in other countries of the )orld.
Accordingly, even if it )ere to be assued at this +uncture that by virtue of the
transitory provision of the Ne) Constitution a4ing all orders of the incubent
President part of the la) of the land, 9eneral -rders Nos. 7 and 7;A are valid, the
position of the respondents on the present issue of +urisdiction based on said
orders has been rendered untenable by the very acts of the President, )hich in
the )ords of the sae transitory provision have Bodified, revo4ed or
supersededB the. And in this connection, it is iportant to note that the
transitory provision +ust referred to te1tually says that the acts of the incubent
President shall Breain valid, legal, binding and effective ... unless odified,
revo4ed or superseded by subse*uent proclaations, orders, decrees,
instructions or other acts of the incubent President, or unless e1pressly and
e1plicitly odified, or repealed by the regular National AsseblyB, thereby
iplying that the odificatory or revocatory acts of the president need not be as
e1press and e1plicit as in the case of the National Assebly. 2n other )ords,
)hen it coes to acts of the President, ere deonstrated inconsistency of his
posterior acts )ith earlier ones )ould be enough for iplied odification or
revocation to be effective, even if no stateent is ade by hi to such effect.
Rationali,ing his attitude in regard to the %upree Court during artial la),
President Marcos has the follo)ing to say in his boo4 entitled BNotes on the Ne)
%ociety of the PhilippinesB?
-ur artial la) is uni*ue in that it is based on the supreacy of the civilian
authority over the ilitary and on coplete subission to the decision of the
%upree Court, and ost iportant of all, the people. ... 8p. "#7=.
111 111 111
Thus, upon the approval by the Constitutional Convention of a ne) Constitution, 2
organi,ed the barangays or village councils or citi,ens asseblies in the barrios 8a
barrio is the sallest political unit in the Philippines=. 2 directed the ne)
Constitution to be subitted to the barangays or citi,ens asseblies in a foral
plebiscite fro 0anuary "# to "<, "'(7. The barangays voted alost unaniously
to ratify the Constitution, continue )ith artial la) and )ith the refors of the
Ne) %ociety.
This action )as *uestioned in a petition filed before our %upree Court in the
cases entitled Javellana vs. !ecutive "ecretary et al, 9.R. No. :;7A"@7,7A"A@,
7A"A<, 7A&7A and 7A&$7. The issue raised )as )hether 2 had the po)er to call a
plebiscite. )hether 2 could proclai the ratification of the ne) Constitution. 2n
raising this issue, the petitioners 8)ho, incidentally, )ere :iberals or political
opposition leaders= raised the fundaental issue of the po)er of the President
under a proclaation of artial la) to issue decrees.
2nasuch as the issues in turn raised the *uestion of the legitiacy of the entire
9overnent and also to eet the insistent suggestion that, in the event of an
adverse decision, 2 proclai a revolutionary governent, 2 decided to subit to
tile +urisdiction of the %upree Court as 2 had done in the Lansang vs. Garcia
case 8already *uoted= in "'(" )hen alost the sae parties in interest
*uestioned y po)ers as President to suspend the privilege of the )rit of habeas
corpus. 8Refer to pp. "7;"(.=
This )ould, at the sae tie, cal the fears of every cynic )ho had any
isgivings about y intentions and claied that 2 )as ready to set up a
dictatorship. 3or )ho is the dictator )ho )ould subit hiself to a higher body
li4e the %upree Court on the *uestion of the constitutionality or validity of his
actionsE 8pp. "#7;"#@.=
111 111 111
2t )ill be noted that 2 had subitted yself to the +urisdiction of the %upree
Court in all cases *uestioning y authority in "'(" in the case of Lansang vs.
Garcia on the *uestion of the suspension of the privilege of the )rit of habeas
corpus and in the case +ust cited on the proclaation of artial la) as )ell as the
other related cases. 8pp. "#<;"#A.=
Nothing could be ore indicative, than these )ords of the President hiself, of
his resolute intent to render 9eneral -rders Nos. 7 and 7;A inoperative insofar as
the %upree Court!s +urisdiction over cases involving the validity, legality or
constitutionality of his acts are concerned. Actually, the tenor and purpose of the
said general orders are standard in artial la) proclaations, and the President!s
attitude is ore of an e1ception to the general practice. Be that as it ay, )ith
this developent, petitioners have no reason to charge that there is a BdisrobingB
of the %upree Court. But even as the President une*uivocally reaffirs, over
and above artial la), his respect for the %upree Court!s constitutionally
assigned role as the guardian of the Constitution and as the final authority as to
its correct interpretation and construction, it is entirely up to the Court to
deterine and define its o)n constitutional prerogatives vis;a;vis the
proclaation and the e1isting artial la) situation, given the reasons for the
declaration and its avo)ed ob+ectives. .
5 B 5
MAK TCE %GPREME C-GRT 2NLG2RE 2NT- TCE 3ACTGA: BA%E% -3 TCE
2%%GANCE -3 PR-C:AMAT2-N "#$" T- 6ETERM2NE 2T% C-N%T2TGT2-NA:
%G332C2ENCKE
The second ground vigorously urged by the %olicitor 9eneral is ore
fundaental, since, prescinding fro the force of the general orders +ust
discussed, it stri4es at the very core of the +udicial po)er vested in the Court by
the people thru the Constitution. 2t is claied that insofar as the instant petitions
ipugn the issuance of Proclaation "#$" as having been issued by the President
in e1cess of his constitutional authority, they raise a political *uestion not sub+ect
to in*uiry by the courts. And )ith reference to the plea of the petitioners that
their arrest, detention and other restraints, )ithout any charges or )arrants duly
issued by the proper +udge, constitute clear violations of their rights guaranteed
by the fundaental la), the stand of the respondents is that the privilege of the
)rit of habeas corpus has been suspended autoatically in conse*uence of the
iposition of artial la), the propriety of )hich is left by the Constitution to the
e1clusive discretion of the President, such that for the proper e1ercise of that
discretion he is accountable only to the sovereign people, either directly at the
polls or thru their representatives by ipeachent.
Never before has the %upree Court of the Philippines been confronted )ith a
proble of such transcendental conse*uences and iplications as the present one
entails. There is here an e1ertion of e1tree state po)er involving the proclaied
assuption of the totality of governent authority by the E1ecutive, predicated
on his o)n declaration that a state of rebellion assuing Bthe agnitude of an
actual state of )ar against our people and the Republic of the PhilippinesB e1ists
8&&nd )hereas of Proclaation "#$"= and that Bthe public order and safety and
the security of this nation deand that iediate, s)ift, decisive and effective
action be ta4en to protect and insure the peace, order and security of the country
and its population and to aintain the authority of the governent.B 8"'th
)hereas, id.= Gpon the other hand, petitioners deny the factual bases of the
Proclaation and insist that it is incubent upon the Court, in the nae of
deocracy, liberty and the constitution, to in*uire into the veracity thereof and to
declare, upon finding the to be untrue, that the proclaation is unconstitutional
and void. Respondents counter ho)ever, that the very nature of the proclaation
deands but the court should refrain fro a4ing any such in*uiry, considering
that, as already stated, the discretion as to )hether or not artial la) should be
iposed is lodged by the Constitution in the President e1clusively.
As /e enter the e1treely delicate tas4 of resolving the grave issues thus thrust
upon Gs, /e are iediately encountered by absolute verities to guide Gs all the
)ay. The first and ost iportant of the is that the Constitution
9
is the
supree la) of the land. This eans aong others things all the po)ers of the
governent and of all its officials fro the President do)n to the lo)est eanate
fro it. None of the ay e1ercise any po)er unless it can be traced thereto
either te1tually or by natural and logical iplication.
The second is that it is settled that the 0udiciary provisions of the Constitution
point to the %upree Court as the ultiate arbiter of all conflicts as to )hat the
Constitution or any part thereof eans. /hile the other 6epartents ay adopt
their o)n construction thereof, )hen such construction is challenged by the
proper party in an appropriate case )herein a decision )ould be ipossible
)ithout deterining the correct construction, the %upree Court!s )ord on the
atter controls.
The third is that in the sae )ay that the %upree Court is the designated
guardian of the Constitution, the President is the specifically assigned protector of
the safety, tran*uility and territorial integrity of the nation. This responsibility of
the President is his alone and ay not be shared by any other 6epartent.
The fourth is that, to the end +ust stated, the Constitution e1pressly provides that
Bin case of invasion, insurrection or rebellion or iinent danger thereof, )hen
the public safety re*uires it, he 8the E1ecutive= Bay 8as a last resort= ... place
the Philippines or any part thereof under artial la)B.
1/
The fifth is that in the sae anner that the E1ecutive po)er conferred upon the
E1ecutive by the Constitution is coplete, total and unliited, so also, the +udicial
po)er vested in the %upree Court and the inferior courts, is the very )hole of
that po)er, )ithout any liitation or *ualification.
The si1th is that although the Bill of Rights in the Constitution strictly ordains that
Bno person shall be deprived of life, liberty or property )ithout due process of
la)B,
11
even this basic guarantee of protection readily reveals that the
Constitution!s concern for individual rights and liberties is not entirely above that
for the national interests, since the deprivation it en+oins is only that )hich is
)ithout due process of la), and la)s are al)ays enacted in the national interest
or to proote and safeguard the general )elfare. -f course, it is understood that
the la) thus passed, )hether procedural or substantive, ust afford the party
concerned the basic eleents of +ustice, such as the right to be heard,
confrontation, and counsel, inter alia.
And the seventh is that )hereas the Bill of Rights of the "'7< Constitution
e1plicitly en+oins that B8T=he privilege of the )rit of habeas corpus shall not be
suspended e1cept in cases of invasion, insurrection, or rebellion, )hen the public
safety re*uires it, in any of )hich events the sae ay be suspended )herever
during such period the necessity for such suspension shall e1istB,
11
there is no
siilar in+unction )hether e1pressed or iplied against the declaration of artial
la).
3ro these incontrovertible postulates, it results, first of all, that the ain
*uestion before Gs is not in reality one of +urisdiction, for there can be no
conceivable controversy, especially one involving a conflict as to the correct
construction of the Constitution, that is not conteplated to be )ithin the +udicial
authority of the courts to hear and decide. The +udicial po)er of the courts being
unliited and un*ualified, it e1tends over all situations that call for the
ascertainent and protection of the rights of any party allegedly violated, even
)hen the alleged violator is the highest official of the land or the governent
itself. 2t is, therefore, evident that the Court!s +urisdiction to ta4e cogni,ance of
and to decide the instant petitions on their erits is beyond challenge.
2n this connection, ho)ever, it ust be borne in ind that in the for of
governent envisaged by the fraers of the Constitution and adopted by our
people, the Court!s indisputable and plenary authority to decide does not
necessarily ipose upon it the duty to interpose its fiat as the only eans of
settling the conflicting clais of the parties before it. 2t is ingrained in the
distribution of po)ers in the fundaental la) that hand in hand )ith the vesting
of the +udicial po)er upon the Court, the Constitution has coevally conferred upon
it the discretion to deterine, in consideration of the constitutional prerogatives
granted to the other 6epartents, )hen to refrain fro iposing +udicial
solutions and instead defer to the +udgent of the latter. 2t is in the very nature
of republican governents that certain atters are left in the residual po)er of
the people theselves to resolve, either directly at the polls or thru their elected
representatives in the political 6epartents of the governent. And these
reserved atters are easily distinguishable by their very nature, )hen one
studiously considers the basic +unctions and responsibilities entrusted by the
charter to each of the great 6epartents of the governent. To cite an obvious
e1aple, the protection, defense and preservation of the state against internal or
e1ternal aggression threatening its veiny e1istence is far fro being )ithin the
abit of +udicial responsibility. The distinct role then of the %upree Court of
being the final arbiter in the deterination of constitutional controversies does
not have to be asserted in such conteplated situations, thereby to give )ay to
the ultiate prerogative of the people articulated thru suffrage or thru the acts of
their political representatives they have elected for the purpose.
2ndeed, these fundaental considerations are the ones that lie at the base of
)hat is 4no)n in Aerican constitutional la) as the political *uestion doctrine,
)hich in that +urisdiction is un*uestionably deeed to be part and parcel of the
rule of la), e1actly li4e its apparently ore attractive or popular opposite, +udicial
activis, )hich is the fullest e1ertion of +udicial po)er upon the theory that
unless the courts intervene in+ustice ight prevail. 2t has been invo4ed and
applied by this Court in varied fors and odes of pro+ection in several
oentous instances in the past,
13
and it is the ain support of the stand of the
%olicitor 9eneral on the issue of +urisdiction in the case at bar. 2t is also referred
to as the doctrine of +udicial self;restraint or abstention. But as the noenclatures
theselves iply, activis and self;restraint are both sub+ective attitudes, not
inherent iperatives. The choice of alternatives in any particular eventuality is
naturally dictated by )hat in the Court!s considered opinion is )hat the
Constitution envisions should be done in order to accoplish the ob+ectives of
governent and of nationhood. And perhaps it ay be added here to avoid
confusion of concepts, that /e are not losing sight of the traditional approach
based on the doctrine of separation of po)ers. 2n truth, /e perceive that even
under such ode of rationali,ation, the e1istence of po)er is secondary, respect
for the acts of a coordinate, co;e*ual and co;independent 6epartent being the
general rule, particularly )hen the issue is not encroachent of deliited areas of
functions but alleged abuse of a 6epartent!s o)n basic prerogatives.
2n the final analysis, therefore, /e need not indulge in any further discussion as
to )hether or not the Court has +urisdiction over the erits of the instant
petitions. 2t is definite that it has. Rather, the real *uestion before Gs is )hether
or not the Court should act on the. %tated differently, do /e have here that
appropriate occasion for activis on the part of the Court, or, do the iperatives
of the situation deand, in the light of the reservations in the fundaental la)
+ust discussed, that /e defer to the political decision of the E1ecutiveE After
ature deliberation, and ta4ing all relevant circustances into account, /e are
convinced that the Court should abstain in regard to )hat is in all probability the
ost iportant issue raised in the, naely, )hether or not the Court should
in*uire into the constitutional sufficiency of Proclaation "#$" by receiving
evidence tending to belie the factual preises thereof. 2t is -ur considered vie)
that under the Constitution, the discretion to deterine ultiately )hether or not
the Philippines or any part thereof should be placed under artial la) and for ho)
long is lodged e1clusively in the E1ecutive, and for this reason, it is best that /e
defer to his +udgent as regards the e1istence of the grounds therefor, since,
after all, it is not e1pected that the %upree Court should share )ith hi the
delicate constitutional responsibility of defending the safety, security, tran*uility
and territorial integrity of the nation in the face of a rebellion or invasion. This is
not abdication of +udicial po)er, uch less a violation of -ur oaths Bto support
and defend the ConstitutionB. rather, this is deference to an act of the E1ecutive
)hich, in -ur )ell;considered vie), the Constitution conteplates the Court
should refrain fro revie)ing or interfering )ith. To -ur ind, the follo)ing
considerations, inter alia, ipel no other conclusion?
5 " 5
2t has been said that artial la) has no generally accepted definition, uch less a
precise eaning. But as /e see it, no atter ho) variously it has been described,
a coon eleent is plainly recogni,able in )hatever has been said about it 5 it
does not involve e1ecutive po)er alone. To be ore e1act, artial la) is state
po)er )hich involves the totality of governent authority, irrespective of the
6epartent or official by )ho it is adinistered. This is because, as aditted by
all, artial la) is every governent!s substitute for the established governental
achinery rendered inoperative by the eergency that brings it forth, in order to
aintain )hatever legal and social order is possible during the period of
eergency, )hile the governent is engaged in battle )ith the eney.
-ther)ise, )ith the brea4do)n of the regular governent authority or the
inability of the usual offices and officials to perfor their functions )ithout
endangering the safety of all concerned, anarchy and chaos are bound to prevail
and protection of life and property )ould be nil. /hat is )orse, the confusion and
disorder )ould detract the defense efforts. 2t is indispensable therefore that soe
4ind of governent ust go on, and artial la) appears to be the logical
alternative. Cence, fro the point of vie) of safeguarding the people against
possible governental abuses, it is not the declaration of artial la) and )ho
actually adinisters it that is of supree iportance. %oeone has of necessity
to be in coand as surrogate of the )hole ebattled governent. 2t is )hat is
actually done by the adinistrator affecting individual rights and liberties that
ust pass constitutional standards, even as these are correspondingly ad+usted
to suit the necessities of the situation. But this is not to say that redress of
constitutional offenses )ould iediately and necessarily be available, for even
the procedure for securing redress, its for and tie ust depend on )hat such
necessities )ill perit. Die)ed in depth, this is all that can be visuali,ed as
conteplated in the supposedly fundaental principle invo4ed by petitioners to
the effect that necessity and necessity alone is the +ustification and the easure
of the po)ers that ay be e1ercised under artial la).
5 & 5
2n countries )here there is no constitutional provision sanctioning the iposition
of artial la), the po)er to declare or proclai the sae is nevertheless
conceded to be the ost vital inherent prerogative of the state because it is
a1ioatic that the right of the state to defend itself against disintegration or
sub+ugation by another cannot be less than an individual!s natural right of self;
defense. The resulting repression or restraint of individual rights is therefore
+ustified as the natural contribution that the individual o)es to the state, so that
the governent under )hich he lives ay survive. After all, such subordination to
the general interest is supposed to be teporary, coincident only )ith the
re*uireents of the eergency.
At the sae tie, under the general practice in those countries, it is considered
as nothing but logical that the declaration or proclaation should be ade by the
E1ecutive. %o it is that none of the cases cited by petitioners, including those of
1earon vs. Calus "$7, %.E. &@ and 'llen vs. -klahoma City, <& Pac. Rep. &nd
%eries, pp. "#<@;"#<', ay be deeed as a binding precedent sustaining
definitely that it is in the po)er of the courts to declare an E1ecutive!s
proclaation or declaration of artial la) in case of rebellion or insurrection to be
unconstitutional and unauthori,ed. -ur o)n research has not yielded any
+urisprudence upholding the contention of petitioners on this point. /hat is clear
and incontrovertible fro all the cases cited by both parties is that the po)er of
the E1ecutive to proclai artial la) in case of rebellion has never been
challenged, not to say outla)ed. 2t has al)ays been assued, even if the e1tent
of the authority that ay be e1ercise under it has been sub+ected to the
applicable provision of the constitution, )ith soe courts holding that the
enforceability of the fundaental la) )ithin the area of the artial la) regie is
un*ualified, and the others aintaining that such enforceability ust be
coensurate )ith the deands of the eergency situation. 2n other )ords,
there is actually no authoritative +urisprudential rule for Gs to follo) in respect to
the specific *uestion of )hether or not the E1ecutive!s deterination of the
necessity to ipose artial la) during a rebellion is revie)able by the +udiciary. 2f
/e have to go via the precedential route, the ost that /e can find is that the
legality of an E1ecutive!s e1ercise of the po)er to proclai artial la) has never
been passed upon by any court in a categorical anner so as to leave no roo
for doubt or speculation.
5 7 5
2n the Philippines, /e do not have to resort to assuptions regarding any
inherent po)er of the governent to proclai a state of artial la). /hat is an
iplied inherent prerogative of the governent in other countries is e1plicitly
conferred by our people to the governent in une*uivocal ters in the
fundaental la). More iportantly in this connection, it is to the E1ecutive that
the authority is specifically granted Bin cases of invasion, insurrection or rebellion,
)hen public safety re*uires itB, to Bplace the Philippines or any part thereof under
Martial :a)B. To be sure, petitioners adit that uch. But they insist on trying to
sho) that the factual preises of the Proclaation are not entirely true and are,
in any event, constitutionally insufficient. They urge the Court to pass on the
erits of this particular proposition of fact and of la) in their petitions and to
order thereafter the nullification and setting aside thereof.
/e do not believe the Court should interfere.
The pertinent constitutional provision is e1plicit and une*uivocal. 2t reads as
follo)s?
8&= The President shall be coander;in;chief of all ared forces of the
Philippines and, )henever it becoes necessary, he ay call out such ared
forces to prevent or suppress la)less violence, invasion, insurrection, or rebellion.
2n case of invasion, insurrection, or rebellion, or iinent danger thereof, )hen
the public safety re*uires it, he ay suspend the privileges of the )rit of habeas
corpus, or place the Philippines or any part thereof under artial la) 8%ection
"#8&=, Article D22, "'7< Constitution.=
87= %EC. "&. The prie Minister shall be coander;in;chief of all ared forces
of the Philippines and, )henever it becoes necessary, he ay call out such
ared forces to prevent or suppress la)less violence, invasion, insurrection, or
rebellion. 2n case of invasion, insurrection, or rebellion, or iinent danger
thereof, )hen the public safety re*uires it, he ay suspend the privilege of the
)rit of habeas corpus or place the Philippines or any part thereof under artial
8%ection "&, Article 2I, "'(7 Constitution.=
E1cept for the reference to the Prie Minister in the Ne) Constitution instead of
to the President as in the -ld, the )ording of the provision has reained
unaltered ipssissimis verbis Accordingly, the t)o Constitutions cannot vary in
eaning, they should be construed and applied in the light of e1actly the sae
considerations. 2n this sense at least, petitioners! invocation of the "'7<
Constitution has not been rendered acadeic by the enforceent of the ne)
charter. 3or the purposes of these cases, /e )ill in the ain consider their
arguents as if there has been no 0avellana decision.
No), since in those countries )here artial la) is an e1tra;constitutional concept,
the E1ecutive!s proclaation thereof, as observed above, has never been
considered as offensive to the fundaental la), )hether )ritten or un)ritten,
and, in fact, not even challenged, )hat reason can there be that here in the
Philippines, )herein the Constitution directly and definitely coits the po)er to
the E1ecutive, another rule should obtainE Are )e 3ilipinos so incapable of
electing an E1ecutive )e can trust not to uncereoniously cast aside his
constitutionally )orded oath solenly and ephatically iposing upon hi the
duty Bto defend and protect the ConstitutionBE -r is the Court to be persuaded by
possible partisan pre+udice or the sub+ective rationali,ation inforing personal
abitionsE
Reserving for further discussion the effect of :ansang upon the copelling force
of the opinions in Barcelon vs. Baker, < Phil. $( and Montenegro vs. Castaeda,
'" Phil. $A&, relative to the issue at hand, /e cannot lightly disregard the
ponderous reasons discussed in said opinions supporting the vie) that the
E1ecutive!s choice of eans in dealing )ith a f rebellion should be conclusive. 2n
Barcelon, this Court said?
Thus the *uestion is s*uarely presented )hether or not the +udicial departent of
the 9overnent ay investigate the facts upon )hich the legislative and
e1ecutive branches of the 9overnent acted in providing for the suspension and
in actually suspending the privilege of the )rit of habeas corpus in said provinces.
Cas the 9overnor;9eneral, )ith the consent of the Coission, the right to
suspend the privilege of the )rit of habeas corpusE 2f so, did the 9overnor;
9eneral suspend the )rit of habeas corpus in the Provinces of Cavite and
Batangas in accordance )ith such authorityE
A paragraph of section < of the act of Congress of 0uly ", "'#&, provides?
the 9overnor;9eneral )ith the approval of the Philippine Coission, )henever
This provision of the act of Congress is the only provision giving the 9overnor;
9eneral and the Philippine Coission authority to suspend the privilege of the
)rit of habeas corpus. No *uestion has been raised )ith reference to the
authority of Congress to confer this authority upon the President or the 9overnor;
9eneral of these 2slands, )ith the approval of the Philippine Coission.
This provision of the act of Congress a4es t)o conditions necessary in order
that the President or the 9overnor;9eneral )ith the approval of the Philippine
Coission ay suspend the privilege of the )rit of habeas corpus. They are as
follo)s?
8"= /hen there e1ists rebellion, insurrection, or invasion. and
8&= /hen public safety ay re*uire it.
2n other )ords, in order that the privilege of the )rit of habeas corpus ay be
suspended, there ust e1ist rebellion, insurrection, or invasion, and the public
safety ust re*uire it. This fact is aditted, but the *uestion is, /ho shall
deterine )hether there e1ists a state of rebellion, insurrection, or invasion, and
that by reason thereof the public safety re*uires the suspension of the privilege of
the )rit of habeas corpusE
2t has been argued and aditted that the 9overnor;9eneral, )ith the approval of
the Philippine Coission, has discretion, )hen insurrection, rebellion, or
invasion actually e1ist, to decide )hether the public safety re*uires the
suspension of the privilege of the )rit of habeas corpus. but the fact )hether
insurrection, rebellion, or invasion does actually e1ist is an open *uestion, )hich
the +udicial departent of the 9overnent ay in*uire into and that the
conclusions of the legislative and e1ecutive departents 8the Philippine
Coission and the 9overnor;9eneral= of the 9overnent are not conclusive
upon that *uestion.
2n other )ords, it is contended that the +udicial departent of the 9overnent
ay consider an application for the )rit of habeas corpus even though the
privileges of the sae have been suspended, in the anner provided by la), for
the purposes of ta4ing proof upon the *uestion )hether there actually e1ists a
state of insurrection, rebellion, or invasion.
The applicants here adit that if a state of rebellion, insurrection, or invasion
e1ists, and the public safety is in danger , then the President, or 9overnor;
9eneral )ith the approval of the Philippine Coission, ay suspend the
privilege of the )rit of habeas corpus.
2nasuch as the President, or 9overnor;9eneral )ith the approval of the
Philippine Coission, can suspend the privilege of the )rit of habeas corpus
only under the conditions entioned in the said statute, it becoes their duty to
a4e an investigation of the e1isting conditions in the Archipelago, or any part
thereof, to ascertain )hether there actually e1ists a state of rebellion,
insurrection, or invasion, and that the public safety re*uires the suspension of the
privilege of the )rit of habeas corpus. /hen this investigation is concluded, the
President, or the 9overnor;9eneral )ith the consent of the Philippine
Coission, declares that there e1ist these conditions, and that the public safety
re*uires the suspension of the privilege of the )rit of habeas corpus, can the
+udicial departent of the 9overnent investigate the sae facts and declare
that no such conditions e1istE
The act of Congress, above *uoted, )isely provides for the investigation by t)o
departents of the 9overnent 5 the legislative and e1ecutive 5 of the e1isting
conditions, and +oint action by the t)o before the privilege of the )rit of habeas
corpus can be suspended in these 2slands.
2f the investigation and findings of the President, or the 9overnor;9eneral )ith
the approval of the Philippine Coission, are not conclusive and final as against
the +udicial departent of the 9overnent, then every officer )hose duty it is to
aintain order and protect the lives and property of the people ay refuse to act,
and apply to the +udicial departent of the 9overnent for another investigation
and conclusion concerning the sae conditions, to the end that they ay be
protected against civil actions resulting fro illegal acts.
-)ing to conditions at ties, a state of insurrection, rebellion, or invasion ay
arise suddenly and ay +eopardi,e the very e1istence of the %tate. %uppose, for
e1aple, that one of the thic4ly populated 9overnents situated near this
Archipelago, an1ious to e1tend its po)er and territory, should suddenly decide to
invade these 2slands, and should, )ithout )arning, appear in one of the reote
harbors )ith a po)erful fleet and at once begin to land troops. The governor or
ilitary coander of the particular district or province notifies the 9overnor;
9eneral by telegraph 82f this landing of troops and that the people of the district
are in collusion )ith such invasion. Might not the 9overnor;9eneral and the
Coission accept this telegra as sufficient evidence and proof of the facts
counicated and at once ta4e steps, even to the e1tent of suspending the
privilege of the )rit of habeas corpus, as ight appear to the to be necessary
to repel such invasionE 2t sees that all en interested in the aintainance and
stability of the 9overnent )ould ans)er this *uestion in the affirative.
But suppose soe one, )ho has been arrested in the district upon the ground
that his detention )ould assist in restoring order and in repelling the invasion,
applies for the )rit of habeas corpus, alleging that no invasion actually e1ists.
ay the +udicial departent of the 9overnent call the officers actually engaged
in the field before it and a)ay fro their posts of duty for the purpose of
e1plaining and furnishing proof to it concerning the e1istence or non;e1istence of
the facts proclaied to e1ist by the legislative and e1ecutive branches of the
%tateE 2f so, then the courts ay effectually tie the hands of the e1ecutive, )hose
special duty it is to enforce the la)s and aintain order, until the invaders have
actually accoplished their purpose. The interpretation contended for here by the
applicants, so pregnant )ith detriental results, could not have been intended by
the Congress of the Gnited %tates )hen it enacted the la).
2t is the duty of the legislative branch of the 9overnent to a4e such la)s and
regulations as )ill effectually conserve peace and good order and protect the lives
and property of the citi,ens of the %tate. 2t is the duty of the 9overnor;9eneral to
ta4e such steps as he dees )ise and necessary for the purpose of enforcing
such la)s. Every delay and hindrance and obstacle )hich prevents a strict
enforceent of la)s under the conditions entioned necessarily tends to
+eopardi,e public interests and the safety of the )hole people. 2f the +udicial
departent of the 9overnent, or any officer in the 9overnent, has a right to
contest the orders of the President or of the 9overnor;9eneral under the
conditions above supposed, before coplying )ith such orders, then the hands of
the President or the 9overnor;9eneral ay be tied until the very ob+ect of the
rebels or insurrections or invaders has been accoplished. But it is urged that the
President, or the 9overnor;9eneral )ith the approval of the Philippine
Coission, ight be ista4en as to the actual conditions. that the legislative
departent 5 the Philippine Coission 5 ight, by resolution, declare after
investigation, that a state of rebellion, insurrection, or invasion e1ists, and that
the public safety re*uires the suspension of the privilege of the )rit of habeas
corpus, )hen, as a atter of fact, no such conditions actually e1isted. that the
President, or 9overnor;9eneral acting upon the authority of the Philippine
Coission, ight by proclaation suspend the privilege of the )rit of habeas
corpus )ithout there actually e1isting the conditions entioned in the act of
Congress. 2n other )ords, the applicants allege in their arguent in support of
their application for the )rit of habeas corpus, that the legislative and e1ecutive
branches of the 9overnent ight reach a )rong conclusion fro their
investigations of the actual conditions, or ight, through a desire to oppress and
harass the people, declare that a state of rebellion, insurrection, or invasion
e1isted and that public safety re*uired the suspension of the privilege of the )rit
of habeas corpus )hen actually and in fact no such conditions did e1ist. /e can
not assue that the legislative and e1ecutive branches )ill act or ta4e any action
based upon such otives.
Moreover it can not be assued that the legislative and e1ecutive branches of the
9overnent, )ith all the achinery )hich those branches have at their coand
for e1aining into the conditions in any part of the Archipelago, )ill fail to obtain
all e1isting inforation concerning actual conditions. 2t is the duty of the
e1ecutive branch of the 9overnent to constantly infor the legislative branch of
the 9overnent of the condition of the Gnion as to the prevalence of peace and
disorder. The e1ecutive branch of the 9overnent, through its nuerous
branches of the civil and ilitary, raifies every portion of the Archipelago, and is
enabled thereby to obtain inforation fro every *uarter and corner of the %tate.
Can the +udicial departent of the governent, )ith its very liited achinery
for the purpose of investigating general conditions, be any ore sure of
ascertaining the true conditions throughout the Archipelago, or in any particular
district, than the other branches of the governentE /e thin4 not. 8At p. '";'A.=
111 111 111
The sae general *uestion presented here )as presented to the %upree Court
of the Gnited %tates in the case of Martin vs. Mott, in 0anuary, "$&(. An act of
Congress of "('< provided 5
That )henever the Gnited %tates shall be invaded or be in iinent danger of
invasion fro any foreign nation or 2ndian tribe, it shall be la)ful for the President
of the Gnited %tates to call forth such nuber of the ilitia of the %tate or %tates
ost convenient to the place of danger or scene of action, as he ay +udge
necessary to repel such invasion, and to issue his orders for that purpose to such
officer or officers of the ilitia as he shall thin4 proper.
2n this case 8Martin vs. Mott= the *uestion )as presented to the court )hether or
not the President!s action in calling out the ilitia )as conclusive against the
courts. The %upree Court of the Gnited %tates, in ans)ering this *uestion,
said? .
The po)er thus confided by Congress to the President is, doubtless, of a very
high and delicate nature. A free people are naturally +ealous of the e1ercise of
ilitary po)er. and the po)er to call the ilitia into actual service is certainly felt
to be one of no ordinary agnitude. But it is not a po)er )hich can be e1ecuted
)ithout corresponding responsibility. 2t is, in its ters, a liited po)er, confined
to cases of actual invasion, or of iinent danger of invasion. 2f it be a liited
po)er, the *uestion arises, By )ho is the e1igency to be ad+udged of and
decidedE 2s the President the sole and e1clusive +udge )hether the e1igency has
arisen, or is it to be considered as an open *uestion, upon )hich every officer to
)ho the orders of the President are addressed, ay decide for hiself, and
e*ually open to be contested by very ilitiaan )ho shall refuse to obey the
orders of the PresidentE /e are all of the opinion that the authority to decide
)hether the e1igency has arisen belongs e1clusively to the President and his
decision is conclusive upon all other persons. /e thin4 that this construction
necessarily results fro the nature of the po)er itself and fro the anifest
ob+ect conteplated by the act of Congress. The po)er itself is to be e1ercised
upon sudden eergencies, upon great occasions of state and under
circustances )hich ay be vital to the e1istence of the Gnion. ... 2f a superior
officer has a right to contest the orders of the President, upon his o)n doubts as
to the e1igency having arisen, it ust be e*ually the right of every inferior officer
and soldier .... %uch a course )ould be subversive of all discipline and e1pose the
best disposed officer to the chances of erroneous litigation. Besides, in any
instances, the evidence upon )hich the President ight decide that there is
iinent danger of invasion ight be of a nature not constituting strict technical
proof, or the disclosure of the evidence ight reveal iportant secrets of state
)hich the public interest and even safety ight iperiously deand to be 4ept in
concealent.
/henever the statute gives a discretionary po)er to any person, to be e1ercised
by hi upon his o)n opinion of certain facts it is a sound rule of construction that
the statute constitutes hi the sole and e1clusive +udge of the e1istence of those
facts. And in the present case )e are all of opinion that such is the true
construction of the act of "('<. 2t is no ans)er that such po)er ay be abused,
for there is no po)er )hich is not susceptible of abuse.! 8Martin vs. Mott, "&
/heat., "' 8&< G.%.=. Danderheyden vs. Koung, "" 0ohns., N.K. "<#.=
0ustice 0oseph %tory for any years a eber of the %upree Court of the
Gnited %tates, in discussing the *uestion )ho ay suspend the privilege of the
)rit of habeas. corpus under the Constitution of the Gnited %tates, said?
2t )ould see, as the po)er is given to Congress to suspend the )rit of habeas
corpus in cases of rebellion, insurrection, or invasion, that the right to +udge
)hether the e1igency has arisen ust conclusively belong to that body.! 8%tory on
the Constitution, <th ed., see. "7@&.=
0ustice 0aes Met, for any years a +ustice of the supree court of the %tate of
Ne) Kor4, in discussing the sae *uestion, cites the case of Martin vs. Mott, and
says? .
2n that case it )as decided and settled by the %upree Court of the Gnited %tates
that it belonged e1clusively to the President to +udge )hen the e1igency arises in
)hich he had authority, under the Constitution, to call forth the ilitia, and that
his decision )as conclusive upon all other persons. 8Ment!s Coentaries, "@th
ed., vol. ", botto p. 7&7.=
0ohn Randolph Tuc4er, for any years a professor of constitutional and
international la) in /ashington and :ee university, in discussing this *uestion,
said? .
By an act passed in "('< Congress gave to the President po)er to call out the
ilitia for certain purposes, and by subse*uent acts, in "$#(, po)er )as given to
hi to be e1ercised )henever he should dee it necessary, for the purposes
stated in the Constitution. and the %upree Court 8Gnited %tates= has decided
that this e1ecutive discretion in a4ing the call 8for %tate ilitia= could not be
+udicially *uestioned.! Tuc4er on the Constitution, Dol. 22, p. <$".=
0ohn Norton Poeroy, an einent la) )riter upon constitutional *uestions, said? .
2n Martin vs. Mott it )as decided that under the authority given to the President
by the statute of "('<, calling forth the ilitia under certain circustances, the
po)er is e1clusively vested in hi to deterine )hether those circustances
e1ist. and )hen he has deterined by issuing his call, no court can *uestion his
decision. 8Poeroy!s Constitutional :a), sec. @(A.=
Cenry Capbell Blac4, a )ell;4no)n )riter on the Constitution, says?
By an early act of Congress it )as provided that in case of an insurrection in any
%tate against the governent thereof it shall be la)ful for the President of the
Gnited %tates, on application of the legislature of such %tate, or of the e1ecutive
8)hen the legislature can not be convened=, to call forth such a nuber of the
ilitia of any other %tate or %tates as ay be applied for, as he ay +udge
sufficient to suppress such insurrection. By this act the po)er of deciding )hether
the e1igency has arisen upon )hich the 9overnent of the Gnited %tates is bound
to interfere is given to the President. 8Blac4!s Constitutional :a), p. "#&.=
0udge Thoas M. Cooley, in discussing the right of the +udicial departent of the
9overnent to interfere )ith the discretionary action of the other departents of
the 9overnent, in his )or4 on constitutional la), said?
Congress ay confer upon the President the po)er to call the 8the ilitia=
forth, and this a4es hi the e1clusive +udge )hether the e1igency has arisen for
the e1ercise of the authority and renders one )ho refuses to obey the call liable
to punishent under ilitary la). 8Cooley!s Principles of Constitutional :a), p.
"##.=.
But it ay be argued by those )ho contend for the contrary doctrine, to )it, that
the acts of the 9overnor;9eneral, )ith the approval of the Philippine Coission,
are not conclusive upon the courts and that none of the foregoing citations are
e1actly in point, that none of these cases or authors treat of a case e1actly li4e
the one presented. /e are fortunate, ho)ever, in being able to cite, in ans)er to
that contention, the case of Cenry /illia Boyle, )here e1actly the sae
*uestion )as presented to the supree court of the %tate of 2daho, )hich the
applicants present here and )here the courts held the doctrine of the cases
applied. 2n the case of Boyle, he had been arrested after the privilege of the )rit
of habeas corpus had been suspended. Ce applied for a )rit of habeas corpus to
the supree court of 2daho, alleging, aong other things, in his application?
3irst? That !no insurrection, riot, or rebellion no) e1ists in %hoshone County.! and
%econd. That !the 9overnor has no authority to proclai artial la) or suspend
the )rit of habeas corpus.
2n reply to this contention on the part of the applicant, Boyle, the court said?
Counsel have argued ably and ingeniously upon the *uestion as to )hether the
authority to suspend the )rit of habeas corpus rests )ith the legislative and
e1ecutive po)ers of the 9overnent, but, fro our vie)s of this case, that
*uestion cuts no figure. /e are of the opinion that )henever, for the purpose of
putting do)n insurrection or rebellion, the e1igencies of the case deand it, )ith
the successful accoplishent of this end in vie), it is entirely copetent for the
e1ecutive or for the ilitary officer in coand, if there be such, either to
suspend the )rit or disregard it if issued. The statutes of this %tate 82daho= a4e
it the duty of the governor, )henever such a state or condition e1ists as the
proclaation of the governor sho)s does e1ist in %hoshone County, to proclai
such locality in a state of insurrection and to call in the aid of the ilitary of the
%tate or of the 3ederal 9overnent to suppress such insurrection and reestablish
peranently the ascendency of the la). 2t )ould be an absurdity to say that the
action of the e1ecutive, under such circustances, ay be negatived and set at
naught by the +udiciary, or that the action of the e1ecutive ay be interfered )ith
or ipugned by the +udiciary. 2f the courts are to be ade a sanctuary, a seat of
refuge )hereunto alefactors ay fall for protection fro punishent +ustly due
for the coission of crie they )ill soon cease to be that palladiu of the rights
of the citi,en so ably described by counsel.
-n application for a )rit of habeas corpus, the truth of recitals of alleged facts in
a proclaation issued by the governor proclaiing a certain county to be in a
state of insurrection and rebellion )ill not be in*uired into or revie)ed. The action
of the governor in declaring %hoshone County to be in state of insurrection and
rebellion, and his action in calling to his aid the ilitary forces of the Gnited
%tates for the purpose of restoring good order and the supreacy of the la), has
the effect to put in force, to a liited e1tent, artial la) in said county. %uch
action is not in violation of the Constitution, but in harony )ith it, being
necessary for the preservation of governent. 2n such case the 9overnent ay,
li4e an individual acting in self;defense, ta4e those steps necessary to preserve its
e1istence. 2f hundreds of en can asseble theselves and destroy property and
4ill and in+ure citi,ens, thus defeating the ends of governent, and the
9overnent is unable to ta4e all la)ful and necessary steps to restore la) and
aintain order, the %tate )ill then be ipotent if not entirely destroyed, and
anarchy placed in its stead.
2t having been deonstrated to the satisfaction of the governor, after soe si1 or
seven years of e1perience, that the e1ecution of the la)s in %hoshone County
through the ordinary and established eans and ethods )as rendered
practically ipossible, it becae his duty to adopt the eans prescribed by the
statute for establishing in said county the supreacy of the la) and insuring the
punishent of those by )hose unla)ful and criinal acts such a condition of
things has been brought about. and it is not the province of the courts to
interfere, delay, or place obstructions in the path of duty prescribed by la) for the
e1ecutive, but rather to render hi all the aid and assistance in their po)er, in his
efforts to bring about the consuation ost devoutly prayed for by every good,
la);abiding citi,en in the %tate.! 82n re Boyle, @< :.R.A., "$'', $7&.= 8At pp. '';
"#@.=.
These observations are follo)ed on pages "#@ to ""< by a copilation of decided
cases centrally holding that B)henever the Constitution or a statute gives a
discretionary po)er to any person, to be e1ercised by hi upon his o)n opinion
of certain facts, such person is to be considered the sole and e1clusive +udge of
the e1istence of those facts.B 3or the sa4e of brevity, /e shall not *uote the
discussion anyore. /e are confident there can be no dissent insofar as the
general proposition stated is concerned.
Notably, in the unanious decision of this Court in Montenegro, these vie)s are
totally adopted in a very brief passage thus?
B. 2n his second proposition appellant insists there is no state of invasion,
insurrection, rebellion or iinent danger thereof. !There are! he adits
!interittent sorties and lightning attac4s by organi,ed bands in different places!.
but, he argues, !such sorties are occassional, locali,ed and transitory. And the
proclaation spea4s no ore than of overt acts of insurrection and rebellion, not
of cases of invasion, insurrection or rebellion or iinent danger thereof.! -n this
sub+ect it is noted that the President concluded fro the facts recited in the
proclaation, and others connected there)ith, that !there is actual danger of
rebellion )hich ay e1tend throughout the country.! %uch official declaration
iplying uch ore than iinent danger of rebellion aply +ustifies the
suspension of the )rit.
To the petitioner!s unpracticed eye the repeated encounters bet)een dissident
eleents and ilitary troops ay see sporadic, isolated or casual. But the
officers charged )ith the Nation!s security analy,ed the e1tent and pattern of
such violent clashes and arrived at the conclusion that they are )arp and )oof of
a general schee to overthro) this governent vi et armis, by force and ars.
And )e agree )ith the %olicitor 9eneral that in the light of the vie)s of the Gnited
%tates %upree Court thru Marshall, Taney and %tory *uoted )ith approval in
Barcelon vs. Ba4er 8< Phil., $(, pp. '$ an "##= the authority to decide )hether
the e1igency has arisen re*uiring suspension belongs to the President and !his
decision is final and conclusive upon the courts and upon all other persons.
2ndeed as 0ustice 0ohnson said in that decision, )hereas the E1ecutive branch of
the 9overnent is enabled thru its civil and ilitary branches to obtain
inforation about peace and order fro every *uarter and corner of the nation,
the +udicial departent, )ith its very liited achinery can not be in better
position to ascertain or evaluate the conditions prevailing in the Archipelago. 8At
pp. $$A;$$(.=
There are actually any ore +udicial precedents and opinions of 4no)ledgeable
and authoritative te1t)riters, that can be copied here, aintaining )ith
ine1orable logic )hy the E1ecutive is incoparably best e*uipped and prepared to
cope )ith internal and e1ternal aggression and that, indeed, the protection of the
country against such contingencies is his sole responsibility not supposed to be
shared by the 0udiciary. But the proposition appears to Gs so plain and ineluctable
that to suon all of the to -ur assistance could only open Gs to the suspicion
that the Philippine %upree Court has to depend on borro)ed thin4ing to resolve
the ost critical issues bet)een individual rights, on the one hand, and state
po)er e1erted as a atter of self;defense against rebellion and subversion
iperilling the country!s o)n survival, on the other. Ephatically, /e don!t have
to. Than4 9od /e have enough native genius and indigenous eans and
resources to cope )ith the ost delicate probles of statehood. :et others listen
to and abide by the platitudinous and elegantly phrased dicta in Milligan, supra,
6uncan and /hite,
14
they )ho are in and of the )ealthiest and ightiest po)er
in the )orld, that only actual ilitary cobat and related operations can +ustify
artial la), but /e, )ho are in and of a sall and )ea4 developing nation, let us
hear4en and follo) the hoe;spun advice of our barrio fol4s cautioning everyone
thus?
Mung ang bahay o ay pa)id at 4a)ayan pagdili ng ulap at luala4as na ang
hanging agsara 4a na ng bintana at suhayan o ang iyong bahay. 8/hen your
house is ade of nipa and baboo, and you see the clouds dar4ening and the
)inds start blo)ing, it is tie for you to close your )indo)s and strengthen the
support of your house.=
This could e1plain )hy under the Constitution, artial la) can be declared not
only in case of actual rebellion, but even only )hen there is iinent danger
thereof. And that is )hy the open court rule established in Milligan and reiterated
in 6uncan and /hite is not controlling in this +urisdiction.
Besides, inasuch as our people have included in the Constitution an e1press
coitent of the po)er to the President, )hy do /e have to resort to the
pronounceents of other courts of other countries )herein said po)er is only
ipliedE Regardless of )hat other courts believe their E1ecutive ay do in
eergencies, our tas4 is not to slavishly adopt )hat those courts have said, for
there is no evidence that such )as the intent of our constitutional fathers. gather,
/e should deterine for -urselves )hat is best for our o)n circustances in the
Philippines, even if /e have to give due consideration to the e1perience other
peoples have gone through under ore or less siilar crises in the past.
2n any event, regardless of their )eight insofar as the suspension of the privilege
of the )rit of habeas corpus is concerned, /e consider the reasons given in the
above;*uoted opinions in Barcelon and Montenegro of particular relevance )hen it
coes to the iposition of artial la).
5 @ 5
2t ay be that the e1istence or non;e1istence or iinence of a rebellion of the
agnitude that )ould +ustify the iposition of artial la) is an ob+ective fact
capable of +udicial notice, for a rebellion that is not of general 4no)ledge to the
public cannot conceivably be dangerous to public safety. But precisely because it
is capable of +udicial notice, no in*uiry is needed to deterine the propriety of the
E1ecutive!s action.
Again, )hile the e1istence of a rebellion ay be )idely 4no)n, its real e1tent and
the dangers it ay actually pose to the public safety are not al)ays easily
perceptible to the unpracticed eye. 2n the present day practices of rebellion, its
inseparable subversion aspect has proven to be ore effective and iportant
than Bthe rising 8of persons= publicly and ta4ing ars against the 9overnentB by
)hich the Revised Penal Code characteri,es rebellion as a crie under its sanction
8Art. "7@, Revised Penal Code=. %ubversion is such a covert 4ind of anti;
governent activity that it is very difficult even for ary intelligence to deterine
its e1act area of influence and effect, not to ention the details of its forces and
resources. By subversion, the rebels can e1tend their field of action unnoticed
even up to the highest levels of the governent, )here no one can al)ays be
certain of the political cople1ion of the an ne1t to hi, and this does not
e1clude the courts. Ars, aunitions and all 4inds of )ar e*uipent travel and
are transferred in deep secrecy to strategic locations, )hich can be one!s
neighborhood )ithout hi having any idea of )hat is going on. There are so
any insidious )ays in )hich subversives act, in fact too any to enuerate, but
the point that iediately suggests itself is that they are ostly incapable of
being proven in court, so ho) are /e to a4e a +udicial in*uiry about the that
can satisfy our +udicial conscienceE
The Constitution definitely coits it to the E1ecutive to deterine the factual
bases and to forth)ith act as proptly as possible to eet the eergencies of
rebellion and invasion )hich ay be crucial to the life of the nation. Ce ust do
this )ith un)avering conviction, or any hesitancy or indecision on his part )ill
surely detract fro the needed precision in his choice of the eans he )ould
eploy to repel the aggression. The apprehension that his decision ight be held
by the %upree Court to be a transgression of the fundaental la) he has s)orn
to Bdefend and preserveB )ould deter hi fro acting )hen precisely it is ost
urgent and critical that he should act, since the eney is about to stri4e the
ortal blo). 6ifferent en can honestly and reasonably vary in assessing the
evidentiary value of the sae circustance, and the prospect of being considered
as a constitutional felon rather than a saviour of the country should the 0ustices
disagree )ith hi, )ould put the E1ecutive in an unenviable predicaent,
certainly un)ise and iprudent for any Constitution to conteplate he should be
in. But )hat is )orse is that the Court is not e*uipped in any )ay )ith the eans
to ade*uately appreciate the insidious practices of subversion, not to say that it
cannot do it )ith ore or at least e*ual accuracy as the E1ecutive. Besides, the
Court )ould then be acting already )ith considerable hindsight considerations
)hich can iperceptibly influence its +udgent in overriding the E1ecutive!s
finding.
More than ever before, )hen rebellion )as purely a surface action, and vie)ing
the atter fro all angles, it appears ineludible that the Court should refrain fro
interfering )ith the E1ecutive!s delicate decision. After all, the sacred rights of
individuals enshrined in the Bill of Rights and the other constitutional processes
ever valuable to the people, but )hich adittedly cannot, by the )ay, be ore
iportant than the very survival of the nation, are not necessarily s)ept a)ay by
a state of artial la), for, as already pointed out earlier, the validity of the
Proclaation is one thing, the adinistration of the governent under it is
soething else that has to be done )ith the closest adherence to the
fundaental la) that the obvious necessities of the situation )ill perit. As /e
see it, it is in this sense that the Constitution is the supree la) e*ually in ties
of peace and of )ar and for all classes of en, if /e ust refer again to
petitioners! reliance on Milligan. At the sae tie, let us not overloo4, in
connection )ith this favorite authority of petitioners, that the 3ederal %upree
Court!s postulation therein, that it )as Bhappily proved by the result of the great
effort to thro) off 8the= +ust authorityB of the Gnited %tates during the Civil /ar
that the constitution of that country contains )ithin itself all that is necessary for
its preservation, is not factually accurate, for all the )orld 4no)s that if the
Aerican Gnion survived the ordeal of possible disintegration and is the great
nation that she is today, it )as not because President :incoln confined hiself
strictly to the po)ers vested in the presidency by the constitution, but because he
)as )ise enough to resort to inherent e1traconstitutional state prerogatives,
e1ercisable by the E1ecutive alone, )hich President Marcos did not have to do,
considering that our Constitution e1pressly confers upon hi the authority to
utili,e such state po)er in defense of the nation.
5 < 5
The historical developent of the po)ers of the Philippine E1ecutive unista4ably
points to the sae direction. Practically all the constitutions that cae into being
during the revolutionary period before the turn of the last century, of )hich the
Malolos Constitution is typical, either entrusted e1ecutive po)er to a coission
or ade the E1ecutive largely dependent on the legislature. /hen the Aericans
ended their ilitary occupation, after subduing the Aguinaldo forces of
independence, they had their o)n version of governental po)ers. 2n the
Philippine Bill of "'#&, nothing )as entioned about artial la), and the po)er
of the 9overnor 9eneral to suspend the privilege of the )rit of habeas corpus )as
conditioned on, aong other things, the concurrence of the Philippine
Coission of )hich, notably, the 9overnor 9eneral )as the head. /hen in
"'#<, the 9overnor 9eneral suspended the Privilege in the provinces of Cavite
and Batangas, the case of Barcelon vs. Baker# supra, arose. -ver the dissent of
0ustice /illard )ho invo4ed Milligan, the %upree Court held that the
proclaation ordering such suspension )as not revie)able by the 0udiciary.
/ith a little touch of irony, in "'"A, )hen the Gnited %tates Congress, )ith the
avo)ed intent of granting greater political autonoy to the Philippines, enacted
the 0ones :a), it reoved the need for legislative concurrence in regards to the
suspension of the Privilege, because the legislature )as to be in 3ilipino hands,
and in addition to preserving such po)er of suspension, granted the 9overnor;
9eneral the sole authority to declare artial la), sub+ect only to revocation by
the President of the Gnited %tates. /ithout forgetting that at that tie, the
9overnor;9eneral being then an Aerican, those po)ers served as )eapons of
the coloni,er to consolidate its hold on the sub+ect people, such plenitude of
po)er in the E1ecutive )as to appear later to the 3ilipino leaders as soething
that should be adopted in our fundaental la). %o it )as that in the
Constitutional Convention of "'7@, the first the Philippines ever held in peace
tie, the delegates, dra)ing heavily fro the e1perience of the country during
the autonoous period of the 0ones :a), and perchance persuaded in no sall
easure by the personality of President Manuel :. Lue,on, lost no tie in
adopting the concept of a strong e1ecutive. Their decision )as studied and
deliberate. 2ndeed, it is the unanious observation of all students of our
Constitution, that under it, )e have in the Philippines the strongest e1ecutive in
the )orld. 3ully a)are of this feature and appearing rather elated by the apparent
success of the delegates to reconcile the possible evils of dictatorship )ith the
need of an e1ecutive )ho B)ill not only 4no) ho) to govern, but )ill actually
governB, President Claro M. Recto of the Convention rear4ed in his valedictory
address ad+ourning the Assebly as follo)s?
6uring the debate on the E1ecutive Po)er it )as the alost unanious opinion
that )e had invested the E1ecutive )ith rather e1traordinary prerogatives. There
is uch truth in this assertion. But it is because )e cannot be insensible to the
events that are transpiring around us, events )hich, )hen all is said and done,
are nothing but history repeating itself. 2n fact, )e have seen ho) dictatorships,
)hether blac4 or red, capitalistic or proletarian, fascistic or counistic, ancient
or odern, have served as the last refuge of peoples )hen their parliaents fail
and they are already po)erless to save theselves fro isgovernent and
chaos. :earning our lesson fro the truth of history, and deterined to spare our
people the evils of dictatorship and anarchy, )e have thought it prudent to
establish an e1ecutive po)er )hich, sub+ect to the fiscali,ation of the Assebly,
and of public opinion, )ill not only 4no) ho) to govern, but )ill actually govern,
)ith a fir and steady hand, unebarrassed by ve1ations, interferences by other
departents, or by unholy alliances )ith this and that social group. Thus,
possessed )ith the necessary gifts of honesty and copetence, this E1ecutive )ill
be able to give his people an orderly and progressive governent, )ithout need
of usurping or abdicating po)ers, and cunning subterfuges )ill not avail to
e1tenuate his failures before the bar of public opinion.B 8BThe Philippine
Constitution 5 %ources, Ma4ing, Meaning, and ApplicationB published by the
Philippine :a)yers! Association, p. <@#.=
-f particular relevance to the present discussion is the fact that )hen an attept
)as ade by a fe) delegates led by 6elegate %alvador Araneta of Manila to
sub+ect the E1ecutive!s po)er to suspend the privilege of the )rit of habeas
corpus to concurrence or revie) by the National Assebly and the %upree
Court, the effort did not prosper, thereby strongly indicating, if it did not a4e it
indubitably definite, that the intent of the fraers of the fundaental la) is that
the E1ecutive should be the sole +udge of the circustances )arranting the
e1ercise of the po)er thus granted. 2n any event, the only evidence of any
thin4ing )ithin the convention advocating the revocation of the Barcelon doctrine
of )hich together )ith Milligan, they )ere or ought to have been a)are, )hat
)ith the best 4no)n la)yers in the Philippines in their idst, collapsed )ith the
re+ection of the Araneta proposal.
2t )as in the light of this historical developent of the E1ecutive Po)er that in
"'<", the %upree Court decided unaniously the case of Montenegro vs.
Castaeda# supra, reiterating the doctrine of conclusiveness of the E1ecutive!s
findings in the Barcelon case.
3or all that it ay be )orthy of ention here, if only because practically the sae
3ilipino inds, led by President 0ose P. :aurel, )ere largely responsible for its
forulation, the Constitution of the %econd Philippine Republic born under aegis
of the 0apanese occupation of the Philippines during the %econd /orld /ar,
provided also for a strong e1ecutive. -n this point, President :aurel hiself had
the follo)ing to say?
The fundaental reason and necessity for the creation of a political center of
gravity under the Republic is that, in any for of governent 5 and this is
especially true in an eergency, in a national crisis 5 there ust be a an
responsible for the security of the state, there ust be a an )ith ade*uate
po)ers, to face any given situation and eet the probles of the nation. There
ust be no shifting of responsibility. there ust be no evasion of responsibility.
and if a governent is to be a real governent and a scientific governent there
ust be no t)o centers of gravity but one. 8& -.9.H0.M.A.J, $(7 H"'@7J.=B 8The
Philippine Presidency by 2rene R. Cortes, p. "@.=.
The foregoing is a logical follo);up of )hat :aurel had said in the "'7@
Convention thus?
... A strong e1ecutive he is intended to be, because a strong e1ecutive )e shall
need, especially in the early years of our independent, or sei;independent
e1istence. A )ea4 e1ecutive is synonyous )ith a )ea4 governent. Ce shall not
be a !onarch! or a dictator in tie of profound and -ctavian peace, but he
virtually so becomes in an e!traordinary emergency. and )hatever ay be his
position, he bul)ar4s norally, the fortifications of a strong constitutional
governent, but abnorally, in e1tree cases, he is suddenly ushered in as a
Minerva, full;gro)n and in full panoply of )ar, to occupy the vantage ground E the
ready protector and de)ender o) the li)e and honor o) his nation. 8Ephasis
supplied.= 8The Philippine Constitution, published by the Phil. :a)yers Association,
Dol. ", "'A' Ed., p. "$7.=.
Thus, it is not surprising at all that )ithout changing one )ord in the provision
granting to the E1ecutive the po)er to cope )ith the eergencies under
discussion, the "'(" Convention fortified thru related provisions in the transitory
portion of the Constitution the applicability of the Barcelon and Montenegro
concepts of the E1ecutive!s po)er, as applied to the iposition of artial la),
thereby )ea4ening pro tanto as )ill be seen in the follo)ing pages, the ipact of
-ur :ansang doctrine, for the purposes of the precise issue no) before Gs.
At this +uncture, it ay be pointed out that the po)er granted to the E1ecutive to
place the country or any part thereof under artial la) is independent of the
legislative grant to hi of eergency Po)ers authori,ed under the follo)ing
provision of the "'7< Constitution?
%ec. &A. 2n ties of )ar or other national eergency, the Congress ay by la)
authori,e the President, for a liited period and sub+ect to such restrictions as it
ay prescribe, to proulgate rules and regulations to carry out a declared
national policy. 8Art. D2, sec. &A, "'7< Constitution.=.
This provision is copied verbati in the "'(7 Charter e1cept for the reference to
the Prie Minister instead of to the President and the addition of the follo)ing
sentence indicating ore ephatically the teporary nature of the delegation?
Gnless sooner )ithdra)n by resolution of the National Assebly, such po)ers
shall cease upon its ne1t ad+ournent. 8%ection "<, Article D222, "'(7
Constitution of the Philippines.=
The point that iediately surges to the ind upon a reading of this provision is
that in ties of )ar or other national eergency it is definitely to the E1ecutive
that the people thru the fundaental la) entrust the running of the governent,
either by delegation of the legislative po)er to hi thru an e1press enactent of
the :egislature to that effect or by direct authori,ation fro the Constitution itself
to utili,e all the po)ers of governent should he find it necessary to place the
country or any part thereof under artial la). Additional evidence of such clear
intent is the fact that in the course of the deliberations in the Constitutional
Convention of "'7@ of the proposal to incorporate the above provision in the
charter, 6elegate /enceslao Din,ons of Caarines Norte oved to delete the
sae for fear that the concentration of po)ers in one an ay facilitate the
eergence of a dictatorship. Ce said in part?
The po)er to proulgate rules and regulations in ties of eergency or )ar is
not recogni,ed in any constitution e1cept, perhaps, the Constitution of 6enar4,
)hich provides that in case of special urgency the Ming ay, )hen the Reichstag
is not in session, issue la)s of teporary application. %uch la)s, ho)ever, shall
not be contrary to the Constitution, and they shall be subitted to the Reichstag
in its ne1t session. %o, even in a 4ingdo li4e 6enar4, the po)ers of the Ming
are liited in ties of eergency.
Gnder the Constitution )e are drafting no), there is absolutely no liit e1cept
)hen the National Assebly specifies at the inception of the grant of po)er.
2 )ant to )arn, Mr. President, of a future condition in our Republic )hen )e shall
no longer be under the tutelage of any foreign po)er, )hen )e shall have to )or4
for our o)n destiny. 2 )ant to say that 2 a not very positive in stating here that
)e shall have a dictatorship because the structure of the governent that )e are
creating perits its establishent, but the po)er to proulgate rules and
regulations )ill give rise to a strong an )ho ay, in a desire to gratify his
personal abitions, sei,e the reins of governent.B 8Page 7'", Dolue 3ive, The
Philippine Constitution, 2ts -rigins, Ma4ing, Meaning, and Application, a
publication of the Philippine :a)yers Association, "'(&.=.
6espite such elo*uent )arning, the assebly voted do)n his otion.
2t is no) contended that instead of declaring artial la), President Marcos should
have sought fro Congress the approval of an eergency po)ers act siilar to
Coon)ealth Acts A## and A(" passed respectively on August "', "'@#, long
before the 0apanese invasion, and 6eceber "A,"'@", )hen the Nippon Ary
)as already on its )ay to Manila fro :ingayen and other landing points in the
North.
To start )ith, Congress )as not una)are of the )orsening conditions of peace and
order and of, at least, evident insurgency, )hat )ith the nuerous easily
verifiable reports of open rebellious activities in different parts of the country and
the series of rallies and deonstrations, often bloody, in Manila itself and other
centers of population, including those that reached not only the portals but even
the session hall of the legislature, but the legislators seeed not to be sufficiently
alared or they either )ere indifferent or did not 4no) )hat to do under the
circustances. 2nstead of ta4ing iediate easures to alleviate the conditions
denounced and decried by the rebels and the activists, they debated and argued
long on palliatives )ithout coing out )ith anything substantial, uch less
satisfactory in the eyes of those )ho )ere seditiously shouting for refors. 2n any
event, in the face of the inability of Congress to eet the situation, and propted
by his appraisal of a critical situation that urgently called for iediate action,
the only alternative open to the President )as to resort to the other constitutional
source of e1traordinary po)ers, the Constitution itself.
2t is significant to note that Coon)ealth Act A(" granted the President
practically all the po)ers of governent. 2t provided as follo)s?
%ec. ". The e1istence of )ar bet)een the Gnited %tates and other countries of
Europe and Asia, )hich involves the Philippines, a4es it necessary to invest the
President )ith e1traordinary po)ers in order to eet the resulting eergency.
%ec. &. Pursuant to the provisions of Article D2, section "A, of the Constitution,
the President is hereby authori,ed, during the e1istence of the eergency, to
proulgate such rules and regulations as he ay dee necessary to carry out
the national policy declared in section " hereof. Accordingly he is, aong other
things, epo)ered 8a= to transfer the seat of the 9overnent or any of its
subdivisions, branches, departents, offices, agencies or instruentalities. 8b= to
reorgani,e the 9overnent of the Coon)ealth including the deterination of
the order of precedence of the heads of the E1ecutive 6epartents. 8c= to create
ne) subdivisions, branches, departents, offices, agencies or instruentalities of
governent and to abolish any of those already e1isting. 8d= to continue in force
la)s and appropriations )hich )ould lapse or other)ise becoe inoperative, and
to odify or suspend the operation or application of those of an adinistrative
character. 8e= to ipose ne) ta1es or to increase, reduce, suspend, or abolish
those in e1istence. 8f= to raise funds through the issuance of bonds or other)ise,
and to authori,e the e1penditure of the proceeds thereof. 8g= to authori,e the
National, provincial, city or unicipal governents to incur in overdrafts for
purposes that he ay approve. 8h= to declare the suspension of the collection of
credits or the payent of debts. and 8i= to e1ercise such other po)ers as he ay
dee necessary to enable the 9overnent to fulfill its responsibilities and to
aintain and enforce its authority.
%ec. 7. The President of the Philippines shall as soon as practicable upon the
convening of the Congress of the Philippines report thereto all the rules and
regulations proulgated by hi under the po)ers herein granted.
%ec. @. This act shall ta4e effect upon its approval, and the rules and regulations
proulgated hereunder shall be in force and effect until the Congress of the
Philippines shall other)ise provide.
3ro this e1tensive grant of iense po)ers, it ay be deduced that the
difference bet)een artial la) and the delegation of legislative po)er could be
+ust a atter of procedure in that the investent of authority in the forer is by
the Constitution )hile in the latter it is by the :egislature. The resulting
constitutional situation is the sae in both governent by the E1ecutive. 2t can
be said that even the priacy of ilitary assistance in the discharge of
governent responsibilities )ould be covered by the e1ercise of the delegated
authority fro Congress.
/hat is ost iportant, ho)ever, is that the Constitution does not prohibit the
declaration of artial la) +ust because of the authority given to the :egislative to
invest the E1ecutive )ith e1traordinary po)ers. 2t is not to be supposed that in
the face of the inability or refusal of the :egislature to act, the people should be
left helpless and )ithout a governent to cope )ith the eergency of an internal
or e1ternal aggression. Much less is it logical to aintain that it is the %upree
Court that is called upon to decide )hat easures should be ta4en in the
preises. 2ndeed, the fundaental la) loo4s to the E1ecutive to a4e the choice
of the eans not only to repel the aggression but, as a necessary conse*uence,
to underta4e such curative easures and refors as are iediately available
and feasible to prevent the recurrence of the causes of the eergency.
Petitioners are capitali,ing on the pronounceents of this Court in :ansang. /e
feel, ho)ever, that such e1cessive reliance is not altogether )ell placed.
The e1act iport of the :ansang doctrine is that it is )ithin the constitutional
prerogative of the %upree Court to in*uire into the veracity of the factual bases
recited by the E1ecutive in a proclaation ordering the suspension of the privilege
of the )rit of habeas corpus, for the purpose of deterining )hether or not the
E1ecutive acted arbitrarily in concluding fro the evidence before hi that there
)as indeed a rebellion and that public necessity, as conteplated in the
Constitution, re*uired such suspension. 2n other )ords, /e held therein that the
issue of legality or illegality of a proclaation suspending the Privilege is a
+usticiable one, in regard to )hich the Court could a4e independent findings
based on the evidence on )hich the President hiself acted. Actually, ho)ever, no
real hearing )as held for the purpose in that case. /hat ight perhaps be
considered as such a hearing )as )hat too4 place on -ctober &$ and &',"'(",
)hen, because of the )illingness e1pressed by the respondents therein to ipart
to the Court classified inforation relevant to the cases, sub+ect to appropriate
security easures, the Court et behind closed doors, and in the presence of
three attorneys representing the petitioners therein and the %olicitor 9eneral it
)as briefed by the Chief of %taff of the Ared 3orces and other ran4ing ilitary
officials on said classified inforation, after )hich the parties )ere granted tie
to file their respective eoranda of observations on the atters revealed in the
briefing, )hich they did. 8%ee @& %CRA, at pp. @AA;@A(=. 2n the present cases
there has been no such hearing, not even a briefing )herein petitioners )ere
represented. And it is gravely doubtful )hether any ove in that direction )ould
prosper, considering there are not enough ebers of the Court, )ho believe in
the +uridical relevance thereof, to constitute the re*uired a+ority for a binding
action to order such a hearing or even +ust a siilar briefing as before.
Be that as it ay, the iportant point is that :ansang referred to the e1tent of
the po)ers of the Court in regard to a proclaation suspending the Privilege
)hereas )hat is before Gs no) is a proclaation iposing artial la). /e hold
that the po)ers of the E1ecutive involved in the t)o proclaations are not of the
sae constitutional level and the prerogatives of the Court relative to habeas
corpus are distinct fro those in the perspective of artial la).
To start )ith, it is too evident to adit of dispute that the afore*uoted
constitutional provision touching on the three po)ers of the E1ecutive, the calling
of the ared forces, the suspension of the privilege and the iposition of artial
la) conteplates varying and ascending degrees of la)lessness and public
disorder. /hile it is true that te1tually any of the three courses of action
entioned ay be ta4en by the E1ecutive on the occasion of an invasion,
insurrection or rebellion, the degree of resulting repression of individual rights
under each of the varies so substantially that it cannot be doubted that the
constitution conteplates that the deterination as to )hich of the should be
ta4en should depend on the degree of gravity of the prevailing situation. 2n other
)ords, it is the actual agnitude of the rebellion to be suppressed and the degree
and e1tent of danger to public safety resulting therefro that deterines )hether
it should be the first, the second or the third that should be ta4en in order that
there ay be a direct proportion bet)een the degree of gravity of the crisis and
the restraint of individual rights and liberties. /hen the situation is not very
serious but is nevertheless beyond the control of the regular peace authorities of
the place affected, then the ared forces can be called. %hould the conditions
deteriorate in such a )ay as to involve a considerable segent of the population,
thereby a4ing it difficult to aintain order and to differentiate the loyal 3ro
the disloyal aong the people, )ithout detaining soe of the, either
preventively or for their delivery to the proper authorities after the eergency or
as soon as it eases, then the privilege of the )rit of habeas corpus ay also be
suspended. But the oent the situation assues very serious proportions, to
the e1tent that there is a brea4do)n of the regular governent achinery either
because the officials cannot physically function or their functioning )ould
endanger public safety, artial la) ay be iposed. There is thus a ar4ed
gradation of the circustances constituting rebellion and danger to public safety
in the provision, and it is to be supposed that the easure to be adopted by the
E1ecutive should be that )hich the situation deands.
The calling of the ared forces is done by the E1ecutive in his capacity as
Coander;in;Chief. The po)er thus e1ercised is purely e1ecutive and does not
cause any disturbance in the constitutional order in the governent. 2n the case
of suspension of the Privilege, individual rights guaranteed by the Bill of Rights
are restrained, but other)ise the regular constitutional achinery and the po)ers
and functions of the different officials of the governent, including the courts,
reain unaffected. Moreover, the suspension of the Privilege, although preised
on the deand of public safety, need not be necessarily predicated on the
re*uireents of national security as should be the case )ith artial la). Again,
the po)er e1ercised in suspension is e1ecutive po)er and nothing ore. But
)hen artial la) is proclaied, there is, as already observed earlier, a
surrogation of the regular governent achinery by the constitutionally
designated adinistrator )ith the aid of the ilitary. /hat is e1ercised in this
instance is not e1ecutive po)er alone but state po)er )hich involves the totality
of governent authority, but )ithout an actual ilitary ta4eover, if only because
the civilian President reains at the head.
2n this connection, it is very iportant to note that )hereas the Bill of Rights
e1plicitly prohibits the suspension of the Privilege of the )rit of habeas corpus
e1cept under the detailed circustances prescribed therein, including the
liitations as to the tie and place )hen and )here it ay stay suspended, there
is no siilar in+unction in regard to the iposition of artial la). 2n other )ords,
the grant of the po)er to declare artial la) in the E1ecutive portion of the
Constitution is not countered, unli4e in the case of habeas corpus, by a
prohibition in the Bill of Rights, the sanctuary of individual liberties.
2nvo4ing :ansang, petitioners argue that if an order of suspension of the Privilege
)hich involves less repression of constitutional processes than artial la) is
revie)able by the courts, )ith ore reason should the iposition of artial la),
)hose effect upon the constitutional rights and processes is ore pervasive, be
sub+ect to a +udicial test of constitutionality. Die)ing it fro the angle of individual
rights, the arguent sounds plausible, but )hen it is considered that the fraers
of the Bill of Rights never bothered to put the sae or any siilar brea4s to the
iposition of artial la) as that )hich they placed in regard to suspension, it can
be readily seen that because of the gravity of the crisis predicating the e1tree
reedy of artial la), the constitution itself a4es the invocation of individual
rights subordinate to the national interest involved in the defense of the state
against the internal aggression that confronts it. 3ro this consideration, it
follo)s that )hatever standard of constitutionality )as established by the Court in
:ansang relative to %uspension is not necessarily the easure of the po)ers the
Court can e1ercise over the E1ecutive!s proclaation of artial la). /hat the
Constitution purposely and )ith good reason differentiates, the Court ay not
e*uate.
At any rate, /e do not believe this is the proper occasion for the Court to alter or
odify )hat /e said in :ansang. All that /e say here is that :ansang does not
reach the artial la) po)ers of the E1ecutive, if only because that case involved
e1clusively the *uestion of legality of the detention, during the %uspension, of
soe individuals, the petitioners therein, )hereas here /e are dealing )ith the
deprivation of liberty of petitioners as a direct conse*uence of artial la), and in
effect the real *uestion before Gs no) is the legality of the artial la) regie
itself, )hich, as already deonstrated, occupies a different level in the
constitutional order of E1ecutive po)er, specially )hen considered fro the point
of vie) of the Bill of Rights.
But even if /e ust refer to the considerations of the Court in forulating
:ansang, /e cannot disregard the ipact of conteporary constitutional
developents related thereto. The Convention of "'(" had barely started its
relevant deliberations )hen :ansang )as decided. 2t is to be assued that the
delegates )ere )ell infored about its iport. 2ndeed, they ust have focused
their attention thereto )hen artial la) )as proclaied in %epteber of "'(&, if
only because soe of the delegates )ere apprehended and detained and had
forth)ith filed the petitions no) pending before Gs. The delegates 4ne) or ought
to have 4no)n that under the e1isting Constitution, the Bill of Rights ade no
ention of the possible iposition of artial la) in the section prohibiting the
suspension of the privilege of the )rit of habeas corpus. 2nstead of seeing to it
that in the charter they )ere drafting the prohibition as to habeas corpus should
be e1tended to the declaration of artial la), in order to a4e the contingency
thereof as difficult as in the case of the forer, they evidently found ore reason
to concur in the construction pursued by President Marcos of the prerogatives
)hich the Constitution epo)ers hi to utili,e during a rebellion or invasion.
Accordingly, to erase further doubts on the atter, the Convention enacted the
transitory provision earlier referred to a4ing the Proclaation, aong others,
part of the la) of the land, )hich provision, /e dee, at this point, not as a fiat
placing the Proclaation definitely beyond the pale of unconstitutionality, but as a
conteporary authoritative construction of the current charter by the body
precisely called to e1aine it carefully and deterine its defects that should be
corrected, to the end that the rights of the people ay be best safeguarded.
Derily, such construction is entitled to due respect fro Gs, particularly because it
has been in effect, if not directly, approved by the people, not only in the
referendu of 0anuary "#;"<, "'(7 assailed by petitioners but in the other one
held by secret ballot on 0uly &(;&$, "'(7 under the supervision of the
Coission on Elections. And in the light of such construction, -ur considered
vie) is that :ansang is not controlling on the issues regarding artial la)
involved in these cases.
Perhaps, it ay not be aiss to add here that although the records of the
Constitutional Convention of "'7@ do not reveal the actual reasons for the
re+ection of the aendent proposed by 6elegate Dicente 0. 3rancisco to include
in the Bill of Rights provision regarding habeas corpus the reference ade to
iinent danger of invasion, insurrection or rebellion in the enueration of the
po)ers of the E1ecutive relative to the sae sub+ect, it is *uite possible that in
the ind of the convention it )as not absolutely necessary to suspend the
Privilege )hen the danger is only iinent unless the eleent of public safety
involved already re*uires the iposition of artial la). Relatedly, 6elegate
Araneta )ho as earlier entioned, proposed to sub+ect the suspension of the
Privilege to legislative or +udicial concurrence or revie), and )ho appeared to be
the ost bothered, aong the delegates, about the e1ertion of e1ecutive po)er
during the eergencies conteplated, never said a )ord against the anner in
)hich the E1ecutive )as being granted the authority to ipose artial la), uch
less proposed any restriction upon it the )ay he did )ith the suspension of the
Privilege. This goes to sho) that the feeling in the assebly )as to regard artial
la) differently fro the suspension and to recogni,e that its iposition should not
be traelled nor shac4led by any provision of the Bill of Rights.
5 ( 5
There are insurountable pragatic obstacles to the theory of +usticiability
sustained by petitioners. .
The ost iportant of this is that there is no 4no)n or recogni,ed procedure
)hich can be adopted in the proposed in*uiry into the factual bases of the
E1ecutive!s proclaation to insure that the degree of +udicious and fair hearing
and deterination of facts ight be appro1iated. Adittedly, the ordinary rules
of pleading, practice and evidence are out of the *uestion. The relevant eleental
facts are scattered throughout the length and breath of the country, and there is
no conceivable +udicial caera that can catch the )hole picture )ith ade*uate
fidelity to the truth. Perhaps +udicial notice can help, but the eleents of public
safety are not properly susceptible of +udicial notice )hen it coes to covert
subversive activities. The probles of deonstration are anifold, and )hen it is
borne in ind that, in the very nature of things and under universally accepted
nors of state protection, there is a )all, ipenetrable even to the +udiciary,
behind )hich the state rightfully 4eeps a)ay fro other 6epartents atters
affecting national security, one )ill reali,e the futility of believing that the Court
can, assuing it )ere, by soe curious )ay of reasoning, legally re*uired to do
so, properly perfor its +udicial attributes )hen it coes to deterining in the
face of an apparently nation)ide rebellion, )hether or not artial la) should be
proclaied by the E1ecutive, instead of resorting to the lesser reedies of calling
the ared forces or suspending the Privilege. Besides, for the Court to be able to
decide )hether or not the action of the E1ecutive is arbitrary, it ust, in +ustice to
both parties, and to hi in particular, act in the light of the sae evidence fro
)hich he dre) his conclusion. Co) can such evidence be all gathered and
presented to the CourtE
%oe ebers of the Court are of the fir conviction that it is -ur constitutional
duty to indulge in the suggested in*uiry, so /e can be assured in -ur o)n
conscience, and for the protection of the people, )hether or not President Marcos
has acted arbitrarily. But prescinding fro the difficulties of deonstration +ust
discussed, fro )hat evidence is the Court going to dra) its o)n conclusions in
the cases at bar, )hen /e have not even been told )hat evidence the President
had before hi, e1cept those that ay be inferred fro the )hereases of the
Proclaation )hich are disputed by petitionersE -n the other hand, ho) can /e
have all the evidence before G%, )hen in the very nature thereof /e cannot have
access to the, since they ust be 4ept under the forbidding covers of national
security regulationsE Even the standing ordinary rules of evidence provide in this
respect thus? .
%EC. &". &rivileged communication. 5
111 111 111
8e= A public officer cannot be e1ained during his ter of office or after)ards, as
to counications ade to hi in official confidence, )hen the court finds that
the public interest )ould suffer by the disclosure. 8Rule "7#, Revised Rules of
Court of the Philippines=.
The inevitable conclusion is that the Constitution ust have intended that the
decision of the E1ecutive should be his alone.
2f /e should hold that the atter before Gs is +usticiable, the practical result
)ould be that even if the Court should no) decide in the style of :ansang that the
President did not act arbitrarily in issuing the Proclaation, /e )ould have to be
ready to entertain future petitions, one after the other, filed by )hosoever ay be
inded to allege, for his o)n purpose, that conditions have so iproved as to
)arrant the lifting of artial la). Accordingly, every no) and then the Court
)ould have to hear the parties and evaluate their respective evidence. The
9overnent )ould have to appear and prove all over again the +ustifications for
its action. The conse*uence )ould be that instead of devoting his tie to the
defense of the nation, the President )ould be preparing hiself for the court
battle. 2t is ridiculous to thin4 that the ebers of the Constitutional Convention
had conceived placing such difficulties in the )ay of the E1ecutive )hich a4e of
his function of defending the state a continuous running battle in t)o separate
fronts, one )ith the eney another )ith the courts. 2t is suggested that the Court
can suarily disiss any such future petitions in cavalier fashion by siply
holding on to the finding /e )ould a4e in these cases. But ne) allegations and
arguents are bound to be ade, and it is definitely iproper for Gs to +ust
suarily uphold the E1ecutive everytie a case coes up.
/hat is ore absurd is that the %upree Court is not the only court in )hich a
petition to lift ay be filed. 2agine if petitions )ere filed in t)o or three Courts
of 3irst 2nstance, )hat )ould happenE 2n this connection, /e are in no position to
en+oin the lo)er courts to entertain such petitions because they ay refer to the
proposed lifting of artial la) only in the respective provinces )here the courts
are, and /e cannot hold, precisely because of -ur o)n characteri,ation of the
nature of the issue as +usticiable, or ore siply that the Proclaation is sub+ect
to the revie) of factual bases by the court, that any of said courts is )ithout
+urisdiction to entertain the petition. %tated other)ise, every court )ould then be
open to pass on the reasonability or arbitrariness of the President!s refusal or
failure to lift artial la). /e do not ean to insinuate that the lo)er court +udges
ay not be prepared for the purpose, but the spectacle alone of several of such
petitions pending in various courts, )ithout visuali,ing anyore the potentiality of
one +udge or another upholding the proponent, is soething that )ill not only
foreseeably coplicate our international relations but )ill also detract fro our
iage as a people trained in the field of governent. All of these considerations
suggest again that it is best that the 0udiciary abstain fro assuing a role not
clearly indicated in the Constitution to pertain to it.
5 C 5
TCE %GPREME C-GRT AB%TA2N% 3R-M RED2E/2N9 PR-C:AMAT2-N "#$",
BECAG%E, 2N TCE :29CT -3 TCE C-N%26ERAT2-N% CERE2N 62%CG%%E6, 2T 2%
C-ND2NCE6 TCAT TCE C-N%T2TGT2-N C-NTEMP:ATE% TCAT TCE 6EC:ARAT2-N
-3 MART2A: :A/ %C-G:6 BE TCE RE%P-N%2B2:2TK %-:E:K -3 TCE EIECGT2DE,
BGT %C-G:6 ANK -CCA%2-N -3 -PEN 6E32ANCE AN6 MAN23E%T 62%RE9AR6
-3 TCE PERT2NENT C-N%T2TGT2-NA: PR-D2%2-N AR2%E, TCE C-GRT 2% N-T
P-/ER:E%% T- B%GPP-RT AN6 6E3EN6B TCE C-N%T2TGT2-N.
The greatest fear entertained by those )ho )ould sustain the Court!s authority to
revie) the action of the President is that there ight be occasions )hen an
E1ecutive drun4 )ith po)er ight )ithout rhye or reason ipose artial la)
upon the helpless people, using the very Constitution itself as his )eapon of
oppression to establish here a real dictatorship or totalitarian governent. The
vie) is that it is only the %upree Court that can prevent such a disal
eventuality by holding that it has the final authority and inescapable duty to
define the constitutional boundaries of the po)ers of the E1ecutive and to
deterine in every case properly brought before it )hether or not any such po)er
has been abused beyond the liits set do)n by the fundaental la), and that
unless /e hold here that the Court can deterine the constitutional sufficiency of
Proclaation "#$" in fact and in la), the 3ilipino people )ould have no protection
against such in abusive E1ecutive.
/e here declare ephatically that such apprehension is definitely unfounded.
Precisely, in this decision, /e are holding that the Court has the +urisdiction, the
po)er and the authority to pass on any challenge to an E1ecutive!s declaration of
artial la) alleged in a proper case affecting private or individual rights to be
un)arranted by the Constitution. 2n these cases, ho)ever, )e do not see any
need for the interposition of our authority. 2nstead )hat appears clear to Gs, in
the light of the considerations /e have discuss above, and so /e hold, is that the
%olicitor 9eneral is einently correct in contending that in the circustantial and
constitutional ilieu of the ipugned Proclaation, /e should abstain fro
conducting the suggested in*uiry to deterine their constitutional sufficiency.
2n the )ay /e see the artial la) provision of the Constitution, only t)o
hypotheses can be considered relative to the Constitutional proble before Gs.
Either the E1ecutive acts in confority )ith the provision or he does not. 2n other
)ords, either he iposes artial la) because there is actually a rebellion
endangering the public safety or he does it for his o)n personal desire to grab
po)er, not)ithstanding the absence of the factual grounds re*uired by the
fundaental la). 2n the latter case, the Court )ould have the constitutional
po)er and duty to declare the proclaation issued null and void. But to do this it
does not have to conduct a +udicial in*uiry by the reception of evidence. 2t should
be guided solely by facts that are of +udicial notice. Thus, if the predicative
recitals of the proclaation are confired by facts of general public 4no)ledge,
obviously any further in*uiry )ould be superfluous. -n the other hand, in the
contrary hypothesis, that is, it is publicly and generally 4no)n that there is no
rebellion of the nature and e1tent conteplated in the Constitution, no aount of
evidence offered by the E1ecutive can +udicially create such a rebellion. 2ndeed,
as observed else)here in this opinion, a rebellion that does not coe to the
+udicial notice of the Court cannot )arrant the iposition of artial la),
particularly in reference to one iposed over the )hole country. But once it is
4no)n to the Court by +udicial notice that there is a rebellion, it )ould constitute
anundue interference )ith the constitutional duties and prerogatives of the
E1ecutive for the Court to indulge in an in*uiry as to the constitutional sufficiency
of his decision. /hether or not public safety re*uires the drastic action of
iposing artial la) already involves the e1ercise of +udgent, )hich as far as
/e can see is coitted to the responsibility of the E1ecutive as the protector
and defender of the nation. -ur considered vie) is that in such circustances,
the Constitution rather e1pects the Court to defer to his decision. Gnder this
concept of the po)ers of the Court relative to the e1ercise by the E1ecutive of his
artial la) prerogatives, the Court does not relin*uish its authority as guardian of
the Constitution and the E1ecutive, guided solely by his o)n sense of
responsibility under his solen oath Bto defend and preserveB the Constitution,
can proceed )ith his tas4 of saving the integrity of the governent and the
nation, )ithout any fear that the Court )ould reverse his +udgent.
To be sure, it could have sufficed for Gs to point out, in ans)er to the contention
about possible abuse, that it is a1ioatic in constitutional la) that the possibility
that an official ight abuse the po)ers conferred upon hi by la) or by the
Charter does not ean that the po)er does not e1ist or should not be granted.
This Court affired this principle not only in Barcelon vs. Baker# *uoted supra,
)hich )as the precursor perhaps of the e1tree of +udicial self;restraint or
abstention in this +urisdiction but even in 'ngara vs. lectoral Commission, A7
Phil. "7', reputedly the vanguard of +udicial activis in the Philippines, 0ustice
:aurel postulated reassuringly on this point in Angara thus? BThe possibility of
abuse is not an arguent against the concession of po)er as there is no po)er
that is not susceptible of abuseB 8at p. "((=. And /e could have copleented
this ratiocination )ith the observation that it is ost unli4ely that the 3ilipino
people )ould be penali,ed by 6ivine Providence )ith the iposition upon the of
an E1ecutive )ith the frightening characteristics oinously portrayed by those
)ho advocate that the Court, assuing its o)n iunity fro being abusive,
arbitrary or iprovident, should not recogni,e any constitutionally envisioned
deference to the other 6epartents of the 9overnent, particularly the
E1ecutive.
/e can feel, ho)ever, that the people need further reassurance. -n this score, it
is opportune to recall that in 'velino vs. Cuenco, $7 Phil. A$, in spite of the fact
that in the Resolution of March @, "'@', this Court refused to intervene in the
controversy bet)een the parties as to )hether or not there )as a valid election of
a ne) President of the %enate, upon the ground that the issue involved )as
purely political, in the subse*uent Resolution of March "@, "'@', upon reali,ing
that a critical situation, detriental to the national interest, subsisted as a
conse*uence of its abstention, the Court reversed itself and assued the po)er
to state categorically the correct solution to the conflict based on its interpretation
of the pertinent provisions of the Constitution.
Again, in 0anuary, "'A&, in the space of several hours, 7<# appointents to
different positions in the governent, including 0ustices of the %upree Court
and of the Court of Appeals and +udges of the lo)er courts, fiscals, officers of the
Ary, directors of bureaus, 9overnor of the Central Ban4, and others )ere sent
by the President then to the Coission on Appointents on 6eceber &',
"'A", the day preceding his last half;day in office, 6eceber 7#, "'A". Gpon the
said appointents being ipugned in the %upree Court, the Court, aghast by
the nuber of and the speed in the a4ing of said appointents, the fact that
they )ere ade under circustances that betrayed not only lac4 of proper and
deliberate consideration of the *ualifications of the appointees but also an evident
intent to deprive the succeeding President fro filling the vacancies that had been
left vacant even after the results sho)ing the defeat of the incubent President
had already been publicly 4no)n and conceded, the departure fro long
established practices in their preparation as )ell as the other undesirable
circustances that surrounded the sae, proptly struc4 the do)n as the
product of an iprovident e1ercise of po)er, obno1ious to the precepts underlying
the principled governent conceived in the Constitution.
15
The violation of the
spirit and intent of the Constitution appeared anifest to the Court on the basis
of facts )hich )ere ainly if not all of +udicial notice and, therefore, needed no
further deonstration in an in*uiry or investigation by the Court. Gnder ore or
less a siilar setting of circustances, )hich occurred in the latter part of the
ter of the President )hose tenure e1pired on 6eceber 7#, "'AA, the %upree
court reiterated the above ruling in Guevarra vs. +nocentes, "A %CRA 7('.
Thus everyone can see that )hen situations arise )hich on their faces and
)ithout the need of in*uiry or investigation reveal an un*uestionable and palpable
transgression of the Constitution, the %upree Court has never been )ithout
eans to uphold the Constitution, the policy of +udicial self;restraint iplicit
therein not)ithstanding. The precedents +ust related relate to peaceful
controversies, and, of course, the alleged violation of the Constitution by the
E1ecutive in the e1ercise of a po)er granted to hi to eet the e1igencies of
rebellion and the dangers to public safety it entails has to be considered fro a
different perspective. Even then, the %upree Court )ould not be po)erless to
act, Gntil all of its ebers are incarcerated or 4illed and there are not enough of
the to constitute a *uoru, the Court )ould al)ays be there ready to stri4e
do)n a proclaation of artial la) as unconstitutional, )henever fro the facts
anifest and generally 4no)n to the people and to it, and )ithout its having
conducted any in*uiry by the reception of evidence, it should appear that the
declaration is ade )ithout any rational basis )hatsoever and is predicated only
on the distorted otives of the E1ecutive. 3or as long, ho)ever, as the recitals or
grounds given in a proclaation accord substantially )ith facts of +udicial notice,
either because they are of public 4no)ledge or are by their nature capable of
un*uestionable deonstration, /e have no reason to interfere )ith the discharge
by the E1ecutive of a responsibility iposed upon hi by the Constitution and in
)hich there is no indication therein that the Court should share. But )hen, as +ust
stated, it is generally 4no)n or it is of public 4no)ledge that there is no rebellion
or, there being one, that it poses no conceivable danger to the public safety, and,
9od forbid, artial la) is proclaied, the Court, even )ithout the need of any
4ind of +udicial in*uiry into the facts alleged in the proclaation, )ill certainly act
and declare the pretentious E1ecutive a constitutional outla), )ith the result that
the regular governent established by the Constitution ay continue in the
hands of those )ho are constitutionally called upon to succeed hi, unless he
overcoes the legitiate governent by force. 2n truth, such is the only )ay the
%upree Court should act in discharging its duty to uphold the Constitution by
the use of the +udicial po)er, if it is to give to the E1ecutive or the :egislature, as
the case ay be, the due regard that the Constitution conteplates should be
accorded to the in consideration of their o)n functions hid responsibilities
iplicit in the principle of separation of po)ers ebodied therein.
22
TCE C-N%T2TGT2-N 2% MERE:K 2N A %TATE -3 ANAE%TCE%2A, %2NCE A MA0-R
%GR9ERK 2% NEE6E6 T- %ADE TCE NAT2-N!% :23E.
The foregoing discussion covers, as ust have been noted, the resolution not only
of the issue of +urisdiction raised by the respondents but also of the corollary
*uestion of the application of the :ansang doctrine. Not only that, fro )hat has
been said, it is obvious that since it is to the President that the Constitution has
coitted the discretion to ipose artial la), it follo)s that he alone should
have the discretion and the prerogative to declare )hen it should cease or be
lifted. E1actly the sae considerations copelling the conclusion that the Court
ay not revie) the constitutional sufficiency of his proclaation of artial la)
a4e it ineludible to conclude that the people have also left it to the E1ecutive to
decide )hen conditions )ould perit the full restoration of the regular
constitutional processes. /ith characteristic perceptive insight, in his thesis to be
cited infra, 0ustice 9uillero %. %antos of the Court of Appeals, discourses on this
point as follo)s?
@@. =hen Martial ,ule is Terminated 5
2n both England and the Gnited %tates artial rule terinates ipso facto upon the
cessation of the public eergency that called it forth. To this proposition there
has been no dissent. Martial rule ust cease )hen the public safety no longer
re*uire its further e1ercise.
@<. =ho Terminates Martial ,ule 5
%ince the declaration of artial rule has been coitted to the +udgent of the
President, it follo)s that its terination is to be fi1ed by the sae authority.
8Barcelon vs. Ba4er, "'#<, < Phil. $(.= Again, to this vie) there cannot he any
valid ob+ection. 2t )ould see only natural that since the President has been
e1pressly authori,ed to declare artial rule no other authority should he
peritted to terinate it.B 8Martial :a), Nature, Principles and Adinistration by
9uillero %. %antos, p. (<.=
Needless to say, it is our Constitution that controls in the cases at bar, not the
Aerican theory. 2n fact, )hen President :aurel proclaied artial la) during the
%econd /orld /ar, he e1pressly provided, to avoid any doubt about the atter,
thus?
$. The proclaation of artial la) being an eergency easure deanded by
iperative necessity, it shall continue as long as the need for it e1ists and shall
terinate upon proclaation of the President of the Republic of the Philippines.
2n the interest of truth and to set -ur perspective aright it ay not be said that
under Proclaation "#$" and the anner in )hich it has been ipleented,
there has been a total suspension, uch less an abrogation, of the Constitution.
Even te1tually, the ensuing orders issued by the President have left virtually
unaltered the established constitutional order in all levels of governent and
society e1cept those that have to be ad+usted and sub+ected to potential changes
deanded by the necessities of the situation and the attainent of the ob+ectives
of the declaration. Repeatedly and ephatically, the President has solenly
reassured the people that there is no ilitary ta4eover and that the declared
principle in the Constitution that BCivilian authority is at all ties supree over
the ilitaryB 8%ection $, Article 22, "'(7 Charter= shall be rigorously observed.
And earlier in this opinion, /e have already discussed ho) he restored the
security of tenure of the ebers of the Court and ho) the +udicial po)er has
been retained by the courts, e1cept in those cases involving atters affecting
national security and public order and safety )hich the situation deands should
be dealt )ith by the e1ecutive ars of the governent.
/hen President :incoln proclaied artial la) in Mentuc4y in "$A@, he did not
copletely overhaul the e1isting achinery, he let it continue insofar as it did not
obstruct the ilitary operations and related activities. Ce ordered thus?
/hereas any citi,ens of the %tate of Mentuc4y have +oined the forces of the
insurgents, and such insurgents have, on several occasions. entered the said
%tate of Mentuc4y in large force, and, not )ithout aid and cofort furnished by
disaffected and disloyal citi,ens of the Gnited %tates residing therein, have not
only disturbed the public peace, but have overborne the civil authorities and
ade flagrant civil )ar, destroying property and life in various parts of the %tate?
And )hereas it has been ade 4no)n to the President of the Gnited %tates by the
officers coanding the national aries, that cobinations have been fored in
the said %tate of Mentuc4y )ith a purpose of inciting rebel forces to rene) the
said operations of civil )ar )ithin the said %tate, and thereby to ebarrass the
Gnited %tates aries no) operating in the said %tate of Dirginia and 9eorgia, and
even to endanger their safety? ... !The artial la) herein proclaied, and the
things in that respect herein ordered, )ill not be deeed or ta4en to interfere
)ith the holding of la)ful elections, or )ith the proceedings of the constitutional
legislature of Mentuc4y, or )ith the adinistration of +ustice in the courts of la)
e1isting therein bet)een citi,ens of the Gnited %tates in suits or proceedings
)hich do not affect the ilitary operations or the constituted authorities of the
governent of the Gnited %tates. 8Martial :a), Nature, Principles and
Adinistration by 9uillero %. %antos, pp. '(;'$.=.
2ncidentally, there is here a clear repudiation of the open court theory, and )hat
is ore, even the holding of regular elections and legislative sessions )ere not
suppressed.
16
Accordingly, the undeniable fact that the Philippine Congress )as
in session, albeit about to ad+ourn, )hen artial la) )as declared on %epteber
&", "'(& is not necessarily an arguent against the e1ercise by the President of
the po)er to a4e such a declaration.
President :aurel!s o)n declaration of artial la) during the 0apanese occupation
did not involve a total blac4out of constitutional governent. 2t reads in its
pertinent portions thus?
111 111 111
@. All e1isting la)s shall continue in force and effect until aended or repealed by
the President, and all the e1isting civil agencies of an e1ecutive character shall
continue e1ercising their po)ers and perforing their functions and duties, unless
they are inconsistent )ith the ters of this Proclaation or incopatible )ith the
e1peditious and effective enforceent of artial la) herein declared.
<. 2t shall be the duty of the Military 9overnors to suppress treason, sedition,
disorder and violence. and to cause to be punished all disturbances of public
peace and all offenders against the criinal la)s. and also to protect persons in
their legitiate rights. To this end and until other)ise decreed, the e1isting courts
of +ustice shall assue +urisdiction and try offenders )ithout unnecessary delay
and in a suary anner, in accordance )ith such procedural rules as ay be
prescribed by the Minister of 0ustice. The decisions of courts of +ustice of the
different categories in criinal cases )ithin their original +urisdiction shall be final
and unappealable? &rovided# however, That no sentence of death shall be carried
into effect )ithout the approval of the President.
A. The e1isting courts of +ustice shall continue to be invested )ith, and shall
e1ercise, the sae +urisdiction in civil actions and special proceedings as are no)
provided in e1isting la)s, unless other)ise directed by the President of the
Republic of the Philippines.
Proclaation "#$" is in no sense any ore constitutionally offensive. 2n fact, in
ordering detention of persons, the Proclaation pointedly liits arrests and
detention only to those Bpresently detained, as )ell as all others )ho ay
hereafter be siilarly detained for the cries of insurrection or rebellion, and all
other cries and offenses coitted in furtherance or on the occasion thereof, or
incident thereto, or in connection there)ith, for cries against national security
and the la) of nations, cries against public order, cries involving usurpation of
authority, ran4, title and iproper use of naes, unifors and insignia, cries
coitted by public officers, and for such other cries as )ill be enuerated in
orders that 2 shall subse*uently proulgate, as )ell as cries as a conse*uence
of any violation of any decree, order or regulation proulgated by e personally
or proulgated upon y direction.B 2ndeed, even in the affected areas, the
Constitution has not been really suspended uch less discarded. As conteplated
in the fundaental la) itself, it is erely in a state of anaesthesia, to the end
that the uch needed a+or surgery to save the nation!s life ay be successfully
underta4en.
5 222 5
TCE 2MP-%2T2-N -3 MART2A: :A/ AGT-MAT2CA::K CARR2E% /2TC 2T TCE
%G%PEN%2-N -3 TCE PR2D2:E9E -3 TCE /R2T -3 CABEA% C-RPG% 2N ANK
EDENT, TCE PRE%26ENT2A: -R6ER -3 ARRE%T AN6 6ETENT2-N CANN-T BE
A%%A2:E6 A% 6EPR2DAT2-N -3 :2BERTK /2TC-GT 6GE PR-CE%%.
The ne1t issue to consider is that )hich refers to the arrest and continued
detention and other restraints of the liberties of petitioner, and their ain
contention in this respect is that the proclaation of artial la) does not carry
)ith it the suspension of the privilege of the )rit of habeas corpus, hence
petitioners are entitled to iediate release fro their constraints.
/e do not believe such contention needs e1tended e1position or elaboration in
order to be overruled. The priary and fundaental purpose of artial la) is to
aintain order and to insure the success of the battle against the eney by the
ost e1peditions and efficient eans )ithout loss of tie and )ith the iniu
of effort. This is self;evident. The arrest and detention of those contributing to the
disorder and especially of those helping or other)ise giving aid and cofort to the
eney are indispensable, if artial la) is to ean anything at all. This is but
logical. To fight the eney, to aintain order aidst riotous chaos and ilitary
operations, and to see to it that the ordinary constitutional processes for the
prosecution of la);brea4ers are three functions that cannot huanly be
underta4en at the sae tie by the sae authorities )ith any fair hope of
success in any of the. To *uote fro Malcol and :aurel, BMartial la) and the
privilege of that )rit 8of habeas corpus are )holly incopatible )ith each other.B
8Malcol and :aurel, Philippine Constitutional :a), p. &"#=. 2t siply is not too
uch for the state to e1pect the people to tolerate or suffer inconveniences and
deprivations in the national interest, principally the security and integrity of the
country.
Mere suspension of the Privilege ay be ordered, as discussed earlier, )hen the
situation has not reached very critical proportions iperilling the very e1istence of
the nation, as long as public safety deands it. 2t is, therefore, absurd to
contend, that )hen artial la), )hich is precisely the ultiate reedy against
the gravest eergencies of internal or e1ternal aggression, is proclaied, there is
no suspension of the Privilege unless this is separately and distinctly ordered.
Considering that both po)ers spring fro the sae basic causes, it stands to
reason that the graver sanction includes the lesser. 2t is claied that President
:aurel treated the t)o atters separately in his afore*uoted proclaation. /e do
not believe that the precedent cited controls. 2t only proves that to avoid any
doubt, )hat President :aurel did ay be adopted. There can be no denying the
point that )ithout suspension of the Privilege, artial la) )ould certainly be
ineffective. %ince artial la) involves the totality of governent authority, it ay
be assued that by ordering the arrest and detention of petitioners and the other
persons entioned in the Proclaation, until ordered released by hi, the
President has by the tenor of such order virtually suspended the Privilege.
Relatedly, as pointed out by the %olicitor 9eneral no less than petitioner 6io4no
hiself postulated in a lecture at the G.P. :a) Center that?
There are only, as far as 2 4no), t)o instances )here persons ay be detained
)ithout )arrant but )ith due process. The first is in cases of artial la) or )hen
the )rit of habeas corpus is suspended. 2n those cases, it is not that their
detention is legal, it is that )e cannot in*uire into the legality of their detention.
Because artial la) eans actually the suspension of la) and the substitution of
the )ill of our Congress. The second instance is that )hich is provided for in Rule
""7, section A of the Rules of Court and %ection 7( of the Revised Charter of the
City of Manila. Essentially it consists of cases )here the crie is coitted right
in the presence of the person /ho is a4ing the arrest or detention. 8Trial
Probles in City Q Municipal Courts, "'(#, p. &A(, G. P. :a) center 0udicial
Conference %eries.= .
2n his )ell docuented and very carefully prepared and coprehensive thesis on
Martial :a), Nature, Principles and Adinistration, published by Central :a)boo4
Publishing Co., 2nc, in "'(&, 0ustice 9uillero %. %antos of the Court of Appeals
and forerly of the 0udge Advocate 9eneral!s %ervice, Ared 3orces of the
Philippines, a4es these pointed observations?
/hether the e1istence of artial la) and the suspension of the privilege of the
)rit of habeas corpus !are one and the sae thing!, or !the forer includes the
latter and uch ore,! had been the sub+ect of !an angry )ar of paphlets
bet)een Professors Parsons and Par4er of the Carvard :a) %chool at the
outbrea4 of the Civil /ar.! 83airan, p. @7. /iener p. '.= 2t has also been a
difficult *uestion to decide in soe +urisdictions )hether the suspension of the
privilege of the )rit aounted to a declaration of artial la). 8/inthrop, pp. $&#
Q $&$, citing E1 parte 3ield, ' A. :.R. <#(. Bouvier!s :a) 6ictionary, 7rd 3rancis
Ra)is Ed., "'"@, p. &"#<, citing " Callec4 2nt. :a) <@'.
2n the face of the constitutional provisions 8Art. """, %ec. ", Clause 8"@= and fn ',
supra.= in our +urisdiction, there sees to be no roo for doubt that the t)o are
different. /hile the grounds for the suspension of the privilege of the )rit and the
proclaation of artial la) are the sae, there can be no *uestion that
suspension of the )rit eans )hat it says, that during the suspension of the
privilege, the )rit, if issued, )ill be to no avail. but artial la) has ore than +ust
this effect. The only *uestion )hich apparently reains to be deterined here, is,
)hether the declaration of artial la) ipso facto carries )ith it the suspension of
the privilege of the )rit, or )hether a declaration of artial la) ust necessarily
include a declaration suspending the privilege of the )rit in order to consider the
sae inoperative. But it appears that the forer is the better vie), 8Malcol and
:aurel, Philippine Constitutional :a), p. 7"#= although in the Gnited %tates it has
been held that *ualified artial rule ay e1ist )here the )rit has, in legal
conteplation, not been suspended, 83airan, p. @@= and that the status of
artial la) does not of itself suspend the )rit. 8Military :a) H6oestic
6isturbancesJ, Basic 3ield Manual, /ar 6epartent, HG%J fn "' Q "<, p. "(
H"'@<J.= 8%ee pp. @";@&.=
-f course, /e are not bound by the rule in other +urisdictions.
3orer 6ean Dicente 9. %inco of the College of :a) of the Gniversity of the
Philippines, of )hich he becae later on President, a noted authority on
constitutional la) fro )ho any of us have learned the sub+ect, li4e)ise
sustains the vie) that the proclaation of artial la) autoatically suspends the
privilege of the )rit of habeas corpus. 8D. %inco, Phil. Political :a), p. &<', ""th
Ed., "'A&=
No), as to the constitutional propriety of detaining persons on suspicion of
conspiracy )ith the eney )ithout the need of the regular +udicial process, /e
have also the authoritative support of no less than )hat a distinguished eber
of this Court, considered as one of the best infored in Aerican constitutional
la), Mr. 0ustice Enri*ue 3ernando, and the principal counsel of petitioners, forer
%enator TaFada, hiself an authority, on the sub+ect, had to say on the point in
their +oint authorship, used as te1tboo4 in any la) schools, entitled Constitution
of the Philippines, to )it?
-nce artial la) has been declared, arrest ay be necessary not so uch for
punishent but by )ay of precaution to stop disorder. As long as such arrests are
ade in good faith and in the honest belief they are needed to aintain order,
the President, as Coander;in;Chief, cannot thereafter, )hen he is out of office,
be sub+ected to an action on the ground that he had no reasonable ground for his
belief. =hen it comes to a decision by the head o) a state upon a matter involving
its li)e# the ordinary rights o) individuals must yield to what he deems the
necessities o) the moment. &ublic danger warrants the substitution o) e!ecutive
)or 0udicial process. 8Ephasis supplied.= 8Constitution of the Philippines by
TaFada Q 3ernando, Dol. &, pp. <&7;<&<.=
The authority cited by 0ustice 3ernando and %enator TaFada says?
The plaintiff!s position, stated in a fe) )ords, is that the action of the governor,
sanctioned to the e1tent that it )as by the decision of the supree court, )as the
action of the state and therefore )ithin the "@th Aendent. but that, if that
action )as unconstitutional, the governor got no protection fro personal liability
for his unconstitutional interference )ith the plaintiff!s rights. 2t is aditted, as it
ust be. that the governor!s declaration that a state of insurrection e1isted is
conclusive of that fact. 2t sees to be aditted also that the arrest alone )ould
riot necessarily have given a right to bring this suit. Luther v. Borden, ( Co). ",
@<, @A, "& :. ed. <$", A##, A#". But it is said that a detention for so any days,
alleged to be )ithout probable cause, at a tie )hen the courts )ere open,
)ithout an attept to bring the plaintiff before the, a4es a case on )hich he
has a right to have a +ury pass.
/e shall not consider all of the *uestions that the facts suggest, but shall confine
ourselves to stating )hat )e regard as a sufficient ans)er to the coplaint,
)ithout iplying that there are not others e*ually good. -f course, the plaintiff!s
position is that he has been deprived of his liberty )ithout due process of la). But
it is failiar that )hat is due process of la) depends on circustances. 2t varies
)ith the sub+ect;atter and the necessities of the situation. Thus, suary
proceedings suffice for ta1es, and e1ecutive decisions for e1clusion fro the
county. 6en e1 de. Murray v. 1oboken Land F +mprov. Co. "$ Co). &(&, "< :.
ed. 7(&. <nited "tates v. Ju Toy, "'$ G.%. &<7, &A7, @' :. ed. "#;@#, "#@@, &<
%up. Ct. Rep. A@@. /hat, then, are the circustances of this caseE By agreeent
the record of the proceedings upon habeas corpus )as ade part of the
coplaint, but that did not a4e the averents of the petition for the )rit
averents of the coplaint. The facts that )e are to assue are that a state of
insurrection e1isted and that the governor, )ithout sufficient reason but in good
faith, in the course of putting the insurrection do)n, held the plaintiff until he
thought that he safely could release hi.
2t )ould see to be aditted by the plaintiff that he )as president of the
/estern 3ederation of Miners, and that, )hoever )as to blae, trouble )as
apprehended )ith the ebers of that organi,ation. /e ention these facts not
as aterial, but siply to put in ore definite for the nature of the occasion on
)hich the governor felt called upon to act. 2n such a situation )e ust assue
that he had a right, under the state Constitution and la)s, to call out troops, as
)as held by the supree court of the state. The Constitution is suppleented by
an act providing that !)hen an invasion of or insurrection in the state is ade or
threatened, the governor shall order the national guard to repel or suppress the
sae.! :a)s of "$'(, chap. A7, art. (, Q &, p. &#@. That eans that he shall
a4e the ordinary use of the soldiers to that end. that he ay 4ill persons )ho
resist, and, of course, that he ay use the ilder easure of sei,ing the bodies
of those )ho he considers to stand in the )ay of restoring peace. %uch arrests
are not necessarily for punishent, but are by )ay of precaution, to prevent the
office, on the ground that he had not reasonable ground for his belief. 2f )e
suppose a governor )ith a very long ter of office, it ay be that a case could be
iagined in )hich the length of the iprisonent )ould raise a different
*uestion. But there is nothing in the duration of the plaintiff!s detention or in the
allegations of the coplaint that )ould )arrant %ubitting the +udgent of the
governor to revision by a 2t is not alleged that his +udgent )as not honest, if
that be aterial, or that the plaintiff )as detained after fears of the insurrection
)ere at an end.
No doubt there are cases )here the e1pert on the spot ay he called upon to
+ustify his conduct later in court, not)ithstanding the fact that he had sole
coand at the tie and acted to the best of his 4no)ledge. That is the position
of the captain of a ship. But, even in that case, great )eight is given to his
deterination, and the atter is to be +udged on the facts as they appeared then,
and not erely in the light of the event. Lawrence v. Minturn, "( Co). "##, ""#,
"< :. ed. <$, A&. The %tar of Cope, ' /all. &#7, "' :. ed. A7$. The 9eranic
8-ceanic %tea Nav. Co. v. Ait4en= "'A G.%. <$', <'@, <'<, @' :. ed. A"#, A"7,
&< %up. Ct. Rep. 7"(. /hen it coes to a decision by the head of the state upon
a atter involving its life, the ordinary rights of individuals ust yield to )hat he
e1ecutive process for +udicial process. %ee .eely v. "anders, '' G.%. @@", @@A, &<
:. ed. 7&(, 7&$. 8Moyer vs. Peabody, &"& G.%. @"A, @"(.=
Relatedly, in the decision of the %upree Court of Colorado dealing )ith the sae
detention of Charles C. Moyer by order of the state governor, it )as held?
By the reply it is alleged that, not)ithstanding the proclaation and
deterination of the 9overnor that a state of insurrection e1isted in the county of
%an Miguel, that as a atter of fact these conditions did not e1ist at the tie of
such proclaation or the arrest of the petitioner, or at any other tie. By % <, art.
@, of our Constitution, the governor is the coander in chief of the ilitary
forces of the state, e1cept )hen they are called into actual service of the Gnited
%tates. and he is thereby epo)ered to call out the ilitia to suppress
insurrection. 2t ust therefore becoe his duty to deterine as a fact )hen
conditions e1ist in a given locality )hich deand that, in the discharge of his
duties as chief e1ecutive of the state, he shall eploy the ilitia to suppress. This
being true# the recitals in the proclamation to the e))ect that a state o)
insurrection e!isted in the country o) "an Miguel cannot be controverted.
-ther)ise, the legality of the orders of the e1ecutive )ould not depend upon his
+udgent, but the +udgent of another coordinate branch of the state
governent ............
........................................................
.... +)# then# the military may resort to the e!treme o) taking human li)e in order
to suppress insurrection it is impossible to imagine upon what hypothesis it can
be success)ully claimed that the milder means o) sei%ing the person o) those
participating in the insurrection or aiding and abetting it may not be resorted to.
The po)er and authority of the ilitia in such circustances are not unli4e that of
the police of a city, or the sheriff of a county, aided by his deputies or posse
coitatus in suppressing a riot. Certainly such o))icials would be 0usti)ied in
arresting the rioters and placing them in 0ail without warrant# and detaining the
there until the riot was suppressed. Callett 0., in Re Application of %heran Par4er
8no opinion for publication=. +)# as contended by counsel )or petitioner# the
military# as soon as the rioter or insurrectionist is arrested# must turn him over to
the civil authorities o) the country# the arrest might# and in many instances
would# amount to a mere )arce. Ce could be released on bail, and left free to
again +oin the rioters or engage in aiding and abetting their action, and, if again
arrested, the sae process )ould have to be repeated, and thus the action of the
ilitary )ould be rendered a nullity. Again, if it be conceded that, on the arrest of
a rioter by the ilitary, he ust at once be turned over to the custody of the civil
officers of the county, then the ilitary, in sei,ing ared insurrectionists and
depriving the of their ars, )ould be re*uired to forth)ith return the to the
hands of those )ho )ere eploying the in acts of violence. or be sub+ect to an
action of replevin for their recovery )hereby iediate possession of such ars
)ould be obtained be the rioters, )ho )ould thus again be e*uipped to continue
their la)less conduct. To deny the right o) the militia to those whom they arrest
while engaged in suppressing acts o) violence and until order is restored would
lead to the most absurd results. The arrest and detention of an insurrectionist,
either actually engaged in acts of violence or in aiding and abetting others to
coit such acts, violates none of his constitutional rights. Ce is not tried by any
ilitary court, or denied the right of trial by +ury. neither is he punished for
violation of the la), nor held )ithout due process of la). Cis arrest and detention
is such circumstances merely to prevent him )rom taking part or aiding in a
continuation o) the conditions which the governor# in the discharge o) his o))icial
duties and in the e!ercise o) authority con)erred by law# is endeavoring to
suppress. /hen this end is reached, he could no longer be restrained of his liberty
by the ilitary, but ust be, +ust as respondents have indicated in their return to
the )rit, turned over to the usual civil authorities of the county, to be dealt )ith in
the ordinary course of +ustice, and tried for stich offenses against the la) as he
ay have coitted. 2t is true that petitioner is not held by virtue of any
)arrant, but if his arrest and detention are authori,ed by la) he cannot coplain
because those steps have not been ta4en )hich are ordinarily re*uired before a
citi,en can be arrested and detained.
..........................
.... The same power which determines the e!istence o) an insurrection must also
decide when the insurrection has been suppressed. 8Ephasis added.= 8Re Moyer,
7< Colo, "<', $< Pac. "'# H"'#@J.=
2t is evident, therefore, that regardless of )hether or not the privilege of the )rit
of habeas corpus is e1pressly suspended during artial la), arrest, detention and
other restraints of liberty of individuals ay not be assailed as violative of the due
process clause. The Presidential orders to such effect constitute substantive and
procedural due process at the sae tie and ay therefore be invo4ed as valid
defenses against any reedy or prayer for release. 9iven the validity of the
declaration of artial la), the sole tests of legality of constraints other)ise
fro)ned upon in noral ties by the fundaental la) are substantial relevance
and reasonableness. 2n the very nature of things, and absent any obvious
sho)ing of palpable bad faith, the E1ecutive should en+oy respectful deference in
the deterination of his grounds. As a rule, the Courts are not supposed to a4e
any in*uiry into the atter.
/e accordingly hold that, as )ell deonstrated by the %olicitor 9eneral, a
proclaation of artial la) autoatically results in the suspension of the
privilege of the )rit of habeas corpus and, therefore, the arrest, detention and
restraints upon petitioners are authori,ed by the Constitution. 2n any event, the
Presidential order of arrest and detention constitute due process and is, therefore,
a valid defense to any allegation of illegality of the constraints upon petitioners.
/e further hold that the duration of such constraints ay be co;e1tensive )ith
artial la) unless other)ise ordered by the E1ecutive.
2D
T1 $$CT -$ T1 '&&,-2'L '*/ ,'T+$+C'T+-* -$ T1 *= C-*"T+T<T+-*
-* T1 +*"T'*T &T+T+-*"
All that reains no) for resolution is the *uestion of )hat effect did the approval
and ratification of the Ne) Constitution have upon the instant petitionsE
/hen petitioners cae to this Court in %epteber and -ctober "'(& to ipugn
the legality of their arrest and detention by virtue of Proclaation "#$" and
9eneral -rder No. &, their coon fundaental theory )as that said
proclaation and order )ere violative of the Constitution of the Philippines of
"'7<, not only because, according to the, there )as no +ustification for its
placing the country under artial la) but also because, even assuing its
propriety, there )as allegedly no legal basis for the apprehension and detention of
petitioners )ithout any )arrant of arrest and )ithout even any charges being filed
against the. Thus, in his return of the )rit of habeas corpus issued by the Court,
as )ell as in his oral arguent at the hearings, the %olicitor 9eneral liited
hiself to barely invo4ing the provision of the said Constitution epo)ering the
President to proclai artial la), even as he denied the allegation that there )as
no factual basis therefor, and siply contended that the arrest and detention of
petitioners )ere ade pursuant to orders validly issued under the po)ers of the
President flo)ing fro the proclaation. .
5 A 5
As already noted, ho)ever, even before these cases could be subitted for
decision, on Noveber 7#, "'(&, the Constitutional Convention of "'(" approved
a draft constitution designed to supersede the Constitution of "'7< and on
0anuary "(, "'(7, thru Proclaation ""#&, the President declared that draft
constitution to have been ratified by the people in the referendu of 0anuary "#;
"<, "'(7, and, as also stated earlier, said proclaation becae the sub+ect of t)o
series of cases in this Court )hich ultiately ended )ith the decision of March 7",
"'(7 ad+udging that Bthere is no further +udicial obstacle to the Ne) Constitution
being considered in force and effect.B And aong the salient and pertinent
provisions of the Ne) Constitution or the Constitution of "'(7, as the ne) charter
ay distinctively be referred to, is that of %ection 7 8&= of Article ID22 te1tually
reproduced earlier above.
2n vie) of the coprehensive or all;inclusive tenor of the constitutional in+unction
contained in said provision, referring as it does to Ball proclaations, orders,
decrees, instructions, and acts proulgated issued, or done by the incubent
PresidentB, there can be no doubt that Proclaation "#$" and 9eneral -rder &,
herein assailed by petitioners, are aong those en+oined to he Bpart of the la) of
the land.B The *uestion that arises then is, did their having been ade part of the
la) of the land by no less than an e1press andate of the fundaental la)
preclude further controversy as to their validity and efficacyE
2n pondering over this *uestion, it is iportant to bear in ind the circustances
that attended the fraing and final approval of the draft constitution by the
Convention. As already noted, t)o actuations of the President of indubitable
transcendental iport overtoo4 the deliberations of the constituent assebly,
naely, the issuance by hi of Proclaation "#$" placing the Philippines under
artial la) and his e1ercise, under said proclaation, of non;e1ecutive po)ers,
inclusive of general legislative authority. As to be e1pected in a country, li4e the
Philippines, long accustoed to strict constitutionalis, and the superiority of
civilian authority over, the ilitary, soon enough, these t)o actuations spa)ned
constitutional controversies of serious diensions, so uch so that several cases
involving the, including the instant ones, are no) pending in the %upree
Court. %urely, the ebers of the Convention )ere )ell a)are of these
developents. 2n other )ords, the delegates in convention assebled )ere living
)itnesses of the anner in )hich, for the first tie in our constitutional history,
the artial la) clause of the charter )as being actually ipleented, and they
4ne) the grave constitutional issues such ipleentation had provo4ed.
2ndeed, no constituent assebly Could have been better circustanced to
forulate the fundaental la) of the land. The Convention had a full and first;
hand vie) of the controversial operation of the ost iportant part of the charter
it )as called to iprove upon 5 its artial la) clause. Derily, no other aspect of
the constitution could have coanded ore the ost serious attention of the
delegates. They 4ne) or ought to have 4no)n that the placing of the country or
any part thereof under artial la) could possibly affect the continued operation
therein of the constitution or at least, the enforceability of particular provisions
thereof. Therefore, if the Convention felt that )hat )as being done by the
President as )itnessed by the )as not )ithin the conteplation of the e1isting
fundaental la) or that it )as inconsistent )ith the underlying principles of
deocracy and constitutionalis to )hich the nation has been irrevocably
coitted since its birth and )hich )ere to reain as the foundations of the ne)
charter, the delegates )ould have considered it to be their bounden duty to our
people and to the future generations of 3ilipinos, to anifest their conviction by
providing appropriate safeguards against any repetition thereof in the constitution
they )ere drafting. And so, )hen it is considered that as finally approved, the
Ne) Constitution reproduces in e1actly the sae ters or verbati the artial
la) clause of the "'7< charter, the ineludible conclusion is that our ne)
constitutional fathers did not see anything repugnant to the concepts of the old
constitution in )hat the President has done or )as doing. As /e see it, this
attitude of the Convention constitutes an authoritative conteporary construction
of the provision in controversy, and considering that the President!s anner of
ipleenting artial la) has been sanctioned by the people not only in the
referendu of 0anuary "#;"<, "'(7 but also in that of 0uly &(;&$, "'(7, reliance
on such attitude in deterining the eaning and intent of said provision cannot
be out of place.
2n the light of these considerations, /e do not see in the transitory provision
under discussion any idea of ratification or validation of soething void or
unauthori,ed. Rather, )hat /e perceive in it are revelations of )hat lay in the
core of the artial la) clause of the "'7< Constitution as it )as conceived and
forulated by its )ise and farsighted fraers. 2t )ould be unreasonable, illogical
and un)orthy of the "'(" delegates to ipute to the an intent to erely ratify,
confir or validate the President!s acts, on the assuption that they )ere
originally unauthori,ed by the charter, for that )ould iply that they )ere
concerned only about straightening out the present situation, )hen it is +ust as
iportant to insure that future acts of the President are not tainted )ith illegality.
/e cannot entertain any thought that the delegates )ere not sufficiently apprised
on the iplications of their acts. 2ndeed, the Ne) Constitution has not iparted
e! propio vigore any eleent of validity to the acts in *uestion, it has only
e1pressed in blac4 and )hite )hat the -ld Constitution did not dee necessary to
lay do)n )ith precision in respect to the. Die)ed this )ay, )hat the transitory
provision under discussion eans is that both the acts of the President before as
)ell as those after ratification of the Ne) Constitution are valid 5 not validated 5
and, as +ust stated, )hat reinforces this construction and places the said acts
beyond possible attac4s for unconstitutionality are the results of the t)o
referendus of 0anuary and 0uly, "'(7.
/ithal, having absolute faith in the high sense of duty and the patriotic courage
of the ebers of the Convention, /e also re+ect the suggestion that they )ere
in any )ay ipeded, under the circustances then obtaining, fro freely
e1pressing theselves. /e cannot for a oent entertain the thought that any
other 3ilipino can ever have less courage and love of country and concern for the
future of our people than the ebers of this Court )ho are presently called
upon to a4e oentous decisions affecting no less than the legality and
legitiacy of the very 9overnent adittedly in effective control of the )hole
territory of the nation, regardless of possible personal conse*uences to
theselves.
The fact of the atter is that Proclaation "#$" did not a4e ention of the
Convention at all. -n the contrary, +udicial notice ay be ta4en of the increased
funds appropriated by the President so as to enable it to proceed )ith its
deliberations, unbothered by any apprehension regarding the inade*uacy of the
funds )hich the Congress had appropriated for it, and )hich )ere then fast
d)indling, )ithout any certainty of further congressional appropriations. 2ndeed,
)hen 6elegate Mala) of the 3irst 6istrict of Ri,al proposed in a foral resolution
that the sessions be suspended until after the lifting of artial la), the assebly
voted over)helingly to turn do)n the proposal. There is no evidence at all that
any for of undue pressure )as brought to bear upon the delegates in any
respect related to their constituent functions. 2t has not been sho)n that the
arrest and detention of a nuber of delegates, soe of )ho are petitioners
herein, )as in any )ay connected )ith or caused by their actuations related to
their constituent functions. /hat 9eneral -rder No. & asserts is that the President
ordered the B%ecretary of National 6efense to forth)ith arrest or cause the arrest
and ta4e into custody the individuals naed in the attached list 8aong the,
the said delegates= and to hold the until other)ise so ordered by e or y duly
designated representativeB for their Bbeing active participants or for having given
aid and cofort in the conspiracy to sei,e political and state po)er in the country
and to ta4e over the 9overnent by force, the e1tent of )hich has no) assued
the proportion of an actual )ar against -ur people and our legitiate
9overnent and in order to prevent the fro further coitting acts that are
iniical or in+urious to our people, the 9overnent and our national interest, and
to hold said individuals until other)ise so ordered by e or by y duly
designated representative.B Even then, said delegates )ere allo)ed to cast their
votes in the assebly )hen the final draft )as subitted for approval of the
ebers of the Convention. Thus, it can be safely asserted that the freedo of
the Convention to act and to perfor )hatever )as incubent upon it as a
constituent body suffered no substantial diinution or constraint on account of
the proclaation of artial la).
To reiterate then, %ection 7 8&=, Article ID22 of the Ne) Constitution en+oins that
Ball proclaations, orders, decrees, instructions and acts proulgated, issued or
done by the incubent President shall be part of the la) of the land and shall
reain valid, legal, binding and effective even after the lifting of artial la) or
subse*uent proclaations, orders, decrees, instructions or other acts of the
incubent President, or unless e1pressly and e1plicitly odified or repealed by
the regular National Assebly.B Notably, the provision does not only a4e all
such proclaations, orders, decrees, etc. Bpart of the la) of the landB, in )hich
case, it )ould have been perhaps possible to argue, that they had +ust been
accorded the status of legislative enactents, ordinarily sub+ect to possible attac4
on constitutional grounds. The provision actually goes further. 2t e1pressly ordains
that the proclaations, orders, etc. referred to should Breain valid, legal,
binding, and effectiveB ... until revo4ed, odified, repealed or superseded in the
anners therein stipulated. /hat is ore, the provision refers to and
conteplates not only proclaations, orders, decrees, instructions and acts of
e1ecutive character, but even those essentially legislative, as ay be gathered
fro the nature of the proclaations, decrees, orders, etc. already e1isting at the
tie of the approval of the draft constitution and of the acceptance thereof by the
people. Accordingly, and because there is no doubt that Proclaation "#$" and
9eneral -rder No. &, herein challenged, are aong the proclaations and orders
conteplated in said provision, the Court has no alternative but to hold, as it
hereby holds, in consonance )ith the authoritative construction by the
Constitutional Convention of the fundaental la) of the land, that Proclaation
"#$" of President Marcos placing the Philippines under artial la) as )ell as
9eneral -rder No. &, pursuant to )hich petitioners are either in custody or
restrained of their freedos Buntil other)ise so ordered by 8the President= or
8his= duly designated representativeB are valid, legal, binding and effective, and
conse*uently, the continued detention of petitioner A*uino as )ell as the
constraints on the freedos of the other petitioners resulting fro the conditions
under )hich they )ere released fro custody are legal and constitutional. /e feel
/e are confired in this conclusion by the results of the referendu of 0uly &(;
&$, ".@(7 in )hich "$,#<&,#"A voter gave their affirative approval to the
follo)ing *uestion?
office beyond "'(7.
has initiated under Martial la)E
/e hasten to add to avoid isunderstanding or confusion of concepts, that it is
not because of the fiat or force of the Ne) Constitution itself that the transitory
provision is being relied upon for the purposes of the instant petitions. At this
point, and )ithout pre+udice to loo4ing into the atter insofar as other issues and
other cases affecting artial la) and the orders issued under it are concerned, all
that /e say is that the said provision constitutes an authoritative conteporary
construction of the artial la) clause of the Constitution giving light regarding
the eergency po)ers that the E1ecutive ay e1ercise after its proclaation.
5 B 5
But petitioner 6io4no
17
)ould dilute the force of this conclusion by trying to find
fault )ith the dispositive portion of the decision of this Court in the Ratification
Cases. Ce contends that actually, si1 +ustices rendered opinions e1pressly holding
that the Ne) Constitution has not been validly ratified in accordance )ith Article
ID of the "'7< Constitution and that the said dispositive portion Bis not consistent
)ith their findings, )hich )ere also the findings of the a+ority of the Court.B
-ther)ise stated, the position of petitioner 6io4no is that the decision in the
Ratification Cases has no binding legal force as regards the *uestion of )hether
or not the Ne) Constitution is indeed in force and effect. This is practically an
attept to a4e the Court resolve the sae points )hich counsels for the
petitioners in the Ratification Cases subitted to the Court on the last day for the
finality of the decision therein, but )ithout as4ing for either the reconsideration or
odification thereof, because they erely )anted to record for posterity their
o)n construction of the +udgent of the Court.
1*
/ithout in any )ay attepting to reopen the issues already resolved by the Court
in that decision, but for the sa4e of erasing any doubt as to the true iport of -ur
+udgent therein, and in order that those )ho )ould peruse the sae ay not
be led astray by counsel!s isconstruction thereof, the )riter feels it is here
opportune to say a fe) )ords relative to petitioner!s observations, considering
specially that -ur discussion above is predicated on the preise that the Ne)
Constitution is in full force and effect.
To start )ith, it is evident that the phrase in *uestion saying that Bthere is no
further +udicial obstacle to the Ne) Constitution being considered in force and
effectB )as in actual fact approved specifically by the ebers of the Court as
the +uridical result of their variant separate opinions. 2n fact, even those )ho
dissented, e1cept 0ustice >aldivar, accepted by their silence the accuracy of said
conclusion.
19
Cad any of the other +ustices, particularly, Chief 0ustice Ma4alintal
and 0ustice Castro felt that their +oint opinion did not +ustify such a +udgent,
they )ould have certainly ob+ected to its tenor, as 0ustice >aldivar did. 8%ee
footnote ""=. %urely, it is not for anyone to say no) that the Court isstated its
+udgent.
2n the particular case of Counsels TaFada and Arroyo, )hile it is true that on the
last day for the finality of that decision, they filed a BConstanciaB, separately fro
the Manifestation to the sae effect of the other counsel, discussing e1tensively
the alleged inconsistency bet)een the collective result of the opinions of the
a+ority of the Court and the dispositive portion of the +udgent, li4e the other
counsel, ho)ever, they did not a4e any prayer for relief, stating that their only
purpose is Bto save our people fro being isled and confused, in order to place
things in their proper perspective, and in order to 4eep faith )ith the "'7<
Constitution. ... so that )hen history passes +udgent upon the real )orth and
eaning of the historic Resolution of this Conorable Court proulgated on March
7", "'(7, it ay have all the facts before it,B for )hich reason, the a+ority of
the Court, over the dissent of 0ustices >aldivar, Antonio, Esguerra and the )riter,
did not consider it necessary to act, believing it )as not e1actly the occasion to
disabuse the inds of counsels about the +uridical integrity of the Court!s
actuation ebodied in the resolution. 2n a sense, therefore, said counsels should
be deeed to be in estoppel to raise the sae points no) as arguents for any
affirative relief, soething )hich they did not as4 for )hen it )as ore
appropriate to do so.
2n the second place, laying aside the division of vie)s aong the ebers of the
Court on the *uestion of )hether or not there has been copliance )ith the
provisions of Article ID of the "'7< Constitution, the vital and decisive fact is that
the a+ority of the Court held that the *uestion of )hether or not the Ne)
Constitution is already in force and effect is a political *uestion and the Court
ust perforce defer to the +udgent of the political departents of the
governent or of the people in that respect. 2n is true soe of the 0ustices could
not find sufficient basis for deterining )hether or not the people have accepted
the Ne) Constitution, but, on that point, four 0ustices, 0ustices Ma4asiar, Antonio,
Esguerra and the )riter, did vote categorically in the affirative, )hile t)o
0ustices, then Chief 0ustice Concepcion and 0ustice >aldivar, voted in the negative.
And in the +oint opinion of no) Chief 0ustice Ma4alintal and 0ustice Castro, it is
crystal clear that the reference therein to their inability to accurately appraise the
people!s verdict )as erely casual, the thrust of their position being that )hat is
decisive is the President!s o)n attitude regarding the situation, that is, )hether
he )ould ta4e the report of the Matipunan ng ga Barangay to the effect that the
people have approved and ratified the Ne) Constitution as definitive and final or
he )ould prefer to subit the ne) charter to the sae 4ind of election )hich
used to be held for the ratification of constitutional aendents, his decision
either )ay not being sub+ect to +udicial in*uiry. %tated differently, our
distinguished colleagues )ere of the vie) that )hether or not the Ne)
Constitution ay be held to have been duly ratified pursuant to Article ID of the
"'7< Constitution and even their o)n negative conclusion in such respect, have
no bearing on the issue of the enforceability of the Ne) Constitution on the basis
of its having been accepted by the people, and that although they )ere not
possessed of sufficient 4no)ledge to deterine this particular fact, the President!s
o)n finding thereon is conclusive upon the Court, since, according to the such a
decision is political and outside the pale of +udicial revie). To *uote their o)n
)ords?
Co)ever, a finding that the ratification of the draft Constitution by the Citi,ens
Asseblies, as certified by the President in Proclaation No. ""#&, )as not in
accordance )ith the constitutional and statutory procedure laid do)n for the
purpose does not *uite resolve the *uestions raised in these cases. %uch a
finding, in our opinion, is on a atter )hich is essentially +usticiable, that is,
)ithin the po)er of this Court to in*uire into. 2t iports nothing ore than a
siple reading and application of the pertinent provisions of the "'7<
Constitution, of the Election Code and of other related la)s and official acts. No
*uestion of )isdo or of policy is involved. But fro this finding it does not
necessarily follo) that this Court ay +ustifiably declare that the Constitution has
not becoe effective, and for that reason give due course to these petition or
grant the )rits herein prayed for. The effectivity of the Constitution in the final
analysis, is the basic and ultiate *uestion )hich considerations other than the
copetence of this Court, are relevant and unavoidable.
111 111 111
2f indeed it be accepted that the Citi,ens Asseblies had ratified the "'(7
Constitution and that such ratification as )ell as the establishent of the
governent thereunder fored part of a revolution, albeit peaceful, then the
issue of )hether or not that Constitution has becoe effective and, as a
necessary corollary )hether or not the governent legitiately functions under it
instead of under the "'7< Constitution, is political and therefore non;+udicial in
nature. Gnder such a postulate )hat the people did in the Citi,ens Asseblies
should be ta4en as an e1ercise of the ultiate sovereign po)ers. 2f they had risen
up in ars and by force deposed the then e1isting governent and set up a ne)
governent in its place, there could not be the least doubt that their act )ould be
political and not sub+ect to +udicial revie) but only to the +udgent of the sae
body politic act, in the conte1t +ust set forth, is based on realities. 2f a ne)
governent gains authority and doinance through force, it can be effectively
challenged only by a stronger force. no 0udicial revie) is concerned, if no force
had been resorted to and the people. in defiance of the e1isting Constitution but
peacefully because of the absence of any appreciable opposition, ordained a ne)
Constitution and succeeded in having the governent operate under it. Against
such a reality there can be no ade*uate +udicial relief. and so courts forbear to
ta4e cogni,ance of the *uestion but leave it to be decided through political
eans.
111 111 111
But then the President, pursuant to such recoendation. did proclai that the
Constitution had been ratified and had coe into effect. The ore relevant
consideration, therefore, as far as )e can see, should be as to )hat the President
had in ind in convening the Citi,ens Asseblies, subitting the Constitution to
the and proclaiing that the favorable e1pression of their vie)s )as an act of
ratification. 2n this respect sub+ective factors, )hich defy +udicial analysis and
ad+udication, are necessarily involved.
2n positing the proble )ithin an identifiable frae of reference )e find no need
to consider )hether or not the regie established by President Marcos since he
declared artial la) and under )hich the ne) Constitution )as subitted to the
Citi,ens Asseblies )as a revolutionary one. The pivotal *uestion is rather
)hether or not the effectivity of the said Constitution by virtue of Presidential
Proclaation No. ""#&, upon the recoendation of the Matipunan ng ga
Barangay, )as intended to be definite and irrevocable, regardless of non;
copliance )ith the pertinent constitutional and statutory provisions prescribing
the procedure for ratification. /e ust confess that after considering all the
available evidence and all the relevant circustances )e have found no
reasonably reliable ans)er to the *uestion.
111 111 111
2n the light of this seeing abivalence, the choice of )hat course of action to
pursue belongs to the President. /e have earlier ade reference to sub+ective
factors on )hich this Court, to our ind, is in no position to pass +udgent.
Aong the is the President!s o)n assessent of the )ill of the people as
e1pressed through the Citi,ens Asseblies and of the iportance of the "'(7
Constitution to the successful ipleentation of the social and econoic refors
he has started or envisioned. 2f he should decide that there is no turning bac4,
that )hat the people recoended through the Citi,ens Asseblies, as they
)ere reported to hi, deanded that the action he too4 pursuant thereto be final
and irrevocable, then +udicial revie) is out of the *uestion.
2n articulating our vie) that the procedure of ratification that )as follo)ed )as
not in accordance )ith the "'7< Constitution and related statutes, )e have
discharged our s)orn duty as )e conceive it to be. The President should no)
perhaps decide, if he has not already decided, )hether adherence to such
procedure is )eighty enough a consideration, if only to dispel any cloud of doubt
that ay no) and in the future shroud the nation!s Charter.
2n the deliberation of this Court one of the issues forulated for resolution is
)hether or not the ne) Constitution, since its subission to the Citi,ens
Asseblies, has found acceptance aong the people, such issue being related to
the political *uestion theory propounded by the respondents. /e have not tarried
on the point at all since )e find no reliable basis on )hich to for a +udgent.
Gnder a regie of artial la), )ith the free e1pression of opinions through the
usual edia vehicles restricted, )e have no eans of 4no)n, to the point of
+udicial certainty, )hether the people have accepted the Constitution. 2n any
event, )e do not find the issue decisive insofar as our vote in these cases is
concerned. To interpret the Constitution 5 that is +udicial. That Constitution
should be deeed in effect because of popular ac*uiescence 5 that is political,
and therefore beyond the doain of +udicial revie). 80ADE::ANA ;vs; TCE
EIECGT2DE %ECRETARK 5 <# %CRA "A";"A&. "A@. "AA;"A(. "(#;"("=
1/
2t only reains for the )riter to reiterate here a fe) considerations already
touched in the separate opinions in the Ratification Cases )hich in his considered
vie) ay )ell be ta4en into account by those )ho )ould read again the +udgent
of the Court therein. .
5 " 5
Caving coe to the conclusion that the *uestion of )hether or not the Ne)
Constitution is legally in force and effect is political and outside the doain of
+udicial revie), it )as not strange that the Court should siply rule that there
should be no further +udicial obstacle to the enforceent of the charter, should
that be, as it appeared to be, the intent of those actually in authority in the
governent. 2t is iplicit in the political *uestion doctrine that the Court!s opinion
as to the correctness of the legal postures involved is of no oent, for the
siple reason that the reedy against any error therein lies either )ith the
sovereign people at the polls or )ith the Political departent concerned in the
discharge of its o)n responsibility under the fundaental la) of the land, and not
)ith the Court. Even if it )ere other)ise desirable, if only for the benefit of those
interested in the settleent of the specific legal proble posed, any categorical
ruling thereon )ould transcend the bounds of +udicial propriety. 3or the Court to
hold it is )ithout po)er to decide and in the sae breath to actually decide is an
intolerable incongruity, hence any pronounceent or holding ade under the
circustances could have no ore force than an obiter dictum, no atter ho)
rich in erudition and precedential support. Conse*uently, to say that the Ne)
Constitution ay be considered by those in authority to be in force and effect
because such is the andate e1pressed by the people in the for announced by
the President!s but a proper anner of e1pressing the Court!s abstention fro
)resting the po)er to decide fro those in )ho such prerogative is
constitutionally lodged. This is neither to dodge a constitutional duty nor to refrain
fro getting involved in a controversy of transcendental iplications 5 it is plain
adherence to a principle considered paraount in republican deocracies )herein
the political *uestion doctrine is deeply ibedded as an ine1tricable part of the
rule of la). 2t is an unpardonable isconception of the doctrine for anyone to
believe that for the %upree Court to bo) to the perceptible or audible voice of
the sovereign people in appropriate instances is in any sense a departure fro or
a disregard of la) as applied to political situations, for the very rule that en+oins
+udicial interference in political *uestions is no less a legal principle than any other
that can be conceived, 2ndeed, +ust as, in la), +udicial decision rendered )ithin
abit of the courts! authority deserve the respect of the people, by the sae
to4en, the people!s verdict on )hat inherently is theirs to decide ust be
accorded due deference by the +udiciary. -ther)ise, +udges )ould be ore
po)erful than the people by )ho they have been given no ore prerogative
than to act solely )ithin the boundaries of the +udicial sphere. /ithal, a court ay
err in finding that a given situation calls for its abstention, in the sae )ay it ay
coit ista4es of +udgent about any order atter it decides, still its decision,
conceding its honesty, cannot be faulted as an assault on the rule of la). Thus, in
a broad sense, it ay be said that it is a necessary corollary of the truth that the
adinistration of +ustice in courts presided be huan beings cannot perfect that
even the honest ista4e of a +udge is la).
The )riter further subits that, as pointed out in his separate opinion in the
Ratification Cases, those )ho veheently insist that the referendu of 0anuary
"#;"<, "'(7 )as not the 4ind of election conteplated in Article ID of the "'7<
Constitution see to overloo4 that the said provision refers only to the ode of
ratifying aendents thereto and a4es no ention at all a ne) constitution
designed to supersede it is to be subitted for approval by the people. 2ndeed,
the )riter )ould readily agree, as )as already ade clear in the aforeentioned
opinion, that if )hat )ere subitted to the people in the 0anuary, "'(7
referendu had been erely an aendent or a bundle of aendents to the
"'7< Constitution, the results thereof could not constitute a valid ratification
thereof. But since it )as a )hole integral charter that the Citi,ens! Asseblies had
before the in that referendu, it is evident that the ratification clause invo4ed
cannot be controlling.
That a ne) constitution is not conteplated is indicated in the te1t of the
provision it itself. 2t says? B%uch aendents shall be valid as part of this
Constitution )hen approved by a a+ority of the votes cast ....B Co) can it be
ever conceived that the "'(7 Constitution )hich is an entire charter in itself,
differing substantially in its entirely and radically in ost of its provisions, fro
the "'7< Constitution be part of the latterE 2n other )ords, the ode ratification
prescribed in Article ID is only for aendents that can be ade part of the
)hole constitution, obviously not to an entire charter precisely purported to
supersede it.
And it is but logical that a constitution cannot and should not attept to bind
future generations as to ho) they )ould do a)ay )ith it in favor of one suitable
to their ore recent needs and aspirations. 2t is true that in Tolentino vs.
Comelec, @" %CRA (#&, this Court, thru the )riter, held that?
2n our discussion of the issue of +urisdiction, /e have already ade it clear that
the Convention cae into being by a call of a +oint session of Congress pursuant
to %ection " of Article ID of the Constitution, already *uoted earlier in this
opinion. /e reiterate also that as to atters not related to its internal operation
and the perforance of its assigned ission to propose aendents to the
Constitution, the Convention and its officers and ebers are all sub+ect to all
the provisions of the e1isting Constitution. No), /e hold that even as to its latter
tas4 of proposing aendents to the Constitution, it is sub+ect to the provisions
of %ection " of Article ID. This ust be so, because it is plain to Gs that the
fraers of the Constitution too4 care that the process of aending the sae
should not be underta4en )ith the sae ease and facility in changing an ordinary
legislation. Constitution a4ing is the ost valued po)er, second to none, of the
people in a constitutional deocracy such as the one our founding fathers have
chosen for this nation, and )hich )e of the succeeding generations generally
cherish. And because the Constitution affects the lives, fortunes, future and every
other conceivable aspect of the lives of all the people )ithin the country and
those sub+ect to its sovereignty, every degree of care is ta4en in preparing and
drafting it. A constitution )orthy of the people for )hich it is intended ust not
be prepared in haste )ithout ade*uate deliberation and study. 2t is obvious that
correspondingly, any aendent of the Constitution itself, and perforce ust be
conceived and prepared )ith as uch care and deliberation. 3ro the very nature
of things, the drafters of an original constitution, as already observed earlier,
operate )ithout any liitations, restraints or inhibitions save those that they ay
ipose upon theselves. This is not necessarily true of subse*uent conventions
called to aend the original constitution. 9enerally, the fraers of the latter see
to it that their handi)or4 is not lightly treated and as easily utilated or changed,
not only for reasons purely personal but ore iportantly, because )ritten
constitutions are supposed to be designed so as to last for soe tie, if not for
ages, or for, at least, so long as they can be adopted to the needs and e1igencies
of the people, hence, they ust he insulated against precipitate and hasty actions
otivated by ore or less passing political oods or fancies. Thus, as a rule, the
original constitutions carry )ith the liitations and conditions, ore or less
stringent, ade so by the people theselves, in regard to the process of their
aendent. And )hen such liitations or conditions are so incorporated in the
original constitution, it does not lie in the delegates of any subse*uent convention
to clai that they ay ignore and disregard such conditions because they are as
po)erful and onipotent as their original counterparts. 8At page (&@;(&A= .
But this passage should not be understood, as it )as not eant to be understood,
to refer to the people!s inalienable right to cast aside the )hole constitution itself
)hen they find it to be in their best interests to do so. 2t )as so indicated already
in the resolution denying the otion for reconsideration?
This is not to say that the people ay not, in the e1ercise of their inherent
revolutionary po)ers, aend the Constitution or proulgate an entirely ne) one
other)ise, but as long as any aendent is forulated and subitted under the
aegis of the present Charter, any proposal for such aendent )hich is not in
confority )ith the letter, spirit and intent of the provision of the Charter for
effecting aendents cannot receive the sanction of this Court. 8Resolution of
Motion for reconsideration, Tolentino vs. Coelec 9.R. No. :;7@"<#, 3ebruary @,
"'("= .
3or it is rather absurd to thin4 that in approving a ne) fundaental la) )ith
)hich they )ould replace the e1isting one, they have to adhere to the andates
of the latter, under pain of getting stuc4 )ith it, should they fall. -ne can easily
visuali,e ho) the evil forces )hich doinated the electoral process during the old
society )ould have gone into play in order to stifle the urge for change, had the
ode of ratification in the anner of past plebiscites been the one observed in
the subission of the Ne) Constitution. To reiterate )hat the )riter said in the
Ratification Cases?
Consider that in the present case )hat is involved is not +ust an aendent of a
particular provision of an e1isting Constitution. here, it is, as 2 have discussed
earlier above, an entirely ne) Constitution that is being proposed. This iportant
circustance a4es a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, )ho )as
hiself the petitioner in the case 2 have +ust referred to is, no) inviting -ur
attention to the e1act language of Article ID and suggesting that the said Article
ay be strictly applied to proposed aendents but ay hardly govern the
ratification of a ne) Constitution. 2t is particularly stressed that the Article
specifically refers to nothing else but Baendents to this ConstitutionB )hich if
ratified Bshall be valid as part of this Constitution.B 2ndeed, ho) can a )hole ne)
Constitution be by any anner of reasoning an aendent to any other
constitution and ho) can it, if ratified, for part of such other constitutionE ...
2t is not strange at all to thin4 that the aending clause of a constitution should
be confined in its application only to proposed changes in any part of the sae
constitution itself, for the very fact that a ne) constitution is being adopted
iplies a general intent to put aside the )hole of the old one, and )hat )ould be
really incongruous is the idea that in such an eventuality, the ne) Constitution
)ould sub+ect its going into effect any provision of the constitution it is to
supersede, to use the language precisely of %ection A, Article ID22, the effectivity
clause, of the Ne) Constitution. My understanding is that generally, constitutions
are self;born, they very rarely, if at all, coe into being, by virtue of any
provision of another constitution. This ust be the reason )hy every constitution
has its o)n effectivity clause, so that if, the Constitutional Convention had only
anticipated the idea of the referendu and provided for such a ethod to be used
in the ratification of the Ne) Constitution, 2 )ould have had serious doubts as to
)hether Article ID could have had priority of application.B 80avellana ;vs; The
E1ecutive %ecretary;<# %CRA "'(;"'$=.
%ince in the )ithdra)al otion of petitioner 6io4no, the )hole trust of his posture
relative to the alleged non;enforceability of the Constitution of "'(7 revolves
around supposed non;copliance in its ratification, )ith Article ID of the "'7<
Charter, and inasuch as it is evident that the letter and intent of that invo4ed
provision do not )arrant, as has +ust been e1plained, the application thereof to
the Ne) Constitution, for the siple reason that the sae is not in fact and in la)
as )ell as in for and in intent a ere aendent to the -ld Constitution, but
an integrally ne) charter )hich cannot conceivably be ade +ust a part thereof,
one cannot but vie) said otion to )ithdra) as having been designed for no
other purpose than to serve as a vehicle for the ventilation of petitioner!s political
rather than legal outloo4 )hich deserves scant consideration in the deterination
of the erits of the cases at bar.
2n any event, that a constitution need not be ratified in the anner prescribed by
its predecessor and that the possible invalidity of the ode of its ratification does
not affect its enforceability, as long as the fact of its approval by the people or
their ac*uiescence thereto is reasonably sho)n, is aply deonstrated in the
scholarly dissertation ade by our learned colleague, Mr. 0ustice 3eli1 D. Ma4asiar,
in his separate opinion in the Ratification Cases, )hich carried the concurrence of
0ustices Antonio, Esguerra and the )riter. And that )hat too4 place in the
Philippines in 0anuary, "'(7 is not an unprecedented practice peculiar to our
country, is li4e)ise plainly sho)n therein, since it appears that no less than the
Constitution of the Gnited %tates of Aerica, the nation )hose close adherence to
constitutionalis petitioners )ould )ant the 3ilipinos to eulate, )as also ratified
in a )ay not in confority )ith the Articles of Confederation and Perpetual Gnion,
the Constitution )hich it replaced, and the reason for it )as only because those in
authority felt that it )as ipossible to secure ratification, if the aendent
clause of the Articles )ere to be observed, and so they resorted to e1tra;
constitutional eans to accoplish their purpose of having a ne) constitution.
3ollo)ing is the pertinent portion of Mr. 0ustice Ma4asiar!s illuinating dis*uisition
based on actual historical facts rather than on theoretical and philosophical
hypotheses on )hich petitioners )ould see to rely?
The classic e1aple of an illegal subission that did not ipair the validity of the
ratification or adoption of a ne) Constitution is the case of the 3ederal
Constitution of the Gnited %tates. 2t should be recalled that the thirteen 8"7=
original states of the Aerican Gnion 5 )hich succeeded in liberating theselves
fro England after the revolution )hich began on April "', "((< )ith the s4irish
at :e1ington, Massachusetts and ended )ith the surrender of 9eneral Corn)allis
at Kor4to)n, Dirginia, on -ctober "',"($" 8Encyclopedia Brit., Dol. ", "'77 Ed., p.
((A= 5 adopted their Articles of Confederation and Perpetual Gnion, that )as
)ritten fro "((A to "((( and ratified on March ", "($" 8Encyclopedia Brit., Dol.
"", "'AA Ed., p. <&<=. About si1 years thereafter, the Congress of the
Confederation passed a resolution on 3ebruary &", "($( calling for a 3ederal
Constitutional Convention B)or the sole and e!press purpose o) revisaing the
articles o) con)ederation ....! 8Appendi1 ", The 3ederalist, Modern :ibrary ed., p.
<((, ephasis supplied=.
The Convention convened at Philadelphia on May "@, "($(. Article I222 of the
Articles of Confederation and Perpetual Gnion stated specifically?
The articles of this confederation shall be inviolably observed by every state, and
the union shall be perpetual. nor shall any alteration at any time herea)ter be
made in any o) them> unless such alteration be agreed to in a congress o) the
united states# and be a)terwards con)irmed by the legislatures o) every state.
8%ee the 3ederalist, Appendi1 "", Modern :ibrary Ed., "'7(, p. <$@. ephasis
supplied=.
But the foregoing re*uireents prescribed by the Articles of Confederation and
Perpetual Gnion for the alteration and for the ratification of the 3ederal
Constitution as drafted by the Philadelphia Convention )ere not follo)ed. 3earful
that the said 3ederal Constitution )ould not be ratified by the state legislatures as
prescribed, the Philadelphia Convention adopted a resolution re*uesting the
Congress of the Confederation to pass a resolution providing that the 3ederal
Constitution should be subitted to elected state conventions and if ratified by
the conventions in nine 8'= states, not necessarily in all thirteen 8"7= states, the
said Constitution shall ta4e effect.
Thus, history Professor Ed)ard Earle Mead of Princeton Gniversity recorded that?
2t )ould have a counsel of perfection to consign the ne) Constitution to the
tender ercies of the legislatures of each and all of the "7 states. E1perience
clearly indicated that ratification )ould have had the sae chance as the
scriptural cael passing thru the eye of a needle. +t was there)ore determined to
recommend to Congress that the new Constitution be submitted to conventions in
the several states specially elected to pass and when it should be rati)ied by nine
o) the thirteen states ....! 8The 3ederalist, Modern :ibrary Ed., "'7(, 2ntroduction
by Ed)ard Earle Mead, pp. viii;i1 ephasis supplied=.
Cistorian %auel Eliot Morison siilarly recounted?
The Convention, anticipating that the influence of any state politicians )ould be
Anti federalist, provided for ratification of the Constitution by popularly elected
conventions in each state. %uspecting that Rhode 2sland, at least, )ould prove
recalcitrant, it declared that the Constitution )ould go into effect as soon as nine
states ratified. The convention ethod had the further advantage that +udges,
inisters, and others ineligible to state legislatures could be elected to a
convention. The nine;state provision )as, of course, ildly revolutionary. But the
Congress of the Confederation, still sitting in Ne) Kor4 to carry on federal
governent until relieved, forally subitted the ne) constitution to the states
and politely faded out before the first presidential inauguration.! 8The -1ford
Cistory of the A. People by %auel Eliot Morison, "'A< ed., p. 7"&=.
And so the Aerican Constitution )as ratified by nine 8'= states on 0une &", "($$
and by the last four states on May &', "('# 8"& C. 0. p. A(' footnote, "A C.0.%.
&( 5 by the state conventions and not by all thirteen 8"7= state legislatures as
re*uired by Article I222 of the Articles of Confederation and Perpetual Gnion
afore*uoted 5 and in spite of the fact that the 3ederal Constitution as originally
adopted suffers fro two basic in)irmities# namely the absence o) a bill o) rights
and o) a provision a))irming the power o) 0udicial review.
The liberties of the Aerican people )ere guaranteed by the subse*uent
aendents to the 3ederal Constitution. The doctrine of +udicial revie) has
becoe part of Aerican constitutional la) only by virtue of a +udicial
pronounceent by Chief 0ustice Marshall in the case of Marbury vs. Madison
8"$#7, " Branch "7(=.
Gntil this date, no challenge has been launched against the validity of the
ratification of the Aerican Constitution, nor against the legitiacy of the
governent organi,ed and functioning thereunder.
2n the "'@A case of =heeler vs. Board o) Trustees 87( %E &nd 7&&, 7&A; 77#=,
)hich enunciated the principle that the validity of a ne) or revised Constitution
does not depend on the ethod of its subission or ratification by the people, but
on the )act o) )iat or approval or adoption or ac(uiescence by the people# which
)act o) rati)ication or adoption or ac(uiescence is all that is essential, the Court
cited precisely the case of the irregular revision and ratification by state
conventions of the 3ederal Constitution, thus?
No case identical in its facts )ith the case no) under consideration has been
called to our attention, and )e have found none, /e thin4 that the principle )hich
)e apply in the instant case )as very clearly applied in the creation of the
constitution of the Gnited %tates. The convention created by a resolution of
Congress had authority to do one thing, and one only, to )it, aend the articles
of confederation. This they did not do, but subitted to the sovereign po)er, the
people, a ne) constitution. 2n this anner )as the constitution of the Gnited
%tates subitted to the people and it becae operative as the organic la) of this
nation )hen it had been properly adopted by the people.
Poeroy!s Constitutional :a), p. <<, discussing the convention that forulated
the constitution of the Gnited %tates, has this to say BThe convention proceeded
to do, and did accoplish, )hat they )ere not authori,ed to do by a resolution of
Congress that called the together. That resolution plainly conteplated
aendents to the articles of confederation, to be subitted to and passed by
the Congress, and after)ards ratified by all the state legislatures, in the anner
pointed out by the e1isting organic la). But the convention soon becae
convinced that any aendents )ere po)erless to effect a cure. that the disease
)as too deeply seated to be reached by such tentative eans. They sa) the
syste they )ere called to iprove ust be totally abandoned, and that the
national idea ust be re;established at the center of their political society. 2t )as
ob+ected by soe ebers, that they had no po)er, no authority, to construct a
ne) governent. They had no authority, if their decisions )ere to he final. and
no authority )hatever, under the articles of confederation, to adopt the course
they did. But they 4ne) that their labors )ere only to be suggestions. and that
they as )ell as any private individuals, and any private individuals as )ell as they,
had a right to propose a plan of governent to the people for their adoption.
They )ere, in fact, a ere asseblage of private citi,ens, and their )or4 had no
ore binding sanction, than a constitution drafted by Mr. Cailton in his office,
)ould have had. The people, by their e1pressed )ill, transfored this suggestion,
this proposal, into an organic la), and the people ight have done the sae )ith
a constitution subitted to the by a single citi,en.
111 111 111
... =hen the people adopt a completely revised constitution# the )raming or
submission o) the instrument is not what gives its binding )orce and e))ect. The
)iat o) the people# and only the )iat o) the people# can breathe li)e into a
Constitution.
... =e do not hesitate to say that a court is never 0usti)ied in placing by
implication a limitation upon the sovereign. This would be an authori%ed e!ercise
o) sovereign power by the court. 82n %tate v. %)ift A' 2nd. <#<, <"', the 2ndiana
%upree Court said? !The people of a %tate ay for an original constitution, or
abrogate an old one and for a ne) one, at and tie, )ithout and political
restriction e1cept the constitution of the Gnited %tates. .... 87( %E 7&(;7&$, 7&',
ephasis supplied.=
2n the "'#7 case of =eston vs. ,yan, the court held?
2t reains to be said that if )e felt at liberty to pass upon this *uestion, and )ere
copeller to hold that the act of 3ebruary &7, "$$(, is unconstitutional and void,
it )ould not, in our opinion, by any eans follo) that the aendent is not a
part of our state Constitution. 2n the recent case of Taylor vs. Commonwealth
8Da.= @@ %.E. (<@, the "upreme Court o) 2irginia hold that their state Constitution
o) 45A3# having been acknowledged and accepted by the o))icers administering
the state government# and by the people# and being in )orce without t opposition
must be regarded as an e!isting Constitution# irrespective o) the (uestion as to
whether or not the convention which promulgated it had authority so to do
without submitting it to a vote o) the people. 2n Brittle v. &eople, & Neb. "'$, is a
siilar holding as to certain provisions of the Nebras4a Constitution of "$$A,
)hich )ere added by the :egislature at the re*uireent of Congress, though
never subitted to the people for their approval. 8'( N/ 7@';7<#. ephasis
supplied=.
Against the decision in the /heeler case, supra., confiring the validity of the
ratification and adoption of the Aerican Constitution, in spite of the fact that
such ratification )as a clear violation of the prescription on alteration and
ratification of the Articles of Confederation and Perpetual Gnion, petitioners in 9.
R. No. :;7A"A< disissed this ost significant historical fact by calling the 3ederal
Constitution of the Gnited %tates as a revolutionary one, invo4ing the opinion
e1pressed in Dol. "A, Corpus 0uris %ecundu, p. &(, that it )as a revolutionary
constitution because it did not obey the re*uireent that the Articles of
Confederation and Perpetual Gnion can be aended only )ith the consent of all
thirteen 8"7= state legislatures. This opinion does not cite any decided case, but
erely refers to the footnotes on the brief historical account of the Gnited %tates
Constitution on p. A(' of Dol. "&, C0%. Petitioners, on p. "$ of their ain Notes,
refer G% to pp. &(#;7"A of the -!)ord 1istory o) the 'merican &eople, "'A< Ed.
by %auel Eliot Morison, )ho discusses the Articles of Confederation and
Perpetual Gnion in Chapter ID222 captioned !Revolutionary Constitution Ma4ing,
"((< "($"! 8pp. &(#;&$"=. 2n Chapter II on !The Creative Period in Politics,
"($<;"($$,! Professor Morison delineates the genersis of the 3ederal Constitution,
but does not refer to it even iplicitly as a revolutionary constitution 8pp. &'(;
7"A=. Co)ever, the 3ederal Constitution ay be considered revolutionary fro
the vie)point of Mc2ver if the ter revolution is understood in !its /26ER sense to
ebrace decisive changes in the character of governent, even though they do
not involve the violent overthro) of an established order, ...! 8R.M. Mac2ver, The
/eb of 9overnent, "'A< ed., p. &#7=.
2t is rather ridiculous to refer to the Aerican Constitution as a revolutionary
constitution, The Artycles of Confederation and Perpetual Gnion that )as in force
fro 0uly "&, "((A to "($$, forged as it )as during the )ar of independence )as
revolutionary constitution of the thirteen 8"7= states. 2n the e1isting 3ederal
Constitution of the Gnited %tates )hich )as adopted seven 8(= or nine 8'= years
after the thirteen 8"7= states )on their independence and long after popular
support for the governent of the Confederation had stabili,ed )as not a product
of a revolution. The 3ederal Constitution )as a !creation of the brain and purpose
of an! in an era of peace. 2t can only be considered revolutionary in the sense
that it is a radical departure fro its predecessor, the Articles of Confederation
and Perpetual Gnion.
2t is e*ually absurd to affir that the present 3ederal Constitution of the Gnited
%tates is not the successor to the Articles of Confederation and Perpetual Gnion.
The fallacy of the stateent is so obvious that no further refutation is needed.
8GA "C,' 3A5734G= .
Moreover, )hether a proposal subitted to the people is +ust an aendent to
an e1isting constitution )ithin the conteplation of its aendent clause or is a
ne) charter not coprehended by its language ay not be deterined solely by
the siple processes of analysis of and coparison bet)een the contents of one
and the other. Dery uch depends on )hat the constituent assebly, reflecting its
understanding of the desire of the people it represents, actually intends its
handi)or4 to be, as such intent ay be deduced fro the face of the docuent
itself. 3or the truth is that )hatever changes in for and in substance a
constitution ay undergo, as long as the sae political, social and econoic
ideologies as before continue to be the otivation behind such changes, the
result can never be, in a strict sense, a ne) constitution at all. 2ndeed, in such
circustance, any alteration or odification of any provision of a constitution, no
atter ho) e1tensive, can al)ays he traced as founded on its o)n bedroc4,
thereby proving identity. 2t is therefore the e1pressed desire of the a4ers of the
charter that is decisive. And that is )hy the Ne) Constitution has its o)n
effectivity clause )hich a4es no reference ho)soever to Article ID of the past
charter.
11
No), ho) the founding fathers of Aerica ust have regarded the difference
bet)een a constitutional aendent, on the one hand, and a ne) constitution,
on the other, )hen they found the Articles of Confederation and Perpetual Gnion
no longer ade*uate for the full developent of their nation, as can be deduced
fro the historical account above, is at least one case in point 5 they e1ercised
their right to ratify their ne) fundaental la) in the ost feasible anner,
)ithout regard to any constitutional constraints. And yet, it is the constitution that
is reputed to have stood all tests and )as, in fact, the odel of any national
constitutions, including our o)n of "'7<, if it cannot be accurately regarded also
as the odel of the present one.
/ith the foregoing considerations in ind, it can be readily seen ho) pointless it
is to contend, as petitioner 6io4no does in his otion to )ithdra), that )hat he
dees as the failure of the 0anuary, "'(7 referendu to confor )ith the
re*uireents of Article ID of the "'7< Constitution detracts fro the
enforceability of the Ne) Constitution, in the light of the President!s assertion
contained in Proclaation ""#& that it has been approved and ratified by the
people, coupled )ith his evident fir and irreversible resolution to consider it to
have been, indeed, duly ratified, and in the face of the indisputable fact that the
)hole governent effectively in control of the entire Philippine territory has been
operating under it )ithout any visible resistance on the part of any significant
sector of the populace. To allude to the filing of the petitions in the Plebiscite and
the Ratification Cases and the occasional appearances in soe public places of
soe underground propaganda )hich, any)ay, has not cut any perceptible
ipression any)here, as indicative or evidence of opposition by the people to the
Ne) Constitution )ould be, to use a coonplace but apt e1pression, to ista4e
the trees for the forest.
2t is thus abundantly clear that the passionate and tenacious raciocination in
petitioner 6io4no!s )ithdra)al otion tending to assail the cogency of our
opinions and their consistency )ith the +udgent in the Ratification Cases, to the
e1tent of using ters that could signify doubt in the good faith and intellectual
integrity of soe ebers of the Court and of trying to ebarrass the Court
itself before the bar of history, does not in fact have any plausible basis
)hatsoever.
C - * C L < " + - *
The instant cases are uni*ue. To -ur 4no)ledge never before has any national
tribunal of the highest authority been called upon to pass on the validity of a
artial la) order of the E1ecutive issued in the face of actual or iinent danger
of a rebellion 5 threatening the very e1istence of the nation. The petitions herein
treat of no ore than the deprivation of liberty of the petitioners, but in reality
)hat is involved here is the legitiacy of the governent itself. No %upree
Court of any other country in the )orld, /e reiterate, has ever been confronted
)ith such a transcendental issue.
This is, therefore, a decision that affects not the petitioners alone, but the )hole
country and all our people. 3or this reason, /e have endeavored to the best of
our ability to loo4 at all the issues fro every conceivable point of vie). /e have
gone over all the +urisprudence cited by the parties, the )ritings of learned and
4no)ledgeable authorities they have *uoted and )hatever /e could avail of by
-urselves. /e trust /e have not isunderstood any of the contentions of the
parties and their able and learned counsels and that /e have not overloo4ed any
authority relevant to the. And /e ust say /e perceive no cause to do)ngrade
their love of and loyalty to our coon otherland even if differences there are
bet)een our convictions as to ho) to earlier attain the national destiny. 2ndeed,
/e have not considered as really persuasive any insinuations of otivations born
of political partisanship and personal abitions.
/e do not ean to belittle or depreciate foreign +urisprudence, but /e have
deliberately refrained fro relying on alien opinions, +udicial or other)ise, in order
to stress that the 3ilipinos can solve their o)n probles )ith their o)n resources
intellectual or other)ise. Any)ay, /e doubt if there is enough relevant parallelis
bet)een occurrences in other countries passed upon by the courts )ith )hat is
happening here today.
Principally, by this decision, /e hold that the po)er to proclai artial la) is
lodged by the Constitution e1clusively in the E1ecutive, but the grant of +udicial
po)er to the %upree Court also by the Constitution is plenary and total and,
therefore, )hen it is a atter of +udicial notice, because it is coonly 4no)n by
the general public or is capable of un*uestionable deonstration, that any
particular declaration of artial la) is devoid of any of the constitutionally
re*uired bases, the Court has the full authority and it )ould not hesitate to stri4e
do)n any such iprovident proclaation and to ad+udge that the legitiate
governent continue )ithout the offending E1ecutive, )ho shall be replaced in
accordance )ith the rules of succession provided in the e1isting Constitution and
la)s. 2n the cases at bar, ho)ever, the Court, )ith the abstention of only one
eber )ho has preferred not to eit any opinion on the issue at this tie,
holds that the President had good and sufficient grounds in issuing Proclaation
"#$", )hether the sae is e1ained in the light of its o)n recitals, as soe
0ustices advocate, or of facts of +udicial notice together )ith those undisputed in
the record, in the anner the rest of Gs have actually tested it. /e further hold
that in restraining the liberties of petitioners, the President has not overstepped
the boundaries fi1ed by the Constitution.
3or doctrinal purposes, it is best to add to all the foregoing that a +udicial
challenge against the iposition of artial la) by the E1ecutive in the idst of
the actualities of a real assault against the territorial integrity and life of the
nation, inevitably calls for the reconciliation, )hich /e feel /e have been able to
effectuate here, of t)o e1trees in the allocation of po)ers under the
Constitution 5 the resort by the E1ecutive to the ultiate )eapon )ith )hich the
fundaental la) allo)s hi to defend the state against factual invasion or
rebellion threatening the public safety, on the one hand, and the assertion by the
%upree Court of the irreducible plenitude of its +udicial authority, on the other.
No other conflict of prerogatives of such total diensions can conceivably arise
fro the operation of any other t)o parts of the charter. This decision then could
)ell be sui generis, hence, )hatever has been said here )ould not necessarily
govern *uestions related to adverse clais of authority related to the lo)er levels
of the hierarchy of po)ers in the Constitution.
/e hubly subit this decision to the +udgent of all our people, to history and
to the generations of 3ilipinos still unborn, confident that it carries all that /e
4no) and all that /e are. As /e do this, /e are fully a)are that in this critical
stage of our life as a nation, our overriding need is unity. 2t is -ur fervent hope
that by this decision, /e have duly perfored -ur constitutionally assigned part
in the great effort to reduce if not to eliinate the reaining fundaental causes
of internecine strife.
May 6ivine Providence continue to al)ays 4eep the Philippines in the right paths
of deocracy, freedo and +ustice for allS
J < / G M * T
/CERE3-RE, the petitions in all the above;entitled cases are disissed. No costs.
' / / * / < M
The follo)ing are y reasons for voting in favor of granting the otion to
)ithdra)?
2t is eleentary that the reedy of habeas corpus e1ists only against involuntary
confineent. The oent, therefore, that after initially *uestioning the legality of
his detention, the petitioner see4s )ithdra)al of his petition at any stage of the
case before +udgent, his detention becoes in la) autoatically, by his o)n
act, voluntary or )ith his e1press consent, hence, the reason for further in*uiry
into the circustances thereof ceases copletely, and the court!s duty to proceed
further and render +udgent coes to an end. By allo)ing the )ithdra)al, no
interest of +ustice )ould be pre+udiced, no +uridical har needing redress could be
caused to anyone. Accordingly, the petitioner!s otive for his )ithdra)al, )hether
e1pressed or unarticulated, are absolutely iaterial, albeit, in the case at bar,
petitioner hiself suggests that, )hile acceding to his re*uest, the ebers of
the Court ay e1press their vie)s thereon. 8%ur;Re+oinder dated May &", "'(@,
p. 7=.
2n the ind of the )riter, the grounds alleged by petitioner 6io4no and his
counsel have an apparent tendency to offend the dignity of the Court and to
underine the respect and faith of the people in its capacity to adinister +ustice.
/hat is )orse, they ay be false and baseless, as they are eotional and
personal. Gnless properly e1plained, they give the ipression that ovant is
ipeaching the integrity and good faith of soe ebers of the Court. 2n the
preises, said petitioner and counsel could be re*uired to sho) cause )hy they
should not be held in contept of the Court, but there being no foral charge to
such effect in the instant proceedings, and in order not to confuse the discussion
and resolution of the transcendental issues herein, it is preferable, and the Court
has opted, to ta4e up the atter of the possible responsibility for contept
separately, either otu propio or upon the initiative of )hoever ay allege to be
aggrieved thereby. 3or the present, it has to be stated, ho)ever, that under no
circustances ay any party or counsel vent his personal feelings and eotions
in any pleading or paper Bled )ith the Court, particularly )hile his case is pending
therein. Personalities that are directed to)ards the occupants of the +udicial office
naturally ar the legal issues before the, correspondingly a4ing ore difficult
their proper and ipartial resolution. Even if the +udges concerned are actually, as
they are supposed to be, unoved by the, still there can be no assurance that
the litigants and the public in general )ill be convinced of their absolute
ipartiality in their subse*uent actuations, and to that e1tent, the interests of
+ustice are bound to suffer. 2t is but in 4eeping )ith the highest traditions of the
+udiciary that such iproprieties are not allo)ed to pass unnoticed and are dealt
)ith by the court either moto propio or upon corresponding coplaint, )hether in
an independent proceeding or as an incident )ithin the pending case. No court
)orthy of its position should tolerate the.
But assaults upon the dignity and integrity of the court, are one thing, and the
issues of the case at hand are another. Regardless of )hat the +udge thin4s is the
belief of those concerned about the otivations of the court!s subse*uent
resolution of the issues, unless he inhibits hiself fro further acting in the case,
circustances peritting, it is his inescapable duty to render +udgent, ta4ing
care, of course, that he reains, in fact, ob+ective and ipartial. 2t is, therefore,
of no oent, for the purposes of disposing of petitioner 6io4no!s otion to
)ithdra), )hether or not the charges leveled by hi and his counsel against the
Court or any of its ebers are founded or unfounded and )hether or not the
sae constitute actionable isconduct on their part, as participants in the case
before Gs andNor as ebers of the Bar and officers of the Court. Any possible
action for such probable isconduct has no bearing on the *uestion of )hether or
not, observing the usual rules and practices, the Court should disiss his ain
petition, the alleged illegality of his detention having been duly cured by his
voluntary subission thereto.
All these is not to say that 2 have not given thought to the iperative necessity of
resolving the issues of public interest raised in petitioner 6io4no!s petition. 2 can
also see that it is iportant to the 9overnent that he does not escape the legal
effects of the decision in these cases. But if these are the ain reasons for
denying his otion to )ithdra), 2 believe that the 9overnent!s apprehensions
are rather unfounded. /hile 2 )ould not say that by his )ithdra)al, petitioner
ipliedly adits the correctness of the stand of the 9overnent, )hat )ith the
avalanche of protests against alleged in+ustice and supposed legal errors running
through his pleadings, 2 a of the considered vie) that in la), he cannot
correctly pretend that the rulings of the Court in the other cases herein in respect
to the issues therein that are coon )ith those of his petition are not binding
on hi at least by precedential force. And inasuch as in the cases not
)ithdra)n, all the issues of public interest raised in his case )ill have to be
resolved, 2 do not see any purpose in insisting that he should reain a petitioner
)hen he refuses, as a atter of conscience, to a)ait the unfavorable verdict he
foresees in his o)n case, )hich he hiself anticipates )ill not set hi free
any)ay. -f course, he protests that nothing he can say can convince the Court,
and, on the other hand, perhaps, the ost technically accurate and palpably +ust
decision the court ay fashion )ill not convince hi, but it has to be a strange
court that )ill yield to a litigant!s point of vie) +ust because he sincerely feels he
is right, )hereas it is not unusual for a litigant to pretend not to see the
correctness and +ustice of the court!s +udgent unfavorable to his interests.

!NTONIO, J.:
These applications for )rits of habeas corpus present for revie) Proclaation No.
"#$" of the President of the Philippines, placing the country under artial la) on
%epteber &", "'(&, and the legality of the arrest and detention of prisoners
under the aforesaid proclaation. The issues posed have confronted every
deocratic governent in every clie and in every age. They have al)ays
recurred in ties of crisis )hen the nation!s safety and continued e1istence are in
peril. 2nvolved is the proble of haroni,ing t)o basic interests that lie at the
foundation of every deocratic constitutional syste. The first is contained in
Rosseau!s forulation, !the people!s first intention is that the %tate shall not
perish,B in other )ords, the right of the %tate to its e1istence. The second are the
civil liberties guaranteed by the Constitution, )hich Biply the e1istence of an
organi,ed syste aintaining public order )ithout )hich liberty itself )ould be
lost in the e1cesses of unrestrained abuses. ...B 8Co1 vs. Ne) Capshire, 7"&
G.%. <A' H"'@#J=.
The petitions for habeas corpus initially raise the legality of the arrest and
detention of petitioners. As the respondents, ho)ever, plead, in defense, the
declaration of artial la) and the conse*uent suspension of the privilege of
habeas corpus, the validity of Proclaation No. "#$" is the ultiate constitutional
issue.
Cearings )ere held on %epteber &A and &' and -ctober A, "'(&.
1
Mean)hile, soe of the petitioners )ere allo)ed to )ithdra) their petitions.
1
Most of the petitioners )ere subse*uently released fro custody under certain
conditions and soe of the insist that their cases have not becoe oot as
their freedo of oveent is restricted.
3
As of this date, only petitioner Benigno
A*uino, 0r. 8:;7<<@A= reains in ilitary custody.
-n August "", "'(7, petitioner Benigno A*uino, 0r. )as charged before the
ilitary coission )ith the cries of subversion under the Anti;%ubversion Act
8Republic Act No. "(##=, urder and illegal possession of firears. -n August &7,
"'(7, he filed an action for certiorari and prohibition 8:;7<<@A= )ith this Court,
assailing the validity of his trial before the ilitary coission, because the
creation of ilitary tribunals for the trial of offenses coitted by civilians is
unconstitutional in the absence of a state of )ar or status of belligerency. being
artial la) easures, they have ceased )ith the cessation of the eergency.
and he could not e1pect a fair trial because the President of the Philippines had
pre+udged his case. That action is pending consideration and decision.
-n 6eceber &$, "'(7, petitioner 6io4no oved to )ithdra) his petition 8:;
7<<7'=, claiing that there )as delay in the disposition of his case, and that as a
conse*uence of the decision of this Court in Javellana v. !ecutive "ecretary
8:7A"@&, March 7", "'(7= and of the action of the ebers of this Court in
ta4ing an oath to support the Ne) Constitution, he has reason to believe that he
cannot Breasonably e1pect to get +ustice in this case.B Respondents oppose this
otion on the ground that public interest or *uestions of public iportance are
involved and the reasons given are factually untrue and conteptuous. -n
%epteber "", "'(@, petitioner 6io4no )as released fro ilitary custody. 2n
vie) of his release, it )as the consensus of the a+ority of the Court to consider
his case as oot. /e shall no) proceed to discuss the issues posed by the
reaining cases.
". 2s the deterination by the President of the Philippines of the necessity for the
e1ercise of his po)er to declare artial la) political, hence, final and conclusive
upon the courts, or is it +usticiable and, therefore, his deterination is sub+ect to
revie) by the courtsE
&. Assuing :ansang to be applicable, can it be said that the President acted
arbitrarily in issuing Proclaation No. "#$"E
7. Assuing that the issues are +usticiable, can the %upree Court upon the facts
of record and those +udicially 4no)n to 2t no) declare that the necessity for
artial la) has already ceasedE
@. Gnder a regie of artial la), can the Court in*uire into the legal +ustification
for the arrest and detention as )ell as the other constraints upon the individual
liberties of the petitionersE 2n the affirative, does 2t have any ade*uate legal
basis to declare that their detention is no longer authori,ed by the Constitution.
2
C-*"T+T<T+-* +*T*// "T,-*G HC<T+2
The right of a governent to aintain its e1istence is the ost pervasive aspect
of sovereignty. To protect the nation!s continued e1istence, fro e1ternal as )ell
as internal threats, the governent Bis invested )ith all those inherent and
iplied po)ers )hich, at the tie of adopting the Constitution, )ere generally
considered to belong to every governent as such, and as being essential to the
e1ercise of its functionsB 8Mr. 0ustice Bradley, concurring in :egal Tender Cases
HG%J "& /all. @<(, <<@, <<A, &# :. ed. &$(, 7"@, 7"<=. To attain this end, nearly
all other considerations are to be subordinated. The constitutional po)er to act
upon this basic principle has been recogni,ed by all courts in every nation at
different periods and diverse circustances.
These po)ers )hich are to be e1ercised for the nation!s protection and security
have been lodged by the Constitution under Article D22, %ection "# 8&= thereof, on
the President of the Philippines, )ho is clothed )ith e1clusive authority to
deterine the occasion on )hich the po)ers shall be called forth.
The constitutional provision e1pressly vesting in the President the po)er to place
Bthe Philippines or any part thereof under artial la) in case of invasion,
insurrection or rebellion or iinent danger thereof )hen the public safety
re*uires it,B
4
is ta4en bodily fro the 0ones :a) )ith the difference that the
President of the Gnited %tates had the po)er to odify or vacate the action ta4en
by the 9overnor;9eneral.
5
Although the Civil 9overnor, under %ection < of the
Philippine Bill of "'#&, could, )ith the approval of the Philippine Coission,
suspend the privilege of the )rit of habeas corpus no po)er to proclai artial
la) )as specifically granted. This po)er is not entioned in the 3ederal
Constitution of the Gnited %tates. 2t siply designates the President as
coander;in;chief?
The President shall be Coander;in;Chief of the Ary and Navy of the Gnited
%tates and of the ilitia of the several states )hen called into actual service of
the Gnited %tates ...
6
2ts absence in the 3ederal Constitution not)ithstanding, President Abraha
:incoln during the Civil /ar placed soe parts of the country under artial la).
Ce predicated the e1ercise of this po)er on his authority as Coander;in;Chief
of the Ared 3orces and on the ground of e1tree necessity for the preservation
of the Gnion. /hen not e1pressly provided in the Constitution, its +ustification,
therefore, )ould be necessity. Thus soe authoritative )riters vie) it as Bnot a
part of the Constitution but is rather a po)er to preserve the Constitution )hen
constitutional ethods prove inade*uate to that end. 2t is the la) of necessity.B
7
%ince the eaning of the ter Bartial la)B is obscure, as is the po)er
e1ercisable by the Chief E1ecutive under artial la), resort ust be had to
precedents. Thus the po)ers of the Chief E1ecutive under the Coander;in;
Chief clause of the 3ederal Constitution have been dra)n not only fro general
and specific provisions of the Constitution but fro historical precedents of
Presidential action in ties of crises. :incoln invo4ed his authority under the
Coander;in;Chief clause of the 3ederal Constitution for the series of
e1traordinary easures )hich he too4 during the Civil /ar, such as the calling of
volunteers for ilitary service, the augentation of the Ary and Navy, the
payent of T& illion fro the un appropriated funds in the Treasury to persons
unauthori,ed to receive it, the closing of the Post -ffice to Btreasonable
correspondence,B the bloc4ade of %outhern ports, the suspension of the )rit of
habeas corpus, the arrests and detentions of persons B)ho )ere represented to
hi as being engaged in or conteplating Btreasonable practicesB 5 all this for
the ost part )as done )ithout the least statutory authori,ation fro Congress.
The actions of :incoln Bassert for the President,B according to Cor)in, Ban
initiative of indefinite scope and legislative in effect in eeting the doestic
aspects of a )ar eergency.B
*
The creation of public offices is conferred by the
3ederal Constitution to Congress. 6uring /orld /ar ", ho)ever, President /ilson,
on the basis of his po)er under the BCoander;in;ChiefB clause of the 3ederal
Constitution, created Bpublic offices,B )hich )ere copied in lavish scale by
President Roosevelt in /orld /ar 22. BThe principal canons of constitutional
interpretation are in )artie set aside,B according to Cor)in, Bso far as concerns
both the scope of national po)er and the capacity of the President to gather unto
hiself all the constitutionally available po)ers in order the ore effectively to
focus the upon the tas4 of the hour.B
9
The presidential po)er, Bbuilding on
accuulated precedents has ta4en on at ties, under the stiulation of
eergency conditions,B according to t)o einent coentators, the Bdiensions
of e1ecutive prerogative as described by 0ohn :oc4e, of a po)er to )it, to fill
needed gaps in the la), or even to supersede it so far as ay be re*uisite to
reali,e the fundaental la) of nature and governent, naely, that as uch as
ay be all the ebers of society are to be preserved.B
1/
There is no *uestion that the fraers of the "'7< Constitution )ere a)are of
these precedents and of the scope of the po)er that had been e1ercised by the
Presidents of the Gnited %tates in ties of grave crisis. The fraers of the
Constitution B)ere not only idealists but also practical;inded en.B B/hile they
ab+ured )ars of aggression they )ell 4ne) that for the country to survive
provisions for its defense had to be ade.B
11
22
THT<'LL@ /M-*"T,'BL C-*"T+T<T+-*'L C-MM+TM*T -$ +""< T- T1
&,"+/*T
2nstead of a4ing the President of the Philippines siply the coander;in;chief
of all the ared forces, )ith authority )henever it becoes necessary to call out
such ared forces to prevent or suppress la)less violence, invasion, insurrection,
or rebellion, the fraers of the "'7< Constitution e1pressly conferred upon hi
the e1clusive po)er and authority to suspend the privileges of the )rit of habeas
corpus or place the Philippines, or any part thereof, under artial la).
corpus or place the Philippines or any part thereof under artial la).
11
The condition )hich )ould )arrant the e1ercise of the po)er )as not confined to
actual invasion, insurrection or rebellion, but also to imminent danger thereo),
)hen the public safety re*uires it. 2t is evident, therefore, that )hile Aerican
Presidents derived these e1traordinary po)ers by iplication fro the %tate!s
right to self;preservation, the President of the Philippines )as e1pressly granted
by the Constitution )ith all the po)ers necessary to protect the nation in ties of
grave peril.
The safety and )ell;being of the nation re*uired that the President should not be
hapered by lac4 of authority but )as to be a Bstrong e1ecutive )ho could
aintain the unity of the nation )ith sufficient po)ers and prerogatives to save
the country during great crises and dangers.B
13
As 6elegate 0ose P. :aurel coprehensively e1plained?
governent, but abnorally, in e1tree cases, he is suddenly ushered is as a
Minerva, full;gro)n and in full panoply of )ar, to occupy the vantage ground as
the ready protector and de)ender o) the li)e and honor o) his nation. 8Ephasis
%upplied.=
14
The concentration of an aplitude of po)er in the hands of the Coander;in;
Chief of the Ared 3orces of the Philippines, )ho is at the sae tie the elected
civilian Chief of %tate, is predicated upon the fact that it is he )ho ust initially
shoulder the burden and deal )ith the eergency. By the nature of his position
he possesses and )ields the e1traordinary po)ers of self;preservation of the
deocratic, constitutional state. 2n ties of crisis there is indeed unification of
responsibility and centrali,ation of authority in the Chief E1ecutive. BThe
concentration of governental po)er in a deocracy faced by an eergency,B
)rote Rossiter, Bis a corrective to the crisis inefficiencies inherent in the doctrine
of the separation of po)ers. ... 2n noral ties the separation of po)ers fors a
distinct obstruction to arbitrary governental action. By this sae to4en in
abnoral ties it ay for an insurountable barrier to decisive eergency
action in behalf of the %tate and its independent e1istence. There are oents in
the life of any governent )hen all the po)ers ust )or4 together in unaniity
of purpose and action, even if this eans the teporary union of e1ecutive,
legislative and +udicial po)ers in the hands of one an. The ore coplete the
separation of po)ers in a constitutional syste, the ore difficult and yet the
ore necessary )ill be their fusion in tie of crisis.B 8Rossiter, Constitutional
6ictatorship, &$$;&$'.=
2t )as intended, ho)ever, that the e1ercise of these e1traordinary po)ers is for
the preservation of the %tate, its deocratic institutions, and the peranent
freedo of its citi,ens.
222
,"&-*"+B+L+T@ +M&L+" B,-'/ '<T1-,+T@ '*/ /+"C,T+-*
The conditions of )ar, of insurrection or rebellion, or of any other national
eergency are as varied as the eans re*uired for eeting the and it is,
therefore, )ithin the conteplation of the Constitution that t he Chief E1ecutive,
to preserve the safety of the nation on those ties of national peril, should have
the broadest authority copatible )ith the eergency in selecting the eans and
adopting the easures )hich in his honest +udgent are necessary for the
preservation of the nation!s safety. BThe circustances that endanger the safety
of nations are infinite,B )rote Ale1ander Cailton, Band for this reason no
constitutional shac4les can )isely be iposed on the po)er to )hich the care of it
is coitted ... This is one of those truths )hich to a correct and unpre+udiced
ind carries its o)n evidence along )ith it, and ay be obscured, but cannot be
ade plainer by arguent or reasoning ... The eans ought to be in proportion
to the end. the persons fro )hose agency the attainent of any end is
e1pected ought to possess the eans byJ )hich it is to be attained.B
15
Mr.
Madison e1pressed the sae idea in the follo)ing ters? B2t is vain to ipose
constitutional barriers to the ipulse of self;preservation. 2t is )orse than in vain,
because it plants in the Constitution itself necessary usurpations of po)er.B
16
BGn*uestionably,B )rote Chief 0ustice Taney in Luther v. Borden 8( Co). @@,
H"$@'", "& :.ed. A##=, Ba %tate ay use its ilitary po)er to put do)n an ared
insurrection, too strong to be controlled by the civil authority. The po)er is
essential to the e1istence of every governent, essential to the preservation of
order and free institutions, and is as necessary to the %tates of this Gnion as to
any other governent. The %tate itself ust deterine )hat degree of force the
crisis deands. And if the 9overnent of Rhode 2sland deeed the ared
opposition so foridable, and so raified throughout the %tate, as to re*uire the
use of its ilitary force and the declaration of artial la), )e see no ground upon
)hich this Court can *uestion its authority.B
2n the Pri,e cases 8"( :. ed. @(A, H"$A7J=, the Court ascribed to the President of
the Gnited %tates, by virtue of his po)ers as Chief E1ecutive and as Coander;
in;Chief, the po)er )hich in Luther v. Borden is attributed to the governent as a
)hole, to treat of insurrection as a state of )ar, and the scene of the insurrection
as a seat or theater of )ar. As 0ustice 9rier in the Pri,e cases significantly stated?
B/hether the President in fulfilling his duties as Coander;in;Chief, in
suppressing an insurrection, has et )ith such hostile resistance, and a civil war
o) such alarming proportions as will compel him to accord to them the character
o) belligerents# is a (uestion to be decided by him# and this court must be
governed by the decisions and acts o) the &olitical /epartment of the governent
to )hich this po)er )as entrusted. !Ce ust deterine )hat degree of force the
crisis deands. 8Ephasis supplied.=
2n 1irabayashi v. <nited "tates, )here the Court upheld the curfe) regulations
affecting persons of 0apanese ancestry as valid ilitary easures to prevent
espionage and sabotage, there )as again re;affirance of the vie) that the
Constitution has granted to the President and to Congress in the e1ercise of the
)ar po)ers a B)ide scope for the e1ercise of +udgent and discretion in
deterining the nature and e1tent of the threatened danger and in the selection
of the eans for resisting it.B
%ince the Constitution coits to the E1ecutive and to Congress the e1ercise of
the )ar po)er in all the vicissitudes and conditions of )arfare, it has necessarily
given the )ide scope for the e1ercise of +udgent and discretion in deterining
the nature and e1tent of the threatened in+ury or danger and in the selection of
the eans for resisting it. E1 parte Luirin, supra 87"( G% &$, &', ante, "&, "7, A7
% Ct &=. Pri,e Cases, supra 8& Blac4 HG%J A(#, "( : ed @((=. Martin v. Mott, "&
/heat. HG%J "', &', A : ed <7(, <@#=. /here, as they did here, the conditions
call for the e1ercise of +udgent and discretion and for the choice of eans by
those branches of the 9overnent on )hich the Constitution has place the
responsibility of )ar;a4ing, it is not for any court to sit in revie) of the )isdo
of their action or substitute its +udgent for theirs.
The actions ta4en ust be appraised in the light of the conditions )ith )hich the
President and Congress )ere confronted in the early onths of "'@&, any of
)hich, since disclosed, )ere then peculiarly )ithin the 4no)ledge of the ilitary
authorities.
17
The easures to be ta4en in carrying on )ar and to suppress insurrection,B
according to 0ustice %)ayne, in "tewart v. .ahn,
1*
Bare not defined. The decision
of all *uestions rests )holly in the discretion of those to )ho the substantial
po)ers involved are confided by the Constitution. 2n the latter case, the po)er is
not liited to victories in the field and the dispersion of the insurgent forces. 2t
carries )ith it inherently the po)er to guard against the iediate rene)al of the
conflict, and to reedy the evils )hich have arisen fro its rise and progress.
The thrust of those authorities is that the President as coander;in;chief and
chief e1ecutive on )ho is coitted the responsibility is epo)ered, indeed
obliged, to preserve the state against doestic violence and alien attac4. 2n the
discharge of that duty, he necessarily is accorded a very broad authority and
discretion in ascertaining the nature and e1tent of the danger that confronts the
nation and in selecting the eans or easures necessary for the preservation of
the safety of the Republic.
The ters BinsurrectionB and BrebellionB are in a large easure incapable of
precise or e1act legal definitions and are ore or less elastic in their eanings.
As to )hen an act or instance of revolting against civil or political authority ay
be classified as an BinsurrectionB or as a BrebellionB is a *uestion better addressed
to the President, )ho under the Constitution is the authority vested )ith the
po)er of ascertaining the e1istence of such e1igencies and charged )ith the
responsibility of suppressing the. To suppress such danger to the state, he is
necessarily vested )ith a broad authority and discretion, to be e1ercised under
the e1igencies of each particular occasion as the sae ay present itself to his
+udgent and deterination. Cis actions in the face of such eergency ust be
vie)ed in the conte1t of the situation as it then confronted hi. 2t is not for any
court to sit in revie) of the )isdo of his action as coander;in;chief or to
substitute its +udgent for his.
2D
*/ $-, <*8<"T+-*+*G '/1,*C T- &-L+T+C'L /C+"+-*
2t is, ho)ever, insisted that even )ith the broad discretion granted to the
President by the Constitution in ascertaining )hether or not conditions e1ist for
the declaration of artial la), his findings in support of such declaration should
nevertheless be sub+ect to +udicial revie).
2t is iportant to bear in ind that /e are here dealing )ith a plenary and
e1clusive po)er conferred upon the Chief E1ecutive by the Constitution. The
po)er itself is to be e1ercised upon sudden eergencies, and under
circustances )hich ay be vital to the e1istence of the governent. A propt
and unhesitating obedience to orders issued in connection there)ith is
indispensable as every delay and obstacle to its iediate ipleentation ay
+eopardi,e the public interests.
By reason of his uni*ue position as Chief E1ecutive and as Coander;in;Chief of
the Ared 3orces of the Philippines, it is he, ore than any other high official of
the governent, )ho has the authority and the eans of obtaining through the
various facilities in the civil and ilitary agencies of the governent under his
coand, inforation proptly and effectively, fro every *uarter and corner of
the state about the actual peace and order condition of the country. 2n connection
)ith his duty and responsibility, he is necessarily accorded the )ise and ob+ective
counsel of trained and e1perienced specialists on the sub+ect. Even if the Court
could obtain all available inforation, it )ould lac4 the facility of deterining
)hether or not the insurrection or rebellion or the iinence thereof poses a
danger to the public safety. Nor could the courts recreate a coplete picture of
the eergency in the face of )hich the President acted, in order to ade*uately
+udge his ilitary action. Absent any +udicially discoverable and anageable
standards for resolving +udicially those *uestions, such a tas4 for a court to
underta4e ay )ell;nigh be ipossible. -n the other hand, the President, )ho is
responsible for the peace and security of the nation, is necessarily copelled by
the Constitution to a4e those deterinations and decisions. The atter is
coitted to hi for deterination by criteria of political and ilitary
e1pediency. There e1ists, therefore, no standard ascertainable by settled +udicial
e1perience by reference to )hich his decision can be revie)ed by the courts.
19
2ndeed, those are ilitary decisions and in their very nature, Bilitary decisions
are not susceptible of intelligent and +udicial appraisal. They do not pretend to
rest on evidence, but are ade on inforation that often )ould not be adissible
and on assuptions that could not be proved. 2nforation in support of an order
could not be disclosed to courts )ithout danger that it )ould reach the eney.
Neither can courts act on counications ade in confidence. Cence, courts can
never have any real alternative to accepting the ere declaration of the authority
that issued the order that it )as reasonably necessary fro a ilitary vie)point.B
1/
Ce is necessarily constituted the +udge of the e1istence of the e1igency in the
first instance and is bound to act according to his belief of the facts.
Both reason and authority, therefore, dictate that the deterination of the
necessity for the e1ercise of the po)er to declare artial la) is )ithin the
e1clusive doain of the President and his deterination is final and conclusive
upon the courts and upon all persons. 8cf. 3airan, Martial Rule and the
%uppression of 2nsurrection, p. ((" .=
11
This construction necessarily results fro
the nature of the po)er itself, and fro the anifest ob+ect conteplated by the
Constitution.
8a= Barcelon v. Baker.
The e1isting doctrine at the tie of the fraing and adoption of the "'7<
Constitution )as that of Barcelon v. Baker 8< Phil. $(=. +t enunciated the principle
that when the Governor7General with the approval o) the &hilippine Commission#
under "ection G o) the 'ct o) Congress o) July 4# 45A3# declares that a state o)
rebellion# insurrection or invasion e!ists# and by reason thereo) the public sa)ety
re(uires the suspension o) the &rivileges o) habeas corpus# this declaration is held
conclusive upon the 0udicial department o) the government. And )hen the Chief
E1ecutive has decided that conditions e1ist +ustifying the suspension of the
privilege of the )rit of habeas corpus, courts will presume that such conditions
continue to e!ist until the same authority has decided that such conditions no
longer e!ist. These doctrines are rooted on pragatic considerations and sound
reasons of public policy. The Bdoctrine that )henever the Constitution or a statute
gives a discretionary po)er to any person, such person is to be considered the
sole and e1clusive +udge of the e1istence of those factsB has been recogni,ed by
all courts and Bhas never been disputed by any respectable authority.B Barcelon
v. Baker, supra.= The political departent, according to Chief 0ustice Taney in
Martin v. Mott 8"& /heat &';7"=, is the sole +udge of the e1istence of )ar or
insurrection, and )hen it declares either of these eergencies to e1ist, its action
is not sub+ect to revie) or liable to be controlled by the +udicial departent of the
%tate. 8Citing $ranklin v. "tate Board o) !aminers, &7 Cal. "(&, "($.=
The danger# and di))iculties which would grow out o) the adoption o) a contrary
rule are clearly and ably pointed out in the Barcelon case# thus?
the +udicial departent of the 9overnent, then every o))icer )hose duty it is to
aintain order and protect the lives and property of the people may re)use to
act# and apply to the 0udicial department o) the Government )or another
investigation and conclusion concerning the sae conditions, to the end that they
ay be protected against civil actions resulting fro illegal acts.
9eneral by telegraph o) this landing o) troops and that the people of the district
are in collusion )ith such invasion. Might not the Governor7General and the
Coission accept this telegram as su))icient and proof of the facts
counicated and at once take steps, even to the e1tent of suspending the
to repel such invasionE 2t sees that all en interested in the aintenance and
may the 0udicial o) the Government call the o) o))icers actually engaged in the
)ield be)ore it and away )rom their posts o) duty )or the purpose o) e!plaining and
)urnishing proo) to it concerning the e1istence or none1istence of the facts
proclaied to e1ist by the legislative and e1ecutive branches of the %tateE 2f so,
then the courts ay effectually tie the hands of the e1ecutive, )hose special duty
it is to enforce the la)s and aintain order, until the invaders have actually
accoplished their purpose. The interpretation contended for here by the
2t is the duty of the legislative branch of the 9overnent to a4e stich la)s and
ta4e stich steps as he dees )ise and necessary for the purpose of enforcing
+eopardi,e public interest and the safety of the )hole people. +) the 0udicial
department o) the Government# or any o))icer in the Government# has a right to
contest the orders o) the &resident or o) the Governor7General under the
conditions above supposed# be)ore complying with such orders# then the hand o)
the &resident or the Governor7General may be tied until the very ob0ect o) the
rebels or insurrectos or invaders has been accomplished. But it is urged that the
their application for the )rit of that the levislative and e1ecutive branches of the
9overnent ight reach a )rong conclusion fro their investigations of the
actual conditions, or ight, through a desire to oppress and harass the people,
declare that a state of rebellion, insurrection, or invasion e1isted and that public
safety re*uired the suspension of the privilege of the )rit of habeas corpus )hen
actually and in fact no such conditions did e1ist. /e can not assue that the
legislative and e1ecutive branches )ill act or ta4e any action based upon such
otives.
Moreover, it cannot be assued that the legislative and e1ecutive branches of the
e1ecutive branch of the 9overnent to constantly infor the legislative ranch of
the 9overnent of the condition of the Gnion as to the prevalence of peace or
disorder. The e1ecutive branch of the 9overnent, through B2ts nuerous
branches of the civil and ilitary, raifies every;portion of the Archipelago, and is
Can the +udicial departent of the 9overnent, )ith its very liited achinery
for the purpose of investigating general conditions be any ore sure of
ascertaining the true conditions through out the Archipelago or in any particular
district, than the other branches of the 9overnentE /e thin4 not. 8< Phil., pp.
'7;'A.=
8b= The Constitutiondal Convention o) 45CD.
This )as the state of Philippine +urisprudence on the atter, )hen the
Constitutional Convention et on 0uly &#, "'7@. 2t ust be recalled that, under
the Philippine Bill of "'#&, the suspension of the privilege of the )rit of habeas
corpus by the 9overnor;9eneral )as sub+ect to the approval of the Philippine
8%ection <, Act of Congress of 0uly ", "'#&=, )hile, under %ection &" of the 0ones
:a) of "'"A, the suspension of the of privilege of the )rit of habeas corpus as
)ell as the proclaation of artial la) by the 9overnor;9eneral could be
odified or vacated by the President of the Gnited %tate. /hen the first 6raft )as
%ubitted conferring the po)er to suspend the privilege of the )rit of habeas
corpus e1clusively upon the President, 6elegate Araneta proposed an aendent
to the effect that the National Assebly should be the organ epo)ered to
suspend the privileges of the habeas corpus and, )hen not session, the sae
ay be done by the President )ith the consent of the a+ority of the %upree
Court. Gnder the provisions of the 6raft, 6elegate Araneta argued, Bthe Chief
E1ecutive )ould be the only authority to deterine the e1istence of the reasons
for the suspension of the )rit of habeas corpus. and, according to Philippine
+urisprudence, the %upree Court )ould refuse to revie) the findings of the
E1ecutive on the atter. Conse*uently, he added, arrests )ould be effected by
ilitary en )ho )ere generally arbitrary. They )ould be arresting persons
connected )ith the rebellion, insurrection, invasion. soe of the ight also be
arresting other person )ithout any cause )hatsoever. The result )ould be that
any persons ight find theselves detained )hen in fact they had no
connection )hatsoever )ith the disturbances.B
11
Not)ithstanding the brilliant
arguents of 6elegate Araneta, the Convention voted do)n the aendent.
Evident )as the clear intent of the fraers of the Charter of vesting on the
President the e1clusive po)er of suspending the privilege of the )rit of habeas
corpus and the conclusive po)er to deterine )hether the e1igency has arisen
re*uiring the suspension. There )as no opposition in the Convention to the grant
on the President of the e1clusive po)er to place the Philippines or any part
thereof under artial la).
Reali,ing the fragentation of the Philippines into thousands of islands and of the
)ar clouds that )ere then hovering over, Europe and Asia, the aforesaid fraers
of the Charter opted for a strong e1ecutive.
The provision of %ection "#, Paragraph &, of Article D22 of the "'7< Constitution
)as, therefore, adopted in the light of the Court!s interpretation in Barcelon v.
Baker.
8c= Montenegro v. Castaeda.
-n August 7#, "'<&, or "( years after the ratification of the "'7< Constitution,
this Court in Montenegro v. Castaeda 8'" Phil. $$&. $$(=, construing the po)er
of the President of the Philippines under Article D22, %ection "#, Paragraph &, of
the Constitution, re;affired the doctrine in Barcelon v. Baker, thus? B/e agree
)ith the %olicitor 9eneral that in the light of the vie) of the liited %tates
%upree Court through Marshall, Taney and %tory *uoted )ith approval in
Barcelon v. Baker 8< Phil. $(, '';"##=, the authority to decide )hether the
e1igency has arisen re*uiring suspension belongs to the President and Ihis
decision is )inal and conclusiveI upon the courts and upon all other persons.B
-n Montenegro!s contention that there is no state of invasion, insurrection,
rebellion or iinent danger thereof, as the Binterittent sorties and lightning
attac4s by organi,ed bands in different places are occasional, locali,ed and
transitory,B this Court e1plained that to the unpracticed eye the repeated
encounters bet)een dissident eleents and ilitary troops ay see sporadic,
isolated, or casual. But the officers charged )ith the Nation!s security, analy,ed
the e1tent and pattern of such violent clashes and arrived at the conclusion that
they are )arp and )oof of a general schee to overthro) this governent Bvi et
armis, by force of ars.B This Court then reiterated one of the reasons )hy the
finding of the Chief E1ecutive that there is Bactual danger of rebellionB )as
accorded conclusiveness, thus? B2ndeed, as 0ustice 0ohnson said in that decision,
)hereas the E1ecutive branch of the 9overnent is enabled thru its civil and
ilitary branches to obtain inforation about peace and order fro every *uarter
and corner of the nation, the +udicial departent, )ith its very liited achinery
can not be in better position to ascertain or evaluate the conditions prevailing in
the Archipelago.B 8Montenegro v. Castaeda and Balao, '" Phil., $$&, $$A;$$(.=
2t is true that the %upree Court of the <nited "tates in "terling v. Constantin,
13
asserted its authority to revie) the action ta4en by the %tate 9overnor of Te1as
under his proclaation of artial la). Co)ever, the Court chose not to overturn
the principle e1pressed in Moyer v. &eabody that the *uestion of necessity is Bone
strictly reserved for e1ecutive discretion.B 2t held that, )hile the declaration of is
conclusive, the easures eployed are revie)able?
2t does not follo) fro the fact that the e1ecutive has this range of discretion,
deeed to be a necessary incident of his po)er to suppress disorder that every
sort of action the 9overnor ay ta4e, no atter ho) un+ustified by the e1igency
or subversive or private right and the +urisdiction of the courts, other)ise
available, is conclusively supported by ere e1ecutive fiat. The contrary is )ell;
established /hat are the liits of ilitary discretion, and )hether or not they
have been overstepped in a particular case are +udicial *uestions. ...
This ruling in %terling should be vie)ed )ithin the conte1t of its factual
environent. At issue )as the validity of the attept of the 9overnor to enforce
by e1ecutive or ilitary order the restriction on the production of oil )ells )hich
the 6istrict 0udge had restrained pending proper +udicial in*uiry. The %tate
9overnor predicated his po)er under artial la), although it )as conceded that
Bat no tie has there been any actual uprising in the territory. at no tie has any
ilitary force been e1erted to put riots and obs do)n.B The Court disapproved
the order of the 9overnor as it had no relation to the suppression of disorder but
on the contrary it underined the restraining order of the 6istrict 0udge. The
Court declared that the 9overnor could not by pass the processes of constitutional
governent by siply declaring artial la) )hen no bona )ide eergency
e1isted. /hile this case sho)s that the +udiciary can interfere )hen no
circumstances e1isted )hich could reasonably be interpreted as constituting an
eergency, it did not necessarily resolve the *uestion )hether the Court could
interfere in the face of an actual emergency.
8d= Lansang v. Garcia.
-ur attention, is ho)ever, invited to Lansang v. Garcia 89.R. No. :;77'A@ etc.,
6eceber "", "'(", @& %CRA @@$= )here this Court declared, in connection )ith
the suspension of the of the )rit of habeas corpus by the President of the
Philippines on August &", "'(", that it has the authority to in*uire into the
e1istence of the factual basis of the proclaation in order to deterine the
constitutional sufficiency thereof. But this assertion of authority is *ualified by the
Court!s une*uivocal stateent that Bthe function of the Court is erely to chec4
5 not to supplant 5 the E1ecutive, or to ascertain merely whether he has gone
beyond they constitutional limits of his +urisdiction, not to e!ercise the power
vested in him or to deterine the )isdo of his act.B And that +udicial in*uiry into
the basis of the *uestioned than to satisfy the Court to not the President!s
decision is correct and that public safety )as endangered by the rebellion and
+ustified the suspension of the )rit, but that in suspending the )rit, the President
did not act arbitrarily.B
2n the ascertainent of the factual basis of the suspension, ho)ever, the Court
had to rely iplicitly on the findings of the Chief E1ecutive. 2t did not conduct any
independent factual in*uiry for, as this Court e1plained in Barcelon and
Montenegro, B... )hereas the E1ecutive branch of the 9overnent is enabled thru
its civil and ilitary branches to obtain inforation about peace and order fro
every *uarter and corner of the nation, the +udicial departent, )ith its very
liited achinery cannot be in a better position to ascertain or evaluate the
conditions prevailing in the Archipelago.B 2ndeed, such reliance on the E1ecutive!s
findings )ould be the ore copelling )hen the danger posed to the public
safety is one arising fro Counist rebellion and subversion.
/e can ta4e +udicial notice of the fact that the Counists have refined their
techni*ues of revolution, but the ultiate ob+ect is the sae 5 Bto underine
through civil disturbances and political crises the )ill of the ruling class to govern,
and, at a critical point, to ta4e over %tate po)er through )ell;planned and ably
directed insurrection.B
14
2nstead of insurrection, there )as to be the protracted
)ar. The plan )as to retreat and attac4 only at an opportune tie. BThe a+or
ob+ective is the annihilation of the eney!s fighting strength and in the holding or
ta4ing of cities and places. The holding or ta4ing of cities and places is the result
of the annihilation of the eney!s fighting strength.B
15
The Dietna /ar
contributed its o)n brand of terroris conceived by Co Chi Minh and Do Nguyen
9iap 5 the silent and siple assassination of village officials for the destruction of
the governent!s adinistrative net)or4. Modern rebellion no) is a )ar of
sabotage and harassent, of an aggression ore often concealed than open of
guerrillas stri4ing at night, of assassins and terrorists, and of professional
revolutionaries resorting to all sorts of stratages, crafts, ethods and
subterfuge, to underine and subvert the security of the %tate to facilitate its
violent overthro).
16
2n the ultiate analysis, even assuing that the atter is +usticiable )ill /e
apply the standards set in Lansang, by ascertaining )hether or not the President
acted arbitrarily in issuing Proclaation No. "#$", the result )ould be the sae.
3or the e1istence of an actual rebellion and insurrection in this country by a
si,able group of en )ho have publicly risen in ars to overthro) the
governent )as confired by this Court in :ansang.
Philippines, especially in Manila fro the late t)enties to the early thirties, then
oveent seeed to have )aned notably. but, the outbrea4 of /orld /ar 22 in
the Pacific and the iseries, the devastation and havoc and the proliferation of
several ties )ith the ared forces of the Republic. This propted then President
Luirino to issue Proclaation No. &"#, dated -ctober &&, "'<#, suspending the
privilege of the )rit of habeas, validity of )hich )as upheld in Montenegro v.
Castaeda. 6ays before the proulgation of said Proclaation, or on -ctober "$,
"'<#, ebers of the Counist Politburo in the Philippines )ere apprehended
in Manila. %ubse*uently accused and convicted of the crie of rebellion, they
served their respective sentences.
4no)n as the Anti;%ubversion Act, )as approved, upon the ground stated in the
regie sub+ect to alien doination and control.
Philippines constitutes a clear# present and grave danger to the security of the
Philippines. and
Philippines and its activities, there is urgent need for legislation to cope )ith this
continuing enace to the freedo and security of the country ....
filed in these by the petitioners herein 5
the Philippines= aong the )or4ers. the Malayang %aahan ng Mga Magsasa4a
8MA%AMA=, aong the pasantry. the Mabataang Ma4abayan 8MM= aong the
aong the intellectualsNprofessionals. The PMP has e1erted all;out effort to
of nationalis.
a People!s 6eocratic Revolution! states, inter alia9
The Communist &arty o) the &hilippines is determined to implement its general
programe for a people!s deocratic revolution. All 3ilipino counists are ready
to sacrifice their lives for the )orthy cause of achieving the ne) type of
independent, deocratic, united, +ust and prosperous.....
111 111 111
Communist &arty o) the &hilippines assumes this task at a tie that both the
international and national situations are favorable to ta4ing the road of revolution.
National 6efense 5 conducted raids, resorted to 4idnapping and ta4en part in
other violent incidents nubering over &7# in )hich it inflicted @#@ casualties,
violence are indipensable to the attainent of their ain and ultiate ob+ective,
and act in accordance )ith such belief, although they ay disagree on the eans
to be used at a given tie and in a particular place. and 8b= there is a Ne)
Peoples Ary, other, of course, than the ared forces of the Republic and
antagonistic thereto. %uch Ne) People!s Ary is per se proof of the e1istence of a
rebellion, especially considering that its establishent )as announced publicly by
the reorgani,ed CPP. %uch announceent is in the nature of a public challenge to
the duly constituted authorities and ay be li4ened to a declaration of )ar,
sufficient to establish a )ar status or a condition of belligerency, even before the
actual coenceent of hostilities.
=e entertain# there)ore# no doubts about the e!istence o) a si%able group o) men
who have publicly risen in arms to overthrow the government and have thus been
and still are engaged in rebellion against the Government o) the &hilippines.
!!! !!! !!!
The records before Gs sho) that, on or before August &", "'(", the E1ecutive
had inforation and reports 5 subse*uently confired, in any respects by the
aboveentioned Report of the %enate Ad;Coc Coittee of %even 5 to the
effect that the Counist Party of the Philippines does not erely adhere to
:enin!s idea of a s)ift ared uprising. that it has, also, adopted Co Chi Minh!s
terrorist tactics and resorted to the assassination of uncooperative local
officials. ...
Petitioner siilarly fail to ta4e into account that 5 as per said inforation and
reports 5 the reorgani,ed Counist Party of the Philippines has, oreover,
adopted Mao!s concept of protracted people!s )ar, aied at the paraly,ation of
the )ill to resist of the governent, of the political, econoic and intellectual
leadership, and of the people theselves. that conforably to such concept, the
Party has placed special ephasis upon a ost e1tensive and intensive progra
of subversion by the establishent of front organi,ations in urban centers, the
organi,ation or ared city partisans and, the infiltration in student groups, labor
unions, and farer and professional groups. that the CPP anaged to infiltrate or
establish and control nine 8'= a+or labor organi,ations. that it has e1ploited the
youth oveent and succeeded in a4ing Counist fronts of eleven 8""=
a+or student or youth organi,ations. that there are, accordingly, about thirty
87#= ass organi,ations actively advancing the CPP interest, .... that in "'(#, the
Party had recorded t)o hundred fifty;eight 8&<$= a+or deonstrations, of )hich
about thirty;three 877= ended in violence, resulting in fifteen 8"<= 4illed and over
five hundred 8<##= in+ured. that ost of these actions )ere organi,ed,
coordinated or led by the aforeentioned front organi,ations. that the violent
deonstrations )ere generally instigated by a sall, but )ell;trained group of
ared agitators. that the nuber of deonstrations heretofore staged in "'("
has already e1ceeded those of "'(#. and that t)enty;four 8&@= of these
deonstrations )ere violent, and resulted in the death of fifteen 8"<= persons
and the in+ury to any ore.
%ubse*uent events 5 as reported 5 have also proven that petitioners! counsel
have underestiated the threat to public sa)ety posed by the Ne) People!s Ary.
8&= 4illed and three 87= )ounded on the side of the 9overnent, one 8"= B%6G
4illed and three 87= NPA casualties. that in an encounter at Botolan, >abales,
one 8"= MM%6M leader, an unidentified dissident, and Coander Panchito, leader
of the dissident group )ere 4illed. that on August &A, "'(", there )as an
encounter in the barrio of %an Pedro, 2riga City Caarines %ur, bet)een PC and
the NPA, in )hich a PC and t)o 8&= MM ebers )ere 4illed. that the current
disturbances in Cotabato and the :anao provinces have been rendered ore
cople1 by the involveent of the CPPNNPA, for, in id;"'(", a MM group,
headed by 0ovencio Esparago,a, contacted the Cigaonan tribes, in their
settleent in Magsaysay, Misais -riental, and offered the boo4s, paphlets
and brochures of Mao Tse Tung, as )ell as conducted teach;ins in the reservation.
that Esparago,a )as reportedly 4illed on %epteber &&, "'(", in an operation of
the PC in said reservation. and that there are no) t)o 8&= NPA cadres in
Mindanao.
2t is true that the suspension of the privilege of the )rit )as lifted on 0anuary (,
"'(&, but it can not be denied that soon thereafter, la)lessness and terroris
had reached such a point that the nation )as already drifting to)ards anarchy. -n
%epteber &", "'(&, )hen the President of the Philippines, pursuant to Article
D22, section "#, paragraph & of the "'7< Constitution, placed the Philippines
under artial la), the nation )as in the throes of a crisis. The authority of the
constitutional governent )as resisted openly by a coalition of forces, of large
nubers of persons )ho )ere engaged in an ared conflict for its violent
overthro).
17
The oveent )ith the active aterial and foreign political and
econoic interests )as engaged in an open attept to establish by violence and
force a separate and independent political state.
3orceful ilitary action, atched )ith attractive benevolence and a socio;
econoic progra, has indeed bro4en the bac4 of the rebellion in soe areas.
There are to be sure significant gains in the econoy, the unprecedented increase
in e1ports, the billion;dollar international reserve, the ne) high in revenue
collections and other notable infrastructures of developent and progress. 2ndeed
there is a in the people!s sense of values, in their attitudes and otivations. But
/e personally ta4e notice of the fact that even as of this late date, there is still a
continuing rebellion that poses a danger to the public safety. Counist
insurgency and subversion, once it ta4es root in any nation, is a hardy plant. A
party )hose strength is in selected, dedicated, indoctrinated and rigidly
disciplined ebers, )hich ay even no) be secreted in strategic posts in
industry, schools, churches and in governent, can not easily be eradicated.
1*
The NPA 8Ne) People!s Ary= is pursuing a policy of strategic retreat but tactical
offensive. 2t continues to conduct its activities through si1 Regional -perational
Coands 8R-Cs= covering Northern, Central, and %outhern :u,on, /estern and
Eastern Disayas, and Mindanao. Cobat operations )ere conducted against the
Counist insurgents by the ared forces of the governent in Cagayan,
2fugao, Malinga, Apayao, Caarines %ur, and %orsogon. %ubversive activities
continue unabated in urban areas. :ast 0anuary, "'(@, the Maoist group 4no)n as
the Moro National :iberation 3ront 8MN:3= attac4ed and overran the ilitary
detachent at Bilaan %ulu, and the to)n of Parang. The to)n of 0olo )as
attac4ed by a rebel force of <## en last 3ebruary A, '(@, and to cover their
retreat ra,ed t)o;thirds of the to)n. -nly this August, there )as fighting bet)een
governent troops and usli rebels ared )ith odern and sophisticated
)eapons of )ar in soe parts of Cotabato and in the outs4irts of the a+or
southern port city of 6avao. 2t )ould be an incredible naivete to conclude in the
face of such a reality, that the peril to public safety had already abated.
Nor is the fact that the courts are open proof that there is no ground for artial
rule or its continuance. The Bopen courtB theory has been derived fro the dictu
in E1 Parte Milligan 8( /all. "&( H"$AAJ, vi%.? BMartial rule cannot arise fro a
threatened invasion. the necessity ust be actual and present. the invasion real
such as effectually closes the courts and deposes the civil adinistration.B This
has been disissed as unrealistic by authoritative )riters on the sub+ect as it
does not present an accurate definition of the allo)able liits of the of the
President of the Gnited %tates. As a atter of fact, the liiting force of the
Milligan case )as aterially odified a generation later in another decision of the
Court in of the 3ederal %upree Court in Moyer v. &eabody 8&"& G.%. ($ H"'#'J=.
%pea4ing for the Court in Moyer v. &eabody, 0ustice Coles brushed aside as
immaterial the fact, )hich the a+ority opinion in the Milligan case thought
absolutely crucial 5 vi%.? artial rule can never e1ist )here the Courts are open
and in the proper and unobstructed e1ercise of their +urisdiction. The opinion
admitted that the Courts were open but held Bthat the governor!s declaration that
a state of insurrection e1isted is conclusive of that fact.B Although 2t found that
the B9overnor, )ithout sufficient reason, but in good )aith, in the course of putting
the insurrection do)n, held the plaintiff until he thought that he could safely
release hi,B the Court held that plaintiff Moyer had no cause of action. %tating
that the 9overnor )as epo)ered by eploy the National 9uard to suppress
insurrection, the Court further declared that Bhe ay 4ill persons )ho resist, and
of course he ay use the ilder easure of sei,ing the bodies of those )ho he
considers to stand in the )ay of restoring peace. %uch arrests are not necessarily
for punishent, but are by way o) precaution# to prevent the e!ercise o) hostile
power.B %o long as such arrests are ade in good faith and in the honest belief
that they are needed in order to head insurrection off, the 9overnor is the )inal
0udge and cannot be sub0ected to an action a)ter he is out o) o))ice on the ground
that he had no reasonable ground )or his belie) ... /hen it coes to a decision by
the head of state upon a atter involving its life, the ordinary rights o) the
individuals must yield to what he deems the necessities o) the moment. Public
danger )arrants the substitution of e1ecutive process for +udicial process.B
B2t is siply not true,B )rote Clinton Rossiter in "'<#,
19
Bthat martial law cannot
arise )rom a threatened invasion or that martial law can never e!ist where the
Courts are open. These stateents do not present an accurate definition of the
allo)able liits of the artial po)ers of President and Congress in the face of
alien threats or internal disorder. Nor )as 6avis! dictu on the specific po)ers of
Congress in this atter any ore accurate. And, ho)ever elo*uent and *uotable
his )ords on the untouchability of the Constitution in ties of actual crisis, they
do not now# and did not then, e1press the realities of Aerican Constitutional
:a).B
2n any event, this Bopen courtB theory does not apply to the Philippine situation.
Both the "'7< and the "'(7 Constitutions e1pressly authori,e the declaration of
artial la), even )here the danger to the public safety arises erely fro the
iinence of an invasion or rebellion. The fact that the civil courts are open can
not be controlling, since they ight be open and undisturbed in their functions
and yet )holly incopetent to avert the threatened danger and to punish those
involved in the invasion or rebellion )ith certainty and proptitude. Certainly
such a theory )hen applied to the situation odern )ar and of the present day
Counist insurgency and subversion )ould prove to be unrealistic.
3/
Nor ay it be argued that the eployent of governent resources for the
building of a Ne) %ociety is inconsistent )ith the efforts of suppressing the
rebellion and creating a legitiate public order. BEveryone recogni,ed the legal
basis for the artial necessity,B )rote President Marcos, Bthis )as the siplest
theory of all. National decline and deorali,ation, social and econoic
deterioration, anarchy and rebellion )ere not +ust statistical reports. they )ere
docuented in the ind and body and ordinary e1perience of every 3ilipino. But,
as a study of revolutions and ideologies proves, martial rule could not in the long
run, secure the Philippine Republic unless the social ini(uities and old habits
which precipitated the military necessity were stamped out. Cence, the
%epteber &" Moveent for artial rule to be of any lasting benefit to the people
and the nation, to +ustify the national discipline, should incorporate a oveent
for great, perhaps even drastic, refors in all spheres of national life. %ave the
Republic, yes, but to 4eep it safe, )e have to start rea4ing the society.B
31
2ndeed, the creation of a Ne) %ociety )as a realistic response to the copelling
need or a revolutionary change.
3or centuries, ost of our people )ere iprisoned in a socio;cultural syste that
placed the in perpetual dependence. B2t ade of the any ere pa)ns in the
gae of partisan;po)er polities, legitii,ed !he)s of )ood and dra)ers of )ater!
for the landed elite, grist for the diploa ills and an alienated ass sporadically
erupting in violent resentent over ieorial )rongs. Rural bac4)ardness )as
built into the very social order )herein our asses could not ove for)ard or
even desire to get oving.B
31
The old political frae)or4, transplanted fro the
/est had proven indeed to be inade*uate. The aspirations of our people for social
+ustice had reained unfulfilled. The electoral process )as no odel of deocracy
in action. To a society that has been torn up by decades of bitter political strife
and social anarchy, the proble )as the rescue of the larger social order fro
factional interests. 2plicit then )as the tas4 of creating a legitiate public order,
the creation of political institutions capable of giving substance to public interests.
This iplied the building of coherent institutions, an effective bureaucracy and all
adinistration capable of enlisting the enthusias, support and loyalty of the
people. Evidently, the po)er to suppress or insurrections is riot Bliited to
victories in the field and the dispersion of the insurgent. 2t carries )ith it
inherently the po)er to guard against the iediate rene)al of the conflict and
to reedy the evilsB
33
)hich spa)ned and gave rise to the e1igency.
/e find confiration of this conteporaneous construction of presidential po)ers
in the ne) Constitution. 2t ust be noted that )hile Art, 2I, %ec. "& of the ne)
Constitution ebodies the coander;in;chief clause of the "'7< Constitution
8Art. D22, %ee. "#H&J=, it e1pressly declares in Art. ID22, %ec. 7H&J that the
proclaations, orders and decrees, instructions and acts issued or done by the
incubent President, are Bpart of the la) of the landB and are to Breain valid,
legal, binding, and effectiveB until Bodified revo4ed, or superseded by
subse*uent proclaations, orders, decrees, instruction, or other acts of the
incubent President, or unless e1pressly repealed by the regular National
Assebly.B Gndoubtedly, the proviso refers to the present artial la) regie and
the easures ta4en under it by the President. 2t ust be recalled that the
prudent e1ercise by the President of the po)ers under artial la) not only
steed the tide of violence and subversion but also buttressed the people!s
faith in public authority. 2t is in recognition of the ob+ective erit of the easures
ta4en under artial la) that the Constitution affirs their validity.
This is evident fro the deliberations of the "AA;Man %pecial Coittee of the
Constitutional Convention, fored to finally draft the Constitution, at its eeting
on -ctober &@, "'(&, on the provisions of %ection @ of the draft, no) %ection "&
of Article 2I of the Ne) Constitution, )hich are *uoted hereunder, to )it?
6E:E9ATE 6E 9G>MAN 8A.=? The *uestion, Kour Conor, brings to the fore the
nature and concept of artial la). As it is understood by recogni,ed authorities
on the sub+ect, artial la) rests upon the doctrine of paraount necessity. The
controlling consideration, Kour Conor, is necessity. The crucial consideration is the
very e1istence of the %tate, the very e1istence of the Constitution and the la)s
upon )hich depend the rights of the citi,ens, and the condition of peace and
order so basic to the continued en+oyent of such rights. Therefore, fro this
vie) of the nature of artial la), the po)er is to be e1ercised not only for the
ore iediate ob+ect of *uelling the disturbance or eeting a public peril
)hich, in the first place, caused the declaration of artial la), but also to prevent
the recurrence of the very causes )hich necessitated the declaration of artial
la). Thus, Kour Conor, 2 believe that )hen President Marcos, to cite the doestic
e1perience, declared that he proclaied Martial la) to save the Republic and to
for a Ne) %ociety, he )as stating the full course )hich artial la) ust have to
ta4e in order to achieve its rational end. Because in the particular case of the
Philippine situation, 2 agree )ith the President that it is not enough that )e be
able to *uell the rebellion and the la)lessness, but that )e should also be able to
eliinate the any ills and evils in society )hich have, in the first place, bred and
abetted the rebellion and the la)lessness.
6E:E9ATE :ED2%TE 8-.=? 2 agree )ith you )holeheartedly, Kour Conor. That!s all,
Mr. Chairan.
6E:E9ATE A62:? 2t sees, Kour Conor, that )e are revolutioni,ing the traditional
concept of artial la) )hich is coonly understood as a )eapon to cobat
la)lessness and rebellion through the use of the ilitary authorities. 2f y
understanding is correct, Kour Conor, artial la) is essentially the substitution of
ilitary po)er for civilian authorities in areas )here such civilian authorities are
unable to discharge their functions due to the disturbed peace and order
conditions therein. But )ith your e1planation, Kour Conor, it sees that the
artial la) adinistrator, even if he has in the eantie succeeded in *uelling
the iediate threats to the security of the state, could ta4e easures no longer
in the for of ilitary operations but essentially and principally of the nature of
aeliorative social action. .
6E:E9ATE 6E 9G>MAN 8A.=? Cis Conor is correct )hen he said that )e are
abandoning the narro), traditional and classic concept of artial la). But )e are
abandoning the sae only to huani,e it. 3or Kour Conor )ill recall that the old
concept of artial la) is that the la) of the cap is the la) of the land, )hich )e
are not ready to accept, and President Marcos, a)are as he is, that the 3ilipino
people )ill not countenance any suppressive and un+ust action, rightly see4s not
only to iediately *uell and brea4 the bac4 of the rebel eleents but to for a
Ne) %ociety, to create a ne) atosphere )hich )ill not be a natural habitat of
discontent. %tated other)ise, the concept of artial la), as no) being practiced,
is not only to restore peace and order in the streets and in the to)ns but to
reedy the social and political environents in such a )ay that discontent )ill
not once ore be rene)ed.
6E:E9ATE -RT2> 8R.=? 2 can feel fro the discussion, Mr. Chairan, that )e are
having difficulty in trying to ascertain the scope and liitations of artial la). To
y ind, Mr. Chairan, it is constitutionally ipossible for us to place in this
great docuent, in blac4 and )hite, the liits and the e1tent of artial la). /e
are fraing a Constitution and not a statute and unli4e a statute, a Constitution
ust liit itself to providing basic concepts and policies )ithout going into details.
2 have heard fro soe of the 6elegates here their concern that )e ight be, by
this provision and the interpretations being given to it, departing fro the
traditional concept of artial la). Concepts are ere concepts, Mr. Chairan, but
concepts, li4e principles, ust be tested by their application to e1isting
conditions, )hether those concepts are contained in statutes or in a Constitution.
Referring specifically to the e1ercise of this po)er by President Marcos, doubts
have been e1pressed in soe *uarters, )hether in declaring artial la) he could
e1ercise legislative and +udicial po)ers. 2 )ould )ant to ephasi,e that the
circustances )hich provo4ed the President in declaring artial la) ay not be
*uantified. 2n fact, it is copletely different fro a case of invasion )here the
threat to national security coes fro the outside. The artial la) declared by
the President )as occasioned by the acts of rebellion, subversion, la)lessness
and chaos that are )idespread in the country. Their origin, therefore, is internal.
There )as no threat fro )ithout, but only fro )ithin. But these acts of
la)lessness, rebellion, and subversion are ere anifestations of ore serious
upheavals that beset the deepest core of our social order. 2f )e shall liit and
constrict artial la) to its traditional concept, in the sense that the ilitary )ill
be erely called upon to discharge civilian functions in areas )here the civil
functionaries are not in a position to perfor their noral duties or, better still, to
*uell la)lessness and restore peace and order, then artial la) )ould be a ere
teporary palliative and )e shall be helpless if bound by the old a1i that
artial la) is the public la) of ilitary necessity, that necessity calls it forth, that
necessity +ustifies its e1istence, and necessity easures the e1tent and degrees
to )hich it ay be eployed. My point here, Kour Conor, is that beyond artial
necessity lies the graver proble of solving the aladies )hich, in the first place,
brought about the conditions )hich precipitated the e1ercise of his artial
authority, )ill be liited to erely ta4ing a ilitary easures to *uell the
rebellion and eliinating la)lessness in the country and leave hi )ith no eans
or authority to effect the needed social and econoic refors to create an
enduring condition of peace and order, then )e shall have failed in providing in
this Constitution the basic philosophy of artial la) )hich, 2 a sure, )e are
ebodying in it for the great purpose of preserving the %tate. 2 say that the
preservation of the %tate is not liited erely to eliinating the threats that
iediately confront it. More than that, the treasure to preserve the %tate ust
go deeper into the root cause!s of the social disorder that endanger the general
safety.
6E:E9ATE 6E 9G>MAN 8A.=? 2 need not add ore, Mr. Chairan, to the very
convincing, rear4s of only good friend and colleague, 6elegate -rti,. And 2 ta4e
it, Mr. Chairan, that is also the position of this Coittee.
PRE%262N9 -332CER TGPA> 8A.=? Kes, also of this coittee.
6E:E9ATE A62:? 0ust one ore *uestion, Mr. Chairan, if the distinguished
6elegate fro :a Gnion )ould oblige.
6E:E9ATE 6E 9G>MAN 8A.=? All the tie, Kour Conor.
6E:E9ATE A62:? /hen artial la) is proclaied, Kour Conor, )ould it ean that
the Constitution, )hich authori,es such proclaation, is set aside or that at least
sae provisions of the constitution are suspendedE
6E:E9ATE 6E 9G>MAN 8A.=? The Constitution is not set aside, but the operation
of soe of its provisions ust, of necessity, be restricted. 2f not suspended,
because their continuance is inconsistent )ith the proclaation of artial la). 3or
instance, soe civil liberties )ill have to be suspended upon the proclaation of
artial la), not because )e do not value the, but siply because it is
ipossible to ipleent these civil liberties hand;in;hand )ith the effective and
successful e1ercise and ipleentation of artial po)ers. There are certain
individual rights )hich ust be restricted and curtailed because their e1ercise and
en+oyent )ould negate the ipleentation of artial authority. The
preservation of the %tate and its Constitution stands paraount over certain
individual rights and freedo. As it )ere, the Constitution provides artial la) as
its )eapon for survival, and )hen the occasion arises, )hen such is at sta4e,
prudence re*uires that certain individual rights ust have to be scarified
teporarily. 3or indeed, the destruction of the Constitution )ould ean the
destruction of all the rights that flo) fro it. .
6E:E9ATE A62:? 6oes Kour Conor ean to say that )hen artial la) is declared
and 2, for instance, a detained by the ilitary authorities , 2 cannot avail of the
noral +udicial processes to obtain y liberty and *uestion the legality of y
detentionE
6E:E9ATE 6E 9G>MAN 8A.=? 2f 2 a not ista4en, Kour Conor, you are referring
to the privilege of the )rit of habeas corpus.
6E:E9ATE A62:? Kes, Kour Conor, that is correct.
6E:E9ATE 6E 9G>MAN 8A.=? 2n that case, Kour Conor, 2 ta4e it that )hen artial
la) is proclaied, the privilege of the )rit of habeas corpus is ipso facto
suspended and, therefore, if you are apprehended and detained by the ilitary
authorities, ore so, )hen your apprehension and detention )ere for an offense
against the security of the %tate, then you cannot invo4e the privilege of the )rit
of habeas corpus and as4 the courts to order your teporary release. The
privilege of the )rit of habeas corpus, li4e soe other individual rights, ust
have to yield to the greater need of preserving the %tate. Cere, )e have to a4e
a choice bet)een t)o values, and 2 say that in ties of great peril, )hen the very
safety of the )hole nation and this Constitution is at sta4e, )e have to elect for
the greater one. 3or, as 2 have said, individual rights assue eaning and
iportance only )hen their e1ercise could be guaranteed by the %tate, and such
guaranty cannot definitely be bad unless the %tate is in a position to assert and
enforce its authority.
6E:E9ATE A62:? %ince artial la) )as declared by President Marcos last
%epteber &", "'(&, and announced on %epteber &7, "'(&, the President has
been issuing decrees )hich are in the nature of statutes, regulating as they do,
various and nuerous nors of conduct of both the private and the public
sectors. /ould you say, Kour Conor, that such e1ercise of legislative po)ers by
the President is )ithin his artial la) authorityE
6E:E9ATE 6E 9G>MAN 8A.=? Certainly, and that is the position of this Coittee,
As artial la) adinistrator and by virtue of his position as Coander;in;Chief
of the Ared 3orces, the President could e1ercise legislative and, if 2 ay add,
soe +udicial po)ers to eet the artial situation. The Chief E1ecutive ust not
be hastrung or liited to his traditional po)ers as Chief E1ecutive. /hen
artial la) is declared, the declaration gives rise to the birth of po)ers, not
strictly e1ecutive in character, but nonetheless necessary and incident to the
assuption of artial la) authority to the end that the %tate ay be safe.
6E:E9ATE A62:? 2 a not at all *uestioning the constitutionality of the
President!s assuption of po)ers )hich are not strictly e1ecutive in character.
2ndeed, 2 can concede that )hen artial la) is declared, the President can
e1ercise certain +udicial and legislative po)ers )hich are essential to or )hich
have to do )ith the *uelling of rebellion, insurrection, iinent danger thereof,
or eeting an invasion. /hat appears disturbing to e, and )hich 2 )ant Kour
Conor to convince e further, is the e1ercise and assuption by the President or
by the Prie Minister of po)ers, either legislative or +udicial in character, )hich
have nothing to do )ith the conditions of rebellion, insurrection, invasion or
iinent danger thereof. To be ore specific, Kour Conor, and to cite to you an
e1aple, 2 have in ind the decree issued by the President proclaiing a
nation)ide land refor or declaring land refor throughout the Philippines. 2
suppose you )ill agree )ith e, Kour Conor, that such a decree, or any siilar
decree for that atter, has nothing to do )ith invasion, insurrection, rebellion or
iinent danger thereof. My point, Kour Conor, is that this easure basically has
nothing to do )ith the restoration of peace and order or the *uelling of rebellion
or insurrection. Co) could )e validly say that the President!s assuption of such
po)ers is +ustified by the proclaation of artial la)E
6E:E9ATE 6E 9G>MAN 8A.=? As 2 have repeatedly stated. Kour Conor, )e have
no) to abandon the traditional concept of artial la) as it is understood in soe
foreign te1tboo4s. /e have to at artial la) not as an iutable principle.
Rather, )e ust vie) it in the light of our conteporary e1perience and not in
isolation thereof. The *uelling of rebellion or la)lessness or, in other )ords, the
restoration of peace and order ay adittedly be said to be the iediate
ob+ective of artial la), but that is to beg the *uestion. 3or ho) could there
really be an enduring peace and order if the very causes )hich spa)ned the
conditions )hich necessitated the e1ercise of artial po)ers are not reediedE
Kou cite as all e1aple the decree on land refor. Kour Conor )ill have to adit
that one of the a+or causes of social unrest aong the peasantry in our society
is the deplorable treatent society has given to our peasants. As early as the
"'7#!s, the peasants have been agitating for agrarian refors to the e1tent that
during the tie of President Luirino they alost succeeded in overthro)ing the
governent by force. /ere )e to adopt the traditional concept of artial la), )e
)ould be confined to erely putting do)n one peasant uprising after another,
leaving unsolved the aladies that in the ain brought forth those uprisings. 2f
)e are really to establish an enduring condition of peace and order and assure
through the ages the stability of our Constitution and the Republic, 2 say that
artial la), being the ultiate )eapon of survival provided for in the
Constitution, ust penetrate deeper and see4 to alleviate and cure the ills and
the seething furies deep in the bo)els of the social structure. 2n a very real
sense, therefore, there is a profound relationship bet)een the e1ercise by the
artial la) adinistrator of legislative and +udicial po)ers and the ultiate
analysis, the only 4no)n liitation to artial la) po)ers is the convenience of
the artial la) adinistrator and the +udgent and verdict of the and, of course,
the verdict of history itself.
6E:E9ATE :ED2%TE 8-.=? Kour Conor, +ust for purposes of discussion, ay 2 4no)
fro you )hether has been an occasion in this country )here any past President
had ade use of his artial la) po)erE
6E:E9ATE 6E 9G>MAN 8A.=? 2 a glad that you as4ed that *uestion, Kour Conor,
because it sees that )e are of the ipression that since its incorporation into
the "'7< Constitution, the, artial la) provision has never been availed of by any
President Kour Conor, that during the 0apanese occupation, President :aurel had
occasion to declare artial la), and 2 recall that )hen President :aurel declared
artial la), he also assued legislative and +udicial po)ers. /e ust, of course,
reali,e that during the tie of President :aurel the threats to national security
)hich precipitated the declaration cae fro the outside. The threats, therefore
)ere not internal in origin and character as those )hich propted President
Marcos to issue his historic proclaation. 2f, in case 5 as )hat happened during
the tie of President :aurel 5 the declaration of artial la) necessitated the
e1ercise of legislative po)ers by the artial la) adinistrator, 2 say that greater
necessity calls forth the e1ercise of that po)er )hen the threats to national
security are posed not by invaders but by the rebellious and seditious eleents,
both of the left and right, fro )ithin. 2 say that because every rebellion )hether
in this country or in other foreign countries, is usually the product of social unrest
and dissatisfaction )ith the established order. Rebellions or the acts of rebellion
are usually preceded by long suffering of those )ho ultiately choose to rise in
ars against the governent. A rebellion is not born overnight. 2t is the result of
an accuulation of social sufferings on the part of the rebels until they can no
longer stand those sufferings to the point that, li4e a volcano, it ust sooner
erupt. 2n this conte1t, the staping out of rebellion ust not be the ain and
only ob+ective of artial la). The Martial la) adinistrator should, nay, ust,
ta4e steps to reedy the crises that lie behind the rebellious oveent, even if
in the process, he should e1ercise legislative and +udicial po)ers. 3or )hat benefit
)ould it be after having put do)n a rebellion through the e1ercise of artial
po)er if another rebellion is again in the offing because the root causes )hich
propelled the oveent are ever presentE -ne ight succeed in capturing the
rebel leaders and their follo)ers, iprison the for life or, better still, 4ill the in
the field, but soeday ne) leaders )ill pic4 up the torch and the tattered banners
and lead another oveent. 9reat causes of every huan underta4ing do not
usually die )ith the en behind those causes. Gnless the root causes are
theselves eliinated, there )ill be a resurgence of another rebellion and,
logically, the endless and vicious e1ercise of artial la) authority. This reinds
e of the )ise )ords of an old an in our to)n? That if you are going to clear
your field of )eeds and grasses, you should not erely cut the, but dig the
out.
PRE%262N9 -332CER TGPA> 8A.=? /ith the indulgence of the 9entleen fro :a
Gnion, the Chair )ould )ant to have a recess for at least ten inutes.
6E:E9ATE 6E 9G>MAN 8A.=? Than4 you, Mr. Chairan. 2n fact, 2 )as about to
ove for it after the grueling interpellations by soe of our colleagues here, but
before )e recess, ay 2 ove for the approval of %ection @E
PRE%262N9 -332CER TGPA> 8A.=? Are there any ob+ectionsE There being none,
%ection @ is approved.
Although there are authorities to the contrary, it is generally held that, in
construing constitutional provisions )hich are abiguous or of doubtful eaning,
the courts ay consider the debates in the constitutional convention as thro)ing
light on the intent of the fraers of the Constitution.
34
2t is true that the intent of
the convention is not controlling by itself, but as its proceeding )as preliinary to
the adoption by the people of the Constitution the understanding of the
convention as to )hat )as eant by the ters of the constitutional provision
)hich )as the sub+ect of the deliberation, goes a long )ay to)ard e1plaining the
understanding of the people )hen they ratified it.
35
More than this, the people
reali,ed that these provisions of the ne) Constitution )ere discussed in the light
of the treendous forces of change at )or4 in the nation, since the advent of
artial la). Evident in the hublest villages to the bustling etropolises at the
tie )ere the infrastructures and institutional changes ade by the governent
in a bold e1perient to create a +ust and copassionate society. 2t )as )ith an
a)areness of all of these revolutionary changes, and the confidence of the people
in the deterination and capability of the ne) dispensation to carry out its
historic pro+ect of eliinating the traditional sources of unrest in the Philippines,
that they over)helingly approved the ne) Constitution.
D
&-L+T+C'L 8<"T+-*
/e have adverted to the fact that our +urisprudence attest abundantly to the
e1istence of a continuing Counist rebellion and subversion, and on this point
then can hardly be any dispute. The narro) *uestion, therefore, presented for
resolution is )hether the deterination by the President of the Philippines of the
necessity for the e1ercise of his constitutional po)er to declare artial la) is
sub+ect to revie). 2n resolving the *uestion, /e re;affir the vie) that the
deterination of the for the e1ercise of the po)er to declare artial la) is )ithin
the e1clusive doain of the President, and his deterination is final and
conclusive upon the courts and upon all persons. This conclusion necessarily
results fro the fact that the very nature of the e1ecutive decision is political, not
+udicial. The decision as to )hether or not there is necessity )or the e!ercise o)
the power is wholly con)ided by our to the Chie) !ecutive. 3or such decision, he
is directly responsible to the people for )hose )elfare he is obliged to act. 2n vie)
of the of the responsibility reposed upon hi, it is essential that he be accorded
freedo of action deanded by the e1igency. The po)er is to be e1ercised upon
sudden eergencies and under circustances vital to the e1istence of the %tate.
The issue is coitted to hi for deterination by criteria of political and ilitary
e1pediency. 2t is not pretended to rest on evidence but on inforation )hich ay
not be acceptable in court. There are therefore, no standards ascertainable by
settled +udicial e1perience or process by reference to )hich his decision can be
+udicially revie)ed. 2n other )ords, his decision is of a 4ind for )hich the +udicial
has neither the aptitude, facilities nor responsibility to underta4e. /e are
un)illing to give our assent to e1pressions of opinion )hich, although not
intended, tends to cripple the constitutional po)ers of the governent in dealing
proptly and effectively )ith the danger to the public safety posed by the
rebellion and Counist subversion.
Moreover, the Court is )ithout po)er to shape easures for dealing )ith the
probles of society, uch less )ith the suppression of rebellion or Counist
subversion. The nature of +udicial po)er is largely negative, and it is essential
that the opportunity of the Chief E1ecutive for )ell;directed positive action in
dealing )ith the proble be preserved, if the 9overnent is to serve the best
interests of the people. 3inally, as a conse*uence of the general referendu of
0uly &(;&$, "'(7, )here "$,#<&,#"A citi,ens voted over)helingly for the
continuance of President Marcos in office beyond "'(7 to enable hi to finish the
refors he had instituted under artial la), the *uestion of the legality of the
proclaation of artial la), and its continuance, had undoubtedly been reoved
fro +udicial intervention.
/e conclude that the proclaation of artial la) by the President of the
Philippines on %epteber &", "'(& and its continuance until the present are valid
as they are in accordance )ith the Constitution.
D2
C-<,T &,CL<// $,-M +*8<+,+*G +*T- LG'L+T@ -$ ',,"T '*/
/T*T+-* -$ &T+T+-*,"
Caving concluded that the Proclaation of Martial :a) on %epteber &", "'(& by
the President of the Philippines and its continuance are valid and constitutional,
the arrest and detention of petitioners, pursuant to 9eneral -rder No. & dated
%epteber &&, "'(& of the President, as aended by 9eneral -rder No. &;A,
dated %epteber &A, "'(&, ay not no) be assailed as unconstitutional and
arbitrary. 9eneral -rder No. & directed the %ecretary of National 6efense to arrest
Bindividuals naed in the attached list, for being active participants in the
conspiracy to sei,e political and state po)er in the country and to ta4e over the
governent by force ... in order to prevent the fro further coitting acts
that are iniical or in+urious to our people, the governent and our national
interestB and Bto hold said individuals until other)ise ordered released by the
President or his duly authori,ed representative.B 2t is not disputed that petitioners
are all included in the list attached to 9eneral -rder No. &.
2t should be iportant to note that as a conse*uence of the proclaation of
artial la), the privilege of the )rit of habeas corpus has been ipliedly
suspended. Authoritative )riters on the sub+ect vie) the suspension of the )rit of
habeas corpus as an incident, but an iportant incident of a declaration of artial
la).
The suspension of the )rit of habeas corpus is not, in itself, a declaration of
artial la). it is siply an incident, though a very iportant incident, to such a
declaration. But practically, in England and the Gnited %tates, the essence of
artial la) is the suspension of the privilege of the )rit of habeas corpus, and a
declaration of artial la) )ould be utterly useless unless accopanied by the
suspension of the privilege of such )rit. Cence, in the Gnited %tates the t)o,
artial la) and the suspension of the )rit is regarded as one and the sae thing.
:uther v. Borden, ( Co). ". Martin v. Mott, "& /heat. "'. %tory, Co. on the
Constitution, see. "7@&. 0ohnson v. 6uncan, 7 Martin, N.%. <7#. 8"& :. ed. <$&;
$7=.
Evidently, according to 0udge %alley, there could not be any privilege of the )rit
of habeas corpus under artial la) 82n re 3ield, ' 3ed. Cas. " H"$A&J=. The
evident purpose of the suspension of the )rit is to enable the e1ecutive, as a
precautionary easure, to detain )ithout interference persons suspected of
harboring designs harful to public safety 8! &arte Jimmerman, 7& 3ed. &nd.
@@&, @@A=. 2n any event, the Proclaation of Martial :a), in effect, suspended the
privilege of the )rit )ith respect to those detained for the cries of insurrection
or rebellion, etc., thus?
others )ho ay hereafter be siilarly detained for the crimes o) insurrection or
against national security and the la) of the nations, cries against public order,
be kept under detention until otherwise ordered released by me or by my duly
designated representative. 8Ephasis supplied=.
9eneral -rder No. & )as issued to ipleent the aforecited provisions of the
Proclaation of Martial :a). .
By the suspension of the privilege of the )rit of habeas corpus, the +udiciary is
precluded fro interfering )ith the orders of the E1ecutive by in*uiring into the
legality of the detention of persons involved in the rebellion. .
The arrest and detention of persons reasonably believed to be engaged in, or
connected )ith, the insurgency is predicated upon the principle that in tie of
public disorder it is the right and duty of all citi,ens especially the officer
entrusted )ith the enforceent of the la) to eploy such force as ay be
necessary to preserve the peace and restrain those )ho ay be coitting
felonies. Encroachents upon personal liberty, as )ell as upon private property
on those occasions, are +ustified by the necessity of preserving order and the
greater interests of the political counity. The Chief E1ecutive, upon )ho is
reposed the duty to preserve the nation in those ties of national peril, has
correspondingly the right to e1ercise broad authority and discretion copatible
)ith the eergency in selecting the eans and adopting the easures )hich, in
his honest +udgent, are necessary for the preservation of the nation!s safety. 2n
case of rebellion or insurrection, the Chief E1ecutive ay Buse the ilder easure
of sei,ing the bodies of those )ho he considers to stand in the )ay of restoring
peace. %uch arrests are not necessarily for punishent but are by )ay of
precaution, to prevent the e1ercise of hostile po)er.B 8Moyer v. &eabody, &"& G.
%. ($, $@;$< H"'#'J <7 :. ed. @"".=
The +ustification for the preventive detention of individuals is that in a crisis such
as invasion or doestic insurrection Bthe danger to the security of the nation and
its institutions is so great that the governent ust ta4e easures that
teporarily deprive citi,ens of certain rights in order to ensure the survival of the
political structure that protects those and other rights during ordinary ties.B
8/evelopments *ational "ecurity, Dol. $<, Carvard :a) Revie), March "'(&, No.
<, p. "&$A=.
36
2n Moyer v. &eabody, supra, the %upree Court of the Gnited %tates upheld the
detention of a labor leader )hose ere presence in the area of a violent labor
dispute )as deeed li4ely to incite further disturbances. B%o long as such arrests
are ade in good faith,B said the erudite 0ustice Coles, Band in the honest belief
that they are ade in order to head the insurrection off, the governor is the final
+udge and can not be sub+ected to an action after he is out of office, on the
ground that he had no reasonable ground for his belief.B
6uring /orld /ar 22, persons of 0apanese ancestry )ere evacuated fro their
hoes in the /est Coast and interned in the interior until the loyalty of each
individual could be established. 2n .orematsu v. <nited "tates 87&7, G.%. &"@
H&@@J=, the %upree Court of the Gnited %tates upheld the e1clusion of these
persons on the ground that aong the a substantial nuber )ere li4ely to be
disloyal and that, therefore, the presence of the entire group created the ris4 of
sabotage and espionage. Although the Court avoided constitutionality of the
detention that follo)ed the evacuation, its separation of the issue of e1clusion
fro that detention )as artificial, since the separate orders part of a single over;
all policy. The reasoning behind its of persons of 0apanese ancestry )ould see
to apply )ith e*ual force to the detention despite the greater restrictions oil
oveent that the latter entailed. 2n the Middle East, ilitary authorities of
2srael have detained suspected Arab terrorists )ithout trial 86ersho)it,,
Terrorism and &reventive /etention9 The Case o) +srael# <# Coentaries, 6ec.
"'(# at ($=.
Aong the ost effective countereasures adopted by the governents in
%outheast Asia to prevent the gro)th of Counist po)er has been the arrest
and detention )ithout trial of 4ey united front leaders of suitable ties.
37
The preventive detention of persons reasonably believed to be involved in the
Counist rebellion and subversion has long been recogni,ed by all deocratic
governents as a necessary eergency easure for restoring order. BBecause of
the difficulty in piercing the secrecy of tightly 4nit subversive organi,ations in
order to deterine )hich individuals are responsible for the violence,
governents have occasionally responded to eergencies ar4ed by the threat
or reality of sabotage or terroris by detaining persons on the ground that they
are dangerous and )ill probably engage in such actions.B
3*
2n the case at bar, petitioner A*uino 8:;7<<@A= has already been charged )ith the
violation of the Anti;%ubversion Act 8:7(7A@= and therefore his detention is
reasonably related to the dueling of the rebellion. Gpon the other hand, the other
petitioners have been released but their oveents are sub+ect to certain
restrictions. The restrictions on the freedo of oveent of these petitioners, as
a condition for their release, are, ho)ever, re*uired by considerations of national
security.
39
2n the absence of )ar or rebellion, the right to travel )ithin the
Philippines ay be considered constitutionally protected. But even under such
circustances that freedo is not absolute. Areas ravaged by floods, fire and
pestilence can be *uarantined, as unliited travel to those areas ay directly and
aterially interfere )ith the safety and )elfare of the inhabitants of the area
affected. 6uring a rebellion or insurrection the authority of the coander to
issue and enforce police regulations in the area of the rebellion or insurrection is
)ell recogni,ed. %uch regulations ay involve the liitation of the right of
assebly, the right to 4eep ars, and restrictions on freedo of oveent of
civilians.
4/
Gndoubtedly, easures conceived in good faith, in the face of the
eergency and directly related to the *uelling of the disorder fall )ithin the
discretion of the President in the e1ercise of his authority to suppress the
rebellion and restore public order.
/e find no basis, therefore, for concluding that petitioner A*uino!s continued
detention and the restrictions iposed on the oveents of the other petitioners
)ho )ere released, are arbitrary.
C-*CL<"+-*
/e reali,e the transcendental iportance of these cases. Beyond the *uestion of
deprivation of liberty of petitioners is the necessity of laying at rest any doubt on
the validity of the institutional changes ade to bring the country out of an era of
rebellion, near political anarchy and econoic stagnation and to establish the
foundation of a truly deocratic governent and a +ust and copassionate
society. 2ndeed, as a respected delegate of t)o Constitutional Conventions
observed? BThe introduction of artial la) has been a necessary recourse to
restore order and steer the country safely through a severe econoic and social
crisis.B
41
The e1ercise of these e1traordinary po)ers not only to restore civil
order thru ilitary force but also to effect urgently needed refors in order to
root out the causes of the rebellion and Counist subversion ay indeed be an
e1perient in the governent. But it )as necessary if the national deocratic
institution )as to survive in copetition )ith the ore revolutionary types of
governent. BNational deocratic constitutionalis, ancient though its origin ay
be,B observed 6r. C.3. %trong,
41
Bis still in an e1periental stage and if it is to
survive in copetition )ith ore revolutionary types of governent, )e ust be
prepared to adapt to ever;changing conditions of odern e1istence. The basic
purpose of a political institution is, after all, the sae )herever it appears? to
secure social peace and progress, safeguard individual rights, and proote
national )ell;being.B
These adaptations and innovations )ere resorted to in order to reali,e the social
values that constitute the professed goals of the deocratic polity. 2t )as an
attept to a4e the political institution serve as an effective instruent of
econoic and social developent. The need of the ties )as for a ore effective
ode of decision;a4ing and policy;forulation to enable the nation to 4eep
pace )ith the revolutionary changes that )ere ine1orably reshaping Philippine
%ociety. A governent, observed the then 6elegate Manuel Ro1as, a Meber of
the %ub;Coittee of %even of the %ponsorship Coittee of the "'7@
Constitutional Convention, Bis a practical science, not a theory, and a governent
can be successful only if in its structure due consideration is given to the habits,
the custos, the character and, as McMinley said to the idiosyncracies of the
people.B
43
/CERE3-RE, /e hereby conclude that 8a= the proclaation of artial la)
8Proclaation No. "#$"= on %epteber &", "'(& by the President of the
Philippines and its continuance, are valid as they have been done in accordance
)ith the Constitution, and 8b= as a conse*uence of the suspension of the privilege
of the )rit of habeas corpus upon the proclaation of artial la), the Court is
therefore fro in*uiring into the legality of the arrest and detention of these
petitioners or on the restrictions iposed upon their oveents after their
release ilitary custody.
Accordingly, /e vote to disiss all the petitions.
Makasiar# $ernande% and '(uino# JJ.# concur.

ESGUERR!, J.:
A. PRE:2M2NARK %TATEMENT
-n %epteber &", "'(&, the President issued Proclaation No. "#$" placing the
)hole Philippines, under artial la). This proclaation )as publicly announced
by the President over the and radio on the evening of %epteber &", "'(&. The
grounds for the proclaation are recited in detail in its preable, specifically
entioning various acts of insurrection and rebellion already perpetrated and
about to be coitted against the 9overnent by the la)lesseleents of the
country in order to gain political control of the state. After laying do)n the basis
for the establishent of artial la), the President ordered?
N-/, TCERE3-RE, 2, 3ER62NAN6 E. MARC-%, President of the Philippines. by
coander;in;chief, do hereby coand the ared forces of the Philippines, to
2ssued shortly after the proclaation )as 9eneral -rder No. &, follo)ed by No. &;
A, dated %epteber &A, "'(&, to )hich )as attached a list of the naes of
various persons )ho had ta4en part in the various acts of insurrection, rebellion
and subversion entioned in the proclaation, and given aid and cofort in the
conspiracy to sei,e political and state po)er in the country and ta4e over the
governent by force. They )ere ordered to be apprehended iediately and
ta4en into custody by the %ecretary of National 6efense )ho )as to act as
representative of the President in carrying out artial la).
The petitioners herein )ere on %epteber && and &7, "'(&, arrested and ta4en
into ilitary custody by the %ecretary of National 6efense pursuant to 9eneral
-rder No. &;A of the President for being included in said list as having
participated, directly or indirectly, or given aid and cofort to those engaged in
the conspiracy and plot to sei,e political and state po)er and to ta4e over the
9overnent by force. They as4 this Court to set the at liberty, claiing that
their arrest and detention is illegal and unconstitutional since the proclaation of
artial la) is arbitrary and )ithout basis and the alleged ground therefor do not
e1ist and the courts are open and norally functioning.
3or the respondents the %olicitor 9eneral in his ans)er aintains that
Proclaation No. "#$" is Constitutional and valid, having been issued in
accordance )ith the Constitution. that the orders and decrees issued thereunder
are valid. that the arrest and detention of petitioners pursuant thereto is li4e)ise
valid, legal and constitutional, and that this Court should refrain fro issuing the
desired )rits as these cases involve a political *uestion.
After +oinder of issues, these cases )ere heard on %epteber &A and &', "'(&,
and on -ctober A, "'(&, follo)ed by the filing of Meoranda and Notes on the
arguents of both parties.
After subission of these cases for decision, petitioner Raon /. 6io4no filed a
otion to be allo)ed to )ithdra) his petition. To the otion is attached a
hand)ritten letter of said petitioner to his counsel stating the reasons )hy he
)ished to )ithdra) his petition. The principal reasons advanced by hi for his
action are his doubts and isgivings on )hether he can still obtain +ustice fro
this Court as at present constituted since three of the 0ustices aong the four
)ho held in the ratification cases that there )as no valid ratification of the Ne)
Constitution signed on Noveber 7#, "'(& and proclaied ratified by the
President on 0anuary "(, "'(7 8the then Chief 0ustice having retired=, had ta4en
an oath to support and defend the said constitution. that in filing his petition he
e1pected it to be decided be the %upree Court under the "'7< constitution, and
that )ith the oath ta4ing of the three reaining ebers, he can no longer
e1pect to obtain +ustice.
After the otion to )ithdra) had been deliberated upon by the Court, seven
+ustices voted to grant and five voted to deny the otion. There being no
a+ority to grant the otion, it )as denied. Those )ho voted to deny the otion
are of the vie) that it is not siply a atter of right to )ithdra) because of the
great public interest involved in his case )hich should be decided for the peace
and tran*uility of the nation, and because of the conteptuous stateent of
petitioner 6io4no that this Court is no longer capable of adinistering +ustice to
hi. This *uestion should no longer stand on the )ay to the disposition of these
cases on the erits.
B. TCE 2%%GE%.
Prescinding fro the *uestion of +urisdiction )hich the %olicitor 9eneral raised by
reason of the President!s 9eneral -rder No. 7, dated %epteber &&, "'(&, as
aended by 9eneral -rder No. 7;A, dated %epteber &@, "'(&, )hich allo)ed
the +udicial courts to regularly function but inhibited the fro ta4ing cogni,ance
of cases involving the validity, legality or constitutionality of the Martial :a)
Proclaation, or any decree, order or acts issued, proulgated or perfored by
the President or his duly authori,ed representative pursuant thereto, fro )hich
position he relented and he has, accordingly, refrained fro pressing that issue
upon the Court, the ain issues for resolution are the validity of Proclaation No.
"#$" declaring and establishing artial la) and )hether this Court can in*uire
into to veracity and sufficiency of the facts constituting the grounds for its
issuance.
2 aintain that Proclaation No. "#$" is constitutional, valid and binding. that
the veracity or sufficiency of its factual bases cannot be in*uired into by the
Courts and that the *uestion presented by the petitions is political in nature and
not +usticiable.
Proclaation No. "#$" )as issued by the President pursuant to Article D22,
%ection "#, paragraph &, of the Constitution of "'7<, )hich reads as follo)s?
and, )hether it becoes necessary, he ay call violence, invasion, insurrection,
or rebellion. 2n case of invasion, insurrection, or rebellion, or iinent danger
)rit of habeas corpus, or place the Philippines or any part thereof under artial
la).
This provision ay, for present purposes, be called the Coander;in;Chief
clause.
The above provision has no counterpart in the Constitution of the Gnited %tates or
in that of any state thereof e1cept that of Alas4a to a liited e1tent. To
coprehend the scope and e1tent of the President!s po)er to declare artial la),
let us trace the bac4ground and origin of this provision.
To suppress the great rebellion in the Gnited %tates, 4no)n as the Civil /ar )hich
)as aied to )rec4 the 3ederal union, President :incoln e1ercised po)ers not
granted to hi by the Constitution of the Gnited %tates but pertaining to the
congress. Ce had suspended the privilege of the )rit of habeas corpus.
proclaied artial la) in certain areas and Military Coissions )ere organi,ed
)here it )as deeed necessary to do so in order to subdue the rebels or prevent
their sypathi,ers fro prooting the rebellion. :incoln +ustified his acts by
saying?
2 did understand ... that y oath to preserve the Constitution to the best of y
ability iposed upon e the duty of preserving, by every indispensable eans
that governent 5 that nation 5 of )hich that constitution )as the organic la).
/as it possible to lose the nation and yet preserve the ConstitutionE By general
la), life and lib ust be protected, yet often a lib ust be aputated to save
a life. but a life is never )isely given to save a lib. 2 felt that easures,
other)ise unconstitutional, ight becoe la)ful by becoing indispensable to
the preservation of the Constitution through the preservation of the nation. Right
or )rong, 2 assued this ground, and no) avo) it ... 8& Nicholay and Cay,
Abraha :incoln Coplete /or4s, <#$ 8"'#&==.
%ydney 9. 3isher in his )or4 entitled B%uspension of 1abeas corpus 6uring the
/ar of the Rebellion,B 7 Pol. %cience Luarterly, e1pressed the sae idea )hen he
said?
... Every an thin4s he has a right to live and every governent thin4s it has a
right to live. Every an )hen driven to the )all by a urderous assailant )ill
override all la)s to protect hiself, and this is called the great right of self;
defense. %o every governent, )hen driven to the )all by a rebellion, )ill
traple do)n a constitution before it )ill allo) itself to be destroyed. This ay
not be constitutional la), but it is fact. 8Pp. @<@, @$@;@$<=
But the difficulty occasioned by the absence of a constitutional po)er to suspend
the privilege of the )rit of habeas corpus and to proclai artial la), )hich
greatly hastrung :incoln in coping effectively )ith the civil la), )as obviated
)hen our o)n Constitution e1pressly provided for the grant of that presidential
po)er 8Art. D22, %ection "#, par. &=. Gnli4e the legislative po)er under the Bill of
Rights of our Constitution 8Article 222, %ection ", paragraph "@, "'7<
Constitution=, the President can suspend the privilege of the )rit of habeas
corpus and ipose artial la) in cases of iinent danger of invasion,
insurrection or rebellion )hen the public safety re*uires it. The Congress could
not have been granted the po)er to suspend in case of iinent danger as it is
not by the nature of its office in a position to deterine proptly the e1istence of
such situation. 2t can only see or )itness the actual occurrence thereof and )hen
they happen, Congress is also epo)ered to suspend tile privilege of the )rit of
habeas corpus as an e1ercise of legislative po)er )hen the President falls to act.
but under no circustances can it declare artial la) as this po)er is e1clusively
lodged in the President as Coander;in;Chief.
/hen the Philippine Constitution of "'7< )as )ritten, the fraers decided to
adopt the provisions of %ection 7, paragraph (, of the 0ones :a), )hich becae
Article """, %ection ", paragraph "@, of the "'7< Constitution, and those of
%ection &" of the 0ones :a) )hich becae Article D22, %ection "#, paragraph &, of
the sae. The 0ones :a) provisions read as follo)s?
%ection 7, paragraph ( of the 0ones :a) provided?That the privilege of the )rit of
habeas corpus shall not be suspended, unless )hen in cases of rebellion,
insurrection, or invasion the public safety ay re*uire it, in either of )hich events
the sae ay be suspended by the President, or by the 9overnor;9eneral,
)herever during such period the necessity for such suspension shall e1ist.
And %ection &" of the sae la) in part provided that?
... 8C=e 8referring to the 9overnor;9eneral= ay, in case of rebellion or invasion,
or iinent danger thereof, )hen the public safety re*uires it, suspend the
privilege of the )rit of habeas corpus, or place the 2slands, or any part thereof,
under artial la)? &rovided That )henever the 9overnor;9eneral shall e1ercise
this authority, he shall at once notify the President of the Gnited %tates thereof,
together )ith the attending facts and circustances, and the President shall have
po)er to odify or vacate the action of the 9overnor;9eneral.
Before the 0ones :a), the Philippine Bill of "'#& provided as follo)s?
8%ection &, par. (=.
The Philippine Bill of "'#& had no provision pertaining to the declaration of
artial la).
The adoption of the 0ones :a) provisions )as propted by the prevailing
sentient aong the delegates to the "'7@;"'7< Constitutional Convention to
establish a strong e1ecutive, as sho)n by its proceedings reported by t)o of its
proinent delegates 8:aurel and Aruego= )ho recounted in their published )or4s
ho) the delegates bloc4ed the ove to sub+ect the po)er to suspend the
privilege of the )rit of habeas corpus, in case of invasion, insurrections or
rebellion, to the approval of the National Assebly, but did nothing to bloc4, and
allo)ed, the grant of the po)er, including that to declare artial la), to the
President as Coander;in;Chief of the Ared 3orces. /hat is evident fro this
incident is that )hen it coes to the suspension of the privilege of the )rit of
habeas corpus and establishent of artial la) in case of the occurrence or
iinent danger of the contingencies entioned therein, and the public safety
re*uires it, the clear intent )as to e1clusively vest in the President that po)er,
)hereas Congress can only suspend under the Bill of Rights provision )hen there
is actual occurrence of these events for reasons already adverted to above. And
)hen artial la) is proclaied, the suspension of the privilege of habeas corpus
necessarily follo)s for. the greater po)er includes the less. Nobody )ill ever
doubt that there are greater restrictions to individual liberty and freedo under
artial la) than under suspension of the privilege of the )rit of habeas corpus. 2n
the forer he can even close the courts if necessary and establish in their place
ilitary coissions. 2n the latter, the action proceeds fro the preise that the
courts are open but cannot grant the )rit.
/hen the Constitution of "'7< )as being fraed, the prevailing +urisprudence on
the atter )as that laid do)n in Barcelon vs. Baker, < Phil. $(. %epteber 7#,
"'#<. 2n that case the *uestion presented and decided is identical to )hat is
raised by the petitioners here. This 8"'#<= Court ruled that the +udiciary ay not
in*uire into the facts and circustance upon )hich the then 9overnor 9eneral
suspended the privilege of the )rit under %ection < of the Philippine Bill of "'#&,
)hich granted hi the sae po)er no) vested in the President, and that the
findings of the 9overnor 9eneral )ere Bfinal and conclusiveB upon the courts.
A)are of this rule, the fraers of the "'7< Constitution granted to the President
the po)ers no) found in Article D22, %ection "#, paragraph &, of the "'7<
Constitution.
-n -ctober &&, "'<#, Proclaation No. &"# suspending the privilege of the )rit
of habeas corpus )as issued by the late President Luirino. Assailed before this
Court in Montenegro vs. Castaeda and Balao '" Phil. $$&, as unconstitutional
and unfounded, this Court said?
Barcelon vs. Baker 8< Phil. $(, pp. '$ and "##= the authority to decide whether
the e!igency has arisen re(uiring suspension belongs to the &resident and Ihis
decision is )inal and conclusiveI upon the courts and upon all other persons.
But in Lansang vs. Garcia, :;77'A@, decided 6eceber "", "'(", @& %CRA, @@$,
this Court asserted the po)er to in*uire into the constitutional sufficiency of the
factual bases supporting the President!s action in suspending the privilege of the
)rit of habeas corpus under Proclaation No. $$', dated August &", "'(". 2n
departing fro the rule established in the Ba4er and CastaFeda cases, this Court
said?
The )eight of Barcelon v. Baker, as a precedent, is diluted by t)o 8&= factors,
naely? 8a= it relied heavily upon Martin v. Mott involving the G.%. President!s
po)er to call out the militia, )hich he being the coander;in;chief of all the
ared forces ay be e1ercised to suppress or prevent any la)less violence, even
)ithout invasion, insurrection or rebellion, or iinent danger thereof, and is,
accordingly, uch broader than his authority to suspend the privilege of the )rit
of habeas corpus, +eopardi,ing as the latter does individual liberty. and 8b= the
privilege had been suspended by the Aerican 9overnor;9eneral, )hose act, as
representative of the %overeign, affecting the freedo of its sub+ects, can hardly
be e*uated )ith that of the President of the Philippines dealing )ith the freedo
of the 3ilipino people, in whom sovereignty resides# and )rom whom all
government authority emanates. The pertinent ruling in the Montenegro case )as
based ainly upon the Barcelon case, and, hence, cannot have ore )eight than
the sae ...
2 aintain that )e should return to the rule in the Ba4er and CastaFeda cases
and +ettison the :ansang doctrine )hich denies the grant of full, plenary and
unrestricted po)er to the President to suspend the privilege of the )rit of habeas
corpus and declare artial la). This denial of unrestricted po)er is not in 4eeping
)ith the intent and purpose behind the constitutional provision involved.
The Act of Congress of "('< involved in Martin Q Mott 8"& /heat "' 8"$&(==
)hich is the ain prop of the Ba4er case, held inapplicable in :ansang cage,
provided?
necessary to repel such invasion ...
The distinction ade by this Court bet)een the po)er of the President to call out
the ilitia and his po)er to suspend the privilege of the )rit of habeas corpus and
declare artial la) does not )arrant a different treatent. The iportant and
decisive point to consider is that both po)ers are e1pressly conferred upon the
President by the sae %ection, e1ercisable only upon the e1istence of certain
facts and situations. Gnder the "'7< Constitution 8Article D22, %ection "#,
paragraph &,= both po)ers are ebraced in the President!s po)er as
Coander;in;Chief of the Ared 3orces.
The Ba4er decision should not have been easculated by coparing the position
then of the 9overnor 9eneral Bas the representative of the %overeignB in relation
to the 3ilipinos )ho )ere its Bsub+ectsB. Gnder prevailing conditions and
deocratic principles, there )ould be greater +ustification for relying on the
+udgent of the President of the Philippines )ho is the chosen representative of
the 3ilipino people and hence ore authoritative in spea4ing for the nation than
on that of an Aerican 9overnor 9eneral then )ho personified the burden of an
iposed sovereignty upon us. And as the E1ecutive of this 9overnent )ho is
charged )ith the responsibility of e1ecuting the la)s, he is as uch a guardian of
the rights and liberties of the people as any court of +ustice. To +udicially undercut
the force and efficacy of the Ba4er and Montenegro doctrine is to ride rough shod
over the intent of the fraers of the "'7< Constitution. Parenthetically it ay be
stated that the Coander;in;Chief clause )as retained in the "'(7 Constitution.
Although the :ansang case tried to cushion the blo) adinistered to the
constitutional provision involved by adopting the test of reasonablenessB in the
e1ercise of the President!s po)er, )ithout eaning to substitute its +udgent for
that of the President, yet the effect of the ruling is so far reaching that it ay
lead to a serious confrontation bet)een the Courts and the President. The po)er
to in*uire into the constitutional sufficiency of the factual bases of the habeas
corpus proclaation 8grounds for the issuance of )hich are the sae as those for
artial la)= presupposes the po)er to 4no) )hat are the facts to be tested by
the constitutional provision. This is the essence of an in*uiry. the deterination
of the constitutional sufficiency of those facts siply follo)s. %uppose this Court
says they are not sufficient to +ustify artial la) and the President says they are
because the evidence on )hich he acted sho)s the e1istence of invasion,
insurrection or rebellion, or the iinent danger thereof, )hat )ill happenE The
outcoe is too unpleasant to conteplate. :et us not try to repeat in our country
)hat transpired bet)een President :incoln and Chief 0ustice Taney )hen the latter
issued a )rit of habeas corpus to set free one held by the ilitary and President
:incoln practically said? Taney has issued his )rit. :et hi enforce itB. E1 parte
Merryan, "( 3ed. Cas. "@@ 8No. '@$(= 8C.C.6. Md. "$A"=.
President :incoln, in the face of the grave danger then to the nation, siply
ignored it and nothing could be done about it.
The test of reasonableness, or absence of arbitrariness in the e1ercise of the
presidential po)er, is all a play of )ords. The deterination of the reasonableness
of the act of the President calls for a consideration of the availability and choice of
less drastic alternatives for the President to ta4e, and )hen that is done the Court
)ill in effect be substituting its +udgent for that of the President. 2f the Court
)ere to liit its po)ers to ascertaining )hether there is evidence to support the
e1ercise of the President!s po)er, )ithout deterining )hether or not such
evidence is true, )e )ould have the curious spectacle of this Court having no
choice but to give its ipriatur to the validity of the presidential proclaation,
as it did in the :ansang case )here it erely accepted the reports of the ilitary
on the facts relied upon by the President in issuing Proclaation No. $$', )ithout
+udicially deterining )hether or not the contents of those reports )ere true, 2n
so doing, this Court siply displayed the iserable liits of its copetence for
having no eans for chec4ing )hether or not those facts are true. 2t )ould have
been ore in 4eeping )ith the dignity, prestige and proper role of this Court to
siply read and consider the bases for the suspension as stated in the various
B)hereasesB of the Proclaation, and then deterine )hether they are in
confority )ith the constitution. This to e is the e1tent of its po)er. To
transcend it is to usurp or interfere )ith the e1ercise of a presidential prerogative.
This Court should not spurn the reinder that it is not the source of the panacea
for all ills affecting the body politic 8Dera vs. Avelino, ((, Phil. "'&=. /hen a
particular cure can coe only fro the political departent, it should refrain fro
in+ecting itself into the clash of political forces contending for the settleent of a
public *uestion. The deterination of )hen and ho) a constitutionally granted
presidential po)er should be e1ercised calls for the strict observance of the tie;
honored principle of the separation of po)ers and respect for a co;e*ual,
coordinate and independent branch of the 9overnent. This is the basic
foundation of the rule governing the handling of a political *uestion that is beyond
+udicial copetence 8Ale+andrino vs. Lue,on, @A Phil. 7<. Cabili vs. 3rancisco, 9.
R. No. :;@A7$, May $, "'<". Ba4er vs. Carr, 7A# G.%. p. "$A. $& %. Ct. Rep. A'. (
:. Ed. &nd, AA7=. 2t is high tie to ree1aine and repudiate the :ansang doctrine
and give the President the sole authority to decide )hen and ho) to e1ercise his
o)n constitutional po)ers. A return to the sanity and )isdo of the Ba4er and
Montenegro doctrine and a reali,ation that +udicial po)er is un)elcoe )hen a
*uestion presents attributes that render it incapable of +udicial deterination,
because the po)er to decide it devolves on another entity, is urgently needed. 2t
is )orth)hile recalling )hat this Court in its sobriety and )isdo, unperturbed by
the foridable turoils, the fierce passions and eotions and the stresses of our
ties, said in the Ba4er case? 8The ter B9overnor 9eneralB should read
BPresidentB=.
-)ing to conditions at ties, a state of insurrection, rebellion or invasion ay
9eneral by telegraph of this landing of troops and that the people of the district
to repel such invasionE 2t see that all en interested in the aintenance and
stability of the 9overnent )ould ans)er this *uestion in the affirative ....
that his detention )ould assists in restoring order and in repelling the invasion,
applies for the )rit of habeas corpus alleging that no invasion actually e1ists. ay
the +udicial departent of the 9overnent call the officers actually engaged in
the field before it and a)ay fro their posts of duty for the purpose of e1plaining
and furnishing proof to it concerning the e1istence or none1istence of the facts
+eopardi,e public interests and safety of the )hole people. 2f the +udicial
rebels or insurrectos or invaders has been accoplished. But it is urged that the
their application for the )rit of habeas corpus that the legislative and e1ecutive
Moreover, it can not be assued that the legislative and e1ecutive branches of
the 9overnent, )ith all the achinery )hich those branches have at their
coand for e1aining into the conditions in any part of the Archipelago, )ill fail
to obtain all e1isting inforation concerning actual conditions. 2t is the duty of the
district, than the other branches of the 9overnentE /e thin4 not.
C. TCE C-NC:G%2-N
The resolution of the *uestion of validity of Proclaation No. "#$" and all acts
done under it, by delving into the sufficiency of the grounds on )hich the
declaration of artial la) is preised, involves a political *uestion. /hether or
not there is constitutional basis for the President!s action is for hi to decide
alone. 2 ta4e it for a fact that he is not an irresponsible an and )ill act
reasonably and )isely, and not arbitrarily. No President in his right ind )ill
proclai artial la) )ithout any basis at all but erely to fight the hobgoblins
and onsters of his o)n iagination. 2n the e1ercise of that po)er this Court
should not interfere or ta4e part in any anner, shape or for, as it did in the
:ansang case. /hen this Court re*uired the Ary officers, )ho furnished the
President )ith the facts on )hich he acted, to present proofs to establish the
basis of the habeas corpus suspension, this Court practically superiposed itself
on the e1ecutive by in*uiring into the e1istence of the facts to support his action.
This is indeed unfortunate. To in*uire is to 4no) the facts as basis of action. To
in*uire is to decide, and to decide includes the po)er to topple do)n or destroy
)hat has been done or erected. This is the ultiate effect of the :ansang
doctrine. .
/hen the security and e1istence of the state is +eopardi,ed by sophisticated
clandestine and overseas eans of destruction and subversion. )hen open
avo)als of attepts to diseber the Philippines are politically and financially
encouraged and supported by foreign po)ers. )hen the advocates of a sinister
political and social ideology are openly storing even the bastions of ilitary
po)er and strength )ith the use of suggled ars furnished by those )ho )ish
this nation ill, let us leave to the E1ecutive the unhapered deterination of the
occasion for the e1ercise of his po)er, as )ell as the choice of the )eapons for
safeguarding the nation. This Court should not, by a process of subtle reasoning
and rhetorical display of legal erudition stand on the )ay to effective action by
virtually crippling hi. 2nstead, it should be a roc4 of refuge and strength for
those )ho are called upon to do battle against the forces of devastating
iconoclas and ruthless vandalis that ruled our streets, our public s*uares and
our schools before the establishent of artial la). 2nstead of iposing craping
restrictions on the e1ecutive and thereby giving the eney aid and cofort, this
Court should allo) the political departent a full and )ide latitude of action.
2t follo)s that all orders, decrees or acts of the President under the Martial :a)
Proclaation, including those of the respondent %ecretary of National 6efense as
his authori,ed representative, are valid and binding. The people have ratified
those acts by the adoption and ratification of the Ne) Constitution as proclaied
by the President on 0anuary "(, "'(7, and by the Referendu held on 0uly &(;
&$,"'(7. 3or us to declare the valid in our decision no) has becoe erely an
anti;clia1 after )e have decided in the 0avellana case that the people have
ratified and accepted the Ne) Constitution and there reains no ore +udicial
obstacle to its enforceent.
Conse*uently, the arrest and detention of the petitioners, including their further
detention after the ratification and acceptance of the Ne) Constitution, and even
up to the present, are valid and constitutional. The duration of their detention,
especially as regards petitioner 0ose /. 6io4no, is a atter addressed to the
sound discretion of the President. As to petitioner Benigno %. A*uino, 0r., his
detention is no longer open to *uestion as foral, charges of subversion, urder
and illegal possession of firears have been filed against hi )ith the proper
Military Coission.
6. TCE 0G69MENT
By this separate opinion 2 ight incur the displeasure of y senior brethren )ho
conceived and labored in bringing forth the :ansang decision )hich 2 a openly
advocating to be discarded because this Court practically interfered )ith the
e1ercise of a purely e1ecutive po)er under the guise of in*uiring into the
constitutional sufficiency of the factual bases of the habeas corpus proclaation.
By re*uiring the representatives of the President to present evidence to sho) the
reasonable e1ercise of his po)er, 2 repeat that this Court trenched upon a
constitutionally granted po)er of the President. 2n e1pressing y honest thoughts
on a atter that 2 believe is of supree iportance to the safety and security of
the nation, 2 did so unindful of the possible condenation of y colleagues and
fearless of the +udgent of history.
3-R A:: TCE 3-RE9-2N9, 2 vote to disiss all petitions.

"ERN!N&E0, J.:
2
&,-L-G<
2 have decided to )rite this %eparate -pinion even before the ain opinion has
been )ritten, for no other cases in the history of the Republic have assued such
transcendental iportance as the cases )hich directly arose out of the
proclaation of artial la) on %epteber &", "'(&. No other cases presented
before this Court have aroused such )idespread attention, speculation,
controversy, and concern. And in the language of one of the petitioners, Bthe
decision in these case8s=, )hatever it ay be, )ill be cited in history boo4s any,
any years fro no). And it )ill be *uoted )herever lovers of freedo as4 the
*uestion 5 /hat did the Court do in that difficult hourE
-ur decision in the various petitions no) before this Tribunal li4e -ur decision in
the Ratification Cases 8:;7A"@&, 0avellana vs. The E1ecutive %ecretary, et al. :;
7A"A<, Ro1as, et al., vs. Melchor, etc. et al.,. :;7A&7&, Monteclaro, et al., vs. The
E1ecutive %ecretary, et al., and :;7A&$7, 6ilag, et al., vs. The Conorable
E1ecutive %ecretary, et al.=, ust uphold the validity of constitutionalis in our
country and our steadfast adherence to the Rule of :a). The decision should set
the pattern and the thrust or -ur continuous effort to locate that elusive
boundary bet)een individual liberty and public order. 2t should reconcile the
clais to individual or civil rights )ith the e*ually and, at ties, even ore
copelling needs of counity e1istence in a spirit of Constitutionalis and
adherence to the Rule of :a).
Through our Ne) Constitution, the 6elegates to the Constitutional Convention
and the voters in the ratification referendu ali4e have given our governent a
fresh andate and ne) guidelines in the charting of a truly independent e1istence
and the eergence of a dynaic and progressive order. 2t is no) the tas4 of this
Court to concreti,e and a4e clearly visible the connecting lin4s bet)een the
"'7< Constitution and the "'(7 Constitution, and to consider the constitutionality
of the artial la) proclaation 8No. "#$"= no) being veheently challenged in
these cases ; its constitutionality as initially proclaied under the old
Constitution, and the constitutionality of its continuation )hich no) falls under
the present Charter.
2t is also the function of this Tribunal to help give flesh and substance to our
people!s aspirations for secure and self;sufficient if not abundant e1istence even
as +ustice, peace, liberty, and e*uality are guaranteed and assured. 2t ust stri4e
the correct balance, given specific ties and circustances, bet)een the
deands of public or social order and e*ually insistent clais of individual liberty.
The issues raised regarding the force and effectivity of the "'(7 Constitution have
been thoroughly discussed in other cases. They should no) be a settled atter
but have been raised ane). These )ere discuss at length in the earlier stages of
the instant petitions. The ass of pleadings and lengthy oral arguents d)elt not
only on the validity of Proclaation No. "#$" and the legality of the arrest and
detention of the petitioners but also on the effectivity of the ne) Constitution and
other related atters as right to counsel, +urisdiction of ilitary tribunals,
applications for anesty, visits of relatives, conditions inside the detention cap,
right to )ithdra) the petition, and the li4e. /hile it is necessary to sift the basic
issues fro all secondary and incidental atters, )e ust also touch on
iportant related issues. 2t is iperative to declare )hat the Constitution
coands is the la) on these issues.
The average citi%en# as a rule# is not very interested in the detailed intricacies
surrounding the resolution o) constitutional (uestions. 1e usually has strong
views on the )inal outcome o) constitutional litigation but rarely bothers to in(uire
into the labyrinthian )acets o) the case or the detailed reasoning which usually
supports the dispositive portion.
+t is not so with regard to these habeas corpus cases. The e!plosive potentialities
o) -ur ruling are known to everybody. The country awaits -ur decision with keen
e!pectations. The grounds supporting the decision are a matter o) public concern.
The implication o) these cases have been speculated upon# although sometimes
with limited comprehension and noticeable lack o) )airness# even in )oreign
countries.
+t# there)ore# behooves the members o) this Tribunal to render their opinions as
much as possible# in terms and in a presentation that can be understood by the
people.
2n J.M. Tuason and Co. +nc. vs. Land Tenure 'dministration, 87" %CRA @"7, @&7=
this Tribunal stated that Bas the Constitution is not priarily a la)yer!s docuent,
it being essential for the rule of la) to obtain that it should ever be present in the
people!s consciousness, its language as uch as possible should be understood in
the sense they have in coon use.B
+n this case# =e should go one step )urther. =e should not limit -urselves to
looking at the words o) the Constitution as ordinary and simple language but -ur
reasoning in the decision itsel) should be )rank and e!plicit. -ur task is not a
mere matter o) constitutional construction and interpretation. Through its
decision# this Court should also speak directly to the average layman# to the
common people.
22
T1 M',T+'L L'= &,-CL'M'T+-*
-n %epteber &7, "'(& the President announced that, on %epteber &", "'(& or
t)o days earlier, he had, pursuant to Proclaation No. "#$", declared a state of
artial la) in the Philippines. The President cited and detailed any acts of
insurrection and rebellion against the governent of the Republic of the
Philippines coitted by la)less eleents and various front organi,ations in
order to sei,e political and state po)er. Proclaation No. "#$" concludes 5
virtue of the po)ers vested upon e by Article D22, %ection "#, paragraph 8&= of
the Constitution, do hereby place the entire Philippines as defined in Article ",
others )ho ay hereafter be siilarly detained for the cries coitted in
furtherance or on the occasion thereof, or incident thereto, or in connection
there)ith, for cries against public order, cries involving usurpation of
authority, ran4, title and iproper use of naes, unifors, and insignia, cries
coitted by public officer, and for such other cries as )ill be enuerated in
-rders that 2 shall subse*uently proulgate, as )ell as cries as a conse*uence
or proulgated upon y direction shall be 4ept under detention until other)ise
ordered released by e or by y duly designated representative.
111 111 111
222
',,"T -$ T1 &T+T+-*,"
Gnder a state of artial la), petitioners or the persons in )hose behalf petitions
for )rits of habeas corpus have been filed )ere on various dates arrested and
detained. The orders of arrest )ere preised on 9eneral -rder No. & of the
President dated %epteber &&, "'(& " )hich )as aended by 9eneral -rder No.
&;A, on %epteber &A, "'(&. 9eneral -rder No. &;A reads?
Pursuant to Proclaation -rder No. "#$", dated %epteber &", "'(&, and in y
capacity as Coander;in;Chief of all the Ared 3orces of the Philippines, 2
hereby order you as %ecretary of National 6efense to forth)ith arrest or cause
the arrest and ta4e into your custody the individuals naed in the attached lists
for being participants or for having given aid and cofort in the conspiracy to
force, the e1tent of )hich has no) assued the proportion of an actual )ar
against our people and our legitiate governent and in order to prevent the
fro further coitting acts that are iniical or in+urious to our people, the
governent and our national interest, and to hold said individuals until other)ise
so ordered by e or by y duly designated representative.
:i4e)ise, 2 do hereby order you to arrest or cause the arrest and ta4e into
custody and to hold the until other)ise ordered released by e or by y duly
designated representative?
". %uch persons as ay have coitted cries and offenses in furtherance or on
rebellion as defined in Articles "7@ to "7$ of the Revised Penal Code, and other
cries against public order as defined in Articles "@A, "@(, "@$, "@', "<", "<7,
"<@, "<<, and "<A of the sae Code.
&. %uch persons )ho ay have coitted cries against national security and
the la)s of the nation, as enuerated and defined in Title 2 of the Revie) Penal
Code.
111 111 111
Arrests and detentions under a artial la) proclaation are not necessarily
liited to those )ho have actually coitted cries and offenses. More
specifically, those arrested and ta4en into custody under 9eneral -rder No. &;A
fall under three general groups?
". Those )ho appear to have actually coitted cries and offenses and )ho
should be charged and punished for such cries and offenses pursuant to our
penal la)s.
&. Those )ho have been arrested not to a4e the account for cries and
offenses but to prevent the fro coitting acts iniical or in+urious to the
ob+ectives of a artial la) proclaation. and
7. Those )ho appear to have actually coitted cries and offenses but )hose
prosecution and punishent is deferred because the preventive nature of their
detention is, for the oent, ore iportant than their punishent for violating
the la)s of the land.
Criinal charges have been filed against petitioner Benigno %. A*uino, 0r., and he,
therefore, ay fall under 9roup No. " and the BpreventiveB aspect of 9roup No.
7. 2t is true that he *uestions the validity of the charges, raises as an issue the
deprivation of fundaental rights of an accused, and challenges the +urisdiction of
a ilitary coission to try hi. Co)ever, deterination of these *uestions is
properly for another proceeding and another decision. 3or purposes of these
habeas corpus petitions, he and any others siilarly situated ay fall under
9roups " and 7.
Petitioner 0ose /. 6io4no can fall under 9roup No. & and 9roup No. 7, as far as
the record indicates. Thus, there ay be persons arrested pursuant to 9eneral
-rder No. & )ho ay fall under the second group but against )ho charges
could be filed as under the third group. They have not been charged for reasons
obviously related to national security. The adinistration ay have deterined
that, in the light of the artial la) situation, it is neither )ise nor e1pedient to file
such charges no).
The constitutionality of the arrest of those arrested under 9roup No. " cannot be
*uestioned. They have coitted a crie and therefore can be ordered arrested
and detained.
The constitutionality of the arrest of those arrested under 9roups Nos. & and 7,
under artial la) finds support in the boo4 of 0ustice 3ernando and %enator
TaFada. the pertinent part of said boo4 reads as follo)s?
-nce martial law has been declared# arrest may be necessary not so much )or
punishment but by way o) precaution to stop disorder. As long as such arrest are
the President. as Coander;in;Chief, cannot thereafter, after he is out of office,
belief. /hen it coes to a decision by the head of the %tate upon a atter
involving its life, the ordinary rights of individual, ust yield to )hat he dees
the necessities of the oent. Public danger )arrants the substitution of
e1ecutive process. This is aditted )ith regard to 4illing en in the actual clash
of ars and the sae is true of teporary detention to prevent apprehended
har. 9ood faith and honest belief in the necessity of the detention to aintain
order thus furnishes a good defense to any clai for liability. 8TaFada and
3ernando, Constitution o) the &hilippines, Dol. 22, pp. "#"7; "#"@, "'<7 ed.=
2D
T1 &T+T+-*" $-, =,+T" -$ 1'B'" C-,&<"
8a= The Grounds There)or9
Petitions for )rits of habeas corpus )ere accordingly filed in this Court by or in
behalf of the arrested and detained individuals. The petitions contain substantially
siilar grounds and prayers.
3or instance, in 9.R. No. :;7<<7', Caren 2. 6io4no pressed for the urgent and
iediate release of %enator 0ose /. 6io4no fro the custody of either the
respondents, their agents, instruents, au1iliaries or servants. 2t is alleged that
the respondents unla)fully or illegally and )ithout any valid authority )hatsoever,
in violation of the petitioner!s rights as a citi,en of the Republic, sei,ed his person
fro his residence and oved hi to a place of confineent and detention. The
petition also alleges that no charges have been filed against 0ose /. 6io4no for
coitting or having coitted insurrection or rebellion or subversion and that
the eorandu directing his arrest is neither an order of arrest nor a )arrant
of arrest.
The petition in 9.R. No. :;7<<@A alleges that petitioners Benigno %. A*uino, 0r.,
Raon D. Mitra, 0r., 3rancisco %. Rodrigo, and Napoleon Raa have been illegally
detained and unla)fully deprived of their personal liberty beyond the period
authori,ed by la) )ithout any foral coplaint for any specific offense having
been instituted against the before our courts of la) and )ithout any +udicial )rit
or order having been issued authori,ing their confineent. 2t is alleged that the
petitioners have not coitted any crie nor violated any la), rule or regulation
)hether individually or in collaboration )ith other person or persons for )hich
they ay be detained and deprived of their personal liberty )ithout any foral
charge or +udicial )arrant.
A coon allegation in the various petitions challenges the validity of Presidential
Proclaation No. "#$". 2t is asserted that Proclaation No. "#$" declaring
artial la) is illegal and unconstitutional and, therefore, null and void because
the conditions under )hich artial la) ay be declared by the President do not
e1ist. The petition in 9.R. No. :;7<<@A states that assuing argumenti gratis that
the conditions for the valid e1ercise of the e1traordinary po)er to declare artial
la) e1ist, Proclaation No. "#$" and Presidential 6ecrees and -rders issued
pursuant thereto are unconstitutional and illegal in e1tent and scope because they
deprive the %upree Court of its constitutional po)er and authority to deterine
the constitutionality, legality and validity of the decrees, orders, rules and
regulations issued pursuant to the proclaation. 2t is alleged that the
proclaation is unconstitutional and illegal because it divests and ousts the civil
courts throughout the Philippines of the +urisdiction to decide and punish certain
offenses under the e1isting la)s of the land. The petition ephasi,es that civil
courts continue to reain open and have in fact never ceased to function. The
petition challenges the validity of Proclaation No. "#$" because it grants to the
President po)ers )hich are other)ise vested by the Constitution in other
departents of the 9overnent.
Corollary to the above allegations in 9.R. No. :;7<<@A is the allegation of
petitioners Deronica :. Kuyitung and Tan Chin Cian in 9.R. No. :;7<<<A that
assuing )ithout aditting the validity of Proclaation No. "#$", the issuance of
such a proclaation is not a valid +ustification to arrest any person )hisically or
arbitrarily or )ithout the necessary basis or foundation inherent in the proper
arrest or detention.
The petition in 9.R. No. 7<<@( alleges that petitioner E. Doltaire 9arcia 22 has not
coitted the cries of insurrection, rebellion or subversion nor any crie
siilar thereto nor any crie at all. 2t states that his continued illegal detention
prevents hi fro perforing his function as eber of the Constitutional
Convention and, therefore, deprives his district of representation )hich is
obviously against public policy and public interest. The petition as4s the %upree
Court to ta4e +udicial notice of the fact that there )as no invasion, insurrection, or
rebellion or iinent danger thereof before andNor after the date of Proclaation
No. "#$" that ay re*uire for the public safety the placing of any part of the
country under artial la). Reiterating the allegations in the other petitions, it
outlines ho), throughout the length and breadth of the country especially in the
9reater Manila area, all e1ecutive offices are functioning in coplete noralcy.
ho) all courts fro the lo)est unicipal courts to the %upree Court are in full
operation. ho) the different legislative bodies fro barrio councils up to Congress
are li4e)ise functioning soothly according to la).
Petitioner Ernesto Rondon in 9.R. No. :;7<<(7 alleges that pursuant to
Proclaation No. "#$" the President issued 9eneral -rder No. 7 )hich creates
ilitary tribunals to ta4e +urisdiction over certain acts and cries to the e1clusion
of civil courts. The petition alleges that the creation of such ilitary tribunals and
the vesting thereof )ith +udicial functions are null and void because civil courts
are open and functioning. 2t *uestions the intent to try the petitioner before the
ilitary tribunals for any crie )hich the respondents ay ipute to hi. The
petitioner alleges that he has not engaged in any of the criinal activities defined
in Proclaation No. "#$", that, at best, he is only a critic of the policies of the
9overnent and, at )orst, a civilian citi,en aenable to the processes of civilian
la), if at all he has coitted any offense.
8b= &resent "tatus o) &etitioners9
As things no) stand, the different petitioners ay be divided into four 8@=
groups?
". %oe petitioners li4e Deronica :. Kuyitung, Tan Chin Cian, Bren 9uiao,
Cernando 0. Abaya, Ernesto 9ranada, :uis Beltran, Ruben Cusipag and /illie Baun
have already been released fro custody of the respondents and are no longer
under detention. These petitioners earlier filed otions to )ithdra) their cases
and the Court readily approved the )ithdra)al of the petitions.
&. %oe petitioners li4e 0oa*uin D. Roces, Teodoro M. :ocsin, %r., Rolando 3adul
Mauricio, 0uan :. Mercado, Roberto -rdoFe, and Manuel Alario have li4e)ise
been released fro respondents! custody and are also no longer detained.
Co)ever, after an initial period of silence follo)ing their release, the petitioners
have anifested that they have long been conditionally released sub+ect to
various conditions and continuing restrictions thus iplying they e1pect a decision
on their petitions. Petitioner 3rancisco %. Rodrigo has also filed a anifestation
stating that )hile he )as released fro detention at 3ort Bonifacio, Lue,on City
on 6eceber <, "'(&, his release )as conditional and sub+ect to certain
restrictions. Cis anifestation )as filed for the purpose of sho)ing that insofar as
he is concerned, his petition for habeas corpus is not oot and acadeic.
Petitioner 3rancisco %. Rodrigo is, therefore, as4ing this Court to render a decision
on his petition for a )rit of habeas corpus.
7. -n the other hand, petitioner 0ose /. 6io4no )as under detention until very
recently. 3or reasons )hich )ill be discussed later, he has, ho)ever, as4ed for and
insisted upon the )ithdra)al of his petition in spite of the fact that he is under
detention. Before this opinion could be proulgated, ho)ever, he has been
ordered released by the President on the occasion of his E1cellency!s birthday,
%epteber "", "'(@, together )ith soe other detainees under artial la).
@. Petitioner Benigno %. A*uino, 0r., is still under detention. Charges have been
filed before a ilitary coission for various cries and offenses but the
petitioner challenger. the +urisdiction of ilitary courts. Ce has not filed any
otion to )ithdra) his petition. Based on his pleadings and his challenge to the
+urisdiction of ilitary tribunals, the petitioner states that it is incubent upon
this Court to rule upon the erits of the petition. Ce )ants inforation filed
before civilian courts and invo4es constitutional rights to free hi fro ilitary
detention. Petitioner Benigno %. A*uino, 0r., is insistent that this Court render a
decision on his petition for a )rit of habeas corpus.
D
'*"=, -$ ,"&-*/*T"9
T1 +""<"
The ans)er of the respondents states that on %epteber &", "'(&, the President
of the Philippines, in the e1ercise of po)ers vested in hi by Article D22, %ection
"#, paragraph & of the Constitution, issued Proclaation No. "#$" placing the
entire Philippines under artial la). All the acts *uestioned by the petitioners are
+ustified by orders and instructions of the President issued pursuant to the
proclaation of artial la). The ail *uestion that confronts the Tribunal is,
therefore, the validity of Proclaation No. "#$". 2f it is tainted )ith
unconstitutionality, then all the acts ta4en pursuant to the proclaation are void.
2t )ill then follo) that the arrest and detentions of the petitioners are void.
-n the other hand, if the proclaation of artial la) is sustained, )e still have to
deterine its scope and effects. /e ust ans)er these *uestions? May )e in*uire
into the validity of its continuationE 2s a suspension of the privilege of the )rit of
habeas corpus autoatically included in a proclaation of artial la)E
-ther *uestions also arise )hich, ho)ever, need be decided by Gs only in a
general anner in the present cases. May the Coander;in;Chief issue orders
)ith the force and effect of legislationE May such legislation cover sub+ects )hich
are not directly related to the con*uest of the particular crisisE 2n other )ords,
does the proclaation of artial la) give the President authority to pass
legislation not directly related to invasion, insurrection, rebellion, or iinent
danger thereof.E 2f civilian courts are open and functioning, ay the President
issue decrees and orders )hich transfer soe of their +urisdiction to ilitary
tribunalsE
2ncidental issues have also been raised in the light of the ain issue of artial
la). -ne is no longer before this Court but ay be entioned in passing. The
"'(7 Constitution increased the coposition of the Court fro eleven 8""= to
fifteen 8"<=. At a tie )hen there )ere only nine 8'= ebers carried over fro
the old Court, ay these nine ebers the Acting Chief 0ustice and eight
ebers 5 validly hear a constitutional issueE 2s there a *uoru under Article I,
section & 8&= )hich reads?
8&= All cases involving the constitutionality of a treaty, e1ecutive agreeent, or
la) shall be heard and decided by the %upree Court en banc and no treaty,
e1ecutive agreeent, or la) ay be declared unconstitutional )ithout the
concurrence of at least ten Mebers. All other cases )hich under its rules are
re*uired to be heard en banc, shall be decided )ith the concurrence of at least
eight Mebers.
/e no) have a Chief 0ustice and eleven ebers so the proble of a *uoru is
solved.
Another incidental issue is the po)er of this Court to in*uire into the conditions of
detention of petitioners. And still another issue is )hether one of the petitioners
ay, at a tie )hen a decision is ready to be proulgated, )ithdra) his petition
and avoid a decision on the issues he has raised.
D2
-* &T+T+-*, /+-.*-I" M-T+-* T- =+T1/,'=
The first issue to resolve is an incidental but iportant one. 2t is also the ost
recent.
8a= 'rguments &ro and Con9
2n a Motion to /ithdra) dated 6eceber &', "'(7, petitioner 0ose /. 6io4no
as4ed leave of court to )ithdra) the petition for habeas corpus filed in his behalf.
Ce as4ed for the )ithdra)al of the ain petition and other pleadings filed in the
case. The reason given for the )ithdra)al )as B3irst, though 2 a convinced
beyond any nagging doubt that )e are on the side of right and reason, la) and
+ustice, 2 a e*ually convinced that )e cannot reasonably e1pect either right or
reason, la) or +ustice to prevail in y case ... 8and= %econd, in vie) of the ne)
functioning under a ne) Constitution, different fro the Court under )hich 2
applied for y release. 2 )as )illing to be +udged by the old Court under the old
Constitution but not by the ne) Court under the ne) Constitution because as
Albert Caus! +udge penitent said in the novel !The 3all!? !he )ho clings to a la)
does not fear the +udgent that puts hi in his place )ithin an order he believes
in. But the 4eenest of huan torents is to be +udged )ithout la).B
-n being re*uired to coent on the petitioner!s otion to )ithdra), the
%olicitor 9eneral stated that the petitioner . should not be allo)ed to reove his
case fro this Court. Three reasons )ere given? 8a= that the charge is unfair to
the %upree Court and its ebers. 8b= that it is untrue and 8c= that in the
ain, it is conteptuous. The %olicitor 9eneral disputed, as unfair, the charge
that +ustice cannot be e1pected fro the %upree Court. Ce pointed out that the
%upree Court did not in+ect itself into the controversy but it )as the petitioner
)ho invo4ed the Court!s +urisdiction not only in this case but the plebiscite cases
as )ell. The %olicitor 9eneral noted that the scorn )ith )hich the Court is treated
in the otion to )ithdra) stands in sharp contrast )ith the praise lavished on it
)hen petitioners began these proceedings.
2t ay be noted that the %upree Court )as then characteri,ed as having the
greatest credibility aong the three branches of governent. 2t )as described as
a dispenser of +ustice and as the last citadel of their liberties.
2n his Meorandu, petitioner anifested and stressed the iportance of a
decision 5 Bthe decision in this case, whatever it may be, )ill be cited in history
boo4s any years fro no). And it )ill be *uoted )herever lovers of freedo
as4 the *uestion ... /hat did the Court do in that difficult hourEB 8Ephasis
supplied=.
The petitioner further stated in the Meorandu that Bthe duty of this Court is
a)esoe indeed. 2ts responsibility to -ur people and to history is heavier and
ore enorous than )ords and phrases can possibly describe.B
2n contrast to this insistence on a decision, a portion of the otion to )ithdra)
cited by the respondents ay be repeated?
H2Jt sees to e that our people have the right to e1pect ebers of the highest
court of the land to display a conscience ore sensitive, a sense of ental
honesty ore consistent than those generally displayed in the ar4et place. And
it has pained e to note that, in s)earing to support the ne) !Constitution!, the
five ebers of the Court )ho had held that it had not been validly ratified, have
not fulfilled our e1pectations. 2 do not blae the 2 do not 4no) )hat 2 )ould
have done in their place. But, as the sae tie, 2 cannot continue to entrust y
case to the. and 2 have becoe thoroughly convinced that our *uest for +ustice
in y case is futile. 8p. A=.
2ssue )as also ta4en by the respondent )ith the petitioner!s charge that despite
the finding of a a+ority that the ne) Constitution had not been validly ratified,
the Court nonetheless disissed the petitions see4ing to stop the enforceent of
the Constitution. The allegation that the +ustices of this Court too4 an oath to
support the Constitution because they had been allo)ed to continue in office )as
challenged as false by the respondents.
The third ground for the respondents! opposition to the otion to )ithdra) is the
allegedly conteptuous nature of the otion. The Coent states that attac4s
on the Court are ost serious. none of those ade in the past has put the court!s
integrity and capacity for +ustice in serious *uestion as uch as the petitioner!s
otion to )ithdra). According to the %olicitor 9eneral, the charge in the case at
bar goes to the very foundation of our syste of +ustice and the respect that is
due to, it, that it is subversive of public confidence in the ipartiality and
independence of courts and tends to ebarrass the adinistration of +ustice. The
%olicitor 9eneral anifested that B)e cannot shape the )orld of the %upree
Court as )e )ant to see it and, later seeing the )orld of reality, lash at the
%upree Court for betraying our illusions.B
2n succeeding pleadings, petitioner 6io4no pressed his otion to )ithdra) )ith
even greater vigor. Counsel for petitioner stated that the so;called charge 5
Bunfair to the Court and its ebers, untrue, and conteptuousB 5 )as never
ade at all and that the %olicitor 9eneral )as putting up a stra)an and
proceeding to deolish it.
2n a forty;si1 8@A= page Reply, he pointed out that the factual bases for deciding
to )ithdra) the case have not been specifically denied, as indeed they are
undeniable. 2t should be noted, ho)ever, that the cited factual bases go into the
very erits of the petition for the )rit of habeas corpus?
8"= -n the *uestion of the validity of ratification, si1 8A= ebers of the Court
held that the proposed Constitution )as not validly ratified.
8&= -n the *uestion of ac*uiescence by the 3ilipino people, only a inority of four
8@= +ustices held there )as ac*uiescence, t)o 8&= holding that there )as no
ac*uiescence, and four 8@= holding they had no eans of 4no)ing to the point of
+udicial certainty, )hether the people have accepted the Constitution.
87= The Court did not rule that the Bne) ConstitutionB )as in effect.
8@= The ratification cases )ere nevertheless disissed.
The petitioner added Bundeniable factsB?
8"= The petition for habeas corpus )as filed %epteber &7, "'(& )hile the
ratification cases )ere riled 0anuary &# and &7, "'(7.
8&= 3ro the filing of the petition to the date Petitioner 6io4no as4ed his counsel
to )ithdra) the case, @A# days had elapsed.
87= -n the date the reply )as filed, <7" days had elapsed )ithout charges being
filed or trial and conviction for any offense being held.
8@= All the ebers of the old Court, )ho had ta4en an oath to Bpreserve and
defendB the "'7< Constitution, too4 an oath on -ctober &', "'(7 to defend the
Bne) ConstitutionB.
2n disputing the %olicitor 9eneral!s charge that the %upree Court is treated )ith
scorn in the Motion to /ithdra), the petitioner stated that the tone of the otion
ay be one of disay or frustration but certainly not of scorn. The petitioner
called the charge gratuitous and totally bare of foundation.
The petitioner also pointed out that there could be no contept of court in the
otion to )ithdra) because the factual bases of his letter are indisputable and
the otion coes under the protection of the constitutional right to a fair
hearing. Ce invo4ed his right to free e1pression as a litigant and stressed that a
citi,en of the Republic ay e1press hiself thoughtfully, sincerely and reputably
)ithout fear of reprisal. The petitioner also pointed out that both principle and
precedent +ustify grant of the otion to )ithdra).
8b= My original stand9 Motion should be denied?
,easons?
My present stand? 2n vie) of the release of 6io4no before this opinion could be
proulgated, 2 no) vote to grant his otion to )ithdra) his petition the sae
having becoe oot and acadeic.
But, 2 )ould li4e to discuss the erits of the otion if only to establish guidelines
for siilar cases that ay arise in the future. .
As a general rule, the right of the plaintiff to disiss his action )ith the consent of
the Court is universally recogni,ed. 2f the plaintiff believes that the action he has
coenced in order to enforce a right or to rectify a )rong is no longer
necessary or he later discovers that the right no longer e1ists, he should be
allo)ed to )ithdra) his case. 2f in the course of litigation, he finds out that the
course of the action shall be different fro that he had intended, the general rule
is that he should be peritted to )ithdra) the sae, sub+ect to the approval of
the Court.
The plaintiff should not be re*uired to continue the action )hen it is not to his
advantage to do so. :itigation should be discouraged and not encouraged. Courts
should not allo) parties to litigate )hen they no longer desire to litigate.
2t should be noted, ho)ever, that the Rules of Court do not allo) autoatic
approval of the plaintiff!s otion to disiss after service of the ans)er or of a
otion for suary +udgent. Gnder Rule "(, .. once the issues are +oined, an
action can be disissed upon the plaintiffs instance only upon order of the Court
and upon such ters and conditions as the Court dees proper.
The re*uireent in the Rules that disissal is discretionary upon the Court is not
)ithout significance. 2n fact, the petitioner does not deny the authority of the
Court to re+ect his otion as long as there are reasons for such re+ection. Ce is
siply arguing that there is no valid reason to deny the otion thus iplying that
a denial )ould, in effect, be an abuse in the e1ercise of a discretionary po)er.
2n the Court!s deliberations, the vie) )as advanced that petitioner!s otion for
)ithdra)al ade his confineent voluntary. 2 disagreed, for said otion, in the
light of the other pleadings and eoranda subitted by hi, can still be
considered as a protest against his confineent. 2n other )ords, petitioner has
not ade any stateent upon )hich )e can base a conclusion that he is agreeing
voluntarily to his continued confineent and thereby a4ing his case oot and
acadeic.
2 subit there can be no debate over the principle that the right to )ithdra) a
petition at this stage is not an absolute right. /hat faces this Court is not its
po)er to grant or deny the otion but )hether there are sound reasons )hy the
otion to )ithdra) should be denied. 2f there are no sound reasons, the otion
should be granted.
According to the petitioner, there are only t)o instances )hen a Court ay validly
deny such a )ithdra)al 5
8"= /hen the )ithdra)al )ould irreparably in+ure other parties to the case such
as, for e1aple, in class suits, in probate proceeding or in ordinary civil actions
)hen the adverse party has pleaded a counterclai that cannot be decided
)ithout first deciding the ain case. and
8&= /hen the )ithdra)al )ould irreparably in+ure the public interest by depriving
the Court of the opportunity to prevent or to correct a serious violation of the
Constitution or of the la)s.
2 a not prepared to accept the proposition or to render an abstract opinion that
there are indeed only t)o such e1ceptions. The infinite nuber of factual
situations that can coe before this Court could conceivably add one or t)o or
even ore e1ceptions. 2t )ould be iprudent or precipitate to a4e such a
categorical assertion. /here it not for the release of 6io4no, 2 )ould have on y
fir belief that the iportance of this case and the issues raised by the petitioner
call for denial of the otion to )ithdra). The points ably raised by %olicitor
9eneral Estelito P. Mendo,a and Assistant %olicitor 9eneral Dicente D. Mendo,a,
)ho have sho)n rear4ably splendid perforance in shouldering alost entirely
the governent!s defense against soe of the country!s ost distinguished
la)yers, notably forer %enator :oren,o M. TaFada and a battery of other
la)yers )hose naes are a veritable list of B/ho is /hoB in the legal profession,
can be condensed into only one arguent 5 the petitioners have brought before
this Court a case of such transcendental iportance that it becoes a duty to our
legal institutions, to our people, and to posterity to decide it. /e ust not leave
the resolution of such grave issues to a future day.
3urtherore, aong the present habeas corpus cases no) before this Court, the
best foru for -ur decision )ould have been the 6io4no case for, before his
release, he )as the only petitioner )ho )as actually detained but )ithout
charges, )hile there are already charges filed against A*uino, and )ith respect to
the others )hose cases are still pending before Gs, they are only under detention
)ithin the 9reater Manila area or are under counity arrest.
The petitioner see4s to distinguish his case fro .rivenko vs. ,egister o) /eeds,
(' Phil. @A". 2n that case, this Court ruled 5
According to Rule <&, section @, of the Rules of Court, it is discretionary upon this
Court to grant a )ithdra)al of appeal after the briefs have been presented. At the
tie the otion for )ithdra)al )as filed in this case, not only had the briefs been
presented, but the case had already been voted and the a+ority decision )as
being prepared. The otion for )ithdra)al stated no reason )hatsoever, and the
%olicitor 9eneral )as agreeable to it. /hile the otion )as pending in this Court,
cae the ne) circular of the 6epartent of 0ustice, instructing all register of
deeds to accept for registration all transfers of residential lots to aliens. The
herein respondent;appellee )as naturally one of the registers of deeds to obey
the ne) circular, as against his o)n stand in this case )hich had been aintained
by the trial court and firly defended in this Court by the %olicitor 9eneral. 2f )e
grant the )ithdra)al, the result )ould be that petitioner;appellant Ale1ander A.
Mriven4o )ins his case, not by a decision of this Court, but by the decision or
circular of the 6epartent of 0ustice, issued )hile this case )as pending before
this Court. /hether or not this is the reason )hy appellant see4s the )ithdra)al
of his appeal )hy the %olicitor 9eneral readily agrees to that )ithdra)al, is no)
iaterial. /hat is aterial and indeed very iportant, is )hether or not )e
should allo) interference )ith the regular and coplete e1ercise by this Court of
its constitutional functions, and )hether or not after having held long
deliberations and after having reached a clear and positive conviction as to )hat
the constitutional andate is, )e ay still allo) our conviction to be silenced,
and the constitutional andate to be ignored or isconceived, )ith all the
harful conse*uences that ight be brought upon the national patriony. 3or it
is but natural that the ne) circular be ta4en full advantage of by any, )ith the
circustance that perhaps the constitutional *uestion ay never coe up again
before this court, because both vendors and the vendees )ill have no interest but
to uphold the validity of their transactions, and very unli4ely )ill the register of
deeds venture to disobey the orders of their superior. Thus the possibility for this
court to voice its conviction in a future case ay be reote, )ith the result that
our indifference of today ight signify a peranent offense to the Constitution.
8pp. @AA;@A(=
There are indeed certain differences bet)een the facts of the .rivenko case and
the facts of the current petitions. 2f the factual situations )ere copletely siilar,
forer %enator :oren,o M. TaFada )ould have been the last person to insist on
the 6io4no otion for )ithdra)al. Ce )as the %olicitor 9eneral in "'@(. Ce is
copletely failiar )ith the raifications of the .rivenko case.
2 cannot, ho)ever, agree )ith counsel TaFada that the deviations fro the
.rivenko facts call for a different ruling in the instant petitions. The %upree
Court has grappled at length and in depth )ith the validity of the proclaation of
artial la). 2t has closely e1ained the resultant curtailents of e liberties as
the right to a )rit of habeas corpus or to freedo of e1pression. /hen it is on the
verge of issuing a decision, it is suddenly as4ed to drop the case and the issues
raised siply because the petitioner is no longer interested in the decision. To y
ind, a granting of the otion )ould be recreancy and unfaithfulness to the
Courts s)orn duties and obligations.
As in the .rivenko case, the reasons for the )ithdra)al are no longer significant.
2t is the non;silencing of this Court on issues of utost public iportance )hich
really atters. 2t is true that petitioner 6io4no is alone in see4ing )ithdra)al at
this stage of the case. The fact that a decision could possibly still be rendered on
reaining cases is, ho)ever, no +ustification to grant the otion. The issue is
)hether one or t)o or all of the petitioners ay as4 for a )ithdra)al of his or
their petitions and hope to bring about a non;decision on the issues because of
the rendering oot and acadeic of the case. My ans)er is categorically in the
negative. 2n fact, even it the case is ooted at this stage by the release of the
petitioners, 2 )ould still vote for a decision on the *uestions raised.
This may be a simple motion )or withdrawal. @et# + see no di))erence in the need
to answer vital (uestions that have been presented. The public interest that is
a))ected is e(ually pressing and serious i) the petitions are compared to instances
in the past when the Court insisted on rendering a decision. +n )act# there is an
even stronger need to interpret the meaning o) the constitutional provision in
spite o) urgings that it should re)rain )rom doing so.
As early as "'7(, this Court, spea4ing through 0ustice :aurel in &eople o) the
&hilippine +slands v. 2era 8A< Phil, <A, '@= ephatically stated that )hen the
country a)aits a decision on an iportant constitutional *uestion, a rela1ation of
general rules is called for. A decision ust issue.
... All a)ait the decision of this Court on the constitutional *uestion. Considering,
therefore, the iportance )hich the instant case has assued and to prevent
ultiplicity of suits, strong reasons of public policy deand that the
constitutionality of Act No. @&&" be no) resolved. ... 2n @u Cong ng vs. Trinidad,
supra, an analogous situation confronted us. /e said? B2nasuch as the property
and personal rights of nearly t)elve thousand erchants are affected by these
proceedings and inasuch as Act No. &'(& is a ne) la) not yet interpreted by
the courts, in the interest of the public )elfare and for the advanceent of public
policy, )e have deterined to overrule the defense of )ant of +urisdiction in order
that )e ay decide the ain issue. /e have here an e1traordinary situation
)hich calls for a rela1ation of the general rule.B -ur ruling on this point )as
sustained by the %upree Court of the Gnited %tates. A ore binding authority in
support of the vie) )e have ta4en can not be found.
2n the case of 'velino vs. Cuenco 8'7 Phil. "(=, the %upree Court had very
sound reasons to resolve on March @, "'@' not to decide )hether or not %enator
Cuenco had validly been elected %enate President. The Court ruled that the
sub+ect atter of the (uo warranto proceeding to declare the petitioner the
rightful President of the Philippine %enate and to oust the respondent )as not a
atter for the %upree Court in vie) of the separation of po)ers doctrine, the
political nature of the controversy, and the constitutional grant to the %enate of
the po)er to elect its o)n President. The po)er to elect its President should not
be interfered )ith nor ta4en over by the +udiciary.
-n March "@, "'@' or only ten 8"#= days later, the Court, by a a+ority of seven,
decided to resolve the *uestions presented to it. The Court could very )ell have
insisted on its earlier stand that it should render no decision. Election of the
%enate President )as still a atter )hich only the %enate should decide. And yet,
in the light of subse*uent events )hich +ustified its intervention, partly for the
reasons stated in the March @, "'@' resolution of the Court, and partly because of
the grounds stated in the various individual opinions, the Court )as constrained
to declare positively that there )as a *uoru in the session )here Cuenco )as
elected Acting %enate President. The Court decided to reverse a categorical
position ta4en only ten 8"#= days earlier. 2t is clear fro the circustances of the
case that the Court )as ipelled by strong policy considerations to a4e a
definite pronounceent in the case in order to confor to substantial +ustice and
coply )ith the re*uireents of public interest. As pointed out by 0ustice
Perfecto in his concurring opinion, BThis case raises vital constitutional *uestions
)hich no one can settle or decide if this Court should refuse to decide the.B
2n Gon%ales vs. Commission on lections, 8&( %CRA $<7=, the )ords of 0ustice
:aurel )ere recalled in order to overcoe ob+ections to an e1tended decision on a
case )hich had becoe oot and acadeic.
2n the course of the deliberations, a serious procedural ob+ection )as raised by
five ebers of the Court 8Chief 0ustice Concepcion and 0ustices Reyes,
Ma4alintal, Teehan4ee and Barredo.= 2t is their vie) that respondent Coission
on Elections not being sought to be restrained fro perforing any specific act,
this suit cannot be characteri,ed as other than a ere re*uest for an advisory
opinion. %uch a vie), fro the reedial la) standpoint, has uch to recoend
it. Nonetheless, a a+ority )ould affir the original stand that under the
circustances, it could still rightfully be treated as a petition for prohibition.
The language of 0ustice :aurel fits the case? !All a)ait the decision of this Court on
the constitutional *uestion. Considering, therefore, the iportance )hich the
instant has assued and to prevent ultiplicity of suits, strong reasons of
public policy deand that HitsJ constitutionality ... be no) resolved.! 8A< Phil. <A,
'@ 8"'7(= Cf. @u Cong ng v. Trinidad, @( Phil. 7$< 8"'&A=, &(" G% <##. (# :a)
ed., "#<'=. 2t ay li4e)ise be added that the e1ceptional character of the
situation that confronts us, the paraount public interest, and the undeniable
necessity for a ruling, the national elections being barely si1 onths a)ay,
reinforce our stand.
2t )ould appear undeniable, therefore, that before us is an appropriate invocation
of our +urisdiction to prevent the enforceent of an alleged unconstitutional
statute. /e are left )ith no choice then. )e ust act on the atter.
2n /e la Camara v. nage 8@" %CRA "=, this Court )as siilarly ipelled to a4e
a decision because of strong policy considerations. A petition to reduce the
P","'<,&##.## bail iposed by the trial court had becoe oot and acadeic.
The petitioner had escaped fro the provincial +ail. The Court could no longer
grant any relief. 2t, ho)ever, decided the case Bto set forth ane) the controlling
and authoritative doctrines that should be observed in fi1ing the aount of the
bail sought in order that full respect be accorded to such a constitutional right.B
8at page @=. Education, especially of trial +udges, )as the reason for ans)ering
the issues s*uarely.
2 )ould li4e to reiterate, ho)ever, that in vie) of the fact that petitioner 6io4no
has been released on the occasion of President Marcos! birthday 8%epteber ""=,
2 no) vote to grant the 6io4no otion to )ithdra) his petition for a )rit of
habeas corpus, the sae having becoe oot and acadeic.
D22
C-<,T" /<T@ T- /C+/ 'LL +M&-,T'*T +""<" K -* T1 &T+T+-*" -$
T1 &T+T+-*,"
But as already stated under the topic 2D 8b= BPresent %tatus of the PetitionersB,
any of the, notably A*uino and Rodrigo, still insist on a decision. This )e ust
no) do, for the resolution of the controversy in favor of the petitioners or for the
respondents is not the copelling consideration. /hat is iportant and essential
is that the Court declare in a anner that cannot be isunderstood )hat the
Constitution coands and )hat the Constitution re*uires.
2t is true that the Court should not forulate a rule of constitutional la) broader
than is re*uired by the precise facts to )hich it is applied. 2t is true that a
decision on a *uestion of a constitutional nature should only be as broad and
detailed as is necessary to decide it.
There are, therefore, those )ho )ould liit a decision solely on the Transitory
Provisions of the "'(7 Constitution. The e1ercise of artial la) po)ers under
Article D22, %ection "#, paragraph & of the forer Constitution or Article D22,
%ection "& of the "'(7 Constitution have been sub+ected to intensive, searching,
and )ell;published challenges.
1
2f /e decide the case solely on the transitory
provision, uncertainty and confusion about artial la) )ould reain. The
provisions on artial la) )ould still be une1plained and unresolved by this Court.
2t is easy to see the patent undesirability of such a situation.
2n these petitions, our people a)ait the decision of this Court on the constitutional
*uestion. Considering, therefore, the iportance )hich the instant petitions have
assued, /e ust set forth the controlling and authoritative doctrines.
D22
T1 T1, &,+*C+&'L +""<"
The %olicitor 9eneral stated the respondents! position as a narro) one 5 )hether
the arrest and detention of the petitioners )ere legal.
2t is true that habeas corpus is intended for cases of illegal confineent or
detention by )hich a person is deprived of his liberty 8%ection ", Rule "#&, Rules
of Court=. 2ts essential ob+ect is to in*uire into all anner of involuntary restraint
and to relieve a person therefro, if such restraint is illegal 8Dillavicencio vs.
:u4ban, 7' Phil. (($. Culauag vs. 6irector of Prisons, "( %CRA @&'=. /hile the
issue ay be presented in seeingly narro) ters, its scope and iplications are
not that siple. The respondents argue that this Court is precluded by the
Constitution fro in*uiring into the legality of the detentions. They argue that
such an in*uiry is possible only )here the privilege of the )rit of habeas corpus is
available and inasuch as the privilege of the )rit has been suspended by the
President upon the proclaation of artial la), it follo)s that /e should inhibit
-urselves fro as4ing for the reasons )hy the petitioners )ere arrested and
detained. 2t is argued that the Constitution has vested the deterination of the
necessity for and legality of detentions under artial la) e1clusively in the
Presidency 5 a co;e*ual departent of governent.
The principal issues, therefore, revolve around first, the validity of Proclaation
No. "#$". %econd, assuing its original validity, ay /e in*uire into the validity
of its continuationE And third, has the privilege of the )rit of habeas corpus also
been suspended upon the proclaation of artial la)E The e1tent of -ur in*uiry
into the legality of the detentions and their effects is dependent on the ans)ers to
the foregoing issues.
2I
&,-CL'M'T+-* *-. 4AB4> ' /2+'T+-* $,-M T1 T,'/+T+-*'L C-*C&T -$
M',T+'L L'=> ',G<M*T" -* +T" 2'L+/+T@
2n Proclaation No. "#$", date %epteber &", "'(&, President 3erdinand E.
Marcos placed the entire Philippines as defined in Article ", %ection " of the
Constitution under artial la) by virtue of the po)er vested in the President of
the Republic of the Philippines by Article D22, %ection "#, par. 8&= of the
Constitution )hich reads 5
The President shall be the coander;in;chief of all ared forces of the
Philippines and, )henever it becoes necessary, be ay call out such ared
2n case of invasion, insurrection, rebellion or iinent danger thereof, )hen the
8a= =hat is martial lawL
As the %olicitor 9eneral pointed out )hen as4ed to subit definitions of artial
la), there are as any definitions as there are court rulings and )riters on the
sub+ect. The response of the petitioners gives the sae ipression.
As good de)initions as any that ay have been made in the past are the
follo)ing?
9enerally spea4ing, artial la) or, ore properly, artial rule, is the teporary
governent and control by ilitary force and authority of territory in )hich, by
reason of the e1istence of )ar or public cootion, the civil governent is
inade*uate to the preservation of order and the enforceent of la). 2n strictness
it is not la) at all, but rather a cessation of all unicipal la), as an incident of the
+us belli and because of paraount necessity, and depends, for its e1istence,
operation and e1tent, on the iinence of public peril and the obligation to
provide for the general safety. 2t is essentially a la) or rule of force, a purely
ilitary easure, and in the final analysis is erely the )ill of the officer
coanding the ilitary forces. As the off;spring of necessity, it transcends and
displaces the ordinary la)s of the land, and it applies ali4e to ilitary and non;
ilitary persons, and is e1ercisable ali4e over friends and eneies, citi,ens and
aliens. 8C.0.%., Dol. '7, pp. ""<;""A, citing cases=.
Martial la) is the e1ercise of the po)er )hich resides in the e1ecutive branch of
the governent to preserve order and insure the public safety in ties of
eergency )hen other branches of the governent are unable to function, or
their functioning )ould itself threaten the public safetyB. 8:uther vs. Borden, (
Cos. 8G%= ", @<, "& : ed <$", A##=. B2t is a la) of necessity to be prescribed and
adinistered by the e1ecutive po)er. 2ts ob+ect, the preservation of the public
safety and good order, defines its scope, )hich )ill vary )ith the circustances
and necessities of the case. The e1ercise of the po)er ay not e1tend beyond
)hat is re*uired by the e1igency )hich calls it forth.B 8Mitchell vs. Carony, "7
Co) 8G%= ""<, "77, "@ : ed (<, $7. Gnited %tates vs. Russell, "7 /all. 8G%= A&7,
A&$, &# : ed @(@, @(<. Rayond vs. Thoas, '" G% ("&, ("A, &7 : ed @7@, @7<.
%terling vs. Constantin, "'#. 8Concurring opinion, 6uncan vs. Mahanao4u 7&(
G.%. 77@, 77<, '# : ed (#A 8"'@<;"'@A=.
2t has been held, therefore, that artial la) is a Bla) of actual ilitary necessity
in actual presence of )ar, and is adinistered by the general of the ary, )hose
)ill it is, sub+ect to slight liitations.B 8Constantino vs. %ith, 6.C. Te1t, <( 3. &d
&7'=. Gnder this sae ruling, artial la) is strictly no la) at all. 2t is a cessation
of all unicipal la).
2n another decision, it has been held that 5
All respectable )riters and publicists agree in the definition of artial la) 5 that
it is neither ore nor less than the )ill of the general )ho coands the ary. 2t
overrides and suppresses all e1isting la)s, civil officers and civil authorities, by
the arbitrary e1ercise of ilitar po)er and every citi,en or sub+ect, in other
)ords, the entire population of the country, )ithin the confines of its po)er, is
sub+ected to the ere )ill or caprice of the coander. Ce holds the lives, liberty
and property of all in the pal of his hands. Martial la) is regulated by no 4no)n
or established syste or code of la)s, as it is over and above all of the. The
coander is the legislator, +udge and e1ecutioner. 82n re? Egan $ 3ed. Cas. p.
7A(=.
-ther definitions ay be cited?
Martial la) ... is not statutory in character and al)ays arises out of strict ilitary
necessity. 2ts proclaation or establishent is not e1pressly authori,ed any of
the provisions of the Constitution. it coes into being only in the territory of an
eney or in a part of the territory of the Gnited %tates in tie of )ar or in tie of
peace in )hich the proper civil authority is, for soe controlling reason, unable to
e1ercise its proper function. 8Charles /arren, B%pies, and the Po)er of Congress
to %ub+ect Certain Classes of Civilian to Trial by Military TribunalB, The Aerican
:a) Revie) :222 8March;April, "'"'=, &#";&'&=.
The ter artial la) refers to the e1ceptional easures adopted )hether by the
ilitary or the civil authorities, in ties of )ar of doestic disturbance, for the
preservation of order and the aintenance of the public authority. To the
operation of artial la) all the inhabitants of the country or of the disturbed
district, aliens as )ell as citi,ens, are sub+ect. 8Moore, 2nt. :a) 6igest 22, "$A. As
to the sub+ection of aliens to Martial :a), %ee Moore, 22, "'A=.
Martial la) relates to the doestic territory in a condition of insurrection or
invasion, )hen the Constitution and its civil authorities, state or federal as the
case ay be, have been rendered inoperative or po)erless by the insurrectionary
or invading forces. 2t is part of our doestic or unicipal la).B 8Arnold 3., BThe
Rationale of Martial :a)B, "< ABA0 <<"=.
A Philippine author has tried to reconcile the any definitions.
/hatever the previous obscurity )hich has enveloped artial la) in both the
British Epire and the Gnited %tates, it is settled today that artial la) is 8"= the
e1ercise of ilitary +urisdiction. 8&= by the ilitary over the civilian population.
87= in a doestic territory. 8@= on occasion of serious public eergencies such as
insurrection, rebellion, invasion or iinent danger thereof. 8<= according to an
un)ritten la). and 8A= as necessity re*uires. 8%antos, Martial :a), p. $"=.
The e1isting definitions are all based on the traditional concepts. They )ere ade
at a tie )hen invasions )ere preceded by @$;hour ultiatus follo)ed by a
foral declaration of )ar, and )hen insurrections and rebellions involved frontal
clashes bet)een opposing and )ell;defined forces. 2f one group )as overcoe by
the other, the losers )ould surrender their s)ords and guns. The )inners, in turn,
ight agnaniously offer to return the s)ords and allo) the losers to retain
their sidears, rifles, and horses for hoe use. 2n short, there )ere clear and
sporting rules of the gae )hich )ere generally follo)s.
8b= Modern Martial Law.
Martial la) pursuant to Proclaation No. "#$", ho)ever, does not copletely
follo) the traditional fors and features )hich artial la) has assued in the
past. 2t is odern in concept, in the light of relevant ne) conditions, particularly
present day rapid eans of transportation, sophisticated eans of
counications, unconventional )eaponry, and such advanced concepts as
subversion, fifth coluns, the un)itting use of innocent persons, and the
)eapons of ideological )arfare.
The contingencies )hich re*uire a state of artial la) are tie;honored. They are
invasion, insurrection and rebellion. -ur Constitution also allo)s a proclaation of
artial la) in the face of iinent danger fro any of these three contingencies.
The Constitution vests the po)er to declare artial la) in the President under the
"'7< Constitution or the Prie Minister under the "'(7 Constitution. As to the
for, e1tent, and appearance of artial la), the Constitution and our
+urisprudence are silent.
Martial la) pursuant to Proclaation No. "#$" has, ho)ever, deviated fro the
traditional picture of rigid ilitary rule super;iposed as a result of actual and
total or near total brea4do)n of governent.
Martial la) )as proclaied before the noral adinistration of la) and order
could brea4 do)n. Courts of +ustice )ere still open and have reained open
throughout the state of artial la). The nation)ide anarchy, overthro) of
governent, and convulsive disorders )hich classical authors ention as
essential factors for the proclaation and continuation of artial la) )ere not
present.
More iportant, artial la) under Proclaation No. "#$" has not resulted in the
rule of the ilitary. The )ill of the generals )ho coand the ared forces has
definitely not replaced the la)s of the land. 2t has not superseded civilian
authority. 2nstead of the rule by ilitary officials, )e have the rule of the highest
civilian and elective official of the land, assisted by civilian heads of e1ecutive
departents, civilian elective local officials and other civilian officials. Martial la)
under Proclaation No. "#$" has ade e1tensive use of ilitary forces, not to
ta4e over Civilian authority but to insure that civilian authority is effective
throughout the country. This Court can very )ell note that it has suoned and
continues to suon ilitary officers to coe before it, soeties personally
and at other ties through counsel. These ilitary coanders have been
re*uired to +ustify their acts according to our Constitution and the la)s of the
land. These ilitary officers are a)are that it is not their )ill uch less their
caprice but the sovereign )ill of the people under a rule of la), )hich governs
under artial la) pursuant to Proclaation No. "#$".
+t is this parado!ical nature o) martial law in the &hilippines that leads to the
various (uestions raised in the instant petitions. +t is also this apparently variant
)orm and its occasionally divergent scope and e))ects which re(uire this Court to
e!plain 0ust what the martial law provision o) the Constitution means.
/e ust, perforce, e1aine the arguents of the parties on this atter.
8c= ,espondentsI 'rguments
The respondents contend that )hen artial la) )as proclaied on %epteber
&", "'(&, the rebellion and ared action underta4en by the la)less eleents of
the counist and other ared aggrupations organi,ed to overthro) the
Republic of the Philippines by ared violence and force had assued the
Philippines. This declaration is found in the last B)hereasB of Proclaation No.
"#$". The follo)ing assertions of the factual situation on %epteber &", "'(& are
also found in Proclaation No. "#$".
". There is a group of la)less eleents )ho are oved by a coon or siilar
ideological conviction, design, strategy, and goal. Their prie purpose is to stage,
underta4e, and )age an ared insurrection and rebellion against the governent
of the Republic of the Philippines in order to forcibly sei,e political and state
po)er in this country. They have in fact actually staged, underta4en, and )aged
this insurrection and rebellion. They )ant to overthro) the duly constituted
governent and supplant our e1isting political, social, econoic, and legal order
)ith an entirely ne) one. This ne) for of governent, its syste of la)s, its
conception of 9od and religion, its notion of individual rights and faily relations,
and its political, social, econoic, legal and oral precepts are based on the
Mar1ist, :eninist, Maoist teachings and beliefs.
&. These la)less eleents have entered into a conspiracy and have +oined and
banded their resources and forces. They use seeingly innocent and harless
although actually destructive front organi,ation. These organi,ations have been
infiltrated or deliberately fored by the through sustained and careful
recruitent aong the peasantry, laborers, professionals, intellectuals, students,
and ass edia personnel. Their ebership has been strengthened and
broadened. Their control and influence has spread over alost every segent
and level of our society throughout the land.
7. The foregoing group of la)less eleents en+oy the active, oral, and aterial
support of a foreign po)er. 2n the onths of May, 0une and 0uly, "'(&, they
brought into the country at 6igoyo Point, Palanan, 2sabela and other points along
the Pacific coast of :u,on, substantial *uantities of )ar aterials consisting of
around 7,<## M;"@ rifles, several do,ens of @# roc4et launchers, large
*uantities of $# roc4ets and aunitions and other cobat paraphernalia.
@. The la)less eleents have an over;all revolutionary plan. They have
distributed their regional progra of action for "'(& to their various field
coanders and party )or4ers. The ipleentation of the progra of action
fro the intensification of recruitent to the assassination of high governent
officials and the establishent of a provisional revolutionary governent in
various to)ns and cities has actually coenced. Darious incidents of bobings,
stri4es, robberies, sabotage, and deonstrations are actually in ipleentation
of the progra of action. :i*uidation issions aied at ran4ing governent
officials )ere about to be ipleented by the fielding of so;called %parro) Gnits.
<. There is an e*ually serious disorder in Mindanao and %ulu resulting in actual
)ar aong Christians, Muslis, 2lagas, Barracudas, the Mindanao 2ndependence
Moveent and governent troops. Diolent disorder in Mindanao and %ulu
resulted in over 7,### casualties and ore than <##,### in+ured, displaced and
hoeless persons. The econoy of Mindanao and %ulu is paraly,ed.
A. There is throughout the land a state of anarchy, la)less chaos, disorder,
turoil and destruction of a agnitude e*uivalent to an actual )ar bet)een
governent forces on the one hand and the Ne) People!s Ary and the satellite
organi,ations on the other.
(. The %upree Court in the "'(" habeas corpus cases has found that in truth
and in fact there e1ists an actual insurrection and rebellion in the country.
Portions of the %upree Court decision are cited. 2t )as concluded by the
%upree Court that the unla)ful activities of the aforesaid eleents pose a clear,
present, and grave danger to public safety and the security of the nation is also
cited.
8d= &etitionersI 'rguments9
-n the other hand, the petitioners state that in the Philippines Bthere has been no
disruption at all. all governent offices )ere perforing their usual functions. all
courts )ere open and in the unobstructed e1ercise of their +urisdiction at the tie
artial la) )as declared.B The petitioners state that )e have no Civil /ar in the
Philippines and that no province, no city, no to)n throughout the Philippines has
seceded fro the Republic. They state that there is no status of belligerency.
There is no ared struggle carried on bet)een t)o political bodies, each of )hich
e1ercises de facto sovereignty over persons )ithin a deterinate territory, and
coands an ary )hich is prepared to observe the ordinary la)s of )ar.
-n rebellion, the petitioners point out that the rebels have not established an
organi,ed civil governent nor occupied a substantial portion of the national
territory and, in fact, are described as ere Bla)less eleents.B
The petitioners state that Bthe thrust of artial la) cases is this 5 that for the
re*uireent of public safety to be satisfied, civil authority ust have either fallen
a)ay or proved inade*uate for the eergency, the courts are actually closed, and
it is ipossible to adinister criinal +ustice according to la), and that )here
rebellion really e1ists, there is a necessity to furnish a substitute for the civil
authority, thus overthro)n, and as no po)er is left but the ilitary, it is allo)ed
to govern until the la)s can have their free course. 3or artial rule can never
e1ist )here the courts are open and in the unobstructed e1ercise of their
+urisdiction.B The petitioners cite Arnold, in his article, BThe Rationale of Martial
:a)B 8"< ABA0 <<"=.
invasion, )hen the Constitution and its civil authorities ... CADE BEEN REN6ERE6
2N-PERAT2DE -R P-/ER:E%% by the insurrectionary or invading forces.
After citing the foregoing, petitioners as4ed this Court to ta4e +udicial notice of
the follo)ing?
". Congress )as in session and )as in the unobstructed e1ercise of its functions
)hen artial )as proclaied.
&. The %upree Court, the Court of Appeals, the Courts of 3irst 2nstance in the
9reater Manila Area 5 )here petitioners had been arrested 5 indeed, even the
unicipal and city courts )ere, at the tie artial la) )as publicly announced,
open and are still open and functioning throughout the length and breadth of the
land. no proof has been sho)n that any court has been rendered Bunable to
adinister +ustice,B due to the activities of the rebels. 2ronically, it is 9eneral
-rder No. 7, as aended by, 9eneral -rder No. 7;A, issued pursuant to
Proclaation No. "#$", that see4s to render the po)erless, in any cases, to
adinister +ustice, according to the Constitution and the la)s of the land.
7. The Constitutional Convention the so;called Bfourth branchB 5 had been
holding its sessions )hen artial la) )as proclaied. 6espite artial la), or
probably because of it, it decided to )or4 )ith greater efficiency, it has +ust
finished its )or4. A BplebisciteB under artial la) is being called on 0anuary "<,
"'(7, so the people can BratifyB the proposed Constitution.
@. 2n the 9reater Manila Area, contrary to the speech of %epteber &7, "'(&, no
university, college, or school )as closed due to the activities of the rebels.
<. All instruents of ass counications )ere in operation up to %epteber
&&, "'(&. The ne1t day, free speech and free press 5 the very heart of free
in*uiry and the search for truth 5 becae nothing but epty eories. -nly the
Bsafe ne)spapers and radio;tv stationsB )ere allo)ed to open. Political dissent
)as suppressed.
A. All agencies and instruentalities of governent, national as )ell as local,
)ere functioning )hen artial la) )as proclaied. By 9eneral -rder No. 7, they
)ere ordered Bto continue to function under their present officers and eployees
and in accordance )ith e1isting la)s ...B
The petitioners state )hy Proclaation No. "#$" is unconstitutional?
These indisputable facts )hich re*uire no introduction of proof because they all
fall )ithin the scope of +udicial notice, under Rule "&' of the Rules of Court 5
sho) that at the tie artial la) )as declared there )as absolutely no
+ustification for it, in fact and in la). Cence, Proclaation No. "#$" is
unconstitutional and void, because?
". 2t is predicated on the e1istence of Bthe agnitude of an actual )arB or an
Bactual status of )arB that does not e1ist.
&. 2t is allegedly based on the Bstatus of belligerencyB )hich no %tate in the )orld,
not even the Philippines, has e1tended to the rebels or the la)less eleents
described in the Proclaation.
7. Although there ay be rebellion in soe reote places, as in 2sabela, there is
no +ustification for the declaration of artial la) throughout the Philippines, since
a= no large scale, nation)ide rebellion or insurrection e1ists in the Philippines.
b= public safety does not re*uire it, inasuch as no departent of governent,
no governent agency or instruentality, and even ore iportant, no civil court
of appellate or original +urisdiction )as, at the tie artial la) )as proclaied,
unable to open or function, or has been, at any tie since the incubent
President cae into po)er Brendered po)erless or inoperativeB due to the
activities of the rebels or the la)less eleents described in the Proclaation.
c= The President hiself declared that the ared forces can handle the situation
)ithout Butili,ing the e1traordinary po)ers of the PresidentB 80anuary ", "'(&=,
that long before artial la) )as proclaied, the 9overnent had the said
rebellionB and the Brebels and their supportersB under control, as the Ary 4ne)
the step;by;step plot of the Counists and had an hour;by;hour onitoring of
the oveents of the subversive leaders.
d= The proble in the 9reater Manila Area 5 )here petitioners )ere sei,ed and
arrested 5 )as, at the tie artial la) )as proclaied, plain la)lessness and
criinality.
As the President described the situation in his speech of %epteber &7, "'(&?
:a)lessness and criinality li4e 4idnapping, suggling, e1tortion, blac4ail, gun;
running, hoarding and anipulation of prices, corruption in governent, ta1
evasion perpetrated by syndicated criinals, have increasingly escalated ...
The petitioners pointed out that neither any of these or a cobination of all,
constitute either the occasion or the +ustification for the iposition of artial rule.
-ther)ise, since these cries have al)ays been )ith us for any years, )e
)ould never see the end of artial la) in this country.
2t is argued that since Proclaation No. "#$" is unconstitutional and void, the
9eneral -rders, issued in pursuance thereto and by )ay of its ipleentation,
ust inevitably suffer fro the sae congenital infirity.
8e= 'uthorities cited by the &arties K
Petitioners and respondents ali4e preise their arguents on the artial la)
provision of the Constitution. Both cite decisions of foreign courts and treatises of
foreign )riters e1pounding on artial la). And yet, copletely divergent opinions
on the eaning of the provision is the result.
Martial la) is based on a la) of necessity and is utili,ed as a easure of
governental self;defense. 2t is, therefore, an inherent po)er. 2t needs no
constitutional or statutory grant before it ay be )ielded. As the petitioners state
8Addendu, pages $#;$"=, it is a recogni,ed institution in the constitutional
systes of both England and Aerica, not)ithstanding lac4 of e1press provisions
on artial la) in )ritten constitutions.
/e accept +udicial decisions of these countries as highly persuasive, if not as
precedents. The absence of e1press recognition in the constitutions or statute of
these countries helps e1plain )hy there is disagreeent on a precise definition.
More iportant, it e1plains )hy the necessity, scope, and e1tent of artial la)
proclaations have to be deterined by the regular courts and )hy the decisions
are, theselves, conflicting. The Constitutions and statutes are silent or different
fro each other. The Courts have been forced to go to the coon la) and to
general principles of Constitutional :a) to loo4 for bases of po)er and to resolve
probles arising out of states of artial la). The various authorities cited by both
petitioners and respondents in their pleadings and oral arguents undoubtedly
have valuable )orth and applicability. They are very helpful in resolving the
oentous issues raised by the petitions. The fact reains, ho)ever, that they
deal )ith an e1ercise of po)er )hich is undefined. 3or the Gnited %tates %upree
Court, the po)er is not specifically prescribed in the federal Constitution. This has
led foreign courts to naturally and logically loo4 for the confining liits and
restrictions of abiguous, cryptic, and perple1ing boundaries. %ince the po)er is
not defined, the natural tendency is not to describe it but to loo4 for its liits.
Anglo;Aerican authorities ay assist but should not control because, here, the
liits are present and deterined by no less than the fundaental la).
2n the Philippines, there is an ubi*uitous and andatory guide. The Constitution
spea4s in clear and positive ters. 9iven certain conditions, the Philippines or any
part thereof ay be placed under artial la). To resolve the instant petitions, it
is necessary to find out )hat the Constitution coands and )hat the e1press
)ords of its positive provision ean. 2t is the Constitution that should spea4 on
the circustances and *ualifications of the initiation and use of an a)esoe
eergency po)er. .
8b= More arguments o) the ,espondents?
According to the respondents, the Constitution plainly provides that the
circustances )hen artial la) ay be declared, its scope and its effects are
beyond +udicial e1aination. The respondents contend that this Court lac4s
+urisdiction to ta4e cogni,ance of the instant petitions for habeas corpus. The
%olicitor 9eneral has consistently pleaded throughout these proceedings that the
*uestions involved are political and non;+usticiable. Ce states that the President,
s)orn to defend the Constitution and the Republic, proclaied artial la)
pursuant to authority e1pressly conferred by the Constitution. 2t is argued that his
decision is beyond controversion because the Constitution has ade it so and that
only history and the 3ilipino people ay pass +udgent on )hether the President
has correctly acted in a tie of supree crisis.
8a= More arguments o) the petitioners9
Petitioners, on the other hand, contend that this Tribunal is the ultiate
interpreter of the Constitution. As such, it has the po)er and duty to declare
Proclaation No. "#$" unconstitutional and void because the President has
e1ceeded his po)ers. 2t is argued that )here basic individual rights are involved,
+udicial in*uiry is not precluded. -n the arguent that artial la) is te1tually and
e1clusively coitted to the President, the petitioners ans)er that under the
sae Constitution, the President ay not disable the Courts and oust the,
particularly the %upree Court, of their +urisdiction to hear cases assigned to
the by the Constitution and the la)s. Petitioners stress that the Court should
act no) or the tie )ill coe )hen it can no longer act, ho)ever, uch it ay
)ish to, for it shall have copletely lost then the oral force and authority it still
possesses and the valid clai it ay still have of being independent, fearless, and
+ust.
I
&-L+T+C'L 8<"T+-*" '*/ C-<,T" J<,+"/+CT+-* -2, T1M
The respondents! assertion that the *uestions raised in these petitions are
political and non;+usticiable raises a point )hich is easily isunderstood.
/hat is a political *uestionE
2n Mabanag vs. Lope% 8($ Phil. ", @=, this Court recogni,ed the probles in trying
to a4e a definition?
2t is a doctrine too )ell established to need citation of authorities, that political
*uestions are not )ithin the province of the +udiciary, e1cept to the e1tent that
po)er to deal )ith such *uestions has been conferred upon the courts by e1press
constitutional or statutory provision. 8"A C.0.%., @7"=. This doctrine is predicated
on the principle of the separation of po)ers, a principle also too )ell 4no)n to
re*uire elucidation or citation of authorities. The difficulty lies in deterining )hat
atters tall )ithin the eaning of political *uestion. The ter is not susceptible
of e1act definition, and precedents and authorities are not al)ays in full harony
as to the scope of the restrictions, on this ground, on the courts to eddle )ith
the actions of the political departents of the governent.
2 thin4 it is tie for this Court to distinguish bet)een +urisdiction over a case and
+urisdiction over the issue raised in that case. 2t is erroneous to state that )hen a
petition raises an issue )hich is political in nature, this Court is )ithout
+urisdiction over the case. +t has 0urisdiction.
The %upree Court has +urisdiction to receive the petition and to find out )hether
the issues are indeed political or not. A finding of political *uestion is the province
of the Court in all cases. A ere allegation of political *uestion does not
autoatically divest the Court of its +urisdiction. The Court ay, therefore,
re*uire the parties to the case to prove or refute the e1istence of a political
*uestion. The Court has +urisdiction to receive the pleadings, to listen to the
arguents and to a4e up its ind.
-nce the Court, ho)ever, finds that the issue is political in nature, it should rule
that it has no +urisdiction to decide the issue one )ay or another. 2t still renders a
decision. 2t ust still state that, according to the Constitution, this atter is not
for the +udiciary but for the political departents to decide. This is the tas4 /e
ust perfor in these petitions. /hen )e decide )hether or not the issues are
political in nature, /e e1ercise +urisdiction. 2f /e find a political *uestion, /e still
have +urisdiction over the case but not over the specific issue.
A lot of eotionalis is directed against the Court )hen it rules that a *uestion is
political. 2t is alleged that the Court has surrendered its po)ers. The political
*uestion, it is said, Bapplies to all those *uestions of )hich the Court, at a given
tie, )ill be of the opinion that it is ipolitic or ine1pedient to ta4e +urisdiction.
%oeties this idea of ine1pediency )ill result fro the fear of the vastness of
the conse*uences that a decision on the erits ight entail. %oeties, it )ill
result fro the feeling that the Court is incopetent to deal )ith the type of
*uestion involved. %oeties, it )ill be induced by the feeling that the atter is
too high for the CourtsB 83in4elstein, B0udicial %elf :iitationB, 7$ Carvard :a)
Revie) 7&$, 7@@= The political *uestion doctrine is, therefore, described as a
doctrine of +udicial opportunis. :i4e Pontius Pilate, the Court is accused of
tossing the hot issue for others to deterine. 2t is charged )ith )ashing its hands
off a difficult or e1plosive situation. A political *uestion, it is alleged, is nothing
ore than any *uestion )hich the Court does not )ant to decide. 2t is
understandable )hy courts should have a seeingly natural or spontaneous
tendency to re+ect a political *uestion arguent. The charge that the Court is
abdicating a function or running a)ay fro responsibility can stri4e to the very
arro) of any +udge!s feelings.
2 do not share these isgivings. 2 positively re+ect the as )rong ipressions.
This Court is discharging a constitutional duty )hen it deterines that an issue is
a political *uestion. Because of its iplications, ho)ever, this is a fact )hich the
Court ust also e1plain in the siplest ters possible.
The Constitution defines and liits the po)ers entrusted by the sovereign people
to their governent. 3irst, it declares the boundaries )here the po)ers of
governent cannot go further because individual rights )ould be ipaired.
%econd, it divides the po)ers given to the entire governent aong the various
departents and constitutional bodies. 2ts provisions are, therefore, both a grant
and a liitation of po)er.
2n other )ords, the Constitution ay be li4ened to a ap. This ap sho)s ho)
the po)ers of sovereignty have been distributed aong the departents of
governent. 2t sho)s )here there is a sharing of po)ers or )here chec4s and
balances ay be found. 2t also sho)s )here there is a dividing line bet)een
governent po)er and individual liberty. 2n plainer language, the constitutional
ap, li4e any other ap, carries different boundaries. The boundaries are the
deliitation!s of po)er.
The function of the Court is to fi1 those boundaries )henever encroachents are
alleged. 2n doing so, the Court interprets the constitutional ap. 2t declares that
this po)er is e1ecutive, that po)er is legislative, and that other po)er is +udicial.
2t ay soeties state that a certain po)er, li4e ipeachent, is +udicial in
nature. Nonetheless, the constitutional ap has included ipeachent )ithin the
boundaries of legislative functions. The Court has to declare that the +udicial
po)er of ipeachent is e1clusively for the legislature to e1ercise.
This tas4 of allocating constitutional boundaries, 2 ust repeat, is given to this
Court. 2t cannot be divested of this +urisdiction. 2t cannot yield this po)er.
Co)ever, )hen the Court finds that a certain po)er is given by the Constitution to
a co;e*ual departent, it ust defer to the decision of that departent even if it
appears to be seeingly +udicial. 2t should declare that the Constitution has
vested this deterination in the e1ecutive or the legislature. The Court ust,
therefore, state that it cannot go any further. The sovereign people through the
Constitution have dra)n a boundary )hich this Court has ascertained and )hich it
ust respect. /hen the Court finds a political *uestion, it is not, therefore,
shir4ing or avoiding a duty. 2t is, in fact, coplying )ith its duty. Much as it )ants
to go into the issues and decide the *uestions, it has to decline. The Constitution
has given the po)er of deterination to another departent. As interpreter of
the Constitution, the Court has to lead in respecting its boundaries.
2f )e e1aine this Court!s definition of a political *uestion in Taada vs. Cuenco
89.R. No. :;"#<&#, 3ebruary &$, "'<(=, /e find that it confors to the foregoing
e1planation.
2n short, the ter Bpolitical *uestionB connotes, in legal parlance, )hat it eans
in ordinary parlance, naely, a *uestion of policy. 2n other )ords, in the language
of Corpus 0uris %ecundu 8supra=, it refers to Bthose *uestions )hich, under the
Constitution, are to be decided by the people in their sovereign capacity, or in
regard to )hich full discretionary authority has been delegated to the legislature
or e!ecutive branch of the 9overnent.B 2t is concerned )ith issues dependent
upon the wisdom, not legality, of a particular easure. 8Ephasis supplied=
This is a deterination of constitutional boundaries. The Court has found that the
Constitution has assigned a political *uestion to the people through a referendu
or either one or both of the political departents.
A ore coplete definition is found in Baker vs. Carr 87A' G.%. "$A, (: Ed. &d
AA7, "'A&=, to )it?
2t is apparent that several forulations )hich vary slightly according to the
settings in )hich the *uestions arise ay describe a political *uestion, )hich
identifies it as essentially a function of the separation of po)ers. Proinent on the
surface of any case held to involve a political *uestion is found a te1tually
deonstrable constitutional coitent of the issue to a coordinate political
departent. or a lac4 of +udicially discoverable and anageable standards for
resolving it. or the ipossibility of deciding )ithout an initial policy deterination
of a 4ind clearly for non;+udicial discretion. or the ipossibility of a court!s
underta4ing independent resolution )ithout e1pressing lac4 of the respect due
coordinate branches of governent or an unusual need for un*uestioning
adherence to a political decision already ade. or the potentiality of
ebarrassent fro ultifarious pronounceents by various departents on
one *uestion.
Again, the Court a4es a deterination that the Constitution has vested the
a4ing of a final decision in a body other than the Court.
I2
&,-CL'M'T+-* *-. 4AB4 +" 2'L+/ K +T +" &-L+T+C'L +* *'T<, '*/
T1,$-, *-T J<"T+C+'BL
Co) does the Court deterine )hether a artial la) proclaation is a political
*uestion or notE The respondents argue that only the President is authori,ed to
deterine )hen artial la) ay be proclaied. The petitioners insist that this
Court ay e1aine and nullify the Presidential deterination as beyond his
constitutional po)ers.
Cas the Constitution vested the po)er e1clusively in the PresidentE Are the
petitioners correct or is it the clai of respondents )hich is validE
The rule in constitutional construction is to give effect to the intent of the authors.
The authors are, first, the fraers )ho )ere ordered by the sovereign people to
represent the in the specific assignent of drafting the fundaental la) and
second, the people, theselves, )ho by their ratification confir )hat their
delegates have )rought and anifested as e1pressions of the sovereign )ill.
Co), then, do )e ascertain the intent of the authors on the grant of artial la)
po)ersE
A search for intent ust necessarily start )ithin the four corners of the docuent
itself.
... The *uestion is one then of constitutional construction. 2t is )ell to recall
fundaentals. The priary tas4 is one of ascertaining and thereafter assuring the
reali,ation of the purpose of the fraers and of the people in the adoption of the
Constitution.
/e loo4 to the language of the docuent itself in our search for its eaning. /e
do not of course stop there, but that is )here )e begin. ... 8Tua,on Q Co. vs.
:and Tenure Adinistration, 7" %CRA @"7, @&&=
The Constitution is sufficiently e1plicit in locating the po)er to proclai artial
la). 2t is siilarly e1plicit in specifying the occasions for its e1ercise. B2n case of
invasion, insurrection, or rebellion, or iinent danger thereof, )hen the public
safety re*uires it, he 8the President as Coander;in;Chief of all ared forces of
the Philippines= ay suspend the privileges of the )rit of habeas corpus or place
This provision on artial la) is found in Article D22 of the "'7< Constitution. This
Article refers to the Presidency. %ection "#, )here the provision appears as the
second paragraph, is e1clusively devoted to po)ers conferred by the Constitution
on the President. This is in sharp contrast to the Constitution of the Gnited %tates
)here the suspension of the privilege of the )rit of habeas corpus appears, not as
a grant of po)er under Article 22 on the E1ecutive nor in the first ten aendents
constituting their Bill of Rights, but in Article 2 on the :egislature. 2t is given not
as a grant of po)er but as a liitation on the po)ers of the 3ederal Congress.
2t is significant that, as regards the suspension of the privilege of the )rit of
habeas corpus, the Philippine Constitution treats it both as a grant of po)er in the
article on the Presidency and as a liitation to governent action in the article on
the Bill of Rights. -n the other hand, there is no dual treatent of artial la).
There is only a grant of po)er in Article D22 to eet certain grave dangers to the
Republic. No)here in the Constitution is it treated in ters of liitation.
2n J. M. Tua%on F Co.# +nc. vs. Land Tenure 'dministration, 7" %CRA p. @"7,@&7,
this Court ruled?
Reference to the historical basis of this provision as reflected in the proceedings
of the Constitutional Convention, t)o of the e1trinsic aids to construction along
)ith conteporaneous understanding and the consideration of the conse*uences
that flo) fro the interpretation under consideration, yields additional light on
the atter.
:et us, therefore, loo4 at the history of the provision. 2t is iportant to be guided
by the authors of the Constitution ore than by citations fro foreign court
decisions and *uotations fro constitutional la) )riters )hich petitioners and
respondents can see to unendingly cull to sustain their diaetrically opposed
positions. .
The Philippine Bill of "'#& has no provision on artial la), although it provided?
%ECT2-N <. ...
the 9overnor, )ith the approval of the Philippine Coission, )henever during
such period the necessity for such suspension shall e1ist.
Both e1ecutive and legislative shared in deciding )hen the privilege of the )rit
ay be suspended.
The 0ones :a) or Philippine Autonoy Act of "'"A re*uired a siilar sharing of
po)er as the Philippine Bill of "'#&. 2nstead of approval of the Philippine
Coission, ho)ever. it provided that the President of the Gnited %tates ust be
notified )henever the privilege of the )rit of habeas corpus has been suspended
or artial la) has been proclaied.
%ECT2-N &" ... Ce shall be responsible for the faithful e1ecution of the la)s of the
Philippine 2slands and of the Gnited %tates operative )ithin the Philippine 2slands,
and )henever it becoes necessary he ay call upon coanders of the ilitary
and naval forces of the Gnited %tates in the 2slands, or suon the posse
comitatus, or call out the Militia, or other locally created ared forces, to prevent
or suppress la)less violence, invasion, insurrection, or rebellion. and he may# in
case o) rebellion or in or invasion or imminent danger thereo)# when the public
sa)ety re(uires it# suspend the privileges o) the writ o) habeas corpus# or place
the islands# or any part thereo)# under martial law> &rovided# That whenever the
Governor7General shall e!ercise this authority# he shall at once noti)y the
&resident o) the <nited "tates thereo)# together )ith the attending facts, and
circustances, the President shall have po)er to odify or vacate the action of
the 9overnor;9eneral. 8Ephasis supplied=
The treatent of both artial la) and habeas corpus as part of the liitations in
the Bill of Rights and as part of the grant of po)ers of the Chief E1ecutive started
)ith the 0ones :a). This organic act also added Biinent dangerB as a ground
for suspension.
This )as the status of our constitutional la) on habeas corpus and on artial la)
)hen the "'7< Philippine Constitution )as drafted. The ost learned Philippine
la)yers )ere aong the delegates to the "'7@ Constitutional Convention. The
delegates had before the the Philippine Bill of "'#& re*uiring approval of the
legislature before the Chief E1ecutive ay e1ercise his po)er. They had before
the the provision of the 0ones :a) *ualifying the 9overnor;9eneral!s po)er )ith
supervision and control by the President of the Gnited %tates )ho ay odify or
vacate the forer!s action. They chose to vest the po)er e1clusively in the
President of the Philippines. They e1panded the )ide scope of his authority by
including Biinent dangerB as an occasion for its e1ercise, thus deliberately
adopting the 0ones :a) provision inus the liitation. Their proposal on artial
la) )as over)helingly ratified by the people.
The choice )as no perfunctory or casual one. 2t )as the product of thorough
study and deliberation. /hile the debates in the "'7< Constitutional Convention
centered on habeas corpus, they necessarily apply to artial la) because the t)o
are ine1tricably lin4ed in one and the sae provision. The %olicitor;9eneral has
suari,ed these deliberations on habeas corpus and artial la).
As a atter of fact, in the Constitutional Convention, 6elegate Araneta proposed
the follo)ing provisions?
2n case of rebellion, insurrection, or invasion, )hen the public safety re*uires it,
the National Assebly ay suspend the privilege of the )rit of habeas corpus. 2n
case the National Assebly is not in session the President ay suspend the
privilege of the )rit of habeas corpus )ith the consent of the a+ority of the
%upree Court, but this suspension of the privilege of the )rit of habeas corpus
)ill be revo4ed if the President does not call a special session of the National
Assebly )ithin fifteen days fro the decree suspending the )rit of habeas
corpus or if the National Assebly fails to confir the action of the President
)ithin 7# days. 8< 0. :aurel, Proceedings of the Philippine Constitutional
Convention, &<', 8%. :aurel ed. "'AA=
2n support of his proposal, Araneta argued, first, that the po)er to suspend the
privilege of the )rit of habeas corpus should be vested in the National Assebly
because that po)er )as BessentiallyB legislative. 82d. &@';<#= and second, that in
case the National Assebly )as not in session, thus a4ing it necessary to vest
the po)er in the President, that the e1ercise of the po)er be sub+ect to the
concurrence of the %upree Court and even )hen the Court has concurred in the
decision of the President that the suspension )ould be effective only for a certain
period unless the National Assebly )as convened and its ratification )as
secured. 8+d., at &<<=
Ce )as interpellated by various delegates. 6elegate Pere, and 9rageda,
especially, )ere concerned, lest the re*uireent of securing the concurrence of
other branches of governent in the decision of the President deprives hi of
effective eans of eeting an eergency. 8+d., at &<<;<A=. The Coittee on
%ponsorship headed by 6elegate %otto opposed the aendent. /hen finally put
to vote, the aendent )as re+ected. 8+d., at &<'=.
There are a nuber of points )e should note regarding the proposal. 3irst, the
proposal refers only to the suspension of the privilege of the )rit of habeas
corpus. 2t did not apparently conteplate the proclaation of artial la).
"econd, the proposal )ould vest the po)er of suspension in the National
Assebly and in the President only )hen the National Assebly is not in session.
Third, e1ercise of the po)er by the President, is sub+ect to the concurrence of the
%upree Court and the confiration of the National Assebly.
The Constitutional Convention ust have been a)are of the e1perience of
President :incoln during the Aerican Civil /ar. They ust have been a)are of
the vie)s e1press then that it )as the legislature and not the President )ho ay
suspend the privilege of the )rit of habeas corpus or proclai artial la). %urely,
they )ere cogni,ant of the vast iplications incident to a suspension of the
privilege of the )rit of habeas corpus and ore so to the proclaation of artial
la). This is reflected in the follo)ing records of the proceedings?
6uring the debates on the first draft, 6elegate 3rancisco proposed an aendent
inserting, as a fourth cause for the suspension of the )rit of habeas corpus,
iinent danger of the three causes included herein. /hen subitted to a vote
for the first tie, the aendent )as carried.
After his Motion for a reconsideration of the aendent )as approved, 6elegate
-rense spo4e against the aendent alleging that it )ould be dangerous to
a4e iinent danger a ground for the suspension of the )rit of habeas corpus.
2n part, he said?
9entleen, this phrase is too abiguous, and in the hands of a President, )ho
believes hiself ore or less a dictator, it is e1treely dangerous. it )ould be a
s)ord )ith )hich he )ould behead us.
2n defense of the aendent, 6elegate 3rancisco pointed out that it )as
intended to a4e this part of the bill of rights confor to that part of the draft
giving the President the po)er to suspend the )rit of habeas corpus also in the
case of an iinent danger of invasion or rebellion. /hen as4ed by 6elegate
Rafols if the phrase, iinent danger, ight not be struc4 out fro the
corresponding provision under the e1ecutive po)er instead, 6elegate 3rancisco
ans)ered?
-utright, it is possible to eliinate the phrase, iinent danger thereof, in the
page 2 have entioned. But 2 say, going to the essence and referring e1clusively
to the necessity of including the )ords, of iinent danger or one or the other, 2
)ish to say the follo)ing? that it should not be necessary that there e1ist a
rebellion, insurrection, or invasion in order that habeas corpus ay be
suspended. 2t should be sufficient that there e1ists not a danger but an iinent
danger, and the )ord, iinent should be aintained. /hen there e1ists an
iinent danger, the %tate re*uires for its protection, and for that of all the
citi,ens the suspension of the habeas corpus.
/hen put to a vote for the second tie, the aendent )as defeated )ith (&
votes against and <A votes in favor of the sae. 82 Aruego!s 3raing of the
Philippine Constitution, "$#;"$"=
But the Convention voted for a strong e1ecutive, and )rote Article D22, %ection "#
8&= into the Constitution.
The conferent of the po)er in the President is clear and definite. That the
authority to suspend the privilege of the )rit of habeas corpus and to proclai
artial la) )as, intended to be e1clusively vested in the President, there can be
no doubt. 8Meorandu for Respondents dated Noveber "(, "'(&, pp. "";"@=
The only conclusion 2 can a4e after ascertaining the intent of the authors of the
Constitution is that the po)er to proclai artial la) is e1clusively vested in the
President. The proclaation and its attendant circustances therefore for a
political *uestion.
Gnless this Court decides that every act of the e1ecutive and of the legislature is
+usticiable there can be no clearer e1aple of a political *uestion than
Proclaation No. "#$". 2t is the e1ercise by the highest elective official of the
land of a supree political duty e1clusively entrusted to hi by the Constitution.
-ur people have entrusted to the President through a specific provision of the
fundaental la) the a)esoe responsibility to )ield a po)erful )eapon. The
people have entrusted to hi the estiation that the perils are so oinous and
threatening that this ultiate )eapon of our duly constituted governent ust
be used.
The %upree Court )as not given the +urisdiction to share the deterination of
the occasions for its e1ercise. 2t is not given the authority by the Constitution to
e1pand or liit the scope of its use depending on the allegations of litigants. 2t is
not authori,ed by the Constitution to say that artial la) ay be proclaied in
2sabela and %ulu but not in 9reater Manila. Much less does it have the po)er nor
should it even e1ercise the po)er, assuing its e1istence, to nullify a
proclaation of the President on a atter e1clusively vested in hi by the
Constitution and on issues so politically and eotionally charged. The Court!s
function in such cases is to assue +urisdiction for the purpose of finding out
)hether the issues constitute a political *uestion or not. 2ts function is to
deterine )hether or not a *uestion is indeed +usticiable.
Petitioners )ant this Court to e1aine the bases given by the President in issuing
Proclaation No. "#$". They )ant the Court to find or to ta4e +udicial notice of
the absence of an insurrection or rebellion 5 of the absence of an iinent
danger thereof. Petitioners )ould have this Court dispute and nullify the findings
of facts of the President hiself in a atter that is peculiarly e1ecutive in nature.
/hy should /e honor the President!s findingsE
2n cases )here the issues are indisputably +udicial in nature, the findings of the
President are still given utost respect and deference. 2n the atter of the
declaration of artial la), a po)er that is e1clusively vested in the President, ay
the Court differ )ith the findingsE No, because as /e have already stated, the
valid reason )or this e!clusive grant o) power is that the &resident possesses all
the )acilities to gather the re(uired data and in)ormation and has a broader
perspective to properly evaluate them# better than any )acility and perspective
that the Court can have.
't what state in an insurrection or how serious and mani)est should subversive
activities become be)ore the Court decides the particular point when martial law
may be proclaimedL The petitioners# relying on the classic stages o)
governmental overthrow as e!perienced by pre7=orld =ar ++ e!amples# would
wait until all civil courts are closed and the country is in complete chaos.
&etitioners do not reali%e that long be)ore the courts are closed# the &resident
would have been killed or captured and the enemy irrevocably entrenched in
power. The authors o) the Constitution never envisioned that the martial law
power so care)ully and deliberately included among the powers o) the &resident
would be withheld until such time as it may not be used at all.
+t is my )irm view# that the decision to proclaim martial law is an e!clusive
)unction o) the &resident. +) he )inds that invasion# insurrection# or rebellion or
imminent danger o) any o) the three is present# such )inding is conclusive on the
Court. +) he )inds that public sa)ety re(uires the entire country should be placed
under martial law# that )inding is conclusive on the Court. +n the e!ercise o) such
an emergency power intended )or the supreme and inherent right o) sel)7de)ense
and sel)7preservation# the Constitution cannot be read to mean otherwise.
2n Lansang vs. Garcia 8@& %CRA @@$, @$#= this Court stated that Bin the e1ercise
of such authority 8to suspend the privilege of the )rit of habeas corpus=, the
function of the Court is erely to check 5 not to supplant 5 the !ecutive# or to
ascertain merely whether he has gone beyond the constitutional liits of his
+urisdiction, not to e!ercise the power vested in hi or to deterine the )isdo
of his act.B
2 do not see ho), both fro the legal and practical points of vie), the Court can
chec4 the President!s decision to proclai artial la). The sae ay, perhaps,
be done as regards a suspension of the privilege of the )rit of habeas corpus
although 2 reserve a ore definitive stateent on that issue )hen a case
s*uarely in point on the atter is raised before Gs. Co)ever, artial la) poses
entirely different probles. A proclaation of artial la) goes beyond the
suspension of the privilege of the )rit of habeas corpus, )hose effects are largely
reedied )ith the release of detainees.
Gpon proclaiing artial la), the President did not liit hiself to ordering the
arrest and detention of the participants and others having a hand in the
conspiracy to sei,e political and state po)er. Gnder artial la), the President
ordered the ta4eover or control of counications edia, public utilities, and
privately o)ned aircraft and )ater craft. 3oreign travel )as restricted. Curfe) )as
iposed all over the country. A purge of undesirable governent officials,
through resignations or suary investigations, )as effected. The entire
e1ecutive branch of governent )as reorgani,ed. A cleanliness and beautification
capaign, )ith artial la) sanctions to enforce it, )as ordered. This )as only the
beginning.
Conse*uences of Proclaation No. "#$" are any and far;reaching. They
pereate every aspect and every activity in the life of the people. A court
decision is not needed nor is it the proper place to enuerate the. Most
obvious, of course, are the President!s acts of legislation on the very broad range
of sub+ects that Congress used to cover. As early as Noveber $, "'(&, the
petitioners prepared a Meorandu stressing this point.
2t ay be pointed out that since artial la) )as declared, the President has been
e1ercising legislative po)er that is lodged by the Constitution in Congress. A good
nuber of the decrees proulgated have no direct relation to the *uelling of the
disorders caused by the la)less eleents. They are aied at building a Ne)
%ociety, but they cannot be +ustified as a valid e1ercise of artial rule. 8at page
'@=
These implications and conse(uences o) martial law serve to bolster my view that
the Constitution never intended that this Court could e!amine and declare invalid
the &residentIs initial determination. The Constitution did not intend that the
Court could# in the detached and peace)ul a)termath o) success)ul martial law#
reach back and invalidate everything done )rom the start. That would result in
chaos.
2 a, of course, a)are of the Chicot County /rainage /istrict vs. Ba!ter "tate
Bank 87#$ G.%. 7(", 7(@= doctrine )hich this Court adopted in Municipality o)
Malabang vs. &angandapun Benito# et al. 8&( %CRA <77, <@#=?
The Courts belo) have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, )as not a la). that it )as inoperative,
conferring no rights and iposing no duties, and hence affording no basis for the
challenged decree. 8Norton vs. %helby County, ""$ G.%. @&<, @@&. Chicago, 2 Q :.
Ry. Co. vs. Cac4ett, &&$ G.%. <<', <AA=. 2t is *uite clear, ho)ever, that such
broad stateents as to the effect of a deterination of unconstitutionality ust
be ta4en )ith *ualifications. The actual e1istence of a statute, prior to such a
deterination, is an operative fact and ay have conse*uences )hich cannot
+ustly be ignored. The past cannot al)ays be erased by a ne) +udicial declaration.
The effect of the subse*uent ruling as to invalidity ay have to be considered in
various aspects )ith respect to particular relations, individual and corporate, and
particular conduct, private and official. Luestions of rights claied to have
becoe vested, of status, of prior deterinations deeed to have finality and
acted upon accordingly, of public policy in the light of the nature both of the
statute and of its previous application, deand e1aination. These *uestions are
aong the ost difficult of those )hich have engaged the attention of courts,
state and federal, and it is anifest fro nuerous decisions that an all;inclusive
stateent of a principle of absolute retroactive invalidity cannot be +ustified.
2t ay be argued that the actual e1istence of Proclaation No. "#$" is an
operative fact and that its conse*uences should not be ignored.
The operative fact doctrine, ho)ever, has no application in this situation )here,
faced )ith insurrection and rebellion, the President proclais artial la). Even
assuing that every single eber of this Court doubts the President!s findings,
/e have to consider that the Constitution vests the deterination in hi. The
sta4es involved are supree and the deterination ust be ade iediately
and decisively.
There is the possibility that the &resident has an e!aggerated appreciation o) the
dangers and has over7acted with the use o) the awesome measure o) martial law.
The )act remains# however# that the authors o) the Constitution were aware o)
this possibility and still provided that the power e!clusively belongs to him. +t
would be stretching the plain words o) the Constitution i) we weigh our personal
)indings against the o))icial )indings o) the &resident. 1e possesses all the )acilities
to gather data and in)ormation and has a much broader perspective to properly
evaluate them. 1e is per)orming a )unction which is# o) course# re(uired by the
Constitution to be discharged by the &resident.
'nd )or us to venture into a 0udicial in(uiry on the )actual basis o) the
constitutionality o) the martial law proclamation would be to ignore the well7
established principle o) presidential privilege which e!empts the &resident )rom
divulging even to the highest court o) the land )acts which i) divulged would
endanger national security. As a atter of fact, in the latest case on this atter
)hich )as that filed against President Richard M. Ni1on, although the %upree
Court of the Gnited %tates ordered the President to produce the tapes of his
conversation )ith soe of his aides pursuant to a subpoena for use in a criinal
prosecution against one of his aides, because the clai that Bdisclosures of
confidential conversation bet)een the President and his close advisors ... )ould
be inconsistent )ith the public interest ... cannot out)eigh ... the legitiate
needs of the +udicial processB in a criinal prosecution, the Court, ho)ever, ade
the stateent fro )hich )e can infer that if President Ni1on had only claied
that the tapes contain Bilitary, diploatic or sensitive national security secretsB,
it )ould have sustained the refusal of Ni1on to produce the.
... Co)ever, )hen the privilege depends solely on the broad, undifferentiated
clai of public interest in the confidentiality of such conversations, a
confrontation )ith other values arises. 'bsent a claim o) need to protect military#
diplomatic# or sensitive national security secrets# we )ind it di))icult to accept the
argument that even the very iportant interest in confidentiality of presidential
counications is significantly diinished by production of such aterial for in
caera inspection )ith all the protection that a district court )ill be obliged to
provide.
2n this case the President challenges a subpoena served on hi as a third party
re*uiring the production of aterials for use in a criinal prosecution on the
clai that he has a privilege against disclosure of confidential counications.
Ce does not place his clai of privilege on the ground they are. ilitary or
diploatic secrets. As to these areas of Art. 22 duties the courts have traditionally
sho)n the utost deference to presidential responsibilities. 2n C. F ". 'ir Lines
vs. =aterman "teamship Corp., 777 G. %. "#7,""" 8"'@$=, dealing )ith
presidential authority involving foreign policy considerations, the Court said?
The President, both as Coander;in;chief and as the Nation!s organ for foreign
affairs, has available intelligence services )hose reports are not and ought not to
be published to the )orld. 2t )ould be intolerable that courts, )ithout relevant
inforation, should revie) and perhaps nullify actions of the E1ecutive ta4en on
inforation properly held secret. +d. at """
2n the <nited "tates vs. ,eynolds, 7@< G. %. " 8"'<&=, dealing )ith a claiant!s
deand for evidence in a daage case, against the 9overnent, the Court said?
2t ay be possible to satisfy the court, fro all the circustances of the case,
that there is a reasonable danger that copulsion of the evidence )ill e1pose
ilitary atters )hich, in the interest of national security, should not be divulged.
/hen this is the case, the occasion for the privilege is appropriate, and the court
should not +eopardi,e the security )hich the privilege is eant to protect by
insisting upon an e1aination of the evidence, even by the +udge alone, in
chabers.
No case of the Court, ho)ever, has e1tended this high degree of deference to a
President!s generali,ed interest in confidentiality. No)here in the Constitution, as
)e have noted earlier, is there any e1plicit reference to a privilege of
confidentiality, yet to the e1tent this interest relates to the effective discharge of
a President!s po)ers, it is constitutionally based.8Gnited %tates, Petitioner, vs.
Richard M. Ni1on, President of the united %tate et al.. Richard M. Ni1on, President
of the Gnited %tates, Petitioner, vs. Gnited %tates. 0uly &@, "'(@. Nos. (7;"(AA
and (7;"$7@. %upree Court of the Gnited %tates=
2t is for the above reasons that, as far as the proclaation is concerned, the
Court should revert to the rule in Barcelon vs. Baker 8< Phil. $(= and Montenegro
vs. Castaeda 8'" Phil. $$A=. The only *uestions )hich the +udiciary should loo4
into are 8"= 6id the Constitution confer the authority to suspend the privilege of
the )rit of habeas corpus and proclai artial la) on the PresidentE and 8&= 6id
the President declare that he is acting under such authority and in conforance
)ith itE The authority being e1clusively vested in the President, his decision is
final and conclusive upon the Court.
2nsofar as the President!s decision to proclai artial la) is concerned, it is,
therefore, y vie) that under the Constitution, the %upree Court has no
authority to in*uire into the e1istence of a factual basis for its proclaation. The
constitutional sufficiency for the proclaation is properly for the President alone
to deterine.
H++
G,'*T+*G T1'T &,-CL'M'T+-* *-. 4AB4 +" *-T &-L+T+C'L B<T J<"T+C+'BL#
+T +" "T+LL 2'L+/ BC'<" T1 &,"+/*T 1'" *-T 'CT/ ',B+T,',+L@ +*
+""<+*G +T
2t should be noted that Proclaation No. "#$" is not a ere conclusion that there
is insurrection and rebellion in the country. The President did not liit hiself to a
curt and laconic declaration that on the basis of his findings, there is insurrection
or a rebellion and that he has proclaied artial la). .
Proclaation No. "#$" specifies in t)enty;si1 8&A= printed pages the various
findings )hich led to its proulgation. The conspiracy to overthro) the
governent, the rapidly e1panding ran4s of the conspirators, the raising of funds
and aterials under centrali,ed direction, the aintenance of a rebel ary the
assive propaganda capaign, the acts of sabotage and ared insurrection or
rebellion, the previous decision of this Court, the la)lessness and disorder in the
country, the violent deonstrations led by Counist fronts, the ared clashes
bet)een rebels and governent troops, the active oral and aterial support of
a foreign po)er, the iportation of firears and )ar aterial by rebels, the
presence of a )ell;scheduled progra of revolutionary action, the organi,ation of
li*uidation s*uads, the serious disorder in Mindanao and %ulu, the activities of the
Mindanao 2ndependence Moveent, the thousands 4illed and hundreds of
thousands of in+ured or displaced persons, the inade*uacy of siply calling out
the aied forces or suspending the privilege of the )rit of habeas corpus, the
alaringly rapid escalation of rebel or subversive activities, and other evidence of
insurrection or rebellion are specified in detailed anner.
The findings of the President are given in a positive, detailed, and categorical
for. As a atter of fact, subse*uent events, related to the Court in a series of
classified briefings ade to it by the Ary the last one being on August "<, "'(@,
confir the over;all validity of the President!s basis. There is constitutional
sufficiency for his conclusion that artial la) be proclaied. Proclaation No.
"#$" does not, therefore, suffer any constitutional infirity of arbitrariness,
granting that this test can be applied to it.
2t appears proper, at this point, to elucidate further on the test of arbitrariness.
The Court!s decision in Lansang vs. Garcia 8@& %CRA @@$= has been interpreted
and, to y ind, isunderstood by any people to ean that the Court had
copletely reversed Barcelon vs. Baker and Montenegro vs. Castaeda. There
are, of course, certain stateents in the decision that give rise to this conclusion.
3or instance, the Court stated that the )eight of Barcelon vs. Baker, as
precedent, is diluted by t)o factors, naely, 8a= it relied heavily upon Martin vs.
Mott 8A :. ed. <7(= involving the G.%. President!s po)er to call out the ilitia and
8b= the fact that suspension of the privilege of the )rit of habeas corpus )as by
the Aerican 9overnor;9eneral, the representative of the foreign sovereign. The
Court stated that in the Barcelon case it )ent into the *uestion 5 6id the
9overnor;9eneral act in conforance )ith the authority vested in hi by the
Congress of the Gnited %tatesE 2n other )ords, the Court stated that it ade an
actual deterination )hether or not the Chief E1ecutive had acted in accordance
)ith la). The Court also added that in the Montenegro case, it considered the
*uestion )hether or not there really )as a rebellion. The Court revie)ed
Aerican +urisprudence on suspension of the privilege. 2t stated that the tenor of
the opinions, considered as a )hole, strongly suggests the Court!s conviction that
the conditions essential for the validity of proclaations or orders )ere in fact
present. 2t stated that )henever the Aerican courts too4 the opposite vie) it
had a bac4drop pereated or characteri,ed by the belief that said conditions
)ere absent.
2n truth, ho)ever, the decision in Lansang vs. Garcia does not state that the
Court ay conduct a full e1aination into the facts )hich led the President to
issue the proclaation. The Court!s decision categorically asserts that the
e1aination of presidential acts by the Court is liited to arbitrariness. The Court
accepted the vie) 5
... that +udicial in*uiry into the basis of the *uestioned proclaation can go no
further than to satisfy the Court not that tile President!s decision is correct and
that public safety )as endangered by the rebellion and +ustified the suspension of
the )rit, but that in suspending the )rit, the President did not act arbitrarily.
The Court adopted, as the test of validity, the doctrine in *ebbia vs. *ew @ork,
&'" G. %. <#& 5
... 2f the la)s passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriinatory, the re*uireents
of due process are satisfied, and +udicial deterination to that effect renders a
court )unctus o)icio ... /ith the )isdo of the policy adopted, )ith the ade*uacy
or practicality of the la) enacted to for)ard it, the courts are both incopetent
and unauthori,ed to deal ....
3or purposes of coparison and ephasis, the Court, in Lansang vs. Garcia, )ent
into the +udicial authority to revie) decisions of adinistrative bodies or agencies.
2t stated that the revie)ing court deterines only )hether there is soe
evidentiary basis for the contested adinistrative findings and does not underta4e
*uantitative e1aination of supporting evidence. Therefore, the Court stated that
it interferes )ith an adinistrative finding only if there is no evidence )hatsoever
in support thereof and said finding is actually arbitrary, capricious, and obviously
unauthori,ed. The Court ruled that this approach of deferring to the findings of
adinistrative bodies cannot even be applied in its aforesaid for to test the
validity of an act of Congress or of the E1ecutive. The presuption of validity is of
a uch higher category. The Court ephasi,ed that the co;e*uality of coordinate
branches of the governent under our constitutional syste deands that the
test of validity of acts of Congress and of those of the E1ecutive should be
fundaentally the sae. And this test is not correctness but arbitrariness.
2t follo)s, therefore, that even if 2 )ere to subscribe to the vie) that Lansang vs.
Garcia should not be categorically reversed as erroneous doctrine, y decision
)ould be the sae. Even under Lansang vs. Garcia, artial la) is valid.
There is nothing arbitrary in the decision to proulgate Proclaation No. "#$". 2t
is not unconstitutional.
I222
T1 C-*T+*<'T+-* M'*/ 2*T<'L L+$T+*GN -$ T1 "T'T -$ M',T+'L L'=
+" ' &-L+T+C'L 8<"T+-*
The continuation of the state of artial la) and the resulting continued
restrictions on individual liberties are, of course, serious aspects of the ain issue
)ith )hich this Court is concerned.
2n fact, this is the ore difficult *uestion 5 The President having acted upon an
initial and positive finding that artial la) is necessary, ay the Court in*uire
into the bases for its duration or the need for its continued ipositionE
To)ards the end of this separate opinion, 2 ans)er the arguents of the
petitioners *uestioning the effectivity and legality of the ne) Constitution. 2t is
y un*ualified vie), as e1plained later, that this Court in the Ratification Cases
declared the ne) Constitution to be legally in force and effect.
2 have to ention this vie), at this +uncture, because artial la) )as proclaied
under the old Constitution. Co)ever, its continuation and eventual lifting are no)
governed by the ne) Constitution.
The e1ercise of artial la) po)er ay be li4ened to the +urisdiction of a court. A
court ay have +urisdiction under an old la) but the +urisdiction ay be reoved
or odified by a ne) statute. 2n other )ords, is the continuing state of artial
la) valid under the ne) ConstitutionE 2s it also a political *uestion under the
present CharterE
Article 2I of the ne) Constitution on the Prie Minister and the Cabinet provides?
%EC. "&. The Prie Minister shall be coander;in;chief of all ared forces of
the Philippines and, )henever it becoes necessary, he ay call out such ared
the public safety re*uires it, he ay suspend the privilege of the )rit of habeas
2t should be noted that the above provision is a verbati reiteration of Article D22,
%ection "#, Paragraph 8&= of the old Constitution.
/hat )as the intent of the fraers in adopting verbati the provision found in
the old ConstitutionE
At this point, odesty and prudence should inhibit e fro advancing y o)n
vie)s as the only eber of this Tribunal )ho )as a delegate to the "'("
Constitutional Convention. 2n 2era vs. 'velino 8(( Phil. "'&=, this Court stated 5
BThe theory has been proposed 5 odesty aside 5 that the dissenting ebers
of this Court )ho )ere delegates to the Constitutional Convention and )ere Bco;
authors of the ConstitutionB Bare in a better position to interpretB that sae
Constitution in this particular litigation.
There is no doubt that their properly recorded utterances during the debates and
proceedings of the Convention deserve )eight, li4e those of any other delegate
therein. Note, ho)ever, that the proceedings of the Convention Bare less
conclusive of the proper construction of the instruent than are legislative
proceedings of the proper construction of a statute. since in the latter case it is
the intent of the legislature )e see4, )hile in the forer )e are endeavoring to
arrive at the intent of the people through the discussions and deliberations of
their representatives.B 8/illoughby on the Constitution, Dol. 2, pp. <@, <<.=
Their )ritings 8of the delegates= coenting or e1plaining that instruent,
published shortly thereafter, ay, li4e those of Cailton, Madison and 0ay in The
3ederalist 5 here in the Philippines, the boo4 of 6elegate Aruego, supra, and of
others 5 have persuasive force. 8-p. cit., p. <<.=
But their personal opinion on the atter at issue e1pressed during our
deliberations stand on a different footing? 2f based on a BfactB 4no)n to the, but
not duly established or +udicially cogni,able, it is iaterial, and their brethren
are not e1pected to ta4e their )ord for it, to the pre+udice of the party adversely
affected, )ho had no chance of rebuttal. 2f on a atter of legal hereneutics,
their conclusions ay not, siply on account of ebership in the Convention,
be a shade better, in the eyes of the la). There is the )ord BdeferenceB to be
sure. But deference is a coplient spontaneously to be paid 5 never a tribute
to be deanded.
And if )e should 8)ithout intending any desparageent= copare the
Constitution!s enactent to a draa on the stage or in actual life, )e )ould
reali,e that the intelligent spectators or readers often 4no) as uch, if not ore,
about the real eaning, effects or tendencies of the event, or incidents thereof,
as soe of the actors theselves, )ho soeties becoe so absorbed in
fulfilling their eotional roles that the fail to )atch the other scenes or to
editate on the larger aspects of the )hole perforance, or )hat is )orse,
becoe so infatuated )ith their lines as to construe the entire story according to
their pre+udices or frustrations. Perspective and disinterestedness help certainly a
lot in e1aining actions and occurrences. BCoe to thin4 of it, under the theory
thus proposed, Marshall and Coles 8naes venerated by those )ho have
devoted a si,eable portion of their professional lives to analy,ing or solving
constitutional probles and developents= )ere not so authoritative after all in
e1pounding the Gnited %tates Constitution 5 because they )ere not ebers of
the 3ederal Convention that fraed itS 8pp. &"<;&"A=B
2 )ish to follo) the e1aple, ho)ever, of y distinguished colleague, Mr. Justice
Cali!to -. Jaldivar in &hilippine Constitution 'ssociation vs. Mathay 8"$ %CRA
7##= )here, )ith characteristic huility, he stated in a concurring opinion 5
My opinion in this regard is based upon a personal 4no)ledge of ho) the
constitutional proviso, Article D2, %ection "@ of the Constitution, )hich is no) in
*uestion, becae a part of our present Constitution. 2t )as the %econd National
Assebly )hich aended our original Constitution. 2 )as a huble Meber of
the %econd National Assebly, representing the province of Anti*ue.
111 111 111
2 still have vivid recollections of the iportant points brought up during the
deliberations in caucus over proposed aendents and of the agreeents arrived
at. 2 reeber too the influences that )or4ed, and the pressures that )ere
brought to bear upon the Asseblyen, in the efforts to bring about agreeents
on very controversial atters and thus secure the insertion of the desired
aendents to the Constitution. The discussions on the proposed aendents
affecting the legislative branch of the governent )ere specially of interest to us
then because )e )ere in soe )ay personally affected, as ost of us )ere
interested in running for re;election. .
2t is not y purpose here to ipose on anyone y recollections of atters that
)ere brought up during our caucuses then, but 2 only )ish to ephasi,e the fact
that y concurring opinion in the decision of the case no) before Gs has for its
basis y honest and best recollections of )hat had transpired or )hat had been
e1pressed, during the caucuses held by the Mebers of the %econd National
Assebly in the deliberations )hich later brought about the "'@# aendents.
111 111 111
2 have endeavored to a4e a discourse of facts as 2 4no) the, because 2
sincerely believe that the interpretation, ebodied in the opinion penned by y
esteeed colleague, Mr. 0ustice 0.B.:. Reyes, of the pertinent provision of Article
D2, %ection "@ of our Constitution is in consonance )ith the facts and
circustances as 2 reeber the, and as 2 4no) the. As 2 have stated at the
early part of this concurring opinion, it is not y purpose to ipose on anyone
y recollection of )hat transpired, or of )hat had been discussed about, or of
)hat had been agreed upon, by the Mebers of the %econd National Assebly
during the deliberations )hich brought about the "'@# aendents to our
Constitution. My perception and y eory are as frail as those of any other
huan being, and 2 ay have incurred yself in error. 2t +ust happened that the
facts and the circustances that 2 have herein narrated, as 2 reeber the,
have engendered in y ind an opinion, nay a conviction, )hich dovetails )ith
the opinion of y illustrious colleague that has penned the opinion for the
a+ority of the Court in this case. 8at pp. 7"A, 7"( and 7&(;7&$=
0ustice >aldivar!s recollections on the intent of the %econd National Assebly
eeting as a constituent body in "'@# are ost helpful. There are no e1isting
records of the deliberations on the Article D2, %ection "@ aendent to the "'7<
Constitution. The aendent discussions and debates )hich too4 place during
legislative caucuses are unrecorded and this Court has 0ustice >aldivar to than4
for his recollections.
2t is in this spirit that 2 venture y o)n recollections. 2 a also fairly certain that
)hen the proceedings of the "'(" Constitutional Convention are published, y
observations )ill be sustained. /hen the last Constitutional Convention approved
the Ne) Constitution on Noveber &', "'(&, the delegates )ere a)are of pre;
convention proposals to sub+ect the e1ercise of the po)er by the E1ecutive to
+udicial in*uiry. %tudies on the )isdo of having a +oint e1ercise of the po)er by
the E1ecutive and the :egislature )ere before the delegates. 8GP :a) Center
Constitution Revision Pro+ect, "'(#, pp. "#@;"#$= There )ere ever constitutional
la) scholars )ho *uestioned the po)er altogether and )anted it reoved. They
claied that )hether or not artial la) is in the Constitution, it )ill be declared
)hen absolutely necessary and therefore, anticipating its use through a
constitutional provision serves no useful purpose.
The delegates )ere fully a)are of the 9overnent stand on the habeas corpus
and artial la) provision. The Lansang vs. Garcia decision )as fairly recent. The
po)ers of the Chief E1ecutive )ere e1tensively debated. The delegation 4ne)
that in the Lansang vs. Garcia, proceedings, the %olicitor 9eneral had consistently
and forcefully argued that Barcelon vs. Baker and Montenegro vs. Castaeda
)ere correct interpretations of the President!s po)er to suspend the privilege of
the )rit of habeas corpus or place the Philippines or any part thereof under
artial la).
More significant is the fact that )hen the ne) Constitution )as finali,ed and the
draft corrected and approved prior to subission to the people, )e )ere already
under a state of artial la). The petitioners had been arrested and various
petitions filed. 2n fact, petitioner E. Doltaire 9arcia 22 included in his petition the
arguent that his detention pursuant to Proclaation No. "#$" deprived his
constituency of their representation in the Constitutional Convention. The
delegates )ere a)are that Proclaation No. "#$" )as challenged before this
Court and that the %olicitor 9enerals ans)er to all the petitions )as invariably the
doctrine of political *uestion.
2f it )as the intent of the Constitutional Convention to sub+ect the Prie Minister!s
e1ercise of the po)er to +udicial in*uiry andNor control, the provision on artial
la) )ould have been accordingly aended. 2n fact, during the deliberations of the
Coittees on Civil and Political Rights and E1ecutive Po)er, there )ere
proposals that the po)er to proclai artial la) be sub+ected to control,
confiration, or reversal by Congress or the %upree Court, but the Convention
did not accept any of these proposals and decided to siply reiterate the earlier
provision.
2t )ould be enlightening for us to peruse the pertinent portions of the
proceedings of the Coittee on Civil and Political Rights and E1ecutive Po)er,
and 2 *uote?
Republic of the Philippines "'(" C-N%T2TGT2-NA: C-NDENT2-N Manila
C-MM2TTEE% -N C2D2: AN6 P-:2T2CA: R29CT% AN6 EIECGT2DE P-/ER
M2NGTE% -3 TCE MEET2N9 80oint Public Cearing=
/E6NE%6AK, %EPTEMBER $, "'(" %ession Call, Manila Cotel
C-MM2TTEE -N C2D2: AN6 P-:2T2CA: R29CT%
&,"*T
Chairman 2ice Chairman?
6elegate 6e la %erna 6elegate Abueg
Members9
". 6elegate Abad '. 6elegate Pepito
&. 6elegate Badelles "#. 6elegate Reyes C.
7. 6elegate 9arcia :. P. "". 6elegate %antillan
@. 6elegate 9unigundo "&. 6elegate %evilia
<. 6elegate 9u,an D. "7. 6elegate %uulong
A. 6elegate :aggui "@. 6elegate Deloso 2.
(. 6elegate Mendiola "<. 6elegate >afra
$. 6elegate -pinion

C-MM+TT -* HC<T+2 &-=,
&,"*T
Chairman9 2ice Chairman9
6elegate Espina 6elegdate E1undo
Members9
". 6elegate Corpus 7. 6elegate %antillan
&. 6elegate 9arcia :. M. @. 6elegate >afra
*on7Members9
". 6elegate Ben,on <. 6elegate Mastura
&. 6elegate Calderon C. A. 6elegate Rosales
7. 6elegate Cali)ara (. 6elegate Kancha
@. 6elegate Castillo
Guest9
0ustice Enri*ue 3ernando
-PEN2N9 -3 TCE MEET2N9
". At '?<# a.. Chairan Dictor 6e la %erna called the eeting to order.
&. Gpon certification of the %ecretary, the, Chair announced the e1istence of a
(uorum.
7. The Chair then announced that the Coittee has furnished the body
resolutions regarding the suspension of the privilege of the of habeas corpus. The
Chair entioned si1 Resolutions Nubered "(A, &A#, <7", "@"<, &7' and &7'@.
@. The Chair further said that the resolutions can be grouped into three schools of
thought 5 the first, refers to the absolute prohibition against suspension of the
privilege of the )rit of habeas corpus by any authority in any and all events. the
second supports the theory that it ay be suspended by the President )ith the
concurrence of Congress or the %upree Court. and the third, refers to the
reoval of the po)er to suspend fro the President and transfer the sae to the
%upree Court.
<. The Chair then introduced to the ebers the guest spea4er, 0ustice Enri*ue
3ernando of the %upree Court of the Philippines. Ce e1pressed fe) )ords of
)elcoe to the 0ustice in behalf of the t)o Coittees conducting the public
hearing.
A. 0ustice 3ernando started his rear4s by clarifying that he )ould only ans)er
*uestions that )ill not conflict )ith his role as 0ustice of the %upree Court, since
there )as a pending case before the said Court )here the Po)er of the President
to suspend the )rit of habeas corpus is placed at issue. Ce said that he
considered the privilege of the )rit of habeas corpus as the ost iportant
huan right. Ce is of the vie) that it ight be preferrable if the Bill of Rights
a4e it clear and e1plicit that at no tie and under no circustances should the
privilege of the )rit be suspended. Ce clarified that even if this po)er to suspend
the privilege of the )rit )ere reoved fro the President, he still has enough
po)ers to prevent rebellion, sedition, insurrection or iinent danger thereof
because of his po)er to call the ared forces in case the need for it arises.
(. The Chair as4ed the first *uestion to 0ustice 3ernando. Because the 0ustice
send that it )as not necessary to grant the President the po)er to suspend the
)rit since Congress can al)ays pass a la) that )ould lengthen the period of
detention of prisoners, the Chair as4ed if it )ould not be very cubersoe for
Congress to enact such a la) in ties of national eergency.
$. 0ustice 3ernando, in ans)er to the Chair!s *uery, said that Congress can pass a
la) to that effect )ithout a national eergency.
'. 2n ans)er to *uestion propounded by 6elegate Ceni,a, 0ustice 3ernando said in
"'<" in the Cernande, case he e1pressed the opinion that even if the privilege of
the )rit )ere suspended, the right to bail could still be availed of. Ce aditted,
ho)ever, that up to no) there is no clear;cut ruling on the atter. Ce also said
that the President, should not have the sole po)er to declare Martial :a).
"#. 6elegate Mendiola also as4ed 0ustice 3ernando )ho )ould deterine the
circustances that )ould )arrant the detention of prisoners for a longer period
than )hat is no) provided under the Revised Penal Code. The 0ustice ans)ered
that if the prisoner is held for cries against public order, then the ordinary rules
of criinal la) )ill govern. The arresting authorities, in collaboration )ith the
3iscal, )ill deterine said circustances.
"". 6elegate :aggui as4ed 0ustice 3ernando )hether he )ould still deny the
po)er to suspend the )rit to the President if the Convention )rites into the
Constitution safeguards against abuse of said po)er. The 0ustice said he )ould
still say that the po)er be denied the President because he considers the privilege
of the )rit of habeas corpus as the ost iportant huan right.
"&. 6elegate 9unigundo interpellated the 0ustice and as4ed )hether the latter
)ould favor preventive detention of political prisoners or political offenders. The
0ustice said )e should follo) the Constitutional Provisions regarding probable
cause, and the rights of the accused should al)ays be respected.
"7. 6elegate %antillan as4ed 0ustice 3ernando )hether he )ould favor the
proposal to delete the phrase Biinent danger thereofB and to liit the
suspension of the )rit fro "# to "< days unless Congress or the %upree Court
)ould e1tend the sae. 0ustice 3ernando said, since he )as for the denial of the
po)er to suspend the )rit, anything less than that )ould not be in consonance
)ith his stand.
"@. 6elegate >afra as4ed 0ustice 3ernando if it )ould not be dangerous for a
President to declare Martial :a) because if he did, the ilitary ight ta4e over
the governent and topple do)n the President and even Congress, thereby
establishing ilitary dictatorship. 0ustice 3ernando said that the danger e1ists.
"<. 6elegate E1undo interpellated 0ustice 3ernando and as4ed the latter )hat
the President of the Philippines should have done instead of suspending the
privilege of the )rit of habeas corpus, considering the chaos and turoil that
prevailed prior to the suspension. The 0ustice said that since it is the duty of the
President to faithfully e1ecute the la)s, he should and he could have called out
the ared forces to suppress insurrection, invasion, and rebellion.
"A. -thers li4e 6elegates Mastura, Adil, 9u,an, Pepito, Deloso, Beng,on, :eviste
8-.=, and Ceni,a interpellated 0ustice 3ernando. The Chair then than4ed the
0ustice for his enlightening speech. Ce e1pressed the hope that at soe future
tie the 0ustice )ould again favor the Coittee )ith his appearance so that the
ebers could propound ore *uestions.
A60-GRNMENT -3 MEET2N9
"(. The eeting )as ad+ourned at "& noon.
PREPARE6 BK? C-N-RAB:E MACAR2- CAME::-
Typed by ? Cynthia B. Arra,olaProofread by ? E. de -capoND. M. Gil
Republic of the Philippines "'(" C-N%T2TGT2-NA: C-NDENT2-N M a n i l a
C-MM+TT" -* C+2+L '*/ &-L+T+C'L ,+G1T" '*/ HC<T+2 &-=,
M2NGTE% -3 TCE 0-2NT MEET2N9 No. ;;; /E6NE%6AK, %EPTEMBER "<, "'("
C+2+L '*/ &-L+T+C'L ,+G1T"
&,"*T
Members9
". 6elegate Abalos E. '. 6elgate -pinion
&. 6elegate Abad "#. 6elegate Padua
7. 6elegate, Aruego "". 6elegate Pepito
@. 6elegate Calderon 0. "&. 6elegate Reyes C.
<. 6elegate 9unigundo "7. 6elegate %antos -.
A. 6elegate 9u,an "@. 6elegate %iguion Reyna
(. 6elegate :aggui "<. 6elegate >afra
$. 6elegate Mendiola
*on7Members9
". 6elegate Adil A. 6elegate 9arcia :.
&. 6elegate A,cuFa (. 6elegate Molina
7. 6elegate Claver $. 6elegate Raa.
@. 6elegate 6e Pio '. 6elegate %eares.
<. 6elegate 9arcia E. "#. 6elegate Tupa, 6.
Guest9
%enator 0ose /. 6io4no
'B"*T
Members9
". 6elegate Aldeguer $. 6elegate 9uiao
&. 6elegate Badelles '. 6elegate Mastura
7. 6elegate Catubig "#. 6elegate Purisia
@. 6elegate Ceni,a "". 6elegate %antillan
<. 6elegate 6e la Pa, "&. 6elegate %evilia
A. 6elegate 3algui "7. 6elegate %uulong
(. 6elegate 3ernande, "@. 6elegate Deloso 2.

HC<T+2 &-=,
&,"*T
Chairman9
6elegate Espina
Members9
". 6elegate Alano "&. 6elegate Nuguid
&. 6elegate Astilla "7. 6elegate -ledo
7. 6elegate Barrera "@. 6elegate Piit
@. 6elegate Britanico "<. 6elegate Raos
<. 6elegate Cabal "A. 6elegate %agadal
A. 6elegate Corpus "(. 6elegate %aguin
(. 6elegate 3lores A. "$. 6elegate %abola)an
$. 6elegate 9arcia :.M. "'. 6elegate %anche,
'. 6elegate 9on,ales &#. 6elegate Tocao
"#. 6elegate 0uaban &". 6elegate Dele,
"". 6elegate Mutuc &&. 6elegate KFigue,

'B"*T
2ice Chairman9
6elegate E1undo
Members9
". 6elegate Araneta %. $. 6elegate Nepouceno
&. 6elegate 6avide '. 6elegate %antillan
7. 6elegate 6uavit "#. 6elegate %errano
@. 6elegate 9audiel "". 6elegate %inco
<. 6elegate :i)ag "&. 6elegate Trillana
A. 6elegate :una "7. 6elegate Kap
(. 6elegate Marino "@. 6elegate >osa
-PEN2N9 -3 MEET2N9
". At '?7# a.., Chairan Dictor 6e la %erna called the eeting to order and
declared the e1istence of a )or4ing *uoru.
&. Chairan 9erardo %. Espina stated that it )as a +oint hearing of the
Coittee on Civil and Political Rights and the Coittee on E1ecutive Po)ers.
7. The Chair confired the stateent of Chairan Espina and further stated that
it )as the second +oint hearing of the t)o Coittees, and introduced %enator
0ose /. 6io4no, guest spea4er for the hearing.
@. %enator 6io4no than4ed the +oint Body for giving hi an opportunity to discuss
)ith the the po)er to suspend the privilege of the )rit of habeas corpus and the
po)er to declare artial la). To be able to resolve the proble, he propounded
the *uestions? 8"= should the President have the po)er to suspend the privilege
of the )rit of habeas corpus, 8&= assuing he )as given the po)er, under )hat
circustances should he be allo)ed to e1ercise it, and 87= )hat safeguards
should be placed upon the e1ercise of that po)er. Ce surised that in his opinion,
if the only legal basis for the grant of the po)er is to bide tie to be able to bring
persons to court for it to decide on the atter, as such tie is al)ays available to
the governent, he sa) no reason in suspending the privilege of the )rit of
habeas corpus, since the sae ob+ective can be attained by the iposition of
artial la), )hich is not a graver step and is not gravely abused in the practical
point of vie) that no President )ill declare artial la) unless he can have the
ared forces agree )ith hi that there is actual invasion, rebellion or
insurrection. Ce stated that the present Constitution only allo)ed the suspension
of the privilege in cases of e1tree eergency affecting the very sovereignty of
the %tate, )hich in his belief, is only in cages of invasion, rebellion or insurrection.
Ce did not agree that there should be a safeguard provided prior to the issuance
of the proclaation suspending the privilege of the )rit, but rather after the )rit
has been suspended, by re*uiring either the courts or Congress to pass upon the
necessity of the suspension of the )rit. Ce dissented )ith the idea that )here
should be a definite tie period for its validity, because it is difficult to deterine
)hat should be an ade*uate period, ho)ever, the %upree court or Congress
could al)ays be re*uired to act )ithin a definite period on the validity of the
suspension )hich he considered, already a proper safeguard.
Ce added further that the po)er to place any part of the national territory under
artial la) should be, liited to cases only of actual invasion, rebellion or
insurrection. Co)ever, he strongly favored the deletion of the provision Bon
iinent dangerB, )hich he stressed, is an e1cuse for a dictatorial President to
declare artial la) on the that there is iinent danger )hen there is none.
There is a possibility, he said, that the ared forces )ill be bro4en up, in the
sense that one group ay favor the President and the other ay refuse to allo)
theselves to be used )hen there is actually no Biinent dangerB, so that
instead of their helping preserve peace and order, it )ould provide an occasion for
bringing about revolutions.
<. The Chair as4ed the %enator if the President should declare artial la) )here
iinent danger actually e1ists and the civil authorities are still functioning. Ce
further *ualified that is it not the of the Constitution in the phrase Bartial la)B
that the civil authorities call upon the ilitary authorities to help the or is it a
coplete and arbitrary substitution of authority by the ilitary.
<." %enator 6io4no replied that the President!s action in his personal opinion, is
arbitrary and illegal, but )ho could stop hi fro doing that. Even the %upree
Court is reluctant to act because it has the ary to rec4on )ith. Ce construed
that artial la) could be legally e1ercised only in places )here actual fighting
e1ists and the civil authorities are no longer e1ercising authority, in )hich case
the ilitary can supplant the civil authorities. Ce added that it is also possible to
declare a liited artial la) in certain areas )here the ilitary ay ipose
curfe) and teporary detention of persons charged of causing and participating
in chaotic situations.
A. Chairan Espina recogni,ed 6elegate Britanico )ho had the first option to
interpellate the %enator.
A." 6elegate Britanico )anted to 4no) fro the %enator )hether, in his opinion,
the po)er to suspend the )rit be altogether reoved fro the President, and
that in the event this po)er is retained, ho) should it be e1ercised by the
PresidentE .
A.& %enator 6io4no replied that if this po)er is retained it should he e1ercised by
the President alone but sub+ect to revie) by either Congress or the Parliaentary
Body that ay eventually be adopted.
A.7 6elegate Britanico )anted the vie) of the %enator if he )as agreeable to
have the President share the po)er )ith the Dice President, %enate a+ority and
inority floor leaders, %enate President, 0ustices of the %upree Court, the
Coelec Chairan and other heads of the constitutional organi,ations 5
A.@ %enator 6io4no replied that he is averse to sharing po)ers because it could
not be done e1pediently. The %enator reinded the group that as a general rule,
the President and the President of the %enate belong to the sae party and even
the +ustices of the %upree Court fall under the sae situation, and it )ould then
still be the President )ho )ill decide.
(. The Chair called on 6elegate -ledo on his reservation to as4 the ne1t
*uestion.
(." 6elegate -ledo )anted to clarify if there is any technical distinction bet)een
suspension of the privilege of the )rit of habeas corpus and the )rit itself.
(.& %enator 6io4no replied that the )rit itself is the order of the court to the
person having custody of the sub+ect to produce hi in court, and that the
sub+ect has the privilege to post bail pending the filing of the case against hi, if
he is to be heard for an offense. Ce cited the decision of the Confederate
Authority )hich says that the privilege of the )rit refers to criinal arrests in
)hich the persons arrested have the privilege to be released on bail, )hich is the
privilege that is suspended.
(.7 6elegate -ledo as4ed )hether the %enator!s stand on the abolition of the
po)er to suspend the privilege of the )rit or as an alternative, the suspension be
e1ercised )ith the participation of other agencies, is because of the anti;
adinistration group claoring for its abolition fro the constitutional provisionsE
.
(.@ %enator 6io4no reiterated his stateent that it is his personal belief that
artial la) is a better easure than the suspension of the privilege of the )rit,
)hich the President clais to have e1ercised to disantle the counist
apparatus in the country. /hether this is +ustified or not reains an issue.
Assuing that the Counists are arrested no), ne) leaders )ill coe up and
ta4e over coand, and these ne) ones are not yet 4no)n to the ilitary
authorities and so the sae counistic situation continues to e1ist and the
cycle goes on unresolved.
(.< As a last *uestion, 6elegate -ledo sought to be clarified on the alternative
vie) of the %enator that of retaining the po)er but its e1ercise be )ith the
concurrence of Congress and the %upree Court.
(.A The %enator reiterated that he is for the abolition of the po)er, but if the
Constitutional Convention believes it necessary to retain it, then its e1ercise by
the e1ecutive ust be sub+ect to revie) and reversal, if need be, by Congress
and the %upree Court. Ce aintained that the e1ercise of the po)er to suspend
the privilege of the )rit is deterined by t)o factors? 8"= legality and, 8&=
)isdo. The %upree Court shall deterine the legality and Congress
deterines the )isdo of the President!s e1ercise of the po)er, and it is the
Convention that can resolve this proble.
$. Chairan Espina called on 6elegate Barrera, ho)ever, re*uested the Mebers
to liit their *uestions to only t)o to allo) everybody the opportunity to *uestion
the guest.
$." 6elegate Barrera stated that the %enator is for the discarding of the
constitutional provision on the po)er to suspend the privilege of the )rit of
habeas corpus but is for the right of an organ of governent to declare artial
la) but liited to an actual e1istence of invasion, rebellion or insurrection, This
)as confired by the %enator. 6elegate Barrera in*uired )hether the %enator
agrees or not to the fact that in places )here actual fighting or actual invasion,
rebellion or insurrection e1ists, declaration of artial la) is unnecessary since the
coander;in;chief has the full responsibility of e1ercising every step necessary
to protect and preserve the )elfare of the nation.
$.& %enator 6io4no replied that )hile it is true that the po)er to ta4e all the n
steps to preserve peace and order and protect the people, is inherent po)er of
sovereignty, yet it )ould certainly be safer to provide this po)er of foral
declaration to prevent individual arbitrary e1ercise of po)er by ilitary
coanders in the field. Ce stressed the need for a specific constitutional
provision )hich ust be clearly stated and defined as to the e1tent of the
e1ercise of such po)ers.
'. 6elegate Padua 8C.= disclosed that he is an author of a resolution reoving
po)ers of the President to suspend the privilege of the )rit of habeas corpus as
)ell as to declare artial la), and his point of concern lies in the subse*uent
grant of eergency po)ers that are coplientary to e1ercise of artial la) by
the President no) given in the present Constitution. Ce as4ed the %enator
)hether the criterion in the e1ercise of artial la) to actual invasion only 5 that
is, reove the ters Brebellion and insurrectionB as part of the criteria, )ould
diinish the presidential po)er e1cesses and abuses. 6elegate Padua cited the
vie) of 0ustice 3ernando that people have the right to rebel, and this )ould tend
to +ustify e1clusion of rebellion and insurrection as prere*uisites to ipose artial
la).
'." %enator 6io4no opined that the coplientary eergency po)ers of the
President )as intended by the Constitution to allo) the President to legislate in
the absence of Congress but *ualified this stateent by revealing that he has not
ade deeper studies along this particular point. Ce also stated that the state has
to have po)er to protect itself fro any for of change other than through
constitutional processes and this concept is shared not only by deocratic but by
any for of governent in e1istence. 2n ans)er to 6elegate Padua, he suggested
to define )hat the )ord rebellion in the provision ean, and the ter
BinsurrectionB should be reoved since insurrection is a sall rebellion, )hich
does not erit declaration of artial la). This provision could )ell fit in the Bill of
Rights instead as Bthe %tate or any portion thereof, ay be placed under artial
la) only in case of actual invasion or rebellion, )hen the public safety so
re*uires.B Then eliinate the provision granting po)er to suspend the privilege of
the )rit of habeas corpus and place the po)er to declare artial la) aong the
po)ers of the President in %ection "#, Article D22, perhaps.
"#. 6elegate Pat sought clarification as to the stand of the %enator on the
President being already Coander;2n;Chief of the Ared 3orces, and is then
capable of *uelling rebellion, therefore the po)er of artial la) need not be
specified in the Constitution or that if it has to be, then it has to be in aid to
civilian authorities only. Ce further sought the %enator!s opinion upon )ho to
lodge the po)er to suspend the privilege of the )rit of habeas corpus as )ell as
po)er to declare artial la), since he is a proponent of a for of governent
that )ould have both a President as head of state and prie inister as head of
governent.
"#." The %enator clarified his stateent to 6elegate Barrera that to declare
artial la) is a recogni,ed po)er inherent to the sovereignty of the state and so,
need not be entioned in the Constitution, a case in point is the Gnited %tates
Constitution. 2n reply to the second *uery, he stressed that, to hi, there should
not be such po)ers lodged on anyone any)here. But if there has to be, the Prie
Minister, since the President is generally a cereonial officer, and )ould not be
4ept abreast officially on every circustance and happening of the day in the
country.
"". 6elegate %iguion Reyna pointed out that fro the discussions, it )ould be
safe to assue that the only thing that atters to an e1ecutive )hen he is
allo)ed to suspend the privilege of the )rit or not, in his e*uivalent right to arrest
and detain people beyond the statutory re*uireent. Ce in*uired )hether the
%enator entertains the sae thin4ing that the provision has outlived its
usefulness since this provision )as established during the days )hen third degree
)as accepted as a eans of getting at the truth and confessions fro people. 2n
the absence of third degree ethods, there is nothing to be gained in detaining
people unless by the psychological idea that a detainee )ould soften to
confession, )hich is unli4ely.
""." The %enator e1plained that the ob+ective of suspending the privilege of the
)rit is to hold people incounicado citing as an e1aple, the Philippines, if it is
threatened by a Red Chinese invasion and the authorities suspected Mr. Chan, Mr.
Tan, etc. to be spies, then suspension of the privilege of the )rit )ould enable the
governent to ta4e iediate hold of Mr. Chan, Mr. Tan and copany and 4eep
the under detention )ithout right to bail. This )ould put the out of circulation
and disable their operations. The +ustifying reason therefore, lies in the need of
the Ared 3orces for essential tie to devote on the fight against the invaders or
rebels instead of consuing tie to forulate charges against these detainees
and the filing of charges against these detainees can be put aside until such tie
)hen the invasion or rebellion is under control. 2n short, it is to enable the Ared
3orces to buy essential tie. Ce reiterated that po)er to suspend the privilege of
the )rit of habeas corpus and po)er to declare artial la) are +ustified only on
actual invasion or rebellion, and he still aintained that the forer case is
unnecessary.
"".& 6elegate %iguion Reyna further *ueried the %enator ho) the %tate can eet
the security proble in a case of iinent invasion and the po)er to suspend the
privilege of the )rit is no longer provided for, ta4ing as a case in point, the
Philippine situation during the period prior to the 0apanese )ar )hen 0apanese
spies )ere all over the country preparing the grounds for its invasion in 0apan.
Co) can the President or the Prie Minister eet the proble if he has no Po)er
to suspend the privilege of the )rit.
"".7 The %enator replied that in situations li4e this, the %enate should underta4e
surveillance )or4 as is done in the G.%. The suspects are 4ept under surveillance
and )hen enough evidence is ac*uired the authorities spring the trap on the
and bring the to court or in case the suspect is found operating )ithin an area
)here an actual fighting is on, then the coander of the Ared 3orces in the
area, by virtue of his inherent ilitary po)er to restrict oveent of civilians in
the area can apprehend and ta4e the to custody until the fight is over )ithout
the need for suspending the privilege of the )rit. 2t is part of ilitary po)er. Ce
suggested as an alternative that a degree of fle1ibility in the anner of legislation
can be resorted to. Citing as an e1aple the legislation on atters of cries
against the security of the state, detention period prior to filing the case in court
can be enlarged. There are la)s at present failing under this category. /ire
tapping is unla)ful under noral conditions but it is allo)ed in cases involving
security and rebellion.
"&. 2n the follo);up clarification by Chairan 6e la %erna, the attention of the
%enator )as directed bac4 to his forer stateent that pending the privilege of
the )rit only allo)s the governent to hold the detainee incounicado but the
detainee has other rights as the right to counicate )ith relatives.
"&." %enator 6io4no agreed that the detainee is still entitled to other rights as
the right to be represented by counsel, but once detained, he is sub+ect to
restrictions and control by the +ailer.
"&.& 6elegate 6e la %erna as4ed if there is a difference in the treatent of
detainees )hen the privilege of the )rit is suspended and detainees arrested
)hen the privilege is not suspended? /hether to hold a person incounicado, a
+ailer is under instruction to ipose certain degree of restrictions to this person
)hich is not true )ith the ordinary prisoners.
"&.7 %enator 6io4no replied that there )as really no distinction or difference
)ritten in the la) but the +ailer, in the e1ercise of his duty, has a certain degree of
un)ritten po)er over his detainees. The %enator ho)ever disclosed )hat
happened recently to people detained )hich he e1perienced as their counsel. The
la)yers )ere allo)ed to tal4 to the detainees after a nuber of days had lapsed,
and in fact after their stateents )ere already ta4en, after the process of
interrogations )ere terinated. Ce revealed that he )as infored that the
detainees )ere never hared nor sub+ect to physical pressure but the process of
interrogation continued for hours and hours, and even at an unholy hour of
idnight they )ere a)a4ened for further interrogation. Methods designed to
inflict ental and physical torture to tire out the detainees.
"7. The Chair recogni,ed 6elegates Molina and Mendiola )ho +ointly engaged the
%enator into a series of interpellations regarding the %enator!s personal opinions
and vie)s on the incubent Presidential e1ercise of his po)ers 8Proclaation $$'
and $$';A= suspending the privilege of the )rit of habeas corpus.
"@. 6elegate Mutuc as4ed the %enator if there is no difference bet)een the
Barcelon vs. the Baker and the Montenegro vs. Castaeda cases.
"@." The %enator replied that there )as a difference and e1plained? 8"= 2n the
forer case, the suspension of the privilege of the )rit should not have been
done but it )as done only upon +oint hearing by the Philippine Coission and
the 9overnor 9eneral to grant action. /hile in the latter case, the suspension )as
the e1clusive action of the President of the Philippines. 8&= The situation in the
forer case )ere such that at the very beginning our courts )ere anned by
Aerican 0urists intended to be later on anned by 3ilipino 0urists. This being so,
the courts found it hard to rule and a4e a doctrine. %uch action could be
interpreted as tantaount to allo)ing 3ilipino 0urists to overrule an Aerican
9overnor 9eneral and by iplication, overrule the President of the G.%. since
under the 0ones :a), the privilege of the )rit can be suspended by the President
of the G.%. This can be held later on 8today= that the 3ilipino %upree Court could
revie) the findings of the President of the G.%., )hich is ipossible under the
relation bet)een a colony and its coloni,er, and 87= that the standard of orality
and truth )ere observed )ith greater fidelity at that tie than they are today.
"@.& 6elegate Mutuc sought clarification in the event that the %upree Court
rules that the anti;subversion la) is not a Bill of Attainder the %enator begged off.
Ce stated that he preferred not to discuss the details and erits of his position in
this case, but strongly urged the Convention to consider re)riting the provisions
on the freedo of association.
"<. The Chair )anted to 4no) )hether suspension of the )rit and the right to bail
is not suspended.
"<." The %enator stated that in his opinion the right to bail prior to filing the case
in court is suspended. /hen the case is filed in court, the custody of the person
accused goes fro the e1ecutive to the +udiciary. -n a follo);up *uestion by the
Chairan see4ing clarification for the distinction pointed out by the %enator that
right to bail prior to filing the case in court is suspended, the %enator e1plained
that the provision of the privileged of the )rit consists of the right of a person to
be released if the arrest is found illegal by court, or the detention is arbitrary or in
absence of a pria facie evidence against the person, so if the privilege of the
)rit is suspended, it follo)s that all the other rights are also suspended.
"<.& The Chair sought the vie) of the %enator on the opinion of both %ecretary
Abad %antos and %olicitor Antonio that during suspension of the privilege of the
)rit, an order of )arrant of arrest is necessary. %enator 6io4no agreed )ith this
opinion. The Chair pointed out that if, as the %enator said, the purpose of the
privilege of the )rit is to *uestion the legality of arrest and detention, it could be
so, even if there is a valid )arrant of arrest. This )ould see to point out that the
issuance of the )arrant of arrest is unnecessary. The %enator replied, N-, and
pointed out that if no case can be produced against a person detained, the arrest
is unla)ful and the arresting officer is sub+ect to prosecution. The suspension of
the privilege of the )rit erely a4es it ipossible for the courts to order the
release of the detainee. The %enator agreed substantially )ith the observation of
the Chair that this long legal process re*uired to be follo)ed defeats the very
purpose of the suspension of the privilege of the )rit, and stated that this is the
reason the e1ecutive and the ilitary authorities resort to illegal shortcuts in
ta4ing people into custody. Many of the detainees today )ere not issued legal
)arrants, but )ere +ust invited to the ilitary head*uarters. Because of these
observations cited, the %enator urged the +oint Body to revie) and re)rite the
provisions on the issuance of )arrants of arrest.
"A. 6elegate Tupa, 86.= engaged the %enator in a series of clarificatory *uestions
)hich delved on points already discussed by the %enator in previous
interpellations by 6elegates Mutuc, Barrera, Reyes, :aggui and %iguion Reyna.
The %enator ho)ever reiterated his stateent that he is for the retention of the
e1ercise of artial la), not that it is less harful, but that it is less sub+ect to
abuse than the suspension of the privilege of the )rit.
"(. 6elegate 9unigundo!s interpellations )ere on the sub+ect of effectivity and
validity of Presidential Proclaations as Proclaation No. $$' and $$';A. The
%enator ephasi,ed that the effectivity of proclaations hinges on the tie it
)as ade public, not necessarily though, that it be published in the -fficial
9a,ette, nor copies of the contents be furnished the etropolitan ne)spapers for
publication.
"$. %enator 6io4no categorically ans)ered 6elegate %anche, that he )as
suggesting a proposal to totally reove the po)er to suspend the )rit of habeas
corpus in the proposed Constitution, since being silent about it )ill allo) Congress
or the President to e1ercise its po)er of such procedure. 2n ans)er to 6elegate
Calderon 80.=, he reiterated that the suspension of the )rit of habeas corpus can
be e1ercised )ith or )ithout being provided for in the Constitution.
"'. 6elegate Aruego )as infored by %enator 6io4no that those detained can
only apply for bail if a case is filed against a detainee in court, so )hat is done is
to file a petition for habeas corpus, )hich includes the right to bail, it the case is
bailable.
&#. 6elegate Dele, e1plained that he )as recoending t)o alternative
proposals to the E1ecutive Po)er Coittee? "= to prevent forever the
suspension of the privilege, or &= to put safeguards, eaning the President ay
suspend it but only in actual cases of invasion or rebellion for a specific period of
tie in specific areas )here public safety re*uires it, )ith the concurrence of t)o;
thirds vote of the ebers of Congress, if in session, and if not, it )ill be sub+ect
to the autoatic revie) by the %upree Court.
&#." %enator 6io4no )as in favor of 6elegate Dele,! first proposal, ho)ever, in
the event the thin4ing of the Convention does not agree, the %enator did not
)ant to liit the President, or )hoever e1ercises the po)er to suspend, for a
specific period, because it )ill be infle1ible and eaningless. Ce )as not
agreeable to a concurrence by Congress because he does not )ant to tie the
hands of the President in of eergency, since it is very hard to uster a *uoru
in both houses of Congress. Co)ever, he )as for its revie) by the %upree
Court. Ce )as for the iediate proclaation, but a liit of tie should be set
)ithin )hich, the revie) should be ade.
&#.& 6elegate Barrera insisted that the right to protect itself is an inherent
sovereign right of any %tate, so that for any organi,ation of governent to
e1ercise those eans of protection 8declaration of artial la) and suspension of
the privilege of the )rit= should be so stated in the Constitution, and the
necessary safeguards provided for.
&". 6elegates Barrera and %iguion Reyna engaged the %enator in a discussion
critici,ing the actuations of the incubent President in connection )ith the
suspension of the )rit of habeas corpus.
&&. The Chair than4ed %enator 6io4no for his elucidation and participation in the
discussions of the topics for the day, and ad+ourned the +oint public hearing at
"&?"# p..
PREPARE6 AN6 E62TE6 BK? 8%gd.= C-N. CE:%- P. TABGENA
ATTE%TE6 BK?
8%gd.= D2CT-R 6E :A %ERNA Chairan Coittee on Civil and Political Rights
Typed by? Alice 9. A*uino
Proofread by? %aloe -rti,NDivencio 9opole
.nowing the GovernmentIs stand and the &residentIs action# the Constitutional
Convention decided to retain the martial law power verbatim in the new
Constitution. The )ramers not only rati)ied the validity o) the e!isting state o)
martial law but rea))irmed the &residentIs interpretation as the correct meaning o)
the constitutional provision )or )uture occasion re(uiring its e!ercise. The political
character o) a martial law proclamation with its continuation was then con)irmed
by the Constitution Convention.
The political character of continued artial la) is also sustained by the
parliaentary syste under the ne) Charter. The po)er to declare artial la) is
vested e1clusively in the Prie Minister by Article 2I, %ection "&. 3ollo)ing
established precedents, such a vesting of po)er is supposed to ean that its
e1ercise is to the e1clusion of all others )ho ay )ant to share in the po)er. 2n
practice, ho)ever, this )ill no longer be true.
The "'(7 Constitution +oined together the E1ecutive and the :egislative
departents of the governent, )hich )ere distinctly separate fro each other
under the "'7< Constitution. The Ne) Charter provides? BThe legislative po)er
shall be vested in a National Assebly.B 8Article D222, %ec. "=. BThe E1ecutive
po)er shall be e1ercised by the Prie Minister )ith the assistance of the
Cabinet.B 8Article 2I, %ec. "=. BThe Prie Minister shall be elected by a a+ority
fro aong theselves.B B8Article 2I, %ec. 7=. BThe Prie Minister shall appoint
the Mebers of the Cabinet )ho shall be the heads of inistries at least a
a+ority of )ho shall coe fro the National Assebly. Mebers of the Cabinet
ay be reoved at the discretion of the Prie Minister.B 8Article 2I, %ec. @=.
Thus, )e no) have a Parliaentary syste of governent under the Ne)
Charter. An essential feature thereof is the direct responsibility of the Prie
Minister and the ebers of his Cabinet to the National Assebly, for they hold
their positions only for as long as they en+oy the confidence of the Assebly.
More accurately, Article D222, %ec. "7 8"= provides for the )ithdra)al of confidence
through the election of a successor or a ne) Prie Minister by a a+ority vote of
all ebers of the National Assebly.
A Prie Minister under the ne) Charter ust al)ays ta4e into account the desires
of the National Assebly )hen he a4es iportant decisions. As a atter of fact,
he and the a+ority of his cabinet are also ebers of the National Assebly. 2n
fact, they are the leaders of the predoinant party in the legislature. They control
legislative policy. The Prie Minister is responsible to the National Assebly and
ust e1ecute its )ill on the one hand and he is its political leader and helps shape
that )ill on the other. 9rave public issues )ill be handled by the E1ecutive and
the :egislature acting together. <nder the new Constitution# martial law will be a
0oint responsibility o) the two political departments Me!ecutive and legislativeN
even i) its )ormal proclamation is vested solely in the &rime Minister.
Before 2 could release this opinion, 2 )as able to get the BTranscript of the
Proceedings of the "AA;an %pecial Coittee " Meeting No. ", -ctober &@,
"'(&B )hich fully sustains y vie), and 2 *uote?
TRAN%CR2PT -3 TCE PR-CEE62N9% -3 TCE "AA;MAN %PEC2A: C-MM2TTEE 5
MEET2N9 N-. " -CT-BER &@, "'(& U U U U U U U U U U U U U U U U U U U U U U U
U U U U U U U U U U U U U U U U U
&'G BB O 2-L. H2+ U *-. B 6E:E9ATE TGPA> 8A.=? %ection @ 5
TCE PR2ME M2N2%TER %CA:: BE TCE C-MMAN6ER;2N;CC2E3 -3 A:: ARME6
3-RCE% -3 TCE PC2:2PP2NE% AN6, /CENEDER 2T BEC-ME% NECE%%ARK, CE MAK
CA:: -GT %GCC ARME6 3-RCE% T- PREDENT -R %GPPRE%% :A/:E%%
D2-:ENCE, 2NDA%2-N, 2N%GRRECT2-N, -R REBE::2-N. 2N CA%E -3 2NDA%2-N,
2N%GRRECT2-N, -R REBE::2-N, -R 2MM2NENT 6AN9ER TCERE-3, /CEN TCE
PGB:2C %A3E:K RELG2RE% 2T, CE MAK %G%PEN6 TCE PR2D2:E9E -3 TCE /R2T -3
1'B'" C-,&<", -R P:ACE TCE PC2:2PP2NE% -R ANK PART TCERE-3 GN6ER
MART2A: :A/.
This provision is an e1act copy of a provision in the present Constitution. This
provision copleents %ection "<, Article 2D on the Bill of Rights of this draft.
May 2, therefore, ove for its approval, Mr. ChairanE
CCA2RMAN 6E 9G>MAN 8A=? Any observation or coentE Kes, 9entlean fro
BatangasE
6E:E9ATE :ED2%TE 8-.=? Than4 you, Mr. Chairan. /e notice, Kour Conor, that in
these t)o sections, %ection "< of the Bill of Rights and %ection "& of Article 2I,
)e are, in a )ay of spea4ing, reedying the seeing discrepancy bet)een
siilar provisions in the present Constitution. Both provisions )ill no) contain the
phrase Bor in case of iinent danger thereofB. /ith such a change, 2 believe
that no conflict as to the true intent )ill arise in the future. But allo) e, Kour
Conor, to recall, briefly, our recent +urisprudence on the atter of the declaration
of artial la) and of the suspension of the privilege of the )rit of habeas corpus.
Kour Conor )ill recall that under the 0ones Act, the 9overnor;9eneral of the
Philippines )as given the po)er to suspend the privilege of the )rit of habeas
corpus and to declare artial la). /hen such po)er )as *uestioned in court, the
%upree Court cae out )ith the decision, in the case of Barcelon vs. Baker, that
the findings of the Chief E1ecutive on the e1istence of the grounds for the
declaration of artial la) or the suspension of the privilege of the )rit of habeas
corpus are conclusive and ay not be in*uired into by the courts. /hen the
Philippine Coon)ealth )as established under the "'7< Constitution, the
President thereof )as li4e)ise given the po)er to suspend the privilege of the
)rit of habeas corpus and to proclai or declare artial la) for any of the causes
enuerated in the pertinent provisions. %oetie in the "'<#!s, then President
Luirino suspended the privilege of the )rit of habeas corpus. /hen a case arose,
that of Montenegro vs. Castaeda# the %upree Court affired its stand in
Barcelon vs. Baker, that the assessent by the Chief E1ecutive of the e1istence
of the cause or causes giving rise to the proclaation of artial la) or the
suspension of the )rit of habeas corpus is conclusive and ay not be contested in
the courts. Recently, ho)ever, only a little less than a year ago, )hen President
Marcos suspended the privilege of the )rit of habeas corpus, the %upree Court
ruled, in the case of Lansang vs. Garcia and other copanion cases, that the
e1istence of insurrection, rebellion, invasion, or iinent danger thereof, ay be
properly in*uired into by the courts. No), 2 )ould li4e to pose before this body,
)hether this Convention should no) affir the latest doctrine or )hether )e
should revert to the old theory and doctrine in the t)o cases of Barcelon vs.
Baker and Montenegro vs. Castaeda.
6E:E9ATE TGPA> 8A.=? 2n vie) of the fact that Chairan de 9u,an is also the
Chairan of %ub;council 22 on Citi,ens! Rights )hich conducted an e1haustive
study on this atter of artial la), ay 2 re*uest that he be the one to ans)er
*ueries on this pointE
CCA2RMAN 6E 9G>MAN 8A.=? 2n that case, ay 2 re*uest 6elegate Tupa, to act
as Chairan in the eantieE 8At this point, Chairan 6e 9u,an yielded the
Chair to 6elegate Antonio Tupa, =
6E:E9ATE 6E 9G>MAN 8A.=? 2 a personally in favor of abandoning the doctrine
laid do)n in the case of Lansang vs. Garcia, and 2 )ould recoend such a vie)
to this Coittee, and to the Convention as a )hole. At this very oent, the
%olicitor 9eneral, in representation of President Marcos is urging the %upree
Court that such a doctrine be abandoned and that )e revert to the old theory laid
do)n in the cases entioned by Kour Conor. 2ndeed, our courts, especially the
%upree Court, )here these cases are invariably ta4en up, are ill;e*uipped to
a4e findings on the e1istence of rebellion, insurrection, or la)lessness.
6E:E9ATE :ED2%TE 8-.=? But is not Kour Conor a)are that there are a nuber of
resolutions filed in the Convention that the Chief E1ecutive ay suspend the
privilege of the )rit of habeas corpus or proclai and declare artial la) only for
a liited period andNor )ith the concurrence of the :egislatureE
6E:E9ATE 6E 9G>MAN 8A.=? Kes, Kour Conor, but )e are not bound. This
Coittee is not bound by those resolutions. As already agreed upon )hen the
"AA;Man %pecial Coittee )as created, that Coittee of )hich )e are a part
)as erely advised to ta4e into consideration such resolutions. /e should bear in
ind also that )e are adopting the parliaentary syste )here there is ore,
rather than less, fusion of legislative and e1ecutive po)ers. /e are adopting, Kour
Conor, the concept and principle of an e1ecutive ore directly and iediately
responsible to the :egislature so that the e1ercise by the Chief E1ecutive of any of
his po)ers )ill be sub+ect to the ever present scrutiny of the :egislature.
6E:E9ATE :ED2%TE 8-.=? But y point, Kour Conor, is to ephasi,e the fact that
the filing of those resolutions re*uiring even the concurrence of the National
Assebly for the valid e1ercise by the Prie Minister of these e1traordinary
constitutional prerogative indicates that there is a sentient aong the 6elegates
to further restrict, rather than e1pand, the po)ers. And 2 )ould say that the
decision of the %upree Court in Lansang vs. Garcia )hich repudiated the
doctrine earlier laid do)n in Ba4er and CastaFeda lends support to that
sentient.. 2f )e are to interpret the provision under consideration in the )ay
Kour Conor )ould )ant it interpreted, in the sense that the factual findings of the
Chief E1ecutive for the suspension of the privilege of the )rit of habeas corpus or
the declaration of artial la) )ould be conclusive insofar as the 0udicial
6epartent is concerned, then )e are retrogressing and, in effect, going against
the sentient to further restrict the e1ercise of these great constitutional po)ers.
6E:E9ATE 6E 9G>MAN 8A.=? 2 can go along )ith Kour Conor!s arguents if, as 2
have already stated, this Convention opted for the presidential for of
governent. But as )e have already opted and chosen the parliaentary syste,
2 thin4 further restrictions on the po)ers of the Chief E1ecutive )ill no longer be
+ustified. 2t ay be trite to repeat here, but 2 repeat the nevertheless, the
arguents in favor of a parliaentary for of governent? that this syste is for
a strong e1ecutive, but one )ho is iediately and instantly ans)erable to his
peers at all ties. Thus, should a Prie Minister suspend the privilege of the )rit
of habeas corpus or declare artial la) arbitrarily or, even perhaps, irrationally, 2
don!t thin4 that there can be any better or ore iediate chec4 on such
arbitrary and irrational e1ercise of po)er than the Parliaent itself. The courts
cannot pretend to be in a better position than the Parliaent in this regard. 3or
the Parliaent on the very day, or perhaps even on the very hour, that the Prie
Minister proclais artial la) or suspends the privilege of the )rit of habeas
corpus ay file a otion to depose hi and should this otion be successful,
then the prevailing party )ith its Prie Minister )ill +ust issue another
proclaation restoring noralcy and order.
6E:E9ATE :ED2%TE 8-.=? Than4 you, Kour Conor. 3or the oent, Mr. Chairan,
2 have no ore *uestions to as4.
PRE%262N9 -332CER TGPA> 8A.=? Are there any further coents or
interpellationsE
6E:E9ATE LG2R2N-? 0ust one *uestion, Mr. Chairan, in connection )ith the
point raised by 6elegate :eviste.
PRE%262N9 -332CER TGPA> 8A.=? Kou ay proceed.
6E:E9ATE LG2R2N-? Before 2 as4 y *uestion, Kour Conor, let e state y
position clearly lest 2 be isunderstood. 2 a as4ing this *uestion not because 2
disagree )ith Kour Conor!s position but only for the purpose of enriching this
debate )ith e1changes of vie)s for future researchers and scholars. No), if, as
Kour Conor puts it, the decision of the Prie Minister on the e1istence of grounds
+ustifying the declaration of artial la) or the suspension of the privilege of the
)rit of habeas corpus )ould no longer be opened to +udicial scrutiny, )ould that
not enable the Prie Minister to abuse his po)ersE
6E:E9ATE 6E 9G>MAN 8A.=? Kour Conor )as not listening. 2 +ust stated that
there is a ore iediate chec4 on the part of the Parliaent, and aside fro
this practical chec4, it ust be understood that an act of the Chief E1ecutive
suspending the privilege of the )rit of habeas corpus or proclaiing artial la) is
political act, the reedy ust also be political, in a political foru, be in
Parliaent or directly before our people. And it ust be stated that there is no
po)er )hich ay not be abused. 2 thin4, Kour Conor, )e should once and for all
agree as to the nature of this po)er )e are investing in the Chief E1ecutive. -nce
and for all, )e should agree that this po)er is einently political and e1ecutive in
nature. The 0udiciary, 2 subit, is not the best, uch less is it the ost practical
agency, to possess, to e1ercise, or to liit this po)er, the need for )hich cannot
be denied.
6E:E9ATE LG2R2N-? /ell, Kour Conor, 2 a not a la)yer, so 2 hope you )ill
pardon e if cannot fully appreciate )hat you are tal4ing about. Because, to e,
an act is political if it is done by a politician. That!s all, Mr. Chairan.
PRE%262N9 -332CER TGPA> 8A.=? :et!s be serious, please. All right, are there
further interpretations or coentsE Kes, 6elegate -rti,, )hat is it that you )ant
to as4E
6E:E9ATE -RT2> 8R.=? /ell, Mr. Chairan, this is not a *uestion but +ust
additional observations. 2t is unfortunate really that the doctrine first laid do)n in
Barcelon vs. Baker and affired ore than half a century later in Montenegro vs.
Castaeda )as reversed by the %upree Court in Lansang vs. Garcia. 2 say it is
unfortunate because ore than anyone else, only the President is in the best
position to evaluate and the e1istence of the causes )hich )ould )arrant the
e1ercise of this constitutional po)er. As it )ere, the Prie Minister is the head of
the E1ecutive 6epartent. More than that, he is the Coander;in;Chief of all
the ared forces of the Philippines. Ce has, therefore, all the resources and
facilities not available to any other official of the governent, uch less to the
%upree Court, to a4e authoritative findings and assessents of the threats to
national security. But even in the :ansang case, 2 )ould say that the Court had to
rely on the findings of the E1ecutive 6epartent. 2 have here a copy of the
decision of the %upree Court in that case, and 2 )ould say that the Court had to
decision of the %upree Court in that case, and 2 )ould li4e to *uote a portion
thereof. 2n this decision, the %upree Court stated, and 2 *uote?
other violent incidents, suing over &7#, in )hich it inflicted @#@ casualties
about the sae but the NPA casualties ore than doubled.
2 )ish to call the attention of the Mebers of this Coittee to the phrase
appearing in this portion of court!s decision, naely, Baccording to the records of
the 6epartent of National 6efenseB. This phrase is, to e, significant in the
sense that even the %upree Court itself had to rely on the records of an agency
of the E1ecutive 6epartent, )hich only proves or, at least indicates an
adission on the part of the Court that by itself, it is not in a position to a4e its
o)n factual findings on the grounds +ustifying the suspension of the privilege of
the )rit of habeas corpus in the :ansang case. 2n short, even in the :ansang case
)here the %upree Court repudiated the conclusiveness of e1ecutive findings on
facts to +ustify the e1ercise of the po)er, the sae court, nonetheless, had to
resort to such findings ade by an ar of the E1ecutive 6epartent. 2f 2 ay
further add, 2 )ould li4e to say that, to y recollection, during that hearing )hen
the %upree court received this evidence, or perhaps )e ay call the pieces of
inforation, fro the ilitary, )hich inforation )as classified, there )ere
ob+ections on the part of soe counsel )ho )ere e1cluded fro the hearing, to
the effect that they should also be afforded the opportunity of hearing such
inforation. All of these, of course, erely sho) the ipracticability on the part
of any court, be it the %upree Court or a lo)er court, to receive evidence )hich
is, perhaps, not even acceptable under the Rules of Court and, thereafter, to
deterine for itself )hether such evidence or inforation is legally sufficient for
the President or the Prie Minister to act upon. /e are therefore here
abandoning the :ansang doctrine.
%-ME 6E:E9ATE%? No ob+ectionS No ob+ectionS
6E:E9ATE A62:? %o, it is then the understanding of this Coittee, and 2 ta4e it
to be its position, that )hen the Prie Minister suspends the privilege of the )rit
of habeas corpus or declares artial la), the findings by the Prie Minister on
the causes that +ustify such suspension or proclaation are conclusive and ay
not, therefore, be in*uired into by the courts.
6E:E9ATE 6E 9G>MAN 8A.=? May not be in*uired into by the courts or by anyone,
and the Chief E1ecutive is fully responsible for his acts. The courts, of course, are
po)erless to ta4e reedies against any arbitrary acts of the Chief E1ecutive, but
such arbitrary act, if there be any, ay he chec4ed by the political branch or
departent of the governent and, ultiately, by the people theselves.
6E:E9ATE :ED2%TE 8-.=? 2f that is our understanding, Kour Conor, )hy don!t )e
put it here, in blac4 and )hite, that the findings of the Prie Minister on the
e1istence of the grounds for the suspension of the privilege of the )rit of habeas
corpus or the proclaation of artial la) are conclusive upon the courtsE
PRE%262N9 -332CER TGPA> 8A.=? Kour Conor, 2 suppose you are a)are that )e
are here drafting a Constitution and not annotating an e1isting one. 2f )e are to
include in this docuent every intent and interpretation )e have on each
provision, 2 cannot iagine the 4ind of bul4 of such Constitution )hich )e shall
subit to our people.
6E:E9ATE :ED2%TE 8-.=? 2 ade that suggestion, Kour Conor, because 2 )ant to
leave no doubt on our position regarding this point.
PRE%262N9 -332CER TGPA> 8A.=? /ell, 2 thin4 the records of our deliberations
here suffice to erase that doubt.
6E:E9ATE :ED2%TE 8-.=? No), Mr. Chairan, if 2 ay go to another point, 2
)ould li4e to in*uire )hether this provision on the po)ers of the Chief E1ecutive
or the Prie Minister concerning the declaration of artial la) is liited to the
*uelling of the suppression of rebellion, insurrection, invasion or la)lessness, or
)hether such a po)er includes in it the establishent of a ne) order of things, a
ne) society. 2 say this, Kour Conor, because on the evening President Marcos
announced the proclaation of artial la), he underscored his action by saying
that he proclaied artial la) in order according to hi, Bto save the Republic
and for a Ne) %ocietyB.
PRE%262N9 -332CER TGPA> 8A.=? 6elegate 6e 9u,an )ill please ans)er that.
Mr. Chairan.
aeliorative social action.
are not ready to accept, and President Marcos, a)are, as he is, that the 3ilipino
Ne) %ociety, to create a ne) atosphere, )hich )ill not be a natural habitat of
circustances )hich provo4ed the President in declaring artial la) ay be
authority, )ill be liited to erely ta4ing a ilitary easure to *uell the rebellion
and eliinating la)lessness in the country and leave hi )ith no eans to create
an enduring condition of peace and order, then )e shall have failed in providing in
iediately confront it. More than that, the easure to preserve the %tate ust
go deeper into the root causes of the social disorder that endanger the general
safety.
convincing rear4s of y good friend and colleague, Relegate -rti,. And 2 ta4e it,
Mr. Chairan, that is also the position of this Coittee.
PRE%262N9 -332CER TGPA> 8A.=? Kes, also of this Coittee.
soe provisions of the Constitution are suspendedE
of sae of its provisions ust, of necessity, be restricted, if not suspended,
its )eapon for survival, and )hen the occasion arises )hen such is at sta4e,
prudence re*uires that certain individual rights ust have to be sacrificed
destruction of all the rights that flo) fro it.
and 2, for instance, a detained by the ilitary authorities, 2 cannot avail of the
detentionE
guaranty cannot definitely be had unless the %tate is in a position to assert and
been issuing decrees )hich are in the nature of statutes, regulating, as they do,
6E:E9ATE 6E 9G>MAN 8A.=? Certainly, and that is the position of this Coittee.
be harstrung or liited to his traditional po)ers as Chief E1ecutive. /hen
decree for that atter, has nothing to do )ith the invasion, insurrection, rebellion
or iinent danger thereof. My point, Kour Conor, is that this easure basically
has nothing to do )ith the restoration of peace and order or the *uelling of
rebellion or insurrection. Co) could )e validly say that the President!s assuption
of such po)ers is +ustified by the proclaation of artial la)E
6E:E9ATE 6E 9G>MAN 8A.=? As 2 have repeatedly stated, Kour Conor, )e have
foreign te1tboo4s. /e have to loo4 at artial la) not as an iutable principle,
Kou cite as an e1aple the decree on land refor. Kour Conor )ill have to adit
that one of the a+or causes of social unrest aong peasantry in our society is
the deplorable treatent society has given to our peasants. As early as the
ob+ective of artial la). And 2 ay add that in the ultiate analysis, the only
4no)n liitation to artial la) po)ers is the convenience of the artial la)
adinistrator and the +udgent and verdict of the people and, of course, the
verdict of history itself.
6E:E9ATE :ED2%TE 8-.=? Kour Conor, +ust for purpose of discussion, ay 2 4no)
fro you )hether there has been an occasion in this country )here any past
President had ade use of his artial la) po)erE
the "'7< Constitution, the artial la) provision has never been availed of by the
President. 2 recall, Kour Conor, that during the 0apanese occupation, President
:aurel had occasion to declare artial la), and 2 recall that )hen President :aurel
declared artial la), he also assued legislative and +udicial po)ers. /e ust, of
course, reali,e that during the tie of President :aurel, the threats to national
security )hich precipitated the declaration cae fro the outside. The threats
therefore, )ere not internal in origin and character as those )hich propted
President Marcos to issue his historic proclaation. 2f, in case 5 as )hat
happened during the tie of President :aurel 5 the declaration of artial la)
necessitated the e1ercise of legislative po)ers by the artial la) adinistrator, 2
say that greater necessity calls forth the e1ercise of that po)er )hen the threats
to national security are posed not by invaders but by the rebellious and seditious
eleents, both of the left and right, fro )ithin. 2 say that because every
rebellion, )hether in this country or in other foreign countries, is usually the
product of social unrest and dissatisfaction )ith the established order. Rebellions
or the acts of rebellion are usually preceded by long suffering of those )ho
ultiately choose to rise in ars against the governent. A rebellion is not born
overnight. 2t is the result of an accuulation of social sufferings on the part of the
rebels until they can no longer stand those sufferings to the point that, li4e a
volcano, it ust sooner erupt. 2n this conte1t, the staping out of rebellion ust
not be the ain and only ob+ective of artial la). The Martial la) adinistrator
should, nay, ust, ta4e steps to reedy the crises that lie behind the rebellious
oveent, even if in the process, he should e1ercise legislative and +udicial
po)ers. 3or )hat benefit )ould it be after having put do)n a rebellion through
the e1ercise of artial po)er if another rebellion is again in the offing because
the root causes )hich propelled the oveent are ever presentE -ne ight
succeed in capturing the rebel leaders and their follo)ers, iprison the for life
or, better still, 4ill in the field, but soeday ne) leaders )ill pic4 up the torch and
the tattered banners and lead another oveent. 9reat causes of every huan
underta4ing do not usually die )ith the en behind those causes. Gnless the root
causes are theselves eliinated, there )ill be a resurgence of another rebellion
and, logical the endless and vicious e1ercise of artial la) authority. This reinds
out.
PRE%262N9 -332CER TGPA> 8A.=? /ith the indulgence of the 9entlean fro :a
2t is for the foregoing reasons that 2 find continued artial la) to be a political
*uestion under the ne) Charter. The present Constitution does not give the
%upree Court any po)er to !chee4 the e1ercise of a supreely political
prerogative. 2f there is any chec4ing or revie) of artial la), the Constitution
gives it, not to the %upree Court, but to the National Assebly. Gltiately, the
chec4ing function is vested in the people. /hether the National Assebly
e1presses displeasure and )ithdra)s its confidence fro the Prie Minister
through election of a successor or the Prie Minister as4s the President to
dissolve the National Assebly under Article D222, %ection "7, the issue of artial
la) ultiately rests )ith the people. Anything dependent upon the popular )ill is,
of course, political. Although the interi National Assebly has not yet been
convened, the intent of the Constitutional Convention to a4e the *uestion
political is clear.
E1clusive of the Transitory Provisions, other provisions of the present Charter ay
be cited. The Bill of Rights, Article 2D, %ection "< had added Bor iinent danger
thereofB to the "'7< provision. 2t no) reads 5
%EC. "<. The privilege of the )rit of habeas corpus shall not be suspended e1cept
in cases of invasion, insurrection, rebellion, or imminent danger thereo), )hen the
public safety re*uires it.
Article 2I, %ection "A, another ne) provision reads 5
%EC. "A. All po)ers vested in the President of the Philippines under the nineteen
hundred and thirty;five Constitution and the la)s of the land )hich are not herein
provided for or conferred upon any official shall be deeed, and are hereby,
vested in the Prie Minister, unless the National Assebly provides other)ise.
All the foregoing features of the ne) Constitution strengthen and do not decrease
the e1clusivity and political nature of the po)er to proclai artial la) and to lift
it.
I2D
G,'*T+*G T1'T T1 C-*T+*<'T+-* -$ M',T+'L L'= +" *-T &-L+T+C'L B<T
J<"T+C+'BL# +T +" "T+LL 2'L+/ <*/, T1 T"T -$ ',B+T,',+*""
Even if )e grant that the continuation of artial la) and the deterination )hen
to lift it are +usticiable in character, -ur decision is still the sae. Correctness of
the President!s acts, 2 ust repeat, is not the test. Assuing that the Court has
+urisdiction to deterine )hen artial la) should he lifted, the test is still
arbitrariness.
Aside fro asserting that there )as no basis for the initial proclaation of artial
la), the petitioners insist there is no real eergency in the country today.
Petitioner 6io4no cites various ne)spaper ites reporting stateents of the
President and defense officials. Aong the are assurances of the President that
reservists )on!t undergo cobat duty, stateents of 6efense %ecretary Ponce
Enrile citing gains in peace and order, disclosures of coanding generals that
the Mindanao rebellion is crushed and Tarlac is no) peaceful, and reports fro
Nueva Eci+a that the rebel bac4bone is bro4en. 8%uppleental Petition and Motion
for 2ediate Release dated 0une &', "'(7.=
The petitioners assert that the Bactual state of )ar aspect )as dropped fro
general orders as early as %epteber 7#, "'(& and that the transforation of a
Ne) %ociety has becoe the ne) thee.
2t is the second purpose 5 the building of a Ne) %ociety 5 that is no) being
ephasi,ed every)here. The instruents of ass counication that have been
allo)ed to often dru this thee )ithout ceasing. Dery little space and tie is
devoted no) to the idea of saving the Republic. -ne can, of course, handle this
difficulty by a seantic anipulation, naely, that the building of a Ne) %ociety
is the only )ay of saving the Republic.
2n a Manifestation dated 0uly A, "'(@, petitioner 6io4no cites other circustances
sho)ing that peace and order conditions in the country are noral.
". The President left the country a fe) )ee4s ago for a eeting at Menado )ith
President %uharto of 2ndonesia, soething he obviously )ould not have done if
there really )as an eergency.
&. Tourists and foreign investors are coing to our shores in hordes, not +ust to
Manila but also its environs and outlaying provinces, )hich they )ould certainly
not do if they )ere not assured of security and stability.
7. Bas4etball, chess, s)iing and even 4arate international tournaents are
being held in the Philippines. The President even attended the latter event.
@. The "'(@ Miss Gniverse contest is scheduled to be held in Manila this onth
)ith e1penses in preparation therefor aounting to illions of pesos. The
9overnent )ould not have been so thoughtless as to spend so uch oney for
such an unnecessary affair, if there is really an Bactual and iinent danger of
insurrection and rebellion.B
<. %ince the proclaation of artial la), the Philippines has hosted several
international conferences, the latest being the Gnited Nations 6evelopent
Progra sessions )hich )ere attended by delegates and observers fro si1ty;si1
8AA= countries, t)enty;si1 8&A= Gnited Nations Agencies, and the G.N.6.P.
%ecretariat. The event last entioned brought in so any visitors that facilities of
no less than fourteen 8"@= hotels had to be utili,ed. This can only happen in a
country )here peace and tran*uility prevail.
These circustances, 5 soe bordering on the frivolous, coupled with the
&resident clear and repeated assurances that there is Eno real emergency todayE
M/aily !press# June 33# 456CN and that Eactually =e have removedE martial law
8Tie Maga,ine, April "<, "'(@= 5 all confir that the conditions under )hich
Bpersons ay be detained )ithout )arrant but )ith due processB 8to use the
*uotation fro petitioner!s cited by respondents=, no longer e1ist, if indeed they
ever e1isted, and that, therefore, the po)er of indefinite detention claied by the
%olicitor 9eneral and the respondents for the President in their last t)o pleadings,
is actually and patently Bbeyond the pale of the la) because it is violative of the
huan rights guaranteed by the Constitution.B
/hile 2 believe that the continuation of a state of artial la) is a political
*uestion under the ne) Constitution, these arguents deserve ans)er for the
sa4e of our people )ho )ill read the Court!s decision.
2 a not convinced, at this stage of artial la) that the President is acting
arbitrarily in not lifting the proclaation.
A Manifestation dated May "7, "'(@ fro the respondents states?
The President believes that the continued threat to peace and order, the dangers
to stable governent and deocratic institutions and the actual and iinent
danger of insurrection and rebellion re*uire continuation of artial la). This
finding is based on a continuing assessent of the factual situation )hich resulted
in Proclaation No. "#$". -n the other hand, petitioners believe other)ise.
2n the e1ercise of +udicial revie), one reasonable ind assessing the factual
situation no) obtaining could probably agree )ith the petitioners. Another
reasonable ind, ho)ever, vie)ing the sae factual situation could very
understandably arrive at an opposite conclusion. Assuing /e have the Po)er,
/e should not try to )eigh evidence on either side and deterine )ho is correct
and )ho is )rong. As stated earlier, the test of validity is arbitrariness and not
correctness 2 do not doubt the President!s sincerity and good faith in a4ing the
deterination outlined in the respondent!s Manifestation. There can, therefore, be
no finding that he is acting arbitrarily in not lifting artial la).
The BevidenceB present by petitioner 6io4no )ea4ens his arguents. 2f, as he
clais, the ass edia are controlled, the ne)s ites on rebellion that he cites
should not be accorded strong probative value. 2t is possible that the ne)s about
rebels and insurrectionist activities is deliberately played do)n as part of the
peace and order capaign under artial la). The ne)s could be intended to
convince those )ho ay )aver bet)een see4ing anesty or prolonging the
rebellion to ta4e the first course of action.
2n fact, there is over)helingly a greater nuber of reasonable en and )oen
)ho agree , )ith the President!s findings than )ith the petitioners! convictions. -n
0uly &(, "'(7 and 0uly &$, "'(7, voters in a national referendu )ere as4ed 5
has initiated under artial la)E The Coission on Elections has reported that
"$,<#<,&"A voters ans)ered BKesB and ",$<A,(@@ voted BNoB. The vote of the
"$,<#<,&"A people fro all parts of the country )ho ans)ered BKesB can clearly
be interpreted as sustaining the finding that the President is not acting arbitrarily.
2n fact, it can be read in no other )ay but to confir even the correctness of the
President!s deterination on the continuing need for artial la). And since other
referenda are forthcoing, a ore reliable gauge of arbitrariness and correctness
than press clippings is available to our people as they +udge the President.
The petitioners, in urging this Court to decide the petitions and to decide the in
their favor, raise the alar that unless /e do so, /e ay never he able to decide
at all. /e are )arned that Bin the face of an assault on the 0udiciary, it )ould be
ridiculous, if it )ere not tragic, if this Court did not even so uch as defend itself.
... 2n the face of a disantling of the entire constitutional order of )hich the
0udiciary is a vital, indispensable part, ho) can it even afford the lu1ury of
ac*uiescence in its o)n ruinE And ho) can it continue to inspire the high respect
of the people, if it erely indulges in sculptured rhetoric and fails to protect their
civil liberties in live, concrete petitions such as thisEB 8Reply Meorandu for
Petitioners dated Noveber 7#, "'(&, page @#=. The petitioners spea4 of
Bconstitutional suicideB 8+bid, p. A#= and allege that Bthe gloo deepens and is
encircling, and only a fe) lights reain. -ne reaining light is that provided by
this %upree Tribunal. The entire nation no) loo4s in its direction and prayerfully
hopes it )ill continue burningB 8ibid, p. $"=.
2 do not share the sae doosday ipressions about artial la). My decision is
based not alone on y sincere conviction about )hat the Constitution coands
and )hat the relevant constitutional provisions ean. Cappily, y reading of the
Constitution as a legal docuent coincides )ith )hat 2 feel is right, orally and
conscience;)ise, for our country and people. 2t confirs y life;long conviction
that there is indeed )isdo, profundity and even genius in the seeingly short
and uncoplicated provisions of our fundaental la).
ID
M',T+'L L'= '*/ T1 "<"&*"+-* -$ T1 =,+T -$ 1'B'" C-,&<"
Another issue in the instant petitions is )hether the privilege of the )rit of
habeas corpus is suspended upon a proclaation of artial la). The ans)er is
obviously in the affirative.
The proclaation of artial la) is conditioned on the occurrence of the gravest
contingencies. The e1ercise of a ore absolute po)er necessarily includes the
lesser po)er especially )here it is needed to a4e the first po)er effective. BThe
suspension enables the e1ecutive, )ithout interference fro the courts or the la)
to arrest and iprison persons against )ho no legal crie can be proved but
)ho ay, nevertheless, be effectively engaged in orning the rebellion or inviting
the invasion, to the iinent danger of the public safety.B 8Barcelon v. Ba4er, <
Phil. $(, ""&=. 2t )ould negate the effectivity of artial la) if detainees could go
to the courts and as4 for release under the sae grounds and follo)ing the sae
procedures obtaining in noral ties. The President in the dispositive paragraph
of Proclaation No. "#$" ordered that all persons presently detained or others
)ho ay thereafter be siilarly detained for the cries of insurrection and
rebellion and all other cries and offenses coitted in furtherance or on the
occasion or in connection there)ith shall be 4ept under detention until other)ise
ordered released by hi or his duly designated representative. Gnder 9eneral
-rder No. &;A, the President ordered the arrest and ta4ing into custody of certain
individuals. 9eneral -rder No. &;A directs that these arrested individuals )ill be
held in custody until other)ise ordered by the President or his duly designated
representative. These general orders clearly sho) that the President )as
precluding court e1aination into these specified arrests and court orders
directing release of detained individuals.
Martial la) is intended to overcoe the dangers fro rebellion or insurrection.
The purpose )ould be subverted if artial la) is declared and yet individuals
coitting acts of direct rebellion and insurrection or acts )hich further the goals
of the rebels cannot be detained )ithout filing charges. 2f the President decides to
proclai artial la) and to use all the ilitary forces of the Philippines to
preserve the Republic and safeguard the interests of the people, it is sophistry to
state that the lesser po)er of suspending the privilege of the )rit of habeas
corpus is not included. This is especially true )here, as in these cases, the
President has specifically ordered the detention )ithout filing of charges of
individuals )ho further or ight further the rebellion. This appears clear fro
Proclaation No. "#$" itself and fro pertinent general orders issued pursuant to
it.
ID2
T1 $$CT -$ ',T+CL H2++# "C C M3N -$ T1 *= C-*"T+T<T+-*
There is another reason for denying the instant petitions.
Article I22 %ection 7, %ubsection 8&= of the present Constitution 8ratified on
0anuary "(, "'(7= has a transitory provision )hich reads?
subse*uent proclaations, or other acts of the incubent President, or unless
e1pressly and e1plicitly odified or repealed by the regular National Assebly.
2t is noted fro the foregoing that all proclaations and orders of the President,
specifically Proclaation No. "#$" and the relevant orders and decrees affecting
the herein petitioners and others siilarly situated, are by the e1press )ords of
the Constitution, part of the la) of the land. 2n fact, the transitory provision
considers the valid, legal, binding and effective even after lifting of artial la)
or the ratification of this Constitution. They are valid not only at the inception of
but also during artial la). -nly an e1press and e1plicit odification or repeal by
the regular National Assebly ay odify, revo4e, and supersede the
proclaations, orders, decrees, instructions or other acts of the incubent
President under artial la). This transitory provision does not, as any people
believe, erely validate Proclaation No. "#$". This section confirs the validity
of the proclaation under the old Constitution and its continuing validity under
the Ne) Constitution. The Constitutional Convention concurred )ith the President
and declared that the proclaation )as validly issued under the old Charter and
continues to be constitutional under the ne) Constitution. -n the basis of the
constitutional provision alone, the declaration of artial la) under Proclaation
No. "#$" ay, therefore, be +ustified and validated. %iilarly, the orders of the
President on the continued detention of the petitioners and, in effect, the
suspension of the privilege of the )rit of habeas corpus have been definitely
declared valid and constitutional.
2 )ish to add that )ith the above;cited portion of the Transitory Provision, the
Constitutional Convention )anted to foreclose any constitutional attac4 on the
validity of Ball proclaations, orders, decrees, instructions, and acts proulgated,
issued, or done by the incubent PresidentB entioned therein. As a atter of
fact, during the discussions of this portion of the Transitory Provision before the
"AA;an special coittee, fored to finally draft the Constitution of )hich 2
)as a eber, 8being the Dice;Chairan of the panel of floor leaders=, ans)ering
a *uery fro 6elegate :eviste, 6elegate Pacificador said?
T,'*"C,+&T -$ T1 &,-C/+*G" -$ T1 4PP7M'* "&C+'L C-MM+TT 5
MT+*G *o. CC *-2MB, 3P# 4563
By the provisions of %ubsection &, )e are rendering the decrees of the incubent
President as ore than ere statutes. /e are constituting the as highly political
acts, the validity of )hich cannot be in*uired into even by our courts, but are
appealable only to the people theselves. There )ill be no other )ay of revo4ing
or repealing such decrees e1cept by the t)o )ays entioned in %ubsection & of
%ection 7.
0ustifying artial la) and the suspension of the privilege of the )rit of habeas
corpus by citing the transitory provisions of the present Constitution leads to
another arguent in the petitions. According to petitioner 6io4no, the stateents
in the dispositive portion of the decision in the ratification cases that Bthere is no
further +udicial obstacle to the ne) Constitution being considered in force and
effectB is clearly not a ruling that the Ne) Constitution is legally in force and
effect. Petitioner 6io4no stresses ho) carefully the Court has chosen its language.
According to hi, the Court does not say that there is no further legal obstacle
and that it says erely that there is no further 0udicial obstacle. Petitioner finds a
)orld of difference bet)een a legal and a +udicial obstacle. Every illegal act,
according to hi, is per se barred by a legal obstacle but not necessarily by a
+udicial obstacle. The petitioner points out that the Court does not state that the
ne) Constitution is in force and effect. 2t erely spea4s of the ne) Constitution
being considered in force and in effect. Ce alleges that bet)een BbeingB and
Bbeing consideredB, there is again a )orld of difference. 3ro the decision of the
%upree Court in the ratification cases, the petitioner believes that the Court )as
trying to a4e it as plain as circustances peritted that it had not decided that
the ne) Constitution is legally and factually in force.
-ther pleadings subitted in these cases have raised basically the sae a+or
issues that )ere raised in the ratification cases already decided by the Court.
To y ind, the dispositive portion of the %upree Court!s decision is best
interpreted by the %upree Court itself. No aount of arguentation, subission
of pleadings, play of )ords, and seantic niceties can overcoe or ignore the fact
that the %upree Court is interpreting and applying the ne) Constitution. The
ebers have ta4en an oath to defend this ne) Constitution. By both action and
)ords, all the ebers of this Court have ade it plain beyond any shado) of
doubt that the ne) Constitution is legally and factually in force. The +ustices of
this Court )ould be the last persons to interpret and enforce soething they do
not consider valid, legitiate, and effective. 2t is not alone the ta4ing of an oath
to support and defend the ne) Constitution that indicates clearly )hat the Court
eant )hen it rendered the Javellana vs. !ecutive "ecretary 8:;7A"@&= decision.
The eaning of the decision is *uite clear fro the fact that the Court has been
enlarged beyond its earlier coposition. 2t has reorgani,ed itself into t)o
divisions. Each division is no) trying cases pursuant to the Ne) Constitution. All
courts are under the adinistrative supervision of the %upree Court. An
e1aination of decisions rendered by the Court since the Javellana vs. !ecutive
"ecretary decision )ill sho) that there is constant reference to the "'(7
Constitution. 2ts provisions for the basis for its authority to interpret and
e1pound on the la)s. /henever a provision of the Constitution is invo4ed, the
Court turns to the "'(7 Constitution as the present Constitution. 2 can see no
clearer interpretation of a decision of this Court than these various acts of the
Court itself.
ID22
' $= -T1, &-+*T"
There are a fe) other points )hich 2 )ould li4e to ans)er briefly. Petitioner
3rancisco !%oc! Rodrigo states that )hile he )as released fro detention on
6eceber <, "'(&, his release is conditional and sub+ect to soe restrictions. Ce
is not allo)ed to leave the confines of the 9reater Manila area unless specifically
authori,ed by the ilitary. Ce states that his petition for habeas corpus is not
oot and acadeic cause of his release.
Considering y opinion on the constitutionality of Proclaation No. "#$", it
follo)s that the release of petitioners 0ose /. 6io4no and Benigno %. A*uino ay
not be ordered. The petitions for their release, as in the case of detainees already
released, ust be directed to the President. . 2f such is the case )ith petitioners
)ho are actually detained and confined, )ith ore reason should the principles
herein enunciated apply to those no longer confined or detained.
2n the case of forer %enator Benigno %. A*uino, criinal charges have been filed
against hi. As a rule, a petition for the )rit of habeas corpus is satisfactorily
ans)ered by a sho)ing that a prisoner is detained on the basis of valid criinal
charges. Co)ever, petitioner A*uino challenges the +urisdiction of the ilitary
tribunal and the validity of the charges filed against hi.
Therefore, insofar as all issues in the case of Benigno ". '(uino vs. Military
Commission No. &, :;7(7A@, )hich are coon to the issues in these instant
petitions are concerned, this decision applies. -n any other issue not coon to
the issues in these Petitions, 2 a reserving y opinion for :;7(7A@.
ID222
T1 ,M/+" 'G'+*"T CL', 'B<" -$ &-=, .
The general reedy against an arbitrary, )hisical, or capricious e1ercise of the
artial la) po)er of the President, as it is the reedy on all political *uestions, is
the voice of the people in an election )hen one is held, or through the Barangays
)hich the President hiself has consulted in the 0uly &( and &$, "'(7 referendu
on )hether the people )anted President Marcos to continue beyond "'(7 and
finish the refors he has initiated under artial la). The President has officially
announced a nuber of ties that he )ould consult )ith the Barangays
periodically. Gnder this reedy, the people, in the e1ercise of their sovereign
po)er, can base their decision, not only on )hether the acts of the President has
been arbitrary, )hisical, or capricious. they can base their decision on a broader
basis and 5 that is )hether, in their o)n opinion, the President acted correctly or
not.
-r if and )hen the interi assebly is convened, a a+ority of the ebers
thereof, as representatives of the people, can also reedy an arbitrary,
)hisical, capricious, or even an un)ise e1ercise of the po)er, by so advising the
Prie Minister to lift artial la) under pain of being deposed as Prie Minister.
As )e declare the proclaation and the continuation of artial la) political and
therefore non;+usticiable in nature, /e are only ac4no)ledging the constitutional
liitation of that po)er to +usticiable *uestions only, +ust as )e had defined the
constitutional liitations of the po)ers of Congress and of the E1ecutive. As the
interpreter of the Constitution, the Court has to lead in respecting its boundaries.
-ur +urisprudence is replete )ith e1aples )here this Court e1ercised its +udicial
po)er in appropriate cases 8Avelino vs. Cuenco, $7 Phil. "(. Araneta vs.
6inglasan, $@ Phil. 7A$. Nationalists Party vs. Bautista, $< Phil. "#". Rodrigue,
vs. 9ella, '& Phil. A#7. Rutter vs. Esteban, '7 Phil. A$. Aytona vs. Castillo, @
%CRA <77, to nae only the fe)=, )hich should ore than prove that no atter
ho) grave or urgent, delicate or foridable and novel or uncoon a legal
proble is, the Court )ill 4no) )hen and ho) to resolve it. %pecifically, it )ill
4no) )hat to do if, as petitioners fear, a President ay soeday )a4e up and out
of the blue proclai artial la). -f course, this is already alost an ipossibility
under the parliaentary syste established by the Ne) Constitution.
I2I
C - * C L < " + - *
The voluinous pleadings and the lengthy arguents supporting the petitions are
generally couched in erudite and elo*uent language. 2t is regrettable that they
have been tainted in a nuber of instances )ith fren,ied and biting stateents
indicative of a sense of e1asperation. 2 a certain, ho)ever, that these
stateents cannot affect the high sense of ipartiality of the ebers of the
Court as they give their opinion in these cases.
The President is the highest elective official in the country. 2t )as no casual or
perfunctory choice )hich elevated hi to the position. 2t is his duty, no less than
that of this Court, to save the Republic fro the perils of rebellion and
insurrection. 2n order to preserve public safety and good order, he has been
forced to proclai a state of artial la). To insure the continuation of civilian
authority and deocratic institutions, he has utili,ed the ared forces to *uell the
ared challenge and to reedy the ancient evils upon )hich rebellion and
insurrection flourish.
The petitioners dispute the President!s deterination and *uestion his otives. To
the the e1ercise of his constitutional po)ers is an abuse of e1ecutive po)ers
and assuption of a dictatorship. 2nasuch as the real reason for the iposition
of artial la), according to petitioner 6io4no, is not to preserve the nation but to
4eep the President in po)er, there is only one decision the Court should a4e. 2t
should invalidate Proclaation No. "#$". The dire conse*uences are given by the
petitioner 5 eventual resort to ars, shedding of blood. destruction of property
and irreparable loss of invaluable lives 5 )hich, of course, are the sae
conse*uence sought to be avoided )hen artial la) )as proclaied.
The %upree Court ay be the highest court of the land. 2t is not, ho)ever, a
super Being over and above the E1ecutive, the :egislature and the Constitution,
deciding cases on an infallible sense of Truth and a faculty of divination. Principles
of liberty, right, and +ustice are not interpreted in an abstract and dogatic for.
They are applied in the anner the sovereign people adopted our institutions of
governent and forulated our )ritten Constitution.
The %upree Court can rule on the proclaation of artial la) only insofar as its
validity under the Constitution is raised as an issue. 2f the Constitution, as the
e1pression of sovereign )ill, vests the deterination of the necessity for artial
la) in the President, the Court shall so declare and respect it.
Co)ever, the deterination of the )isdo or the propriety of the proclaation
ust rest )ith the people. /isdo and propriety in the a4ing of supreely
political decisions and in the e1ercise of political functions are for the people to
assess and deterine. Gnder our constitutional for of governent, no official or
departent can effectively e1ercise a po)er unless the people support it. Revie)
by the people ay not be as clearcut and fre*uent as +udicial revie) but it is
actual, present, and ost affective.
The constitutional process and the rule of la) are interpreted and enforced by the
%upree Court but their viability and strength depend on the support and faith of
the people. Conse*uently, if our people allo) the syste of governent to be
changed, no pronounceents of this Court can reverse the change or topple an
alleged dictator fro po)er. -nly the people can do it.
3ortunately, the trend of present events clearly sho)s that artial la), instead of
destroying constitutional governent as advanced by the petitioners, is, in fact,
saving and strengthening it.
/CERE3-RE, 2 vote to render +udgent? 8"= To grant the 6io4no otion to
)ithdra) his petition for habeas corpus.
8&= 6eclaring that the decision to proclai artial la) is a political *uestion and
the Court ay not e1aine the grounds upon )hich Proclaation No. "#$" is
based. granting that the Court ay do so, there is sufficient constitutional factual
basis for the sae and certainly the President has not acted arbitrarily,
)hisically or capriciously in issuing the Proclaation. that on both grounds, said
Proclaation No. "#$" is constitutional.
87= 6eclaring that the privilege of the )rit of habeas corpus is ipso facto
suspended upon a proclaation of artial la). and in effect, 9eneral -rder No.
&;A suspended said privilege.
8@= 6eclaring that the continuation of the state of artial la) is siilarly a
political *uestion and that it is for the President or the Prie Minister, under the
Ne) Constitution, to deterine )hen it ay be lifted. and granting that this
Court ay e1aine the factual basis for the continuation of artial la), /e find
sufficient basis for the sae. and
8<= 6isissing the various petitions for the )rit of habeas corpus of petitioners
still detained, or under Bcounity arrest,B )ithin the 9reater Manila area,
)ithout costs. .

MU2O0 P!LM!, J.:
&. 2n 9.R. :;7<<7', Caren 2. 6io4no, in behalf of her husband, 0ose /. 6io4no,
petitioner?
,e EMotion to =ithdraw &etitionE dated /ecember 35# 456C9
2 shall e1plain )hy 2 voted to grant the motion. 2 believe that a petition for
habeas corpus basically involves the life and liberty of the petitioner, and, if for
reasons of his o)n 5 the )isdo andNor correctness of )hich are best left to hi
to deterine 5 he desires to )ithdra) the sae and leave his present condition
of indefinite detention as it is, such is his right )hich 2 as a fello);huan being
and as a agistrate of the la) should not deny hi. My distinguished colleagues
)ho opted to deny said BMotion to /ithdra)B argue ainly that to grant the
otion of petitioner 6io4no is for the Court to accept the truth of his allegations
and deny itself the opportunity to act on and resolve the basic issues raised in the
Petition for habeas corpus )hich issues are of Butost public iportanceB and
involve Bthe very life and e1istence of the present 9overnent under the ne)
Constitution.B /hat 2 can say is that the other Petitions for habeas corpus no)
being decided +ointly in this 6ecision afford a foru )here the legal and
constitutional *uestions presented in 6io4no!s petition can very )ell he discussed,
dissected to their inutes details, and decided by the Court. /hat concerns this
)riter ost is that the thrust of 6io4no!s otion to )ithdra) is his belief that he
Bcannot reasonably e1pect either right or reason, la) or +usticeB fro this Court it
being a ne) Court under the ne) Constitution, a different Court fro the
%upree Court to )hich he originally applied for his release.
1
2n plain and siple
language, petitioner 6io4no is bereft of faith in this Court and prefers that his fate
be left undecided. )ho are )e then to ipose our )ill on hi and force hi to
litigate under a cloud of distrust )here his life and liberty are ine1tricably
involvedE 0ust as love is an eotion )hich springs spontaneously fro the heart
and never coerced into e1istence, so also is faith, trust, born and nurtured in
freedo and never under copulsion. Thus, to deny petitioner 6io4no!s otion is
to copel hi to have faith in this Court. can )e do so )hen faith has to be
earned, and cannot be forced into beingE Cence, y vote.
-n the Merits o) the &etition
Because petitioner 6io4no!s BMotion to /ithdra) PetitionB )as considered denied
as only seven 0ustices voted to grant it,
1
and his Petition for habeas corpus )as
to be decided on its erits, and at the tie of the )riting of this -pinion 6io4no
)as in custody for alost t)o years )ithout charges having been filed against
hi, 2 resolved to treat his Petition differently fro that of the other petitioners
)ho, during the pendency of these cases, )ere conditionally released fro the
prison caps of respondents. Co)ever, after copletion of y -pinion but before
the 6ecision in these cases could be proulgated on %epteber "&, "'(@, as
scheduled, President 3erdinand E. Marcos ordered the release of petitioner, 0ose
/. 6io4no, on %epteber "", "'(@. . This developent led the Court to disiss
the Petition of 0ose /. 6io4no for having becoe oot and acadeic, and forced
e to revise y -pinion as it becae unnecessary to discuss the issue of
6io4no!s continued detention.
T1 $'CT"
-n %epteber &", "'(&, President 3erdinand E. Marcos signed )hat is no)
4no)n as Proclaation No. "#$" proclaiing a state of artial la) in the
Philippines, based inter alia on the follo)ing consideration?
... the rebellion and ared action underta4en by these la)less eleents of the
counist and other ared aggrupations organi,ed to overthro) the Republic of
the Philippines by ared violence and force have assued the agnitude of an
actual state of )ar against our people and the Republic of the Philippines.
The Proclaation thus concluded?
the Constitution, do hereby place the entire &hilippines as de)ined in 'rticle +#
"ection 4 o) the Constitution under martial law and, in y capacity as their
2n addition, + do hereby order that all person presently detained, as )ell as all
others who may herea)ter be similarly detained )or the cries of insurrection or
occasion thereof, or incident thereto, or in, connection there)ith, for cries
be kept under detention until other)ise ordered released by e or by y duly
designated representative. 8ephasis supplied=
-n %epteber &&, 9eneral -rder No. " )as issued fro )hich )e *uote?
/CEREA%, artial la) has been declared under Proclaation No. "#$" dated
%ept. &", "'(& and is no) in effect throughout the land.
111 111 111
N-/, TCERE3-RE, 2, 3erdinand E. Marcos, President of the Philippines, by virtue
of the po)ers vested in e by the Constitution as Coander;in;Chief of the
Ared 3orces of the Philippines, do hereby proclai that 2 shall govern the nation
and direct the operation of the entire 9overnent, including all its agencies and
instruentalities, in y capacity and shall e1ercise all the po)ers and
prerogatives appurtenant and incident to y position as such Coander;in;
Chief of all the ared forces of the Philippines.
Also on %epteber &&, 9eneral -rder No. & )as signed by the President )hich
provided?
3
hereby order you as %ecretary of National 6efense to )orthwith arrest and take
into your custody the individuals naed in the attached lists for being
participants or having given aid and com)ort in the conspiracy to sei,e political
and state po)er in the country and to ta4e over the governent by force, the
e1tent of )hich has no) assued the proportion of an actual )ar against our
people and our legitiate governent and in order to prevent the fro further
coitting acts that are iniical or in+urious to our people, the governent and
our national interest, and to hold said individuals until other)ise so ordered by
e or by y duly designated representative. 8ephasis supplied= .
2pleenting 9eneral -rder No. &, respondent %ecretary of National 6efense,
Con. 0uan Ponce Enrile, iediately effected the arrest of a good nuber of
individuals aong )ho )ere the herein petitioners )ho, by reason of their
arrest )ithout charges having been filed against the, cae to this Court to see4
relief through their respective Petitions for habeas corpus, the earliest of )hich, :;
7<<7$, )as filed in the orning of %epteber &7, "'(&.
4
The Court in the
respective Petitions proptly issued the /rit returnable to it, and re*uired
respondents to ans)er. /ith e*ual dispatch respondents filed their BReturn to /rit
and Ans)er to the PetitionB in all the cases )hich contained a coon B%pecial
and Affirative 6efensesB reading as follo)s?
<. Pursuant to said proclaation, the President issued 9eneral -rders Nos. ", &,
7, 7;A, @, <, A, and ( and :etters of 2nstructions Nos. ", & and 7. True copies of
&, 7, @, <, A, (, $, ', "#, and "". A copy of the President!s stateent to the
A. 3inally, the petition states no cause of action. 8p. &", rollo :;7<<@A=
The Ans)er prayed that the petition be disissed.
Pending resolution of these Petitions, petitioners, e1cept for t)o, )ere released
fro custody on different dates under a BConditional ReleaseB -rder of the sae
tenor as the follo)ing? .
< 6eceber "'(&
and the ensuing :-2s. Any violation of these provisions )ould sub+ect you to
iediate8ly= arrest and confineent.
e1pected duration of stay thereat. Contact this office through telephone No. '(;
radioNTD broadcast.
&L/G
release.
to y 4no)ledge.
8%96.= 3. R-6R29-
Address? A# 0uana Rodrigue, Lue,on City
Tel. No. (#;&<;AA. (#;@';&# (#;&(;<<
8p. A&", rollo :;7<<@A=
Not)ithstanding their release fro detention, petitioners concerned did not
)ithdra) their respective Petitions for habeas corpus, )hile petitioner 3rancisco
Rodrigo filed a Manifestation dated Noveber &(, "'(7 stating that his release
did not render his Petition oot and acadeic. 8p. A&#, rollo :;7<<@A= The t)o
petitioners )ho have not been released up to the present are %enator Benigno %.
A*uino, 0r. against )ho in the eantie certain criinal charges have been
filed )ith Military Coission No. & and %enator 0ose /. 6io4no )ho has not
been charged neither before a civil court nor a ilitary tribunal or coission. .
T1 +""<"
These petitions being essentially for the issuance of the )rit of habeas corpus the
)undamental issue is the legality of the detention of petitioners, and )hen )e say
detention, that includes the state of those petitioners )ho have been conditionally
released fro the prison caps of respondent for it is claied that their
conditional release still constitutes a restraint on their personal liberty.
The purpose of the )rit of habeas corpus is to in*uire into the cause or reason
)hy a person is being restrained of his liberty against his )ill, and if there is no
legal andNor valid +ustification sho)n for such restraint the )rit )ill forth)ith issue
to restore to that person his liberty or freedo. 2t Be1ists as a speedy and
effectual reedy to relieve persons fro unla)ful restraint, and as the best and
only sufficient defense of personal freedo ... )hose principal purpose is to set
the individual at liberty.B
5
Noted authors have elo*uently described the )rit as
Bthe )rit of libertyB,
6
as Bthe ost iportant and ost iediately available
safeguard of that libertyB,
7
as Bthe greatest of the safeguards erected by the civil
la) against arbitrary and illegal iprisonent by )hosoever detention ay be
e1ercised or orderedB,
*
and as Bthe great bul)ar4 of personal liberty.B
9
These
concepts of the )rit of habeas corpus bring out the blessed sacred truth that
personal liberty is one of the basic freedos of an +ealously protected by any
civili,ed society by a fundaental la), )ritten or un)ritten, and any deprivation
or curtailent of that personal liberty ust find a basis in la), substantive or
procedural.
1/
2n the petitions under consideration respondents +ustify the arrest
and detention of petitioners by virtue of the proclaation of artial la) in the
country. Respondents aver 8"= that the e1ercise of the po)er granted to the
President of the Republic by %ee. "# 8&=, Art. D22 of the "'7< Philippine
Constitution, to place the country or any part thereof under artial la), is not
sub+ect to +udicial revie). 8&= that even if said e1ecutive po)er ay be in*uired
into, there is factual bases for the President!s action. and 87= that the
proclaation of artial la) carries )ith it the autoatic suspension of the )rit of
habeas corpus and conse*uently these petitions should be disissed.
11
/ith the
ne) Constitution having been adopted in the eantie, respondents pose in
subse*uent pleadings additional grounds for disissal, and these are? 8"= that
Art. 2I, %ec. "&, of the "'(7 Constitution adopted in toto the Coander;in;
Chief clause of the "'7< Constitution, and 8&= that Art. ID22, section 7 8&=
e1pressly and categorically declares that Bthe proclamations# orders# and decrees#
+nstructions and acts issued or done by the incumbent &resident are to )orm Epart
o) the law o) the landE and are to Eremain valid legal# binding# and e))ective even
a)ter the li)ting o) martial law or the rati)ication o) this ConstitutionB, and that
eans the present artial la) regie and all the easures ta4en under it,
particularly Proclaation No. "#$" and 9eneral -rders " and &, as aended.
11
-n the other hand, petitioners vigorously assert 8"= a artial la) proclaation is
+usticiable. 8&= conditions in the country as of %epteber &", "'(&, did not +ustify
a proclaation of artial la). 87= assuing that Proclaation No. "#$" is valid,
9eneral -rders Nos. ", &, 7, and 7;A are violative of the Constitution and are
void. and 8@= the return is palpably insufficient to +ustify continued detention of
petitioners.
13
3or petitioner 6io4no, additional arguents )ere subitted, vi%?
8a= e1isting conditions today do not )arrant the continuance of artial la),
assuing that the proclaation )as initially +ustified. and 8b= the uncertainty of
petitioner!s fate renders his e1ecutive iprisonent oppressive and la)less.
14
2
/e shall first dispose of the issue of the alleged insufficiency of the Return. .
Petitioners contend that respondents! BReturn to /ritB )hich is *uoted in page A
of this -pinion is fatally insufficient because a return ust assert facts and not
conclusions as to the basis of the detention, and ust be suppleented by
affidavits or )ith evidence at the habeas corpus hearing, citing Carlson vs.
Landon, "$A 3. &d. "$7.
The pertinent provision of %ec. "#, Rule "#&, Rules of Court, on the contents of
the return re*uires that it ust state plainly and une*uivocably )hether the
officer to )ho the )rit is addressed has or has not the party in his custody or
po)er or under restraint, and if he has the party in his custody or po)er or under
restraint, the authority and the true and )hole cause thereof, set forth at large,
)ith a copy of the )rit, order, e1ecution, or other process, if any, upon )hich the
party is held. 8pars. a and b= All that this provision of the Rules of Court re*uires
therefore is that the return ust state if the sub+ect of the )rit is in custody or
under restraint and if so, the authority for such restraint and the cause thereof. 2t
is not necessary for or indispensable to the validity of the return that the
evidentiary facts supporting the cause for the restraint be given or enuerated
therein. 2n the petitions at bar the return sufficiently coplies )ith the
re*uireents of the aforeentioned provision of the Rules of Court because it
states the authority and the cause for the detention of petitioners )hich after all
is the purpose or ob+ect of a return. The authority for the detention lies in the
stateent in the return that the President e1ercising his po)ers under Art. D22,
%ec. "# 8&= of the Philippine Constitution
15
proclaied artial la) in the country
and pursuant to such proclaation issued 9eneral -rders 2 to ( inclusive and
:etters of 2nstruction " to 7, copies of )hich are all attached to the return as
anne1es " to "", )hile the cause for the arrest of petitioners is given in 9eneral
-rder No. & 8Anne1 7= )herein it is stated that said petitioners are participants or
have given aid and cofort in the conspiracy to sei,e political and state po)er in
the country, etc. At any rate, any deficiency in the aforesaid return constitutes a
ere technical violation )hich is to be disregarded in vie) of the substantial
issues involved in the cases under consideration. 2perfections of for and
technicalities of procedure are to be disregarded unless substantial rights )ould
other)ise be pre+udiced,
16
and in the instant cases there is no such pre+udice as
petitioners are sufficiently infored of the authority and cause of their detention.
22
The ne1t issue is 5 is this Court )ith +urisdiction to in*uire into the constitutional
sufficiency of the proclaation of artial la)E
Petitioners assert the authority of this Court to in*uire into the necessity of
placing the country under artial la) in the sae anner that it in*uired into the
constitutional sufficiency of the suspension of the privilege of the )rit of habeas
corpus in Lansang vs. Garcia.
16
. Respondents affir, ho)ever, that the
deterination of the e1istence of invasion, insurrection, rebellion, or iinent
danger thereof, )hen the public safety re*uires it is lodged )ith the President
under Art. D22, %ec. "# 8&=, "'7< Constitution, and the President!s deterination
is conclusive on all persons, including the courts. hence, this Court is )ithout
+urisdiction to resolve on the constitutional sufficiency, of the basis for the
e1ercise of that presidential po)er, it being a purely political *uestion.
The Constitutional provision referred to reads?
The President shall be the Coander;in;Chief of all ared forces of the
forces to prevent or suppress la)less violence, invasion, insurrection or rebellion.
17
Respondents cite a host of Aerican authorities and principally fall bac4 on the
rulings of this Court in Barcelon vs. Baker, < Phil. $(, 8"'#<= and Montenegro vs.
Castaeda, '" Phil. $$&, 8"'<&=
1*
)hich held that the authority to decide
)hether the e1igency has arisen re*uiring the suspension of the )rit of habeas
corpus belongs to the President and his declaration is final and conclusive upon
the courts and upon all other persons.
The opinions of y colleagues lengthily discuss this issue of +usticiability or non;
+usticiability of the e1ercise of e1ecutive po)er to proclai artial la) and 2 )ill
not repeat the arguents for one or the other. 2 adopt by reference their
dissertation on the leading Aerican +urisprudence and Constitutional :a)
authorities on the atter, but 2 conclude for y part that the decision of this
Court in Lansang vs. Garcia is the better rule to adopt. 2n :ansang, the Court held
that it has the authority under the Constitution to in*uire into the e1istence of a
factual basis for the issuance of a presidential proclaation suspending the
privilege of the )rit of habeas corpus for the purpose of deterining the
constitutional sufficiency thereof.
19
2f this Court can a4e that in*uiry in the
event of suspension of the privilege of the )rit of habeas corpus, a )ortiori, the
Court can in*uire into the factual basis for the proclaation of artial la)
considering the ore e1tensive effects of the latter on the individual rights of the
citi,enry, for it cannot be denied that artial la) carries )ith it curtailent and
infringeent not only of one!s liberty but also of property rights, rights of free
e1pression and assebly, protection against unreasonable searches and sei,ures,
privacy of counication and correspondence, liberty of abode and of travel,
etc., )hich +ustify +udicial intervention to protect and uphold these liberties
guaranteed under the Constitution.
19
.
2n Lansang, the Court said in the )ords of Chief 0ustice Roberto Concepcion?
2ndeed, the grant of po)er to suspend the privilege is neither absolute nor
un*ualified. The authority conferred by the Constitution, both under the Bill of
Rights and under the E1ecutive 6epartent, is liited and conditional. The
precept in the Bill of Rights establishes a general rule, as )ell as an e1ception
thereto. /hat is ore, it postulates the forer in the negative, evidently to stress
its iportance, by providing that !8t=he privilege of the )rit of habeas corpus shall
not be suspended ....! 2t is only by )ay of e!ception that it perits the
suspension of the privilege in cases of invasion, insurrection, or rebellion! 5 or,
under Art. D22 of the Constitution, !iinent danger thereof! 5 !)hen the public
during such period the necessity for such suspension shall e1ist.! 813 3or fro
being full and plenary, the authority to suspend the privilege of the )rit is thus
circuscribed, confined and restricted, not only by the prescribed setting or the
conditions essential to its e1istence, but, also, as regards the tie )hen and the
place )here it ay be e1ercised. These factors and the aforeentioned setting or
conditions ar4, establish and define the e1tent, the confines and the liits of
said po)er, beyond )hich it does not e1ist. And, li4e the liitations and
restrictions iposed by the 3undaental :a) upon the legislative departent,
adherence thereto and compliance therewith may# within proper bounds# be
in(uired into by courts o) 0ustice. -ther)ise, the e1plicit constitutional provisions
thereon )ould be eaningless. %urely, the fraers of our Constitution could not
have intended to engage in such a )asteful e1ercise in futility. ....
111 111 111
Article D22 of the Constitution vests in the E1ecutive the po)er to suspend the
privilege of the )rit of habeas corpus under specified conditions. Pursuant to the
principle of separation of po)ers underlying the syste of governent, the
E1ecutive!s supree )ithin his o)n sphere. C-/EDER, TCE %EPARAT2-N -3
P-/ER%, GN6ER TCE C-N%T2TGT2-N, 2% N-T AB%-:GTE, /CAT 2% M-RE, 2T
9-E% CAN6 2N CAN6 /2TC TCE %K%TEM -3 CCECM% AN6 BA:ANCE%, GN6ER
/C2CC TCE EIECGT2DE 2% %GPREME, A% RE9AR6% TCE %G%PEN%2-N -3 TCE
PR2D2:E9E, BGT -N:K +$ AN6 =1* CE ACT% =+T1+* TCE %PCERE A::-TTE6 T-
C2M BK TCE BA%2C :A/, AN6 TCE AGTC-R2TK T- 6ETERM2NE /CETCER -R N-T
CE CA% %- ACTE6 2% DE%TE6 2N TCE 0G62C2A: 6EPARTMENT, /C2CC, +* T1+"
,"&CT, 2%, 2N TGRN, C-N%T2TGT2-NA::K "<&,M. 8@& %CRA, pp. @(7;
@(@,@(';@$#, capitali,ation -urs=
/e are no) called upon by respondents to re;e1aine the above;*uoted ruling,
abandon it, and return to the principle laid do)n in Baker and Montenegro.
1/
To
do that, ho)ever, )ould be to retrogress, to surrender a oentous gain
achieved in +udicial history in this country. /ith :ansang, the highest Court of the
land ta4es upon itself the grave responsibility of chec4ing e1ecutive action and
saving the nation fro an arbitrary and despotic e1ercise of the presidential
po)er granted under the Constitution to suspend the privilege of the )rit of
habeas corpus andNor proclai artial la). that responsibility and duty of the
Court ust be preserved and fulfilled at all costs if /e )ant to aintain its role as
the last bul)ar4 of deocracy in this country. To soe, the Court could have gone
further in delineating its function in the deterination of the constitutional
sufficiency of a proclaation suspending the privilege of the )rit of habeas
corpus. )hile that ay be true, as it is, the :ansang decision is a Bgiant leapB in
the interest of +udicial supreacy in upholding fundaental rights guaranteed by
the Constitution, and for that reason 2 cannot agree that /e discard said decision
or easculate it so as to render its ruling a farce. The test of arbitrariness of
e1ecutive action adopted in the decision is a sufficient safeguard. )hat is vital to
the people is the anner by )hich the test is applied by the Court in both
instances, i.e., suspension of the privilege of the )rit of habeas corpus andNor
proclaation of artial la).
222
/e coe to the third issue 5 the validity of Proclaation "#$". Respondents
contend that there is factual basis for the President to proclai artial la) in the
country, )hile petitioners assert other)ise.
-n this point, 2 agree )ith respondents that the e1tree easure ta4en by the
President to place the entire country under artial la) )as necessary. The
President!s action )as neither capricious nor arbitrary. An arbitrary act is one that
arises fro an unrestrained e1ercise of the )ill, caprice, or personal preference of
the actor 8/ebster!s 7rd Ne) 2nternational 6ictionary, p. ""#=, one )hich is not
founded on a fair or substantial reason 8Bedford 2nv. Co. vs. 3olb, "$# P. &d 7A",
7A&, cited in /ords Q Phrases, Peranent Ed., Dol. 7;A, p. <(7=, is )ithout
ade*uate deterining principle, non;rational, and solely dependent on the actor!s
)ill. 8%)eig vs. G.%., 6.C. Te1., A# 3. %upp. ($<, /ords Q Phrases, supra, p. <A&=
%uch is not the case )ith the act of the President, because the proclaation of
artial la) )as the result of conditions and events, not of his o)n a4ing, )hich
undoubtedly endangered the public safety and led hi to conclude that the
situation )as critical enough to )arrant the e1ercise of his po)er under the
Constitution to proclai artial la).
As found by this Court in Lansang vs. Garcia? the counist activities in the
country aied principally at inciteent to sedition or rebellion becae *uite
evident in the late t)enties to the early thirties )ith the first convictions dating
-ctober &A, "'7&, in &eople vs. vangelista# et al. <( Phil. 7(<, and &eople vs.
Guillermo Capadocia# et al. <( Phil. 7A@. )hile there )as a lull in such counist
activities upon the establishent of the Coon)ealth of the Philippines there
)as a resurgence of the counist threat in the late forties and on 0une &#,
"'<(, Congress approved Republic Act "(## other)ise 4no)n as the Anti;
%ubversion Act )hich in effect outla)ed the so;called Counist Party of the
Philippines 8CPP=. in "'A', the Counist Party )as reorgani,ed and split into
t)o groups, one of )hich, coposed ainly of young radicals constituting the
Maoist faction, established a Ne) People!s Ary. the CPP anaged to infiltrate or
control nine a+or labor organi,ations, e1ploited the youth oveent and
succeeded in a4ing counist fronts of eleven a+or student or youth
organi,ations, so that there are about thirty ass organi,ations actively
advancing the CPP interests, aong )hich are the Malayang %aahan ng
Magsasa4a 8MA%AMA=, the Mabataang Ma4abayan 8MM=, the Moveent for the
Advanceent of Nationalis 8MAN=, the %aahang 6eo4rati4o ng Mabataan
8%6M=, the %aahang Molave 8%M=, and the Malayang Pag4a4aisa ng Mabataang
Pilipino 8MPMP=.
11
A recital of conteporary events fro "'A' to "'(& ta4en fro reports of leading
ne)spapers in the country )ill give the factual bac4ground of the proclaation of
artial la) and, )ith the indulgence of the reader, 2 a giving it hereunder?
45P5
January C# vening *ews? Cu4s abushed five persons including a forer ayor
of Bagac, Bataan, along the national road in the province and investigation of the
Philippine Constabulary revealed that the abushers )ere ebers of a Cu4
li*uidation s*uad.
11
January D# ibid? Ary 2ntelligence sources disclosed that the
Cu4s )ere regrouping and steadily building up strength through a vigorous
recruitent and training progra. January 4A# ibid? An encounter occurred in
%itio Bilaong, %ibul, -rani Bataan, )hich )as considered the biggest encounter
bet)een the Ared 3orces and Cu4s in recent years resulting in the 4illing of a
nuber of dissidents. January 3D# 3G# 35# and C4# ibid? 2n the City of Manila
school capuses )ere not spared fro clashes during riotous deonstrations
held by ore than ",<## students of the 3ar Eastern Gniversity, the nuber
increasing to about "#,### of the, and at the :yceu of the Philippines classes
)ere suspended because of a bloody students! deonstration resulting in the
)ounding of at least one student. $ebruary 4# ibid? The night before, scores of
students )ere in+ured during a deonstration at the Mapua 2nstitute of
Technology initiated by radical eleents. $ebruary 3D and 3B# ibid? Cu4s
continued to stri4e at governent forces in %an 3ernando, Papanga, and Tarlac,
Tarlac. 'pril 45# Manila Chronicle? A deonstration of about <,### farers fro
Tarlac reinforced by Mabataang Ma4abayan ebers clashed )ith riot policeen
after they had stoned the G% Ebassy on Ro1as Boulevard, Manila, shattered
glass )indo)s of the building, and put to torch an Aerican flag. May 45#
&hilippines 1erald? The church )as not spared fro the onslaught of student
activis )hen a arch of activists )as held to Manila!s proinent Catholic
churches. June 43# and 4D, Manila Chronicle? Assaults )ere intensified by
governent troops on Cu4 liars in the provinces of Papanga and Tarlac. July D,
Philippines Cerald? The Cu4s practically )ere in control of si1 to)ns in the
province of Tarlac. July 36# ibid? The Mabataang Ma4abayan )hich according to
the Ared 3orces 2ntelligence sources had a tie;up )ith the Cu4s staged a
tuultuous deonstration during a state dinner at MalacaFang in honor of G%
President Richard Ni1on )hich resulted in a free;for;all fight and in+uries to
several deonstrators. "eptember 3# 5# and 4A# Manila# /aily Bulletin? Diolent
student deonstrations )ere staged including a one;day noisy siege of
MalacaFang Palace. -ctober 6# and 44# Manila Chronicle? Bloody deonstrations
continued near the gates of the G% Ebassy on Ro1as Boulevard during )hich at
least &# persons including A policeen, 7 ne)sen and several bystanders )ere
in+ured. *ovember 4B# Manila /aily Bulletin? 7 +eeploads of Cu4s raided the
poblacion of Porac, Papanga, 4illing seven and )ounding si1teen. *ovember 3A#
ibid? More persons )ere 4illed in the continuing carnage in Papanga. *ovember
3G# ibid? Cu4s 4illed t)o ore persons in Papanga and Tarlac even after
constabulary soldiers saturated the provinces on orders of President Marcos.
/ecember G# ibid? 3ive persons )ere assacred by Cu4s in Papanga.
456A
January 45# &hilippines 1erald? @## students deonstrated at MalacaFang Palace
against po)er groups in the country. January 33# ibid? A bob e1ploded at the
0oint G% Military Advisory 9roup Cead*uarters in Lue,on City in+uring a Philippine
Ary enlisted an. January 3C# ibid? %tudent deonstrators auled a palace
guard. January 3D# ibid? %oe 7,### students deonstrated at MalacaFang for
the second day and the National %tudents :eague announced a nation)ide
boycott of classes. January 36# ibid? -pening session of the %eventh Congress
)as arred by riotous deonstrations by thousands of students and )or4ers in
front of the :egislative building during )hich President and Mrs. Marcos )ere the
target of stones and issiles as they )al4ed to their car and (& persons )ere
in+ured in that deonstration. January C4# ibid? Mob attac4ed MalacaFang Palace
)ith ignited bottles and fought )ith ilitary and police troops until early orning.
June 43 and 4D# Manila Times? Nilo Tayag, Chairan of the Mabataang Ma4abayan
)as arrested for subversion and a subachinegun and docuents concerning
Counis )ere confiscated fro hi. July G# P# 6# 4C# 45# 34# 3C# 3G# 3P# 36#
and C4# ibid? Continued deonstrations )ere held in front of the G% ebassy
building, in the capus of the 3ar Eastern Gniversity and the Gniversity of the
East, )hile violent bet)een the ary and the Cu4s in Central :u,on c continued
unabated. "eptember 4G# 4B# 3A# 3G# 3P# 36 and 35# ibid? Diolent stri4es and
student deonstrations )ere reported. -ctober 4# C# D# P# B# 4C# 3C and 3D# ibid?
6eonstrations continued )ith e1plosions of pillbo1es in at least t)o schools. The
Gniversity of the Philippines )as not spared )hen its "$,### students boycotted
their classes to deand acadeic and non;acadeic refors in the %tate
Gniversity resulting in the BoccupationB of the office of the President of the
Gniversity by student leaders. -ther schools )hich )ere scenes of violent
deonstrations )ere %an %ebastian College, Gniversity of the East, :etran
College, Mapua 2nstitute of Technology, Gniversity of %to. Toas, and 3eati
Gniversity. %tudent deonstrators even succeeded in Boccupying the office of the
%ecretary of 0ustice Dicente Abad %antos for at least seven hoursB. *ovember P#
6# B and 4B# ibid. The Ared 3orces continued its encounters )ith the Cu4s in
Central :u,on and )ith the leaders of the Ne) People!s Ary. /ecember G# 5 and
4A# ibid? More instances of violent student deonstrations in the City )ere,
reported, the ost violent of )hich occurred after an indignation rally at Pla,a
:a)ton )here pillbo1es and other e1plosives )ere thro)n resulting in the
)ounding of several students, policeen and bystanders. T)o Catholic schools
and t)o governent buildings in Calbayog City )ere blasted )ith dynaite.
/ecember 4D# 4G# 4B# 3C and 3B# ibid? 3ighting )as reported in the province of
Cotabato bet)een )ell;ared tribesen and the local police forces, as )ell as in
2locos %ur, )hile in Cavite the Police Chief and t)o of his en )ere shot to death
in front of the Call of 0ustice building. /ecember C4# ibid? 2n Baguio City, :t.
Dictor N. Corpus +oined the Ne) People!s Ary and effected a raid on the
Philippine Military Acadey and fled )ith 7< high;po)ered guns )ith aunition.
4564
January 4D# Manila Times? 3our students died during a rally at Pla,a Miranda of
this city. January 34# ibid? %tudents pic4eted the Philippine Constabulary Cap at
Cap Crae to e1press their protest on the use of the ilitary forces against
students, and to deand the ipeachent of President Marcos. January 3C# ibid?
-il firs in the city )ere the ob+ect of bobings resulting in death to at least t)o
persons and in+uries to others. January 36# +bid? A hand grenade )as hurled at
the to)er of the AB%;CBN Broadcasting Corporation in Lue,on City. $ebruary 3#
ibid? A freshan student of the Gniversity of the Philippines )as shot and
critically )ounded, 7< in+ured, &A )ere arrested in violent incidents at the capus
)hich at that tie )as in barricades, )hile in do)nto)n Manila ore than &.###
students occupied and barricaded Claro M. Recto Avenue and "A persons )ere
in+ured in separate clashes bet)een the police and students. $ebruary C# ibid? A
senior engineering student )as shot )hen governent forces drove into the heart
of the Gniversity of the Philippines capus to disperse students )ho had set up
barricades in the area, and at least 7# )oen students )ere )ounded in the
clia1 of the day;long pitch battle in the Gniversity bet)een students and the
local police and soldiers. $ebruary D# G# P and 6# ibid? 2n do)nto)n Manila,
fighting continued bet)een the police and student deonstrators resulting in the
death of at least t)o students and )ounding of scores of deonstrators and
policeen. $ebruary 44# ibid? The G.P. :os BaFos Arory )as blasted by an
e1plosion. $ebruary 4C# ibid? The Gnited %tates Ebassy )as again bobed.
$ebruary 46# ibid? 2n the province of 6avao student riots erupted in the Gniversity
of Mindanao 4illing at least one student. $ebruary 36# ibid? At least "$ persons
)ere 4illed in Cotabato during encounters bet)een governent forces and the so;
called rebels. March 46# 4B# 45 and 3G# ibid? Diolent deonstrations and
indignation rallies )ere held in Manila as )ell as in the province of Tarlac. 'pril
3C# vening *ews? T)o Constabulary troopers )ere abushed by Cu4s under
Coander 6ante in the poblacion of Capas, Tarlac. 'pril CA# ibid? A bob
e1ploded in Lue,on City destroying the statue syboli,ing friendship bet)een the
3ilipinos and the Aericans. May 3 and C# &hilippines 1erald? The onth of May
)as a bloody one. :abor 6ay, May ", )as celebrated by the )or4ers and student
activists )ith a deonstration before Congress, and a clash bet)een the
deonstrators and the Police and Metroco forces resulted in death to several
deonstrators and in+uries to any. May 6# ibid? T)o ary troopers and at least
$ Cu4s including a Coander )ere 4illed during ilitary operations against the
counist Ne) People!s Ary in 2sabela. June 3D# 3G and 3P# Manila times?
Peace and order situation in Mindanao )orsened. Continued clashes bet)een
governent forces and rebels resulted in the evacuation of thousands of Muslis
and Christians ali4e fro several to)ns in Cotabato and a band of <# gunen
attac4ed a party of top governent officials led by 6efense %ecretary 0uan Enrile
)hile inspecting a Mos*ue )here <A Muslis )ere reportedly assacred in Barrio
Manalili, Caren, Cotabato. June 33# vening *ews? Diolence continued to be
unabated in Manila )ith a Lue,on City activist shot dead and 7 drivers involved in
the +eepney stri4e bobed and in+ured. 'ugust 34# ibid? A public eeting being
held at Pla,a Miranda, Manila, by the :iberal Party for the presentation of its
candidates in the general elections scheduled for Noveber $, "'(" )as arred
by )hat is no) 4no)n as the brutal Pla,a Miranda incident )here $ persons )ere
4illed and scores )ere in+ured including the candidates of the party, caused by the
thro)ing of t)o hand grenades at the platfor. 'ugust 3C# ibid? President Marcos
issued a proclaation suspending the privilege of the )rit of habeas corpus.
4563
January 43# Manila Times? President Marcos restored the privilege of the )rit of
habeas corpus in the entire country. January 35# +bid? 2n the eantie, in
Congress a bill )as introduced to repeal the anti;subversion la). $ebruary 3# C# G
and 4A# +bid? Diolent deonstrations in the school belt resued. $ebruary D# ibid?
2n the province of >abales an encounter bet)een PC troopers and the Ne)
People!s Ary )as reported. March ", +bid? The province of Cavite )as placed
under Philippine Constabulary control because of the rash of 4illings in )hich local
officials )ere the victis, one of )ho )as Cavite City Mayor Ro1as. March 3#
ibid? A raid )as conducted by the Philippine Constabulary in a house in Lue,on
City resulting in the sei,ure of 7A high;po)ered firears, & hand grenades and a
disantled achinegun )hile in the province of 2sabela A persons including a
non;coissioned officer of the "#th 2nfantry Battalion )ere 4illed in a gun battle
bet)een governent soldiers and the Ne) People!s Ary. March G# ibid? The Ne)
People!s Ary raided Capas, Tarlac, destroying a portion of the to)n hall. March
5# ibid? More person died in Cotabato and :anao due to continued violence. March
4D# 4P# 4B# 34 and 36# ibid? The student deonstration on its )ay to Congress to
agitate for the repeal of the anti;subversion la) resulted in in+uries to a good
nuber of student deonstrators )hen they clashed )ith security guards in front
of the Gniversity of %to. Toas. 2n another violent deonstration in front of
Arellano Gniversity at least one student )as 4illed and others )ere )ounded in an
encounter bet)een the deonstrators and security guards. Pillbo1 e1plosives
)ere hurled at the gate of MalacaFang Palace and a ysterious e1plosion spar4ed
a fire that gutted the northern )ind of the 9reater Manila Terinal 3ood Mar4et in
Taguig, Ri,al, )hich had been preceded by other ysterious e1plosions )hich
shattered portions of the Arca building on Taft Avenue, Pasay, during )hich
propaganda leaflets )ere found sho)ing that radical eleents )ere behind the
bobings, )hile ' stic4s of dynaite )ere found duped in front of the %ecurity
Ban4 and Trust Copany branch office in EspaFa %treet. March 3C# ibid? Another
public official, Mayor Rodolfo 9an,on of 2loilo City )as )ounded in an abush and
@ of his copanions )ere 4illed. March 3P# ibid? %i1 ore persons )ere 4illed as
governent troopers clashed )ith the Ne) People!s Ary in the province of
2sabela. 'pril 4P and 46# ibid? Clashes continued bet)een the Ary troops and
the Ne) People!s Ary in 2sabela )hich led the governent to send ore troops
to that province. 'pril 3A and 3G# ibid? The G% Ebassy )as again bobed )hile
stri4es in factories )ere +oined by so;called activists. 'pril 3P# ibid? Cand
grenades in the to)n of Cabugao, 2locos %ur )ere thro)n resulting in the death of
"7. 'pril 36# ibid? Clashes continued bet)een governent troopers and the Ne)
People!s Ary in the 2locos provinces as )ell as in the provinces of :anao and
>abales. 'pril CA# ibid? The Ne) People!s Ary invaded the provinces of %aar
and :eyte. May D# ibid? T)o big shipents of dynaite stic4s estiated at "#,###
pieces had already been shipped to 2locos %ur before a third shipent )as
intercepted on a bus bound for Cabugao. May 43 and 4P# ibid? More pillbo1
e1plosions occurred in the G% Ebassy during )hich at least < persons )ere hurt
)hile the pic4ets at the ebassy led by the Mabataang Ma4abayan continued.
May 34# ibid? At least 7# persons )ere )ounded )hen radical vanguards of about
<,### deonstrators clashed )ith about &## Metroco troopers in the vicinity of
the G% Ebassy. June 4C# ibid? The Philippine 2ndependence 6ay )as arred by
rallies of youth and )or4er groups )hich denounced G% iperialis, )ith
deonstrators nubering about "#,### fro %outhern :u,on, Central :u,on and
the 9reater Manila area converging at Pla,a Miranda and during the
deonstration e1plosions of pillbo1 bobs occurred. June 4B# ibid? The situation
in Mindanao )as critical and had )orsened. June 3D# ibid? A tie bob e1ploded
in one of the roos in the second floor of the Court of 2ndustrial Relations
building in Manila. July D# ibid? An e1plosion shattered the )estern section of the
Philalife building in Erita, Manila. July G# ibid? Thirty;five persons )ere
)ounded in pillbo1 e1plosions )hen & groups of deonstrators clashed )ith each
other at :i)asang Bonifacio, then )ith policeen near the G% Ebassy, as the
protest rallies against G% iperialis held in con+unction )ith the 0uly @th
celebration cae to a bloody end. 6eputy Police Chief Col. 0aes Barbers )ho
suffered @# pellet )ounds on the left side of the body )as aong the victis.
July P# ibid? Raiders 4illed <7 in >aboanga. fighting )as also going on in :anao
del Norte. 6efense %ecretary 0uan Ponce Enrile yesterday described the Mindanao
developents as BgraveB. July 6# ibid? President Marcos ordered >aboanga
drive. Ared 3orces of the Philippines land;sea;air operations )ere launched
)hile Mayor 6iogracias Carona of 6iataling, >aboanga del %ur, )as 4illed in
a ne) clash. July B# ibid? A panel of la)yers have advised President Marcos that it
)ould be perfectly legal for hi to declare artial la), suspend elections, and
continue in office beyond "'(7, if the BproperB situation develops ne1t year. July
5# ibid? President Marcos said that the Counist infiltration of feuding Musli
and Christian groups in Mindanao could be +ust a ploy to dra) a)ay governent
troops fro Central :u,on and thus leave Manila open to a Red attac4. President
Marcos ordered the PC and the ary to counter;attac4 and recapture 6igoyo
Point, Palanan, 2sabela. upon receipt of reports that outnubered governent
troopers battling Ne) People!s Ary guerrillas in Palanan )ere forced to
)ithdra). Ce said that the priary target should be the suspected aunition
dup and supply depot of the Ne) People!s Ary on 6igoyo Point. %i1teen PC
officers and enlisted en )ere rescued fro "## Ne) People!s Ary guerrillas
)ho had pinned the do)n on board a ship during a sea and air operations. The
occupied the ship naed BMuya Maru MaragatanB reported to be of North Morean
origin. /hile inspecting the ship, soe "## Ne) People!s Ary guerrillas assed
on the beach and fired at the. July 4A# ibid? President Marcos said that the
vessel )hich landed off Palanan, 2sabela, allegedly )ith ilitary supplies and
e*uipent for the Ne) People!s Ary is o)ned by 3ilipinos and is registered
under Philippine la)s. The President also sa) in the landing incident evidence of a
tie;up bet)een local Counists and foreign suppliers of )eapons. July 4G# ibid?
Cap Crae, National PC head*uarters, announced a report fro Tas4 3orce
%aranay that governent troopers had found hundreds of )eapons of Aerican
a4e, including @A( M;"@ rifles, in & abandoned caps in 6igoyo Point, Palanan,
2sabela. August "', +bid? Rallies )ere held to ar4 the first year of the Pla,a
Miranda bobing and suspension of the )rit of habeas corpus by the Moveent
of Concerned Citi,ens for Civil :iberties )hich declared August &" as a national
day of protest against ilitari,ation. 'ugust C4# ibid? The 6epartent of National
6efense at a conference of defense and ilitary officials e1posed a plan of the
Ne) People!s Ary to so) terror and disorder in the a+or cities of the country
before the end of the year "'(&, and because of several bobing incidents at the
6epartent of 3oreign Affairs, Philalife building, BThe 6aily %tar -fficeB a
ne)spaper publication, the 2P2 building and an arored car of the Philippine
Ban4ing Corporation, the Philippine Constabulary declared a red alert in the
etropolitan area. "eptember C# ibid? %i1 ary soldiers )ere 4illed )hen they
)ere abushed by the Ne) People!s Ary in Ca)ayan, 2sabela. %epteber A,
+bid? -ne )oan )as 4illed and A# others )ere in+ured )hen a tie bob
e1ploded in a departent store in Cariedo %treet, Luiapo, Manila, at about $?7#
in the evening of %epteber < )hich incident )as the ost serious in the series
of bobings )hich too4 place in greater Manila and )hich according to Ary
2ntelligence sources )as the )or4 of Bsubversive eleents out to so) fear,
confusion and disorder in the heart of the population.B "eptember 4A# ibid?
Terrorist bobers struc4 again the night before destroying three vital offices in
the ground floor of the City hall of Manila and )ounding & telephone operators.
"eptember 43# ibid? A gun battle ensued bet)een the Ne) People!s Ary and
Metroco soldiers at Pandacan, Manila, near the -il refineries )hich led to the
sending of Ary troops to guard oil depots. "eptember 4C# ibid? President Marcos
)arned that he has under consideration the necessity for e1ercising his
eergency po)ers under the Constitution in dealing )ith intensified activities of
local Maoists. "eptember 45# ibid? As if in ans)er to this )arning of the President,
t)o tie bobs e1ploded in the Lue,on City Call )hich disrupted the plenary
session of the constitutional Convention and a subversion case Court of 3irst
2nstance 0udge 0ulian :ustre.
The foregoing events together )ith other data in the possession of the President
as Coander;in;Chief of the Ared 3orces led hi to conclude that Bthere is
throughout the land a state of anarchy and la)lessness, chaos and disorder,
turoil and destruction of a agnitude e*uivalent to an actual )ar bet)een the
force of our duly constituted governent and the Ne) People!s Ary and their
satellite organi,ations ... in addition to the above;described social disorder, there
is also the e*ually serious disorder in Mindanao and %ulu resulting fro the
unsettled conflict bet)een certain eleents of the Christian and Musli
population of Mindanao and %ulu, bet)een the Christian !2laga! and the Musli
!Barracudas!, and bet)een our governent troops, and certain la)less
organi,ations such as the Mindanao 2ndependence Moveent ...B, that this state
of Brebellion and ared actionB caused Bserious deorali,ation aong our people
and have ade the public apprehensive and fearfulB and that Bpublic order and
safety and the security of the nation deand that iediate, s)ift, decisive and
effective action be ta4en to protect and insure the peace, order and security of
the country and its population and to aintain the authority of the governent.B
8see Proclaation "#$"=
Petitioners vigorously dispute all the above conclusions of the President and
aintain that the situation in the country as of %epteber &", "'(&, did not
)arrant a proclaation of artial la). thus, Congress )as in session, the courts
)ere open, the Constitutional Convention of "'(" )as in progress, etc. Petitioners
invo4e in their favor the Bopen court ruleB espoused in the Aerican cases of !
&arte Milligan, @ /allace &, "$AA, and /uncan vs. .ahanamoku, 7&( G.%. 7#@,
"'@<, '# :. Ed. A$$. 2n Milligan the a+ority of five 0ustices of the %upree Court
held aong others that B8M=artial rule can never e1ist )here the courts are open
and in the proper and unobstructed e1ercise of their +urisdictionB, )hich ruling
)as re;affired in /uncan.
Much has been said and )ritten by y Colleagues on the erits and deerits of
the Milligan and /uncan +urisprudence. 3or y part 2 shall siply state that 2 do
not vie) these t)o cases as controlling authority on )hat is the test of an Bactual
and real necessityB for artial la) to e1ist because these t)o cases )ere ainly
concerned )ith the +urisdiction of a ilitary coission 8Milligan case= and a
ilitary tribunal 86uncan case= to try civilians for offenses generally cogni,able by
civil courts, and the decision in these t)o cases siply upholds the principle that
)here courts are open to e1ercise their +urisdiction, these civilians ust not be
denied their rights guaranteed under the Bill of Rights one of )hich is trial by +ury
in a civil court. B2n other )ords, the civil courts ust be utterly incapable of trying
criinals or dispensing +ustice in their usual anner before the Bill of Rights ay
be teporarily suspended.B 86uncan vs. Mahanao4u supra, p. (#7=
3urtherore, 2 )ould ans)er the arguents of petitioners )ith the follo)ing
critical observation of Professor /illoughby on the Milligan ruling based on the
dissent of four 0ustices in the case, and 2 *uote?
... The stateent is too absolutely ade that !artial la) cannot arise fro a
threatened invasion. The necessity ust be actual and present. the invasion real,
such as effectually closes the courts and deposes the civil adinistration.! 2t is
correct to say that !the necessity ust be actual and present,! but it is not correct
to say that this necessity cannot be present e!cept when the courts are closed
and deposed )rom civil administration, )or, as the inority +ustices correctly
pointed out, there may be urgent necessity )or martial rule even when the courts
are open. The better doctrine, then, is, not for the court to attept to deterine
in advance )ith respect to any one eleent, )hat does, and )hat does not create
a necessity for artial la), but, as in all other cases of the e1ercise of official
authority, to test the legality of an act by its special circustances. Certainly the
fact that the courts are open and undisturbed )ill in all cases furnish a po)erful
presuption that there is no necessity for a resort to artial la), but it should
not furnish an irrebuttable presuption. 8/illoughby, Constitution of the Gnited
%tates, Dol. 7, &Ed., p. "A#&, ephasis supplied=
To stress his point, Professor /illoughby gave the follo)ing e1aple?
The English doctrine of artial la) is substantially siilar to this, and an e1cellent
illustration of the point under discussion is given by certain events gro)ing out of
the late British;Boer )ar.
6uring that struggle artial la) )as proclaied by the British 9overnent
throughout the entire e1tent of Cape Colony, that is, in districts )here no active
ilitary operations )ere being conducted and )here the courts )ere open and
undisturbed, but )here considerable sypathy )ith the Boers and disaffection
)ith the English rule e1isted. %ir 3rederic4 Polloc4, discussing the proper la) of
the sub+ect )ith reference to the arrest of one Marais, upholds the +udgent of
the 0udicial Coittee of the Privy Council 8A.C. "#', "'#&= in )hich that court
declined to hold that the absence of open disorder, and the undisturbed operation
of the courts furnished conclusive evidence that artial la) )as un+ustified. 8ibid,
pp. "A#&;"A#7=
Coing bac4 to our present situation, it can be said, that the fact that our courts
)ere open on %epteber &", "'(&, did not preclude the e1istence of an Bactual
and present necessityB for the proclaation of artial la). As indicated earlier,
the state of counist activities as )ell as of other dissident oveents in this
country suari,ed by this Court in Lansang vs. Garcia and anifested in the
recital of events given in this -pinion constituted the Bactual and present
necessityB )hich led the President to place the entire country under artial la).
2D
Contrary to respondent!s clai, the proclaation of artial la) in the country did
not carry )ith it the autoatic suspension of the privilege of the )rit of habeas
corpus for these reasons? $irst, fro the very nature of the )rit of habeas corpus
)hich as stressed in the early portion of this -pinion is a B)rit of libertyB and the
Bost iportant and ost iediately available safeguard of that libertyB, the
privilege of the )rit cannot be suspended by mere implication. The Bill of Rights
8Art. """, %ec. "8"@=, "'7< Constitution, Art. 2D, %ec. "<, "'(7 Constitution=
categorically states that the privilege of the )rit of habeas corpus shall not be
suspended e!cept for causes therein specified, and the proclaation of artial
la) is not one of those enuerated.
13
"econd, the so;called Coander;in;Chief
clause, either under Art. D22, %ec. "#8&=, "'7< Constitution, or Art. 2I, %ec. "&,
"'(7 Constitution, provides specifically for three different odes of e1ecutive
action in ties of eergency, and one ode does not necessarily encopass the
other, vi%, 8a= calling out the ared forces to prevent or suppress la)lessness,
etc., 8b= suspension of the privilege of the )rit of habeas corpus, and 8e= placing
the country or a part thereof under artial la). 2n the latter t)o instances even if
the causes for the e1ecutive action are the sae, still the e1igencies of the
situation ay )arrant the suspension of the privilege of the )rit but not a
proclaation of artial la) and vice versa. Third, there can be an autoatic
suspension of the privilege of the )rit )hen, )ith the declaration of artial la),
there is a total collapse of the civil authorities, the civil courts are closed, and a
ilitary governent ta4es over, in )hich event the privilege of the )rit is
necessarily suspended for the siple reason that there is no court to issue the
)rit. that, ho)ever, is not the case )ith us at present because the artial la)
proclaied by the President upholds the supreacy of the civil over the ilitary
authority,
14
and the courts are open to issue the )rit.
D
Respondents argue that )ith a valid proclaation of artial la), all orders,
decrees, and other acts of the President pursuant to said proclaation are
li4e)ise valid? that these acts )ere e1pressly declared legal and binding in Art.
ID22, %ec. 78&=, of the "'(7 Constitution )hich is no) in full force and effect, and
conse*uently the arrest of petitioners is legal, it having been ade in accordance
)ith 9eneral -rder No. & of the President.
2 cannot give y un*ualified assent to respondents! s)eeping stateent )hich in
effect upholds the vie) that )hatever defects, substantive or procedural, ay
have tainted the orders, decrees, or other acts of the President have been cured
by the confiratory vote of the sovereign people anifested through their
ratification of the "'(7 Constitution. 2 cannot do so, because 2 refuse to believe
that a people that have ebraced the principles of deocracy in Bblood, s)eat,
and tearsB )ould thus thro) a)ay all their precious liberties, the sacred
institutions enshrined in their Constitution, for that )ould be the result if )e say
that the people have staped their approval on all the acts of the President
e1ecuted after the proclaation of artial la) irrespective of any taint of
in+ustice, arbitrariness, oppression, or culpable violation of the Constitution that
ay characteri,e such acts. %urely the people acting through their constitutional
delegates could not have )ritten a fundaental la) )hich guarantees their rights
to life, liberty, and property, and at the sae tie in the sae instruent
provided for a )eapon that could spell death to these rights. No less than the
an concerned, President 3erdinand E. Marcos, has tie and again ephasi,ed
the fact that not)ithstanding the e1istence of artial la) ours is a governent
run under the Constitution and that the proclaation of artial la) is under the
,ule o) Law.
15
2f that is so, and that is ho) it should be, then all the acts of the
President ust bo) to the andates of the Constitution.
That this vie) that )e ta4e is the correct one can be seen fro the very te1t of
%ee. 78&=, Art. ID22 of the "'(7 Constitution )hich provides?
done by the incubent President shall be part o) the law o) the land, and shall
the regular National Assebly. 8ephasis supplied=
As stated in the above;*uoted provision, all the proclaations, orders, decrees,
instructions, and acts proulgated, issued, or done by the incubent President
shall be part o) the law o) the land. the te1t did not say that they shall be part of
the fundaental or basic la) 5 the Constitution. 2ndeed, the fraers of the ne)
Constitution )ere careful in their choice of phraseology for iplicit therein is the
Court!s po)er of +udicial revie) over the acts of the incubent President in the
e1ercise of his artial la) po)ers during the period of transition fro the
Presidential to the Parliaentary regie. 3or the effect of the aforeentioned
transitory provision is to invest upon said proclaations, orders, decrees, and
acts of the President the ipriatur of a la) but not a constitutional andate.
:i4e any other la) or statute enacted by the legislative branch of the governent,
such orders, decrees, etc. are sub+ect to +udicial revie) )hen proper under the
Constitution. to clai the contrary )ould be incongruous to say the least for )hile
the acts of the regular National Assebly )hich is the peranent repository of
legislative po)er under the ne) Constitution are sub+ect to +udicial revie), the
acts of its teporary substitute, that is, the incubent President, perfored
during the transitory period are not.
2t is contended ho)ever that the true intention of the Constitutional 6elegates in
providing for %ection 78&=, Article ID22, in the "'(7 Constitution )as to foreclose
any +udicial in*uiry on the validity not only of Proclaation "#$" but also of all
subse*uent orders, decrees issued and acts perfored by the incubent
President. 2f that )as the intent, then )hy did that particular provision not state
so in clear and une*uivocal ters, especially since the effect )ould be to restrict
if not to deprive the +udicial branch of the governent of its po)er of +udicial
revie) in these instancesE As it is, that is, as presently )orded, this particular
provision )as ratified by the people believing that although the acts of the
incubent President )ere being made part o) the law o) the land they still had a
recourse to the +udicial branch of their governent for protection or redress
should such acts turn out to be arbitrary, un+ust, or oppressive.
9oing bac4 to 9eneral -rder No. &, its validity is assailed by petitioners on the
ground that it ordered their arrest and detention )ithout charges having been
filed against the before the copetent court nor )arrants for their arrest issued
by the latter, all in violation of their constitutional right to due process of la).
A state of artial la) vests upon the President not only the po)er to call the
ilitary or ared forces to repel an invasion, prevent or suppress an insurrection
or rebellion, )henever public safety re*uires it, but also the authority to ta4e such
easures as ay be necessary to accoplish the purposes of the proclaation of
artial la). -ne such easure is the arrest and detention of persons )ho are
claied to be participants or suspected on reasonable grounds to be such, in the
coission of insurrection or rebellion, or in the case of an invasion, )ho give aid
and cofort to the eney, the arrest being necessary to insure public safety. 2t is
this eleent of necessity present in the case )hich +ustifies a curtailent of the
rights of petitioners and so long as there is no sho)ing of arbitrariness or
oppression in the act coplained of, the Court is duty bound to sustain it as a
valid e1ercise of the artial la) po)ers of the President. /ith the foregoing
*ualification, 2 agree )ith the follo)ing stateent?
/hen it coes to a decision by the head of the %tate upon a atter involving its
life, the ordinary rights of individuals ust yield to )hat he dees the necessities
of the oent. Public danger )arrants the substitution of e1ecutive process for
+udicial process. 8Moyer vs. Peabody, &"& G.%. ($, <7 :. Ed., pp. @"", @"(=
The issuance of 9eneral -rder No. & therefore )as a valid initial step ta4en by the
President to render effective the suppression of ared resistance to our duly
constituted governent.
Thus, 2 vote for the disissal of the petitions for habeas corpus of those )ho
have been conditionally released, because? 8"= The arrest of said petitioners )as
effected by respondents under a valid -rder of the President. 8&= The petitioners
concerned have been ordered released fro detention. The prie ob+ect of a )rit
of habeas corpus is to relieve a person fro physical restraint and this has been
accoplished on respondent %ecretary!s initiative, 87= /hile it is true that the
release of petitioners is sub+ect to certain conditions such as restrictions on
petitioners! freedo of oveent, such restrictions are reasonable precautionary
easures in the face of public danger, and 2 do not see any arbitrariness in the
iposition of said restrictions.
/ith respect to the case of petitioner A*uino, 2 concur in the disissal of his
petition for reasons that? 8"= criinal charges have been filed against hi before
a ilitary coission and 8&= the legal issues posed by hi )hich are gerane
to this habeas corpus proceeding are disposed of and resolved in the anner
indicated in this -pinion. As regards the other issues subitted by A*uino, 2
agree )ith y Colleagues that the sae are to be resolved in the prohibition and
certiorari case filed by hi )hich is no) pending before the Court.
C-*CL<"+-*
2n closing, ay 2 state that it )as necessary for e to )rite this separate -pinion
because 2 found yself at variance )ith y Colleagues on certain issues posed by
these Petitions for habeas corpus. To recapitulate? 8"= 2s the constitutional
sufficiency of a proclaation of artial la) by the President a political *uestionE
5 2 hold that it is not a political, but is a +usticiable one. 8&= 6id the proclaation
of artial autoatically suspend the privilege of the )rit of habeas corpusE No, is
y ans)er. 87= 6id %ec. 78&=, Art. ID22 of the Transitory Provisions of the "'(7
Constitution foreclose +udicial in*uiry into the validity of all decrees, orders and
acts of the incubent President e1ecuted after the proclaation of artial la)
and during the Transitory PeriodE 2 say? N-, because those acts are still sub+ect
to the po)er of +udicial revie) if and )hen they are sho)n to be arbitrary,
oppressive, or un+ust, in violation of the Constitution andNor the generally
accepted principles of 2nternational :a), usage!s and custos.
My conclusions ay not be supported by e1isting +urisprudence or ay even be
contrary to the ultiple authorities cited by y senior Colleagues in the Court.
nonetheless, 2 hubly offer and subit the as the spontaneous reactions of y
conscience to the issues )hich in the )ords of y distinguished Colleague, Mr.
0ustice Antonio P. Barredo, affect not the petitioners alone but the )hole country
and all our people.

Sep4r4te Op565o67
C!STRO, J.:
2
These nine cases are applications for )rits of habeas corpus. The petitions aver in
substance that on %epteber &", "'(& the President of the Philippines placed the
country under artial la) 8Proclaation "#$"=. that on various dates fro
%epteber && to %epteber 7#, "'(&, the petitioners or the persons in )hose
behalf the applications )ere ade )ere arrested by the ilitary authorities and
detained, soe at 3ort Bonifacio in Ma4ati, Ri,al, others at Cap Aguinaldo and
still others at Cap Crae, both in Lue,on City. and that the arrest and
detention of the petitioners )ere illegal, having been effected )ithout a valid
order of a copetent court of +ustice.
/rits of habeas corpu% )ere issued by the Court directing the respondents
%ecretary of National 6efense, Chief of %taff of the Ared 3orces of the
Philippines, and Chief of the Philippine Constabulary, to produce the bodies of the
petitioners in Court on designated dates and to a4e returns to the )rits. 2n due
tie the respondents, through the %olicitor 9eneral, filed their returns to the
)rits and ans)ers to the petitions. Aditting that the petitioners had been
arrested and detained, the respondents nevertheless +ustified such arrest and
detention as having been legally ordered by the President of the Philippines
pursuant to his proclaation of artial la), the petitioners being regarded as
participants or as having given aid and cofort Bin the conspiracy to sei,e political
and state po)er and to ta4e over the governent by force.B The respondents
traversed the petitioners! contention that their arrest and detention )ere
unconstitutional.
Cearings )ere held on %epteber &A and &' and -ctober A, "'(&, at )hich the
petitioners )ere produced in Court. Thereafter the parties filed eoranda.
Mean)hile, soe of the petitioners, )ith leave of Court, )ithdre) their petitions.

1
others, )ithout doing so, )ere subse*uently released fro custody under
certain restrictive conditions.
1
Enri*ue Doltaire 9arcia 22, the sole petitioner in :;
7<<@( and one of those released, having died shortly after his release, the action
)as deeed abated as to hi.
As of this date only 0ose /. 6io4no, in )hose behalf the petition in :;7<<7' )as
filed, and Benigno %. A*uino, 0r. in :7<<@A, are still in ilitary custody.
-n August &7, "'(7 the petitioner A*uino filed an action for certiorari and
prohibition )ith this Court alleging that on August "", "'(7 charges of urder,
subversion and illegal possession of firears )ere filed against hi )ith a ilitary
coission. that his trial by the ilitary court )hich )as to be held on August
&(, &' and 7", "'(7 )as illegal because the proclaation of artial la) )as
unconstitutional. and that he could not e1pect a fair trial because the President of
the Philippines, having pre+udged his case, could reverse any +udgent of
ac*uittal by the ilitary court and sentence hi to death. That action, doc4eted
as :;7(7A@ and entitled BBenigno ". '(uino# Jr. vs. Military Commission No. &,B is
still pending consideration and decision.
-n the other hand, 0ose /. 6io4no, on 6eceber &$, "'(7, filed a otion to
)ithdra) the petition filed in his behalf, iputing delay in the disposition of his
case, and asseverating that because of the decision of the Court in the
Ratification Cases
3
and the action of the ebers of the Court in ta4ing an oath
to support the ne) Constitution, he cannot Breasonably e1pect to get +ustice in
this case.B The respondents oppose the otion on the grounds that there is a
public interest in the decision of these cases and that the reasons given for the
otion to )ithdra) are untrue, unfair and conteptuous.
22
The threshold *uestion is )hether to allo) the )ithdra)al of the petition in :;
7<<7' filed in behalf of 6io4no. 2n his letter to his counsel, )hich is the basis of
the otion to )ithdra), 6io4no states the follo)ing considerations? )irst, the
delay in the disposition of his case. second, the disissal of the petitions in the
Ratification Cases, contrary to the Court!s ruling that the "'(7 Constitution )as
not validly ratified. and third, the action of the ebers of the Court in ta4ing an
oath of allegiance to the ne) Constitution. 6io4no asserts that Ba conscience that
allo)s a an to rot behind bars for ore than one year and three onths )ithout
trial 5 of course, )ithout any charges at all 5 is a conscience that has becoe
stunted, if not stultifiedB and that Bin s)earing to support the ne) !Constitution,!
the five ebers of the Court )ho had held that it had not been validly ratified,
have not fulfilled our e1pectations.B Ce goes on to say? B2 do not blae the. 2
do not 4no) )hat 2 )ould have done in their place. But, at the sae tie, 2 can
not continue to entrust y case to the. and 2 have becoe thoroughly
convinced that our *uest for +ustice in y case is futile.B
As already noted, the %olicitor 9eneral, in behalf of the respondents, opposes the
)ithdra)al of the petition on the ground of public interest, adding that the otion
to )ithdra) cannot be granted by the Court )ithout in effect aditting the
Bunfair, untrue and conteptuousB stateents contained therein.
/ithout passing on the liability of any party in this case for conteptuous
stateents ade, the Court 8by a vote of < to (= denied the otion.
2 voted for the denial of the otion to )ithdra) for inescapable reasons that 2
no) proceed to e1pound.
The general rule is that in the absence of a statute e1pressly or ipliedly
prohibiting the )ithdra)al of an action, the party bringing such action ay
disiss it even )ithout the consent of the defendant or respondent )here the
latter )ill not be pre+udiced, although it ay be necessary to obtain leave of
court. But there are recogni,ed e1ceptions? )hen the public interest or (uestions
o) public importance are involved.
5
3or e1aple, the fact that a final
deterination of a *uestion involved in an action is needed or )ill be useful as a
guide for the conduct of public officers or tribunals is a sufficient reason for
retaining an action )hich )ould or should other)ise be disissed. :i4e)ise,
appeals ay be retained if the *uestions involved are li4ely to arise fre*uently in
the future unless they are settled by a court of last resort.
Thus, in Gon%ales vs. Commission on lections,
6
an action for declaratory
+udgent ipugning the validity of Republic Act No. @$$# )hich prohibits the
early noination of candidates for elective offices and early election capaigns or
partisan political activities becae oot by reason of the holding of the "'A(
elections before decision could be rendered. Nonetheless the Court treated the
petition as one for prohibition and rendered +udgent in vie) of Bthe paraount
public interest and the undeniable necessity for a ruling, the national elections Hof
"'A'J being barely si1 onths a)ay.
2n .rivenko vs. ,egister o) /eeds,
7
the Court denied the petition to )ithdra), an
appeal in vie) of the public iportance of the *uestions involved, and lest Bthe
constitutional andate Hproscribing the sale of lands to aliensJ ... be ignored or
isconceived )ith all the harful conse*uences ... upon the national econoy.B
The petitioner 6io4no has ade allegations to the effect that the President has
BarrogatedB unto hiself the po)ers of governent by BusurpingB the po)ers of
Congress and BoustingB the courts of their +urisdiction, thus establishing in this
country a Bvirtual dictatorship.B 6io4no and his Counsel have in fact stressed that
the present trend of events in this country since the proclaation of artial la)
bears a reseblance to the trend of events that led to the establishent of a
dictatorship in 9erany under Citler. There is thus a profound public interest in
the resolution of the *uestions raised in the cases at bar, *uestions that, in the
phrase of Chief 0ustice Marshall in Marbury vs. Madison,
*
are Bdeeply interesting
to the nation.B 2 apprehend that in vie) of the iport of the allegations ade by
6io4no and his counsel, incalculable har or, in the very least, great disservice
ay be caused to the national interest if these cases are not decided on the
erits. As the %olicitor 9eneral has observed,B petitioner!s H6io4no!sJ arrest and
detention have been so e1ploited in the hate capaign that the only )ay to
protect the integrity of the governent is to insist on a decision of this case in the
foru in )hich the petitioner had chosen to bring the. -ther)ise, li4e festering
sores, the issues stirred up by this litigation )ill continue to agitate the nation.B
Prescinding fro the policy considerations +ust discussed, 2 a gladdened that
the Court has not shunted aside )hat 2 regard as the inescapable oral
constraints in the petitioner 6io4no!s otion to )ithdra) his petition for habeas
corpus.
9
The Court repudiated the facile recourse of avoiding resolution of the
issues on the prete1t that 6io4no insists on )ithdra)ing his petition. 2t is thus not
a ere happenstance that, not)ithstanding that seven ebers of the Court are
of the vie) that 6io4no has an absolute right to )ithdra) his petition, the Court
has confronted the issues posed by hi, and no) resolves the s*uarely,
definitively and courageously. No respectable legal historian or responsible
chronicler of the nation!s destiny )ill therefore have any reason to level the
indictent that once upon a grave national crisis the Court abdicated its
constitutional prerogative of ad+udication and fors)ore the sacred trust reposed in
it as the nation!s ultiate arbiter on transcendental, far;reaching +usticiable
*uestions.
/ith respect to the reasons given for the otion to )ithdra), the Court is indful
that it has ta4en soe tie to resolve these cases. 2n e1planation let it be said
that the issues presented for resolution in these cases are of the utost gravity
and delicateness. No *uestion of the a)esoe agnitude of those here presented
has ever confronted the Court in all its history. 2 a not a)are that any other
court, e1cept possibly the Circuit Court in ! parte Merryman,
1/
has decided li4e
*uestions during the period of the eergency that called for the proclaation of
artial la).
But then in Merryman the Court there held that under the G.%. 3ederal
Constitution the President did not have po)er to suspend the privilege of the )rit
of habeas corpus. -ther)ise, )here the *uestion involved not po)er but rather
the e1ercise of po)er, courts have declined to rule against the duly lasted. As
Court 9lendon %chubert noted, the G.%. %upree Court B)as un)illing to Hdo soJ
until the )ar )as over and :incoln )as dead.B
Thus, in ! parte Milligan,
11
the decision voiding the petitioner!s trial by a ilitary
court )as not announced until 6eceber "@, "$AA, after the Civil /ar )as over.
The Civil /ar began on May 7, "$A" )ith the capture of 3ort %uter by
Confederate forces. :abdin Milligan )as charged before a ilitary coission
)ith aiding rebels, inciting insurrection, disloyal practices and violation of the la)s
of )ar. Cis trial ran fro %epteber to 6eceber "$A&. he )as convicted on
-ctober &", "$A@ and ordered e1ecuted on May "', "$A<. -n May "#, "$A< he
applied for a )rit of habeas corpus fro the Circuit Court of 2ndianapolis. -n May
"", 0ustice 6avis and 0udge Mc6onald certified that they differed in opinion and,
therefore, pursuant to the statute of "$#&, elevated their *uestions to the
%upree Court. -n 0une 7, "$A< the death sentence )as couted to life
iprisonent by President 0ohnson )ho had succeeded to the Presidency after
the assassination of :incoln. The %upree Court heard the parties! arguents for
eight days, on March <, A, (, $, ', "& and "7, and April 7, "$AA. -n 6eceber
"@, "$AA the decision of the %upree Court voiding Milligans trial )as
announced. .
2n +n ,e Moyer,
11
artial rule )as proclaied in Colorado on March &7, "'#@.
Application for a )rit of habeas corpus )as filed )ith the %tate %upree Court on
April "@, "'#@, see4ing the release of Moyer )ho had been detained under the
Colorado governor!s proclaation. -n 0une A, "'#@ the coplaint )as disissed
and the petitioner )as reanded to the custody of the ilitary authorities. The
Court held that as an incident to the proclaation of artial la), the petitioner!s
arrest and detention )ere la)ful. Moyer subse*uently brought an action for
daages for his iprisonent fro March 7# to 0une "<, "'#@. The coplaint
)as disissed by the Circuit Court. -n )rit of error, the G.%. %upree Court
affired, holding that B%o long as such arrests are ade in good faith and in the
honest belief that they are needed in order to head the insurrection off, the
office, on the ground that he had no reasonable ground for his belief.B
13
3inally, in /uncan vs. .ahanamoku,
14
Ca)aii )as placed under artial rule on
6eceber (, "'@", after the 0apanese snea4 attac4 on Pearl Carbor. The
petitioner 6uncan )as tried by a provost court on March &, "'@@, and found
guilty on April "7 of assault on t)o arine sentries. The other petitioner, /hite,
)as charged on August &<, "'@&, also before a provost court, )ith ebe,,ling
stoc4s belonging to another civilian. /hite and 6uncan *uestioned the po)er of
the ilitary tribunals in petitions for habeas corpus filed )ith the 6istrict Court of
Ca)aii on March "@ and April "@, "'@@, respectively. /rits )ere granted on May
&, "'@@, and after trial the 6istrict Court held the ilitary trials void and ordered
the release of 6uncan and /hite. -n -ctober &@, "'@@ the privilege of the )rit of
habeas corpus )as restored and artial la) )as terinated in Ca)aii. -n appeal,
the decision of the 6istrict Court )as reversed.
15
Certiorari )as granted by the
G.%. %upree Court on 3ebruary "&, "'@<. "A -n 3ebruary &<, "'@A the Court
held that the trials of /hite and 6uncan by the ilitary tribunals )ere void.
2n truth, as the Court in Milligan recogni,ed, its decision could not have been
ade )hile the Civil /ar lasted. 0ustice 6avis )rote?
6uring the /ic4ed Rebellion, the teper of the ties did not allo) that calness
in deliberation and discussion so necessary to a correct conclusion of a purely
+udicial *uestion. Then, considerations of safety )ere ingled )ith the e1ercise of
po)er. and feelings and interests prevailed )hich are happily terinated. No)
that the public safety is assured, this *uestion as )ell as all others, can be
discussed and decided )ithout passion or the adi1ture of an cleent not
re*uired to for a legal +udgent. /e approached the investigation of this case
fully sensible of the agnitude of the in*uiry and the of full and cautious
deliberation.
17
No doubt there is a point, although controversial, in the observation that in the
instances +ust e1ained a successful challenge )as possible only retroactively,
after the cessation of the hostilities )hich )ould under any circustances have
+ustified the +udgent of the ilitary.
1*
Nor did it offend against principle or ethics for the ebers of this Court to ta4e
an oath to support the "'(7 Constitution. After this Court declared that, )ith the
disissal of the petitions *uestioning the validity of the ratification of the ne)
Constitution, there )as Bno longer any +udicial obstacle to the ne) Constitution
being considered in force and effect,B
19
it becae the duty of the ebers of the
Court, let alone all other governent functionaries, to ta4e an oath to support the
ne) Constitution. /hile it is true that a a+ority of si1 +ustices declared that the
"'(7 Constitution )as not validly ratified, it is e*ually true that a a+ority of si1
+ustices held that the issue of its e))ectivity )as a political *uestion, )hich the
Court )as not e*uipped to deterine, depending as it did on factors for )hich the
+udicial process )as not fit to resolve. Resolution of this *uestion )as dispositive
of all the issues presented in the Ratification Cases. 2t thus becae untenable for
the ebers of the Court )ho held contrary opinions to press their opposition
beyond the decision of those cases. 3undaental respect for the rule of la)
dictated that the ebers of the Court ta4e an oath to uphold the ne)
Constitution. There is nothing in that solen oath that debases their individual
personal integrity or renders the un)orthy or incapable of doing +ustice in these
cases. Nor did the environental ilieu of their ad+uration in any anner deean
their high offices or detract fro the legitiacy of the Court as the highest
+udicial collegiu of the land.
222
3ro its Anglo;%a1on origin and throughout its slo) evolution, the concept, scope
and boundaries, application, liitations and other facets of artial la) have been
the sub+ect of isunderstanding, controversy and debate.
1/
To the legal scholar
interested in set legal principles and precise distinctions, artial la) could be a
frustrating sub+ect. -n the atter of its definition alone, it is 4no)n to have as
any definitions as there are nuerous authors and court decision s 8not to
discount the dissenting opinions= on the sub+ect. The doctrinal developent of
artial la) has relied ainly on case la),
11
and there have been relatively fe)
truly distinctive types of occasions )here artial la), being the e1traordinary
reedy that it is, has been resorted to.
2n the Philippines, the only other notable instance )hen artial la) )as declared
)as on %epteber &&, "'@@, per Proclaation No. &' proulgated by President
0ose P. :aurel. But this )as pursuant to the constitution of the short;lived
0apanese -ccupation Republic, and the event has not been 4no)n to be
productive of any +urisprudential pronounceents eanating fro the high court
of the land.
Not)ithstanding the confused state of +urisprudence on the sub+ect of artial la)
in England and in the Gnited %tates, and, conse*uently, in the Philippines, a
useful 4no)ledge of the la) on the sub+ect can fairly be had fro a study of its
historical bac4ground and its rationale, its doctrinal developent, applicable
constitutional and statutory provisions, and authoritative court decisions and
coentaries.
:egal scholars trace the genesis of artial la) to England starting fro the age of
the Tudors and the %tuarts in the "@th century )hen it )as first utili,ed for the
suppression of rebellions and disorders. 2t later cae to be eployed in the
British colonies and doinions )here its fre*uent e1ercise against British sub+ects
gave rise to the criticis that it )as being e1ploited as a )eapon to enhance
British iperialis.
11
2n the Gnited %tates, artial la) )as declared on nuerous occasions fro the
revolutionary period to the Civil /ar, and after the turn of the century. -ne of the
earliest instances in Aerican history )as the declaration of artial la) by 9en.
Andre) 0ac4son before the Battle of Ne) -rleans in "$"@. 3earing that the Ne)
-rleans legislature ight capitulate to the British, he placed the %tate under
Bstrict artial la)B and forbade the %tate legislature to convene. Martial la) )as
lifted after the Aerican victory over British ars. The Civil /ar period sa) the
declaration of artial la) on any occasions by both the Confederate and the
Gnion authorities. 2t has also been resorted to in cases of insurrection and
rebellion, as e1eplified by the /his4ey rebellion 8"('@ in Pennsylvania and
Dirginia= and the 6orr!s rebellion 8"$@& in Rhode 2sland=. Martial la) has also
been utili,ed during periods of disaster, such as the %an 3rancisco earth*ua4e and
fire of "'#A, and in industrial disputes involving violence and disorder. 2t has
li4e)ise been variously instituted to police elections, to ta4e charge of tic4et sales
at a football gae, to prevent the foreclosure of ortgages to close a race trac4.
2n an e1tree case, the governor of 9eorgia proclaied artial la) around a
governent building to e1clude fro its preises a public official )ho he )as
en+oined fro reoving.
13
At the close of the /orld /ar 2, the ter Bartial la)B )as erroneously eployed
to refer to the la) adinistered in eney territory occupied by the allied forces
pending the aristice . &" /illia /inthrop states that the earlier confusion
regarding the concept of artial la), resulting partly fro the )rong definition of
the ter by the 6u4e of /ellington )ho had said that Bit is nothing ore nor less
than the )ill of the general,B had isled even the %upree Court of the Gnited
%tates.
15
2n the leading case of ! &arte Milligan,
16
ho)ever, Chief 0ustice Chase,
in his dissenting opinion, clarified and laid do)n the classic distinctions bet)een
the types of military 0urisdiction in relation to the ters Bartial la),B Bilitary
la)B and Bilitary governent,B )hich to a great e1tent cleared the confusion in
the application of these ters.
These distinctions )ere later incorporated in the Manual for Courts;Martial of the
Gnited %tates Ary,
17
after )hich the Manual for Courts;Martial of the Ared
3orces of the Philippines, proulgated on 6eceber "(, "'7$ pursuant to
E1ecutive -rder No. "($, )as patterned. 2n essence, these distinctions are as
follo)s?
a. Military +urisdiction in relation to the ter military law is that e1ercised by a
governent Bin the e1ecution of that branch of its unicipal la) )hich regulates
its ilitary establishent.B 82n the G.%. and the Philippines, this refers principally
to the statutes )hich ebody the rules of conduct and discipline of ebers of
their respective ared forces. 2n the Philippines )e have for this purpose
Coon)ealth Act No. @#$, as aended, other)ise 4no)n as BThe Article of
/arB=.
b. Military +urisdiction in relation to the ter martial law is that e1ercised in tie
of rebellion and civil )ar by a governent teporarily governing the civil
population of a locality through its ilitary forces, )ithout the authority of )ritten
la), as necessity ay re*uire.
1*
c. Military +urisdiction in relation to the term military government is that
Be1ercised by a belligerent occupying an eney!s territory.B
19
8A failiar e1aple
of a ilitary governent )as, of course, that established and adinistered by the
0apanese ared forces in the Philippines fro "'@& to "'@<=.
/hat is the universally accepted fundaental +ustification of artial la)E /iener
in ' &ractical Manual Martial Law,
3/
ventures this +ustification? BMartial :a) is the
public la) of necessity. Necessity calls it forth, necessity +ustifies its e1istence,
and necessity easures the e1tent and degree to )hich it ay be eployed.B
Martial la) is founded upon the principle that the state has a right to protect itself
against those )ho )ould destroy it, and has therefore been li4ened to the right of
the individual to self;defense.
31
2t is invo4ed as an e1tree easure, and rests
upon the basic principle that every state has the po)er of self;preservation, a
po)er inherent in all states, because neither the state nor society )ould e1ist
)ithout it.
31
2D
2 no) proceed to discuss the issues posed in these cases.
2n Proclaation "#$", dated %epteber &", "'(&, the President of the Philippines
declared that la)less eleents, supported by a foreign po)er, )ere in Bared
insurrection and rebellion against the 9overnent of the Philippines in order to
forcibly sei,e political and state po)er, overthro) the duly constituted
governent and supplant our e1isting political, social, econoic and legal order
)ith an entirely ne) one ... based on the Mar1ist;:eninist;Maoist teachings and
beliefs.B Ce enuerated any and varied acts of violence coitted in
pursuance of the insurrection and rebellion. Ce therefore placed the Philippines
under artial la), coanded the ared forces to suppress the insurrection and
rebellion, enforce obedience to his decrees, orders and regulations, and arrest
and detain those engaged in the insurrection and rebellion or in other cries Bin
furtherance or on the occasion thereof, or incident thereto or in connection
there)ith.B The President invo4ed his po)ers under article D22 section "#8&= of
the "'7< Constitution Bto save the Republic and refor our society.B
33
By 9eneral -rder No. & the President directed the %ecretary of National 6efense
to Bforth)ith arrest or cause the arrest ... the individuals naed in the attached
lists for being participants or for having given aid and cofort in the conspiracy to
force ... in order to prevent the fro further coitting acts that are iniical or
in+urious ...B The %ecretary )as directed to hold in custody the individuals so
arrested Buntil other)ise so ordered by e or by y duly designated
representative.B The arrest and detention of the petitioners in these cases appear
to have been ade pursuant to this order.
2 cannot blin4 a)ay the star4 fact of a continuing Counist rebellion in the
Philippines. The Court has repeatedly ta4en cogni,ance of this fact in several
eases decided by it. 2n "'(", in Lansang vs. Garcia,
34
the Court, after revie)ing
the history of the Counist oveent in the country since the "'7#s,
concluded? B/e entertain, therefore, no doubts about the e1istence of a si,eable
group of en )ho have publicly risen in ars to overthro) the governent and
have thus been and still are engaged in rebellion against the 9overnent of the
Philippines.B 2t affired this finding in "'(& 7< in sustaining the validity of the
Anti;%ubversion Act 8Republic Act "(##=. The Act is itself a congressional
recognition and acute a)areness of the continuing threat of Counist
subversion to deocratic institutions in this country. Enacted in "'<(, it has
reained in the statute boo4s despite periodic agitation in any *uarters for its
total e1cision.
At ties the rebellion re*uired no ore than ordinary police action, coupled )ith
criinal prosecutions. Thus the "'7& Counist trials resulted in the conviction
of the )ell;4no)n Counists of the day? Crisanto Evangelista, 0acinto 9.
Manahan, 6oinador 0. Abrosio, 9uillero Capadocia, 2gnacio Nabong and 0uan
3eleo, aong others, for cries ranging fro illegal association to rebellion and
sedition.
36
The end of /orld /ar 22 sa) the resurgence of the Counist rebellion. No)
)ith an ary forged out of the forer Cu4balahaps 8the ared resistance against
the 0apanese= and renaed 1ukbong Mapagpalaya ng Bayan or CMB, the threat
to the security of the state becae so alevolent that on -ctober &&, "'<#,
President Elpidio Luirino )as ipelled to suspend the privilege of the )rit of
habeas corpus. This enabled the 9overnent to effect the apprehension of top
Counist Party leaders 9uillero Capadocia, 3lavio Nava, Aado D. Cernande,,
0esus :ava, 0ose :ava, Angel Ba4ing and %ieon Rodrigue,, aong others.
37

/hen challenged by one of those detained under the Presidential proclaation
the suspension of the privilege of the )rit of habeas corpus )as sustained by the
Court.
3*
The beginning of the "'(#s )as ar4ed by the rise of student activis. This
phenoenon s)ept around the globe, and did not spare our o)n colleges and
universities. %oon the capuses becae staging grounds for student
deonstrations that generally ended in bloody and not infre*uently lethal street
riots.
2n *avarro vs. 2illegas,
39
in upholding the po)er of the Mayor of Manila to
deterine the place and tie for the holding of public asseblies, this Court
noted 5
That e1periences in connection )ith present asseblies and deonstrations do
not )arrant the Court!s disbelieving respondent Mayor!s appraisal that a public
rally at Pla,a Miranda, as copared to one at the %un4en 9ardens as he
suggested, poses a clearer and ore iinent danger of public disorders,
breaches of the peace, criinal acts, and even bloodshed as an afterath of such
asseblies, and petitioner has anifested that it has no eans of preventing
such disorders.
That, conse*uently, every tie that such asseblies are announced, the
counity is placed in such a state of fear and tension that offices are closed
early and eployees disissed storefronts boarded up, classes suspended, and
transportation disrupted to the general detrient of the public.
Riding on the crest of student unrest, the Counist rebellion gained
oentu. As the Court noted in Lansang vs. Garcia,
4/
HTJhe reorgani,ed Counist Party of the Philippines has, oreover, adopted
resist of the governent, of the political, econoic and intellectual leadership,
and of the people theselves. that conforably to such concept the Party has
placed special ephasis upon ost e1tensive and intensive progra of
subversion by the establishent of front organi,ations in urban centers, the
)hich are the Malayang %aahan ng Magsasa4a 8MA%AMA= the Mabataang
%aahang 6eo4rati4o ng Mabataan 8%6M=, the %aahang Molave 8%M=, and the
Philippines, of )hich seventy;three 8(7= )ere in the 9reater Manila Area, si1ty
thirty;three i77= ended in violence, resulting in fifteen 8"<= 4illed and over five
that the nuber of deonstrations heretofore sta4ed in "'(" has already
e1ceeded those in "'(#. and that t)enty;four 8&@= of these deonstrations )ere
ore.
The ounting level of violence necessitated the suspension, for the second tie,
of the privilege of the )rit of habeas corpus on August &", "'(". The
9overnent!s action )as *uestioned in Lansang vs. Garcia. This Court found that
the intensification and spread of Counist insurgency iperiled the state. The
events after the suspension of the privilege of the )rit confired the alaring
e1tent of the danger to public safety?
%ubse*uent events 5 as reported 5 have also proven that petitioner!s counsel
have underestiated the threat to public safety posed by the Ne) People!s Ary.
8&= 4illed and three 87= )ounded on the side of the 9overnent, one 8"= MM;%6M
leader, an unidentified dissident, and Coander Panchito, leader of dissident
group, )ere 4illed. that on August &A, "'(", there )as an encounter in the Barrio
of %an Pedro, 2riga City, Caarines %ur, bet)een the PC and the NPA, in )hich a
PC and t)o 8&= MM ebers )ere 4illed. that the current disturbances in
Cotabato and the :anao provinces have been rendered ore cople1 by the
involveent of the CPPNNPA for, in id;"'(", a MM group headed by 0ovencio
Esparago,a, contacted the Ciga;onan tribes, in their settleent in Magsaysay,
Misais -riental, and offered the boo4s, paphlets and brochures of Mao Tse
Tung, as )ell as conducted teach;ins in the reservation. that Esparago,a )as
reportedly 4illed on %epteber &&, "'(", in an operation of the PC in said
reservation. and that there are no) t)o 8&= NPA cadres in Mindanao.
2t should, also, be noted that adherents of the CPP and its front organi,ation are
accordingly to intelligence findings, definitely capable of preparing po)erful
Constitutional Convention Call )as a !clay ore! ine, a po)erful e1plosive
device used by the G.%. Ar believed to have been one of any pilfered fro the
assassinations, 4idnappings, terroris and iss destruction of property and that
situation. that a si,eable part of our ared forces discharges other functions. and
country particularly Manila and its suburbs the Cagayan Dalley, 2fugao, >abales,
:aguna, Lue,on and Bicol Region, re*uired that the rest of our ared forces be
spread thin over a )ide area.
41
By virtue of these findings, the Court, led by Chief 0ustice Roberto Concepcion,
unaniously upheld the suspension of the privilege of the )rit of habeas corpus.
The Court said?
Considering that the President )as in possession of the above data 5 e1cept
those related to events that happened after August &", "'(" 5 )hen the Pla,a
Miranda propting, too4 place, the Court is not prepared to held that the
E1ecutive had acted arbitrarily or gravely abused his discretion )hen he then
concluded that public safety and national security re*uired the suspension of the
privilege of the )rit, particularly if the NPA )ere to stri4e siultaneously )ith
violent deonstrations staged by the t)o hundred forty;five 8&@<= MM chapters,
all over the Philippines, )ith the assistance and cooperation of the do,ens of CPP
front organi,ations, and the bobing of )ater ains and conduits, as )ell as
electric po)er plants and installations 5 a possibility )hich, no atter ho)
reote, he )as bound to forestall, and a danger he )as under obligation to
anticipate and at rest.
Ce had consulted his advisers and sought their vie)s. Ce had reason to feel that
the situation )as critical 5 as, indeed, it )as 5 and deanded iediate action.
This he too4 believing in good faith that public safety re*uired it. And, in the light
of the circustances adverted to above, he had substantial grounds to entertain
such belief.B
41
The suspension of the privilege of the )rit )as lifted on 0anuary (, "'(&, but
soon thereafter chaos engulfed the nation again. A large area of the country )as
in open rebellion. The authority of the 9overnent )as frontally challenged by a
coalition of forces. 2t )as against this bac4drop of violence and anarchy that
artial la) )as proclaied on %epteber &", "'(&.
Personally 2 ta4e notice of this condition, in addition to )hat the Court has found
in cases that have coe to it for decision, and there is no cogent reason for e to
say as a atter of la) that the President e1ceeded his po)ers in declaring artial
la). Nor do 2 believe that the %olicitor 9eneral!s anifestation of May "7, "'(@ to
the effect that )hile on the )hole the ilitary challenge to the Republic has been
overcoe there are still large areas of conflict )hich )arrant the continued
iposition of la), can be satisfactorily controverted by or by any perceptive
observer of the national scene.
As 2 )ill point out in this opinion, the fact that courts are open be accepted as
proof that the rebellion and )hich copellingly called for the declaration of
artial la), no longer iperil the public safety. Nor are the any surface indicia
adverted to by the petitioners 8the increase in the nuber of tourists, the choice
of Manila as the conferences and of an international beauty contest= to be
regarded as evidence that the threat to public safe has abated. There is actual
ared cobat, attended by the sober panoply )ar, raging in %ulu and
Cotabato, not to not ention the region and Cagayan Dalley.
43
2 a hard put to
say, therefore, that the 9overnent!s clai is baseless.
2 a not insensitive to the plea ade here in the nae of individual liberty. But to
paraphrase ! parte Moyer,
44
if it )ere the liberty alone of the petitioner 6io4no
that is. in issue )e )ould probably resolve the doubt in his favor and grant his
application. But the %olicitor 9eneral, )ho ust be deeed to represent the
President and the E1ecutive 6epartent in this case,
45
has anifested that in the
President!s +udgent peace and tran*uility cannot be speedily restored in the
country unless the petitioners and others li4e the eantie reain in ilitary
custody. 3or, indeed, the central atter involved is not erely the liberty of
isolated individuals, but the collective peace, tran*uility and security of the entire
nation. D.
The "'7< Constitution coitted to the President the deterination of the public
e1igency or e1igencies re*uiring the proclaation of artial la). 2t provided in
article D22, section "#8&= that 5
prevent or suppress la)less violence,
46
invasion, insurrection, or rebellion. 2n
case of invasion, insurrection, or rebellion, or einent danger thereof, )hen the
corpus# or place the Philippines or any part thereof under artial la).
47
2n the "'7@ Constitutional Convention it )as proposed to vest the po)er to
suspend the privilege of the )rit of habeas corpus in the National Assebly. The
proposal, sponsored by 6elegate Araneta, )ould give this po)er to the President
only in cases )here the Assebly )as not in session and then only )ith the
consent of the %upree Court. But the a+ority of the delegates entertained the
fear that the 9overnent )ould be po)erless in the face of danger.
4*
They
re+ected the Araneta proposal and adopted instead the provisions of the 0ones
:a) of "'"A. The fraers of the Constitution reali,ed the need for a strong
E1ecutive, and therefore chose to retain the provisions of the forer organic acts,
49
)hich, adapted to the e1igencies of colonial adinistration , naturally ade the
9overnor 9eneral a strong E1ecutive.
Construing a siilar provision of the Philippine Bill of "'#& )hich authori,ed the
9overnor 9eneral, )ith the approval of the Philippine Coission, to suspend the
privilege of the )rit of habeas corpus B)hen in cases of rebellion, insurrection, or
invasion the public safety ay re*uire it,B this Court held that the 9overnor
9eneral!s finding as to the necessity for such action )as Bconclusive and finalB on
the +udicial departent.
5/
This ruling )as affired in "'<& in Montenegro vs.
Castaeda,
51
this Court stating that 5
the authority to decide )hether the e1igency has arisen re*uiring, the suspension
belongs to the President and !his decision is final and conclusive! upon the courts
and upon all other persons.
2t is true that in Lansang vs. Garcia
51
there is language that appears to detract
fro the unifor course of +udicial construction of the Coander;in;Chief
Clause. But a close reading of the opinion in that case sho)s that in the ain
there )as adherence to precedents. To be sure, the Court there asserted the
po)er to in*uire into the Be1istence of the factual bases Hfor the suspension of
the privilege of the )rit of habeas corpusJ in order to deterine the sufficiency
thereof,B But this broad assertion of po)er is *ualified by the Court!s
unabiguous stateent that Bthe function of the Court is, erely to chec4 not to
5 supplant 5 the E1ecutive, or to ascertain merely whether he has gone beyond
the constitutional liits of his +urisdiction, not to e!ercise the power vested in
him or to deterine the )isdo of his act.B 3or this reason this Court announced
that the test )as not )hether the President acted correctly but )hether he acted
arbitrarily. 2n fact this Court read Barcelon and Montenegro as authori,ing +udicial
in*uiry into B)hether or not there really )as a rebellion, as stated in the
proclaation therein contested.B
-f course the +udicial departent can deterine the e!istence of the conditions
for the e1ercise of the President!s po)ers and is not bound by the recitals of his
proclaation. But )hether in the circustances obtaining public safety re*uires
the suspension of the privilege of the )rit of habeas corpus or the proclaation of
artial la) is initially for the President to decide. Considerations of coitent
of the po)er to the e1ecutive branch of the 9overnent and the lac4 of accepted
standards for dealing )ith incoensurable factors, suggest the )isdo of
considering the President!s finding as to necessity persuasive upon the courts.
This conclusion results fro the nature of the po)er vested in the President and
fro the evident ob+ect conteplated. 3or that po)er is intended to enable the
9overnent to cope )ith sudden eergencies and eet great occasions of state
under circustances that ay be crucial to the life of the nation.
53
The fact that courts are open and in the unobstructed discharge of their functions
is pointed to as proof of the absence of any +ustification for artial la). The ruling
in Milligan
54
and /uncan
55
is invo4ed. 2n both cases the G.%. %upree Court
reversed convictions by ilitary coissions. 2n Milligan the Court stated that
Bartial la) cannot arise fro a threatened invasion. The necessity ust be
actual and present, the invasion real, such as effectually closes the courts and
deposes the civil adinistration.B 2n /uncan a siilar e1pression )as ade? BThe
phrase !artial la)! ... )hile intended to authori,e the ilitary to act vigorously
for the aintenance of an orderly civil governent and for the defense of the
2slands against actual or threatened rebellion or invasion, )as not intended to
authori,e the supplanting of courts by ilitary tribunals.B
But Milligan and /uncan )ere decided on the basis of a )idely disparate
constitutional provision. /hat is ore, to the e1tent that they ay be regarded
as ebodying )hat the petitioners call an Bopen courtB theory, they are of
doubtful applicability in the conte1t of present7day subversion.
Gnli4e the detailed provision of our Constitution, the G.%. 3ederal Constitution
does not e1plicitly authori,e the G.%. President to proclai artial la). 2t siply
states in its article 22, section & that Bthe President shall be Coander;in;Chief
of the Ary and Navy of the Gnited %tates, and of the Militia of the several
%tates, )hen called into the actual %ervice of the Gnited %tates. ...B -n the other
hand, our Constitution authori,es the proclaation of artial la) in cases not
only of actual invasion, insurrection or rebellion but also of Biinent dangerB
thereof.
2t is true that in /uncan the G.%. %upree Court dealt )ith a G.%. statute that in
ters )as siilar to the Philippine Constitution. %ection A( of the Ca)aiian
-rganic Act provided that BHthe Territorial 9overnorJ ay, in case of invasion, or
iinent danger thereof, )hen public safety re*uires it, suspend the privilege of
the )rit of habeas corpus, or place the Territory, or any part thereof under artial
la) until counication can be had )ith the President Hof the Gnited %tatesJ and
his decision thereof ade 4no)n.B 2n fact the Ca)aiian -rganic Act, that of
Puerto Rico, and the 0ones la) of "'"A, fro )hich latter la), as 2 have earlier
noted, the Coander;in;Chief Clause of our Constitution )as adopted, )ere
part of the legislation of the G.%. Congress during the colonial period. But again,
unli4e the 0ones :a), the Ca)aiian -rganic Act also provided in its section < that
the G.%. 3ederal Constitution Bshall have the sae force and effect in the territory
Hof Ca)aiiJ as else)here in the Gnited %tates. 3or this reason it )as held in
/uncan that Biinent dangerB of invasion or rebellion )as not a ground for
authori,ing the trial of civilians by a ilitary tribunal. Cad /uncan been decided
solely on the basis of section A( of the Ca)aiian -rganic Act and had the
petitioners in that case been tried for offenses connected )ith the prosecution of
the )ar,
56
the prison sentences iposed by the ilitary tribunals )ould in all
probability had been upheld. As a atter of fact those )ho argued in /uncan that
the po)er of the Ca)aiian governor to proclai artial la) coprehended not
only actual rebellion or invasion but also Biinent danger thereofB )ere faced
)ith the proble of reconciling, the t)o parts of the Ca)aiian -rganic Act. They
contended that Bif any paint of section A( )ould other)ise be unconstitutional
section < ust be construed as e1tending the HG.%.J Constitution to Ca)aii
sub+ect to the *ualifications or liitations contained in section A(.B
57
3orsooth, if the po)er to proclai artial la) is at all recogni,ed in Aerican
federal constitutional la), it is only by iplication fro the necessity of self;
preservation and then sub+ect to the narro)est possible construction.
Nor is there any %tate Constitution in the Gnited %tates, as the appended list
indicates 8see 'ppendi!=, )hich in scope and e1plicitness can copare )ith the
Coander;in;Chief Clause of our Constitution. The Alas4a Constitution, for
e1aple, authori,es the governor to proclai artial la) )hen the public safety
re*uires it in case of rebellion or actual or iinent invasion. But even then it
also provides that artial la) shall not last longer than t)enty days unless
approved by a a+ority of the legislature in +oint session. -n the other hand, the
present Constitution of Ca)aii does not grant to the %tate governor the po)er to
suspend the )rit of habeas corpus or to proclai artial la) as did its -rganic
Act before its adission as a %tate to the Aerican Gnion.
An uncritical reading of Milligan and /uncan is li4ely to overloo4 these crucial
differences in te1tual concepts bet)een the Philippine Constitution, on the one
hand, and the 3ederal and %tate Constitutions of the Gnited %tates, on the other.
2n our case then the inclusion of the Biinent dangerB phrase as a ground for
the suspension of the privilege of the )rit of habeas corpus and for the
proclaation of artial la) )as a atter of deliberate choice and renders the
language of Milligan 8Bartial la) cannot arise fro a threatened invasionB=
inapposite and therefore inapplicable.
The Philippine Bill of "'#& provided in its section &, paragraph ( 5
that the privilege of the )rit of habeas corpus shall not be suspended unless
the 9overnor 9eneral )ith the approval of the Philippine Coission, )herever
The 0ones :a) of "'"A substantially reenacted this provision. Thus section 7,
paragraph ( thereof provided?
it, in either of )hich events the sae ay be suspended by the President or by
the 9overnor 9eneral, )herever during such period the necessity for such
suspension shall e1ist.
2n addition, the 0ones :a) provided in its section &" that 5
... HThe 9overnor 9eneralJ ay, in case of rebellion or invasion, or iinent
danger thereof, )hen the public safety re*uires it, suspend the privileges of the
)rit of habeas corpus or place the 2slands, or any part thereof, under artial la)?
&rovided That )henever the 9overnor 9eneral shall e1ercise this authority, he
shall at once notify the President of the Gnited %tates thereof, together )ith the
attending facts and circustances, and the President shall have po)er to odify
or vacate the action of the 9overnor 9eneral.
Note that )ith respect to the suspension of the privilege of the )rit of habeas
corpus, section &" entions, as ground therefor, Biinent dangerB of invasion or
rebellion. /hen the Constitution )as drafted in "'7@, its fraers, as 2 have
already noted, decided to adopt these provisions of the 0ones :a). /hat )as
section 7, paragraph (, in the 0ones :a) becae section "8"@= of article 222 8Bill
of Rights= of the Constitution. and )hat )as section &" becae article D22,
section "#8&= 8Coander;in;Chief Clause=. Thus, the Bill of Rights provision
reads?
!)hich events the sae ay be suspended )herever during such period the
necessity for such suspension shall e1ist.
-n the other hand, the Coander;in;Chief Clause states?
The attention of the "'7@ Convention )as dra)n to the apparent inconsistency
bet)een the Bill of Rights provision and the Coander;in;Chief Clause. %oe
delegates tried to haroni,e the t)o provisions by inserting the phrase Biinent
danger thereofB in the Bill of Rights provision, but on reconsideration the
Convention deleted the phrase fro the draft of the Bill of Rights provision, at the
sae tie retaining it in the Coander;in Chief Clause.
/hen this apparent inconsistency )as raised in a suit
5*
*uestioning the validity of
President Luirino suspension of the privilege of the )rit of habeas corpus, this
Court sustained the President!s po)er to suspend the privilege of the )rit even on
the ground of iinent danger of invasion, insurrection or rebellion. 2t held that
as the Coander;in;Chief Clause )as last in the order of tie and local position
it should be deeed controlling. This rationali,ation has evo4ed the criticis that
the Constitution )as approved as a )hole and not in parts, but in result the
decision in that case is certainly consistent )ith the conception of a strong
E1ecutive to )hich the "'7@ Constitutional Convention )as coitted.
The "'(7 Constitution li4e)ise authori,es the suspension of the privilege of the
)rit of habeas corpus on the ground of iinent danger of invasion, insurrection
and rebellion.
The so;called Bopen courtB theory does not apply to the Philippine situation
because our "'7< and "'(7 Constitutions e1pressly authori,e the declaration of
artial la) even )here the danger to public safety arises erely fro the
iinence of invasion, insurrection, or rebellion. Moreover, the theory is too
siplistic for our day, what with the universally recogni%ed insidious nature o)
Communist subversion and its covert operations.
2ndeed the theory has been disissed as unrealistic by perceptive students of
Presidential po)ers.
Charles 3airan says?
These easures are unprecedented but so is the danger that called the into
being. -f course )e are not )ithout la), even in tie of crisis. Ket the cases to
)hich one is cited in the digests disclose such confusion of doctrine as to perple1
a la)yer )ho suddenly tries to find his bearings. Casty recollection of ! parte
Milligan recalls the dictu that !Martial rule cannot arise fro a threatened
invasion. The necessity ust be actual and present. the invasion real, such as
effectually closes the courts and deposes the civil adinistration.! Not even the
aerial attac4 upon Pearl Carbor closed the courts or of its o)n force deposed the
civil adinistration. yet it )ould be the coon understanding of en that those
agencies )hich are charged )ith the national defense surely ust have authority
to ta4e on the spot soe easures )hich in noral ties )ould be ultra vires.
And )hilst college sophoores are taught that the case stands as a constitutional
landar4, the hard fact is that of late governors have fre*uently declared !artial
la)! and !)ar! and have been +udicially sustained in their easures. Gndoubtedly,
any of these cases involving the suspension of stri4ers )ent uch too far. But
+ust as certainly 5 so it )ill be argued here 5 the doctrine of the a+ority in E1
parte Milligan does not go far enough to eet the conditions of odern )ar.
59
Clinton Rossiter )rites?
2t is siply not true that !artial la) cannot arise fro a threatened invasion,! or
that artial rule can never e1ist )here the courts are open.! These stateents do
not present an accurate definition of the allo)able liits of the artial po)ers of
the President and Congress in the face of alien threats of internal disorder. Nor
)as 6avis! dictu on the specific po)er of Congress in this atter any ore
accurate. And, ho)ever elo*uent *uotable his )ords on the untouchability of the
Constitution in tie of actual crisis, and did not then, e1press the realities of
Aerican constitutional la).
6/
/illia /inthrop a4es these thoughtful observations?
2t has been declared by the %upree Court in ! parte Milligan that artial la)! is
confined to the locality of actual )ar,! and also that it !can never e1ist )hen the
courts are open and in the proper and unobstructed e1ercise of their 0urisdiction.!
But this ruling )as ade by a bare a+ority 5 five 5 of the court, at a tie of
great political e1citeent and the opinion of the four other ebers, as delivered
by the Chief 0ustice, )as to the effect that artial la) is not necessarily liited to
tie of )ar, but ay be e1ercised at other periods of !public danger,! and that the
)act that the civil courts are open is not controlling against such e!ercise, since
they !ight be open and undisturbed in the e1ecution of their functions and yet
)holly incopetent to avert threatened danger or to punish )ith ade*uate
proptitude and certainty the guilty.! 2t is the opinion of the author that the of
the view o) the minority o) the court is the sounder and more reasonable one, and
that the dictu of the a+ority )as influenced by a confusing of artial la)
proper )ith that military government )hich e1ists only at a tie and on the
theater of )ar, and )hich )as clearly distinguished fro artial la) by the Chief
0ustice in the dissenting opinion 5 the first coplete +udicial definition of the
sub+ect.
61
8ephasis supplied=
2n 8ueen vs. Bekker 8on the occasion of the Boer /ar= 0ustice Maasdorp
categorically affired that Bthe e1istence of civil courts is no proof that artial
la) has becoe unnecessary.
61
D2
9iven then the validity of the proclaation of artial la), the arrest and
detention of those reasonably believed to be engaged in the disorder or in
forenting it is )ell nigh beyond *uestioning. Negate the po)er to a4e such
arrest and detention, and artial la) )ould be Bere parade, and rather
encourage attac4 than repel it.B
63
Thus, in Moyer vs. &eabody,
64
the Court
sustained the authority of a %tate governor to hold teporarily in custody one
)ho he believed to be engaged in forenting trouble, and denied recovery
against the governor for the iprisonent. 2t )as said that, as the governor
Bay 4ill persons )ho resist,B he ay use the ilder easure of sei,ing the
bodies of those )ho he considers in the )ay of restoring peace. %uch arrests
are not necessarily for punishent, but are by )ay of precaution to prevent the
9overnor is the final +udge and cannot be sub+ected to an action after he is out of
office on the ground that he had no reasonable ground for his belief.B
2t is true that in "terling vs. Contantin
65
the sae Court set aside the action of a
%tate governor ta4en under artial la). But the decision in that case rested on
the ground that the action set aside had no direct relation to the *uelling of the
uprising. There the governor of Te1as issued a proclaation stating that certain
counties )ere in a state of insurrection and declaring artial la) in that territory.
The proclaation recited that there )as an organi,ed group of oil and gas
producers in insurrection against conservation la)s of the %tate and that this
condition had brought such a state of public feeling that if the %tate governent
could not protect the public!s interest they )ould ta4e the la) into their o)n
hands. The proclaation further recited that it )as necessary that the Railroad
Coission be given tie to a4e orders regarding oil production. /hen the
Coission issued an order liiting oil production, the coplainants brought suit
iii the 6istrict Court )hich issued restraining orders, )hereupon 9overnor %terling
ordered 9eneral /olters of the Te1as National 9uards to enforce a liit on oil
production. 2t )as this order of the %tate governor that the 6istrict Court
en+oined. -n appeal the G.%. %upree Court affired. After assuing that the
governor had the po)er to declare artial la), the Court held that the order
restricting oil production )as not +ustified by the e1igencies of the situation.
... 3undaentally, the *uestion here is not the po)er of the governor to proclai
that a state of insurrection, or tuult or riot, or breach of the peace e1ists, and
that it is necessary to call ilitary force to the aid of the civil po)er. Nor does the
*uestion relate to the *uelling of disturbance and the overcoing of unla)ful
resistance to civil authority. The *uestion before us is siply )ith respect to the
9overnor!s attept to regulate by e1ecutive order the la)ful use of coplainants!
properties in the production of oil. 2nstead of affording the protection in the
e1ercise of their rights as deterined by the courts, he sought, by his e1ecutive
orders, to a4e that e1ercise ipossible.
-n the other hand, )hat is involved here is the validity of the detention order
under )hich the petitioners )ere ordered arrested. %uch order is, as 2 have
already stated, a valid incident of artial la). /ith respect to such *uestion
Constantin held that Beasures, conceived in good faith, in the face of the
eergency and directly related to the *uelling of the disorder or the prevention of
its continuance, fall )ithin the discretion of the E1ecutive in the e1ercise of his
authority to aintain peace.B
2n the cases at bar, the respondents have +ustified the arrest and detention of the
petitioners on the ground of reasonable belief in their coplicity in the rebellion
and insurrection. E1cept 6io4no and A*uino, all the petitioners have been
released fro custody, although sub+ect to defined restrictions regarding personal
oveent and e1pression of vie)s. As the danger to public safety has not
abated, 2 cannot say that the continued detention of 6io4no and A*uino and the
restrictions on the personal freedos of the other petitioners are arbitrary, +ust as
2 a not prepared to say that the continued iposition of artial rule is
un+ustified.
As the Colorado %upree Court stated in denying the )rit of habeas corpus in
Moyer9
66
Cis arrest and detention in such circustances are erely to prevent hi fro
ta4ing part or aiding in a continuation of the conditions )hich the governor, in the
discharge of his official duties and in the e1ercise of the authority conferred by
la), is endeavoring to suppress.
D22
/hile courts ay in*uire into or ta4e +udicial notice of the e!istence of conditions
claied to +ustify the e1ercise of the po)er to declare artial la),
67
the
deterination of the necessity for the e1ercise of such po)er is )ithin the
periphery of the constitutional doain of the President. and as long as the
easures he ta4es are reasonably related to the occasion involved, interference
by the courts is officious.
2 a confired in this construction of Presidential po)ers by the consensus of the
"'(" Constitutional Convention to strengthen the concept of a strong E1ecutive
and by the confiration of the validity of acts ta4en or done after the
proclaation of artial la) in this country. The "'(7 Constitution e1pressly
authori,es the suspension of the privilege of the )rit of habeas corpus as )ell as
the iposition of artial la) not only on the occasion of actual invasion,
insurrection or rebellion, but also )here the danger thereof is iinent. A$
Acrionious discussion on this atter has thus becoe pointless and should
therefore cease.
The ne) Constitution as )ell provides that 5
ratification of this constitution, unless odified, revo4ed, or superseded by
incubent President, or unless e1pressly aid e1plicitly odified or repealed by the
regular National Assebly.
69
The effectivity of the ne) Constitution is no) beyond all anner of debate in vie)
of the Court!s decision in the Ratification Cases (# as )ell as the deonstrated
ac*uiescence therein by the 3ilipino people in the historic 0uly "'(7 national
referendu.
D222
2t is thus evident that suspension of the privilege of the )rit of habeas corpus is
unavoidable subsued in a declaration of artial la), since one basic ob+ective of
artial rule is to neutrali,e effectively 5 by arrest and continued detention 8and
possibly trial at the proper and opportune tie= 5 those )ho are reasonably
believed to be in coplicity or are particeps criminis in the insurrection or
rebellion. That this is so and should be so is ineluctable to deny this postulate is
to negate the very fundaental of artial la)? the preservation of society and
the survival of the state. To recogni,e the iperativeness and reality of artial
la) and at the sae tie dissipate its efficacy by )ithdra)ing fro its abit the
suspension of the privilege of the )rit of habeas corpus is a proposition 2 regard
as fatuous and therefore repudiate.
2nvasion and insurrection, both of the conditions of violence, are the factual
prere*uisites of artial la) ... The rights of person and property present no
obstruction to the authorities acting under such a regie, if the acts )hich
encroach upon the are necessary to the preservation or restoration of public
order and safety. &rinceps et res publica e! 0usta causa possunt rem meam
au)erre. All the procedures )hich are recogni,ed ad+uncts of e1ecutive crisis
governent ... are open to the persons )ho bear official authority under artial
la). The governent ay )ield arbitrary po)ers of police to allay disorder, arrest
and detain )ithout trial all citi,ens ta4ing part in this disorder and even punish
the 8in other words# suspend the :privilege o) the; writ o) habeas corpus=,
institute searches and sei,ures )ithout )arrant, forbid public asseblies, set
curfe) hours, suppress all freedo of e1pression, institute courts artial for the
suary trial of cries perpetrated in the course of this regie and calculated to
defeat its purposes ...
71
8ephasis supplied=
The point here is )hether artial la) is siply a shorthand e1pression denoting
the suspension of the )rit, or )hether artial la) involves not only the
suspension of the )rit but uch ore besides. ... The latter vie) is probably
sounder because artial la) certainly in the present state of its developent, is
not at all dependent on a suspension of the )rit of habeas corpus. ... /here there
has been violence or disorder in fact, continued detention of offenders by the
ilitary is so far proper as to result in a denial by the courts of )rits releasing
those detained. ...
71
2I.
Although the respondents, in their returns to the )rits and in their ans)ers to the
several petitions, have insisted on a disclaier of the +urisdiction of this Court, on
the basis of 9eneral -rders Nos. 7 and 7;A,
73
their subse*uent anifestations
urging decision of these cases aount to an abandonent of this defense. 2n
point of fact President Marco has )ritten, in unista4able phrase, that B-ur
artial la) is uni*ue in that it is based on the supreacy of the civilian authority
over the ilitary and on coplete subission of the decision of the %upree
Court. ... 3or )ho is the dictator )ho )ould subit hiself to a higher body li4e
the %upree Court on the *uestion of the constitutionality or validity of his
actionsEB
74
Construing this avo)al of the President and the repeated urgings of
the respondents in the light of the above*uoted provision of the "'(7 Constitution
8Art. ID22, sec. 78&==, it is y subission that 9eneral -rders Nos. 7 and 7;A
ust be deeed revo4ed in so far as they tended to oust the +udiciary of
+urisdiction over cases involving the constitutionality of proclaations, decrees,
orders or acts issued or done by the President.
I
2n su and substance, 2 firly adhere to these vie)s? 8"= that the proclaation
of artial la) in %epteber "'(& by the President )as )ell )ithin the aegis of
the "'7< Constitution. 8&= that because the Counist rebellion had not abated
and instead the evil ferent of subversion had proliferated throughout the
archipelago and in any places had e1ploded into the roar of ared and searing
conflict )ith all the sophisticated panoply of )ar, the iposition of artial la) )as
an Biperative of national survival.B 87= that the arrest and detention of persons
)ho )ere Bparticipants or gave aid and cofort in the conspiracy to sei,e political
and state po)er and to ta4e over the governent by force,B )ere not
unconstitutional nor arbitrary. 8@= that subsued in the declaration of artial la)
is the suspension of the privilege of the )rit of habeas corpus. 8<= that the fact
that the regular courts of +ustice are open cannot be accepted as proof that the
rebellion. and insurrection, )hich copellingly called for the declaration of artial
la), no longer iperil the public safety. 8A= that actual ared cobat has been
and still is raging in Cotabato, :anao, %ulu and >aboanga, not to ention the
Bicol Region and Cagayan Dalley, and nation)ide Counist subversion continues
unabated. 8(= that the host of doubts that had plagued this Court )ith respect to
the validity of the ratification and conse*uent effectivity of the "'(7 Constitution
has been copletely dispelled by every rational evaluation of the national
referendu of 0uly "'(7, at )hich the people conclusively albeit *uietly,
deonstrated nation)ide ac*uiescence in. the ne) Constitution. and 8$= that the
issue of the validity and constitutionality of the arrest and detention of all the
petitioners and of the restrictions iposed upon those )ho )ere subse*uently
freed, is no) foreclosed by the transitory provision of the "'(7 Constitution 8Art,
ID22. %ec. 78&== )hich efficaciously validates all acts ade, done or ta4en by the
President, or by others upon his instructions, under the regie of artial la),
prior to the ratification of the said Constitution.
I2
2t is not a ere surreal suspicion on the part of the petitioner 6io4no that the
incubent ebers of this highest Tribunal of the land have reoved theselves
fro a level of conscience to pass +udgent upon his petition for habeas corpus
or afford hi relief fro his predicaent. Ce has actually articulated it as a
foral indictent. 2 venture to say that his obsessional preoccupation on the
ability of this Court to reach a fair +udgent in relation to hi has been, in no
sall easure, engendered by his elancholy and bitter and even perhaps
trauatic detention. And even as he a4es this serious indictent, he at the
sae tie )ould )ithdra) his petition for habeas corpus 5 hoping thereby to
achieve artyrdo, albeit dubious and aorphous. As a coentary on this
indictent, 2 here that for y part 5 and 2 a persuaded that all the other
ebers of this Court are situated siilarly 5 2 avo) fealt to the full intendent
and eaning of the oath 2 have ta4en as a +udicial agistrate. Gtili,ing the
odest endo)ents that 9od has granted e, 2 have endeavored in the past
eighteen years of y +udicial career 5 and in the future )ill al)ays endeavor 5
to discharge faithfully the responsibilities appurtenant to y high office, never
fearing, )avering or hesitating to reach +udgents that accord )ith y
conscience.
ACC-R62N9:K, 2 vote to disiss all the petitions.
APPEN62I to %eparate -pinion of 0ustice 3red Rui, Castro
"T'T C-*"T+T<T+-*'L &,-2+"+-*" ,G',/+*G M',T+'L L'=
A:A%MA C-N%T., art. 222, sec. &#?
%ec. &#. Martial Law. The governor ay proclai artial la) )hen the public
safety re*uires it in case of rebellion or actual or iinent invasion. Martial la)
shall not continue for longer than t)enty days )ithout the approval of a a+ority
of the ebers of the legislature in +oint session.
MA2NE C-N%T., art. 2, sec. "@?
%ec. "@. Corporal punishment under military law. No person shall be sub+ect to
corporal punishent under ilitary la), e1cept such as are eployed in the ary
or navy, or in the ilitia )hen in actual service in tie of )ar or public danger.
MARK:AN6 C-N%T., art. 7&?
Art. 7&. Martial Law. That no person e1cept regular soldiers, arines, and
ariners in the service of this %tate, or ilitia, )hen in actual service, ought in
any case, to be sub+ect to, or punishable by Martial :a).
MA%%ACCG%ETT% C-N%T., art. IID222?
Art. IID222. Citi%ens e!empt )rom law martial. No person can in any case be
sub+ected to la) artial, or to any penalties or pains, by virtue of that la), e1cept
those eployed in the ary or navy, and e1cept the ilitia in actual service, but
by authority of the legislature.
NE/ CAMP%C2RE, Pt 22, arts. 7@ and <"?
Art. 7@th. Martial law limited. No person can, in any case, be sub+ected to la)
artial, or to any pains or penalties by virtue of that la), e1cept those eployed
in the ary or navy, and e1cept the ilitia in actual service, but by authority of
the legislature.
Art. <"st. &owers and duties o) governor as commander7in7chie)> limitation. The
governor of this state for the tie being. shall be coander;in;chief of the ary
and navy, and all the ilitary forces of the state by sea and land. and shall have
full po)er by hiself, or by any chief coander, or other officer, or officers,
fro tie to tie, to train, instruct, e1ercise and govern the ilitia and navy.
and for the special defense and safety of this state, to asseble in artial array,
and put in )ar;li4e posture, the inhabitants thereof, and to lead and conduct
the, and )ith the to encounter, repulse, repel resist and pursue by force of
ars, as )ell by sea as by land, )ithin and )ithout the liits of this state? and
also 4ill, slay. destroy, if necessary, and con*uer by all fitting )ays, enterprise and
eans, all and every such person and persons as shall, at any tie hereafter, in a
hostile anner, attept or enterprise the destruction, invasion, detrient or
annoyance of this state. and to use and e1ercise over the ary and navy, and
over the ilitia in actual service, the la) artial in tie of )ar invasion, and also
in rebellion, declared by the legislature to e1ist, as occasion shall necessarily
re*uire? And surprise, by all )ays and eans )hatsoever, all and every such
person or persons, )ith their ships, ars, aunition, and other goods, as shall
in a hostile anner invade, or attept the invading, con*uering or annoying this
state. and in fine the governor hereby is entrusted )ith all other po)ers incident
to the office of the captain;general and coander;in;chief, and adiral, to be
e1ercised agreeably to the rules and regulations of the constitution, and the la)s
of the land. provided, that the 9overnor shall not, at any tie hereafter, by virtue
of any po)er by this constitution granted, or hereafter to be granted to hi by
the legislature, transport any of the inhabitants of this state, or oblige the to
arch out of the liits of the sae, )ithout their free and voluntary consent, or
the consent of the general court, nor grant coissions for e1ercising the la)
artial in any case, )ithout the advise and the consent of the council.
RC-6E 2%:AN6 C-N%T., art. 2, sec. "$? .
%ec. "$. Military subordinate> martial law. The ilitary shall be held in strict
subordination to the civil authority. And the la) artial shall be used and
e1ercised in such cases only as occasion shall necessarily re*uire.
TENNE%%EE C-N%T., art. ", sec. &<?
%ec. &<. &unishment under martial and military law. That no citi,en of this %tate,
e1cept such as are eployed in the ary of the Gnited %tates, or ilitia in actual
service, shall be sub+ected to punishent under the artial or ilitary la). That
artial la), in the sense of the unrestricted po)er of ilitary officers, or others,
to dispose of the persons, liberties or property of the citi,en, is inconsistent )ith
the principles of free governent, and is not confided to any departent of the
governent of this %tate.
2,M-*T C-*"T.# ch. 4# art. 469
'rt. 46th. Martial law restricted. That no person in this state can in any case be
sub+ected to la) artial, or to any penalties or pains by virtue of that la) e1cept
those eployed in the ary and the ilitia in actual service.
/E%T D2R92N2A, art, 222, sec. "&?
Art. 222, sec. "&. Military subordinate to civil power. %tanding aries, in tie of
peace, should be avoided as dangerous to liberty. The ilitary shall be
subordinate to the civil po)er. and no citi,en, unless engaged in the ilitary
service of the %tate, shall be tried or punished by any ilitary court, for any
offense that is cogni,able by the civil courts of the %tate. No soldier shall, in tie
of peace, be *uartered in any house, )ithout the consent of the o)ner, nor in
tie of )ar, e1cept in the anner to be prescribed by la). .

"ERN!N&O, J., concurring and dissenting?
The issue involved in these habeas corpus petitions is the pre;einent proble of
the ties 5 the priacy to be accorded the clais of liberty during periods of
crisis. There is uch that is novel in )hat confronts the Court. A traditional
orientation ay not suffice. The approach ta4en cannot be characteri,ed by
rigidity and infle1ibility. There is roo, plenty of it, for novelty and innovation.
6octrines deeply rooted in the past, that have stood the test of tie and
circustance, ust be ade adaptable to present needs and, hopefully,
serviceable to an un4no)n future, the events of )hich, to recall %tory, are loc4ed
tip in the inscrutable designs of a erciful Providence. 2t is essential then that in
the consideration of the petitions before us there be ob+ectivity, calness, and
understanding. The deeper the disturbance in the atosphere of security, the
ore copelling is the need for tran*uility of ind, if reason is to prevail. No
legal carrier is to be interposed to th)art the efforts of the E1ecutive to restore
noralcy. Ce is not to be denied the po)er to ta4e that for hi ay be necessary
easures to eet eergency conditions. %o the realities of the situation dictate.
There should be on the part of the +udiciary then, sensitivity to the social forces at
)or4, creating conditions of grave unrest and turbulence and threatening the very
stability not to say e1istence, of the political order. 2t is in that setting that the
crucial issue posed by these petitions is to be appraised. 2t ay be that this clash
bet)een the priacy of liberty and the legitiate defense of authority is not
susceptible of an definite, clear;cut solution. Nonetheless, an attept has to be
ade. /ith all due recognition of the erit apparent in the e1haustive, scholarly
and elo*uent dissertations of 0ustice Barredo and y other brethren as )ell as
the ease and lucidity )ith )hich the Chief 0ustice clarified the cople1 issues and
the vie)s of ebers of the Court, 2 )ould li4e to give a brief e1pression to y
thoughts to render clear the points on )hich 2 find yself, )ith regret, unable to
be of the sae persuasion.
2 concur in the disissal of the habeas corpus petition of Benigno %. A*uino, 0r.
solely on the ground that charges had been filed and dissent in part in the
disissal of the petition of 3rancisco Rodrigo and others, . )ho +oined hi in his
plea for the reoval of the conditions on their release, on the vie) that as far as
freedo of travel is concerned, it should be, on principle, left unrestricted. As
originally prepared, this opinion li4e)ise e1plained his dissent in the denial of the
otion to )ithdra) in the petition filed on behalf of 0ose /. 6io4no, a atter no)
oot and acadeic.
". /e have to pass on habeas corpus petitions. The great )rit of liberty is
involved. Rightfully, it is latitudinarian in scope. 2t is )ide;ranging and all;
ebracing in its reach. 2t can dig deep into the facts to assure that there be no
toleration of illegal restraint. 6etention ust be for a cause recogni,ed by la).
The )rit iposes on the +udiciary the grave responsibility of ascertaining )hether
a deprivation of physical freedo is )arranted. The party )ho is 4eeping a person
in custody has to produce hi in court as soon as possible. /hat is ore, he
ust +ustify the action ta4en. -nly if it can be deonstrated that there has been
no violation of one!s right to liberty )ill he be absolved fro responsibility. 3ailing
that, the confineent ust thereby cease. Nor does it suffice that there be a
court process, order, or decision on )hich it is ade to rest. 2f there be a sho)ing
of a violation of constitutional rights, the +urisdiction of the tribunal issuing it is
ousted. Moreover, even if there be a valid sentence, it cannot, even for a
oent, be e1tended beyond the period provided for by la). /hen that tie
coes, he is entitled to be released. 2t is in that sense then, as so )ell put by
Coles, that this great )rit Bis the usual reedy for unla)ful iprisonent.B
1
2t
does afford to borro) fro the language of Bir4enhead Ba s)ift and iperative
reedy in all cases of illegal restraint or confineent.B
1
Not that there is need for
actual incarceration. A custody for )hich there is no support in la) suffices for its
invocation. The party proceeded against is usually a public official, the run;of;the;
ill petitions often coing fro individuals )ho for one reason or another have
run afoul of the penal la)s. Confineent could li4e)ise coe about because of
contept citations,
3
)hether fro the +udiciary or fro the legislature. 2t could
also be due to statutory coands, )hether addressed to cultural inorities
4
or
to persons diseased.
5
Then, too, this proceeding could be availed of by citi,ens
sub+ected to ilitary discipline
6
as )ell as aliens see4ing entry into or to be
deported fro the country.
7
Even those outside the governent service ay be
ade to account for their action as in the case of )ives restrained by their
husbands or children )ithheld fro the proper parent or guardian.
*
2t is thus
apparent that any deviation fro the legal nors calls for the restoration of
freedo. 2t cannot be other)ise. 2t )ould be sheer oc4ery of all that such a
legal order stands for, if any person!s right to live and )or4 )here he is inded
to, to ove about freely, and to be rid of any un)arranted fears that he )ould
+ust be pic4ed up and detained, is not accorded full respect. The significance of
the )rit then for a regie of liberty cannot be overephasi,ed.
9
&. Nor does the fact that, at the tie of the filing of these petitions artial la)
had been declared, call for a different conclusion. There is of course iparted to
the atter a higher degree of cople1ity. 3or it cannot be gainsaid that the
reasonable assuption is that the President e1ercised such an a)esoe po)er,
one granted adittedly to cope )ith an eergency or crisis situation, because in
his +udgent the situation as thus revealed to hi left hi )ith no choice. /hat
the President did attested to an e1ecutive deterination of the e1istence of the
conditions that called for such a ove. There )as, in his opinion, an insurrection
or rebellion of such agnitude that public safety did re*uire placing the country
under artial la). That decision )as his to a4e it. it is not for the +udiciary. The
assessent thus ade, for all the sypathetic consideration it is entitled to, is
not, ho)ever, ipressed )ith finality. This Court has a liited sphere of authority.
That, for e, is the teaching of :ansang.
1/
The +udicial role is difficult, but it is
unavoidable. The )rit of liberty has been invo4ed by petitioners. They ust be
heard, and )e ust rule on their petitions.
7. This Court has to act then. The liberty enshrined in the Constitution, for the
protection of )hich habeas corpus is the appropriate reedy, iposes that
obligation. 2ts tas4 is clear. 2t ust be perfored. That is a trust to )hich it
cannot be recreant /henever the grievance coplained of is deprivation of
liberty, it is its responsibility to in*uire into the atter and to render the decision
appropriate under the circustances. Precisely, a habeas corpus petition calls for
that response. 3or the significance of liberty in a constitutional regie cannot be
sufficiently stressed. /itness these )ords fro the then 0ustice, later Chief
0ustice, Concepcion? B3urtherore, individual freedo is too basic, to be denied
upon ere general principles and abstract consideration of public safety. 2ndeed,
the preservation of liberty is such a a+or preoccupation of our political syste
that, not satisfied )ith guaranteeing its en+oyent in the very first paragraph of
section 8"= of the Bill of Rights, the fraers of our Constitution devoted Ht)elve
otherJ paragraphs HthereofJ to the protection of several aspect of freedo.B
11
A
siilar sentient )as given e1pression by the then 0ustice, later Chief 0ustice,
Beng,on? B:et the rebels have no reason to apprehend that their corades no)
under custody are being railroaded into Muntinlupa )ithout benefit of those
fundaental privileges )hich the e1perience of the ages has deeed essential for
the protection of all persons accused of crie before the tribunals of +ustice. 9ive
the the assurance that the +udiciary, ever indful of its sacred ission )ill not,
thru faulty cogitation or isplaced devotion, uphold any doubtful clais of
9overnental po)er in diinution of individual rights, but )ill al)ays cling to the
principle uttered long ago by Chief 0ustice Marshall that )hen in doubt as to the
construction of the Constitution, !the Courts )ill favor personal liberty! ....B
11
The
pertinence of the above e1cerpt becoes *uite anifest )hen it is recalled that
its utterance )as in connection )ith a certiorari proceeding )here the precise
point at issue )as )hether or not the right to bail could be availed of )hen the
privilege of the )rit of habeas corpus )as suspended. There )as no decisive
outcoe, although there )ere five votes in favor of an affirative ans)er to only
four against.
13
%uch pronounceents in cases arising under the "'7<
Constitution should occasion. no surprise. They erely underscore )hat )as so
vigorously ephasi,ed by the then 6elegate 0ose P. :aurel, Chairan of the
Coittee on the Bill of Rights, in his sponsorship address of the draft provisions.
Thus? BThe history of the )orld is the history of an and his ardous struggle for
liberty. ... 2t is the history of those brave and able souls )ho, in the ages that are
past, have labored, fought and bled that the governent of the lash 5 that
sybol of slavery and despotis ; ight endure no ore. 2t is the history of
those great self;sacrificing en )ho lived and suffered in an age of cruelty, pain
and desolation so that every an ight stand, under the protection of great
rights and privileges, the e*ual of every other an.
14
%o should it be under the
present Constitution. No less a person than President Marcos during the early
onths of the "'(" Constitutional Convention categorically affired in his Todays
,evolution? 6eocracy? B/ithout freedo, the )hole concept of deocracy falls
apart.B
15
%uch a vie) has support in history. A stateent fro 6r. Ri,al has a
conteporary ring? B9ive liberties, so that no one ay have a right to conspire.B
16
Mabini listed as an accoplishent of the ill;fated revolution against the
Aericans the anifestation of Bour love of freedo guaranteeing to each citi,en
the e1ercise of certain rights )hich a4e our counal life less constricted, ....B
17
@. E*ually so, the decisive issue is one of liberty not only because of the nature of
the petitions but also because that is the andate of the Constitution. That is its
philosophy. 2t is a regie of liberty to )hich our people are so deeply and firly
coitted.
1*
The fate of the individual petitioners hangs in the balance. That is
of great concern. /hat is at sta4e ho)ever, is ore than that 5 uch ore.
There is a paraount public interest involved. The oentous *uestion is ho) far
in ties of stress fidelity can be anifested to the clais of liberty. %o it is
ordained by the Constitution, and it is the highest la). 2t ust be obeyed. Nor
does it a4e a crucial difference, to y ind, that artial la) e1ists. 2t ay call
for a ore cautious approach. The siplicity of constitutional fundaentalis
ay not suffice for the cople1 probles of the day. %till the duty reains to
assure that the supreacy of the Constitution is upheld. /hether in good ties
or bad, it ust be accorded the utost respect and deference. That is )hat
constitutionalis connotes. 2t is its distinctive characteristic. 9reater restraints
ay of course be iposed. 6etention, to cite the obvious e1aple, is not ruled
out under artial la), but even the very proclaation thereof is dependent on
public safety a4ing it iperative. The po)ers, rather e1pansive, perhaps at
ties even latitudinarian, allo)able the adinistration under its aegis, )ith the
conse*uent diinution of the sphere of liberty, are +ustified only under the
assuption that thereby the beleaguered state is in a better position to protect,
defend and preserve itself. They are hardly ipressed )ith the eleent of
peranence. They cannot endure longer than the eergency that called for the
e1ecutive having to a4e use of this e1traordinary prerogative. /hen it is a thing
of the past, artial la) ust be at an end. 2t has no ore reason for being. 2f its
proclaation is open to ob+ection, or its continuance no longer )arranted, there is
all the ore reason, to follo) :as4i, to respect the traditional liitation of legal
authority that freedo deands.
19
/ith these habeas corpus petitions precisely
rendering pereptory action by this Court, there is the opportunity for the
assessent of liberty considered in a concrete social conte1t. /ith full
appreciation then of the cople1ities of this era of turoil and dis*uiet, it can
hopefully contribute to the delineation of constitutional boundaries. 2t ay even
be able to deonstrate that la) can be tieless and yet tiely.
<. There are relevant *uestions that still reain to be ans)ered. 6oes not the
proclaation of artial la) carry )ith it the suspension of the privilege of the )rit
of habeas corpusE 2f so, should not the principle above enunciated be sub+ected
to further refineentE 2 a not too certain that the first *uery. necessarily calls
for an affirative ans)er. Preventive detention is of course allo)able. 2ndividuals
)ho are lin4ed )ith invasion or rebellion ay pose a danger to the public be
safety. There is nothing inherently unreasonable in their being confined. Moreover,
)here it is the President hiself, as in the case of these petitioners, )ho
personally directed that they be ta4en in, it is not easy to ipute arbitrariness. 2t
ay happen though that officers of lesser stature not ipressed )ith the high
sense of responsibility )ould utili,e the situation to cause the apprehension of
persons )ithout sufficient +ustification. Certainly it )ould be, to y ind, to
sanction oppressive acts if the validity of such detention cannot be in*uired into
through habeas corpus petitions. 2t is ore than +ust desirable therefore that if
such be the intent, there be a specific decree concerning the suspension of the
privilege of the )rit of habeas corpus. Even then, ho)ever, such proclaation
could be challenged. 2f vitiated by constitutional infirity, the release ay be
ordered. Even if it )ere other)ise, the applicant ay not be aong those as to
)ho the privilege of the )rit has been suspended. 2t is pertinent to note in this
connection that Proclaation No. "#$" specifically states Bthat all persons
presently detained as )ell as all others )ho ay hereafter be siilarly detained
for the cries of insurrection or rebellion, and all other cries and offenses
coitted in furtherance or on the occasion thereof, or incident thereto, or in
connection there)ith, for cries against national security and the la) of nations,
crie against the fundaental la)s of the %tate, cries against public order,
be 4ept under detention until other)ise ordered released by e or by duly
designated representative.B
1/
The iplication appears at unless the individual
detained is included aong those to )ho any of the above crie or offense ay
be iputed, he is entitled to +udicial protection. :astly, the *uestion of )hether or
not there is )arrant for the vie) that artial la) is at an end ay be deeed
proper not only in the light of radically altered conditions but also because of
certain e1ecutive acts clearly incopatible )ith its continued e1istence. Gnder
such circustances, an eleent of a +usticiable controversy ay be discerned.
A. That brings e to the political *uestion doctrine. 2ts accepted signification is
that )here the atter involved is left to a decision by the people acting in their
sovereign capacity or to the sole deterination by either or both the legislative or
e1ecutive branch of the governent, it is beyond +udicial cogni,ance.
11
Thus it
)as that in suits )here the party proceeded against )as either the President or
Congress, or any of its branches for that atter, the courts refused to act.
11

Gnless such be the case, the action ta4en by any or both the political branches
)hether in the for of a legislative act or an e1ecutive order could be tested in
court. /here private rights are affected, the +udiciary has the duty to loo4 into its
validity. There is this further iplication of the doctrine. A sho)ing that plenary
po)er is granted either departent of governent ay not be an obstacle to
+udicial in*uiry. 2ts iprovident e1ercise or the abuse thereof ay give rise to a
+usticiable controversy.
13
/hat is ore, a constitutional grant of authority is not
usually unrestricted.
14
:iitations are provided for as to )hat ay be done and
ho) it is to he accoplished. Necessarily then, it becoes the responsibility of
the courts to ascertain )hether the t)o coordinate branches have adhered to the
andate of the fundaental la). The *uestion thus posed is +udicial rather than
political.
(. Reference at this point to the epochal opinion in the aforecited Lansang v.
Garcia decision, )here the validity of the suspension of the privilege of the )rit of
habeas corpus )as sustained by this Court, is not aiss. 3or in both in the "'7<
and in the present Constitutions, the po)er to declare artial la) is ebraced in
the sae provision )ith the grant of authority to suspend the privilege of the )rit
of habeas corpus, )ith the sae liits to be observed in the e1ercise thereof.
15

2t )ould follo), therefore, that a siilar approach coends itself on the
*uestion of )hether or not the finding ade by the President in Proclaation No.
"#$" as to the e1istence of Brebellion and ared action underta4en by these
la)less eleents of the counist and other ared aggrupations organi,ed to
overthro) the Republic of the Philippines by ared violence and force Hipressed
)ith theJ agnitude of an actual state of )ar against HtheJ people and the
Republic ...B
16
is open to +udicial in*uiry. Reference to the opinion of Chief 0ustice
Concepcion )ould prove illuinating? B2ndeed, the grant of po)er to suspend the
privilege is neither absolute nor un*ualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the E1ecutive 6epartent, is
liited and conditional. The precept in the Bill of Rights establishes a general rule,
as )ell as an e1ception thereto. /hat is ore, it postulates the forer in the
negative, evidently to stress its iportance, by providing that !8t=he privilege of
the )rit of habeas corpus shall not be suspended. ....! 2t is only by )ay of
e1ception that it perits the suspension of the privilege !in cases of invasion,
insurrection, or rebellion! 5 or, under Art. D22 of the Constitution, Biinent
danger thereofB 5 !)hen the public safety re*uires it, in any of )hich events the
sae ay be suspended )herever during such period the necessity for such
suspension shall e1ist.! 3ar fro being full and plenary, the authority to suspend
the privilege of the )rit is thus circuscribed, confined and restricted not only by
the prescribed setting or the conditions essential to its e1istence, but also as
regards the tie )hen and the place )here it ay be e1ercised. These factors
and the aforeentioned setting or conditions ar4, establish and define the
e1tent, the confines and the liits of said po)er, beyond )hich it does not e1ist.
And, li4e the liitations and restrictions iposed by the 3undaental :a) upon
the legislative departent, adherence thereto and copliance there)ith ay,
)ithin proper bounds, be in*uired into by courts of +ustice. -ther)ise, the e1plicit
constitutional provisions thereon )ould be eaningless. %urely, the fraers of
our Constitution could not have intended to engage in such a )asteful e1ercise in
futility.B
17
%uch a vie) )as fortified by the high estate accorded individual
freedo as ade clear in the succeeding paragraph of his opinion? BMuch less
ay the assuption be indulged in )hen )e bear in ind that our political
syste is essentially deocratic and republican in character and that the
suspension of the privilege affects the ost fundaental eleent of that syste,
naely, individual freedo. 2ndeed, such freedo includes and connotes, as )ell
as deands, the right of every single eber of our citi,enry to freely discuss
and dissent fro, as )ell as critici,e and denounce, the vie)s, the policies and
the practices of the governent and the party in po)er that he dees un)ise,
iproper or iniical to the coon)ealth, regardless of )hether his o)n opinion
is ob+ectively correct or not. The untraelled en+oyent and e1ercise of such
right 5 )hich, under certain conditions, ay be a civic duty of the highest order
5 is vital to the deocratic syste and essential to its successful operation and
)holesoe gro)th and developent.B
1*
The )riter )rote a concurring and dissenting opinion. Ce )as fully in agreeent
)ith the rest of his brethren as to the lac4 of conclusiveness attached to the
presidential deterination. Thus? BThe doctrine announced in Montenegro v.
Castaeda that such a *uestion is political has thus been laid to rest. 2t is about
tie too. 2t o)ed its e1istence to the copulsion e1erted by Barcelon v. Baker, a
"'#< decision. This Court )as partly isled by an undue reliance in the latter
case on )hat is considered to be authoritative pronounceent fro such
illustrious Aerican +urists as Marshall, %tory, and Taney. That is to isread )hat
)as said by the. This is ost evident in the case of Chief 0ustice Marshall,
)hose epochal Marbury v. Madison )as cited. /hy that )as so is difficult to
understand. 3or it spea4s to the contrary. 2t )as by virtue of this decision that the
function of +udicial revie) o)es its origin not)ithstanding the absence of any
e1plicit provision in the Aerican Constitution epo)ering the courts to do so.
Thus? !2t is ephatically the province and duty of the +udicial departent to say
)hat the la) is. Those )ho apply the rule to particular cases, ust of necessity
e1pound and interpret that rule. 2f t)o la)s conflict )ith each other, the courts
ust decide on the operation of each. %o if a la) be in opposition to the
constitution. if both the la) and the constitution apply to a particular case, so
that the court ust either decide that case conforably to the la) disregarding
the constitution. or conforably to the constitution, disregarding the la), the
court ust deterine )hich of these conflicting rules governs the case. This is of
the very essence of +udicial duty. 2f, then, the courts are to regard the
constitution, and the constitution is superior to any ordinary act of legislature, the
constitution, and not such ordinary act, ust govern the case to )hich they both
apply.B
19
$. To refer to :ansang ane), this Court sustained the presidential proclaation
suspending the privilege of the )rit of habeas corpus as there )as no sho)ing of
arbitrariness in the e1ercise of a prerogative belonging to the e1ecutive, the
+udiciary erely acting as a chec4 on the e1ercise of such authority. %o Chief
0ustice Concepcion ade clear in this portion of his opinion? BArticle D22 of the
Constitution vests in the E1ecutive po)er to suspend the privilege of the )rit of
habeas c under specified conditions. Pursuant to the principle of separation of
po)ers underlying our syste of governent, the E1ecutive is supree )ithin his
o)n sphere. Co)ever, the separation of po)ers, under the Constitution, is not
absolute. /hat is ore, it goes hand in hand )ith the syste of chec4s and
balances, under )hich the E1ecutive is supree, as regards the suspension of the
privilege, but only if and )hen he acts )ithin the sphere allotted to hi by the
Basic :a), and the authority to deterine )hether or not he has so acted is
vested in the 0udicial 6epartent, )hich, in this respect, is, in turn,
constitutionally supreme. 2n the e1ercise of such authority, the function of the
Court is erely to chec4 not to supplant 5 the E1ecutive, or to ascertain merely
whether he has gone beyond the constitutional liits of his +urisdiction, not to
e!ercise the power vested in him or to deterine the )isdo of his act. To be
sure, the po)er of the Court to deterine the validity of the contested
proclaation is far fro being identical to, or even coparable )ith, its po)er
over ordinary civil or criinal cases elevated thereto by ordinary appeal fro
inferior courts, in )hich cases the appellate court has all of the po)ers of the
court of origin.B
3/
The test then to deterine )hether the presidential action
should be nullified according to the %upree Court is that of arbitrariness. Absent
such a sho)ing, there is no +ustification for annulling the presidential
proclaation.
-n this point, the )riter, in a separate opinion, had this to say? B/ith such
presidential deterination of the e1istence of the conditions re*uired by the
Constitution to +ustify a suspension of the privilege of the )rit no longer
conclusive on the other branches, this Court ay thus legitiately in*uire into its
validity. The *uestion before us, it bears repeating, is )hether or not Proclaation
No. $$' as it no) stands, not as it )as originally issued, is valid. The starting
point ust be a recognition that the po)er to suspend the privilege of the )rit
belongs to the E1ecutive, sub+ect to liitations. %o the Constitution provides, and
it is to be respected. The range of perissible in*uiry to be conducted by this
Tribunal is necessarily liited then to the ascertainent of )hether or not such a
suspension, in the light of the credible inforation furnished the President, )as
arbitrary. %uch a test et )ith the approval of the chief counsel for petitioners,
%enator 0ose /. 6io4no. To paraphrase 3ran4furter, the *uestion before the
+udiciary is not the correctness but the reasonableness of the action ta4en. -ne
)ho is not the E1ecutive but e*ually 4no)ledgeable ay entertain a different
vie), but the decision rests )ith the occupant of the office. As )ould be
iediately apparent even fro a cursory perusal of the data furnished the
President, so ipressively suari,ed in the opinion of the Chief 0ustice, the
iputation of arbitrariness )ould be difficult to sustain. Moreover, the steps ta4en
by hi to liit the area )here the suspension operates as )ell as his instructions
attested to a fir resolve on his part to 4eep strictly )ithin the bounds of his
authority. Gnder the circustances, the decision reached by the Court that no
finding of unconstitutionality is )arranted coends itself for approval. The ost
that can be said is that there )as a anifestation of presidential po)er )ell;nigh
touching the e1tree borders of his conceded copetence, beyond )hich a
forbidden doain lies. The re*uisite sho)ing of either iprovidence or abuse has
not been ade.B
31
'. The :ansang doctrine for e is decisive on the various issues raised in this
case, y discussion being confined to petitioner Rodrigo, as )ell as others
siilarly situated, for under y vie) that the petition in A*uino should be
disissed because charges had been filed, and the petition in 6io4no should be
considered )ithdra)n, there need be no further in*uiry as to the erits of their
respective contentions.
No), first as to the validity of the proclaation itself. 2t )ould see that it is
beyond *uestion in the light of this particular transitory provision in the present
Constitution? BAll proclaations, orders, decrees, instructions, and acts
superseded by subse*uent proclaations, orders, decrees, instructions, or other
repealed by the regular National Assebly.B
31
2ndependently of such provision,
such presidential proclaation could not be characteri,ed as arbitrary under the
standard set forth in the :ansang decision. Ce did act Bon the basis of carefully
evaluated and verified inforation, H)hichJ definitely established that la)less
eleents )ho are oved by a coon or siilar ideological conviction, design
strategy and goal and en+oying the active oral and aterial support of a foreign
po)er and being guided and directed by intensely devoted, )ell;trained,
deterined and ruthless groups of en and see4ing refuge :inder the protection
of our constitutional liberties to proote and attain their ends, have entered into
a conspiracy and have in fact +oined and banded their resources and forces
together for the prie purpose of, and in fact they have been and are actually
staging, underta4ing and )aging an ared insurrection and rebellion against the
9overnent of the Republic of the Philippines in order to forcibly sei,e political
state po)er in the country overthro) the duly constituted and supplant our
e1isting political, social, econoic, and legal order )ith an entirely ne) one
)hose for of governent, )hose syste of la)s, )hose conception of 9od and
religion, )hose notion of individual rights and faily relations, and )hose
political, social, econoic, legal and oral precepts are based on the Mar1ist;
:eninist;Maoist teachings and beliefs. ....B
33
%ubse*uent events did confir the validity of such appraisal. Even no), fro the
pleadings of the %olicitor 9eneral, the assuption that the situation has not in
certain places radically changed for the better cannot be stigati,ed as devoid of
factual foundation. As of the present, even on the vie) that the courts ay
declare that the crisis conditions have ended and public safety does not re*uire
the continuance of artial la), there is not enough evidence to )arrant such a
+udicial declaration. This is not to deny that in an appropriate case )ith the proper
parties, and, in the language of 0ustice :aurel, )ith such issue being the very lis
mota, they ay be copelled to assue such an a)esoe responsibility. A sense
of realis as )ell as sound 0uristic theory )ould place such delicate tas4 on the
shoulders of this Tribunal, the only constitutional court. %o 2 )ould read ,utter v.
steban.
34
There, )hile the Moratoriu Act
35
)as at first assued to be valid,
)ith this Court in such suit being persuaded that its Bcontinued operation and
enforceentB under circustances that developed later, becae Bunreasonable
and oppressive,B and should not be prolonged a inute longer, ... Hit )asJ
Bdeclared null and void and )ithout effect.B
36
2t goes )ithout saying that before it
should ta4e such a step, e1tree care should be ta4en lest the aintenance of
public peace and order, the priary duty of the E1ecutive, be attended )ith
e1tree difficult . 2t is li4e)ise essential that the evidence of public safety no
longer re*uiring artial la) be of the clearest and ost satisfactory character. 2t
cannot be too strongly stressed that )hile liberty is a prie ob+ective and the
+udiciary is charged )ith the duty of safeguarding it, on a atter of such gravity
during periods of eergency, the e1ecutive appraisal of the situation is deserving
of the utost credence. 2t suffices to recall the stress laid by Chief 0ustice
Concepcion in :ansang that its function Bis erely to check 5 not to supplantB the
latter. The allocation of authority in the Constitution ade by the people
theselves to the three departents of governent ust be respected. There is
to be no intrusion by any one into the sphere that belongs to another. Precisely
because of such fundaental postulate in those cases, and there ay be such,
but perhaps rather rare, it could aount to +udicial abdication if no in*uiry )ere
deeed perissible and the *uestion considered political.
The last point is, )hile the detention of petitioners could have been validly
ordered, as dictated by the very proclaation itself, if it continued for an
unreasonable length of tie, then his release ay be sought in a habeas corpus
proceeding. This contention is not devoid of plausibility. Even in ties of stress, it
cannot +ust be assued that the indefinite restraint of certain individuals as a
preventive easure is unavoidable. 2t is not to be denied that )here such a state
of affairs could be traced to the )ishes of the President hiself, it carries )ith it
the presuption of validity. The test is again arbitrariness as defined in :ansang.
2t ay happen that the continued confineent ay be at the instance erely of a
ilitary official, in )hich case there is ore lee)ay for +udicial scrutiny.
"#. A )ord ore on the )ithdra)al of a habeas corpus petition. -n the basic
assuption that precisely the great )rit of liberty is available to a person
sub+ected to restraint so that he could challenge its validity, 2 find it difficult not to
yield assent to a plea by the applicant hiself that he is no longer desirous or
pursuing such reedy. Ce had a choice of )hether or not to go to court. Ce )as
free to act either )ay. The fact that at first he did so, but that later he )as of a
different ind, does not, in y opinion, alter the situation. The atter, for e, is
still one left to his free and unfettered )ill. The conclusion then for e at least, is
that a court ust accede to his )ishes. 2t could li4e)ise be based on his belief
that the realities of the situation copel the conclusion that relief could coe
fro the E1ecutive. That decision )as his to a4e. 2t ust be respected.
Moreover, if only because of huanitarian considerations, considering the ill;
effects of confineent on his state of health, there is e*ually legal support for the
vie) that his conditional release as in the case of the other detainees )ould not
be inappropriate.
2f his otion for )ithdra)al contained phraseology that is offensive to the dignity
of the court, then perhaps the corresponding disciplinary action ay be ta4en. 3or
that purpose, and for that purpose alone, the petition ay be considered as still
)ithin +udicial cogni,ance. 2t is true in certain cases that the issues raised ay be
so transcendental that there is )isdo in continuing the proceeding. The
)ithdra)al, even then, for e, is not fraught )ith pernicious conse*uences. 2f the
atter )ere that significant or iportant, the probability is that the *uestion )ill
soon be ventilated in another petition. There is, to deal briefly )ith another point,
the atter of the rather harsh and bitter language in )hich the otion for
)ithdra)al )as couched. That is a atter of taste. Even if it )ent beyond the
bounds of the perissible, the )ithdra)al should be granted. This for e is the
principle that should obtain. The rather uncharitable vie) e1pressed concerning
the ability of certain ebers of the Court to act +ustly on the atter should not
give rise, in y opinion, to undue concern. That is one!s belief, and one is entitled
to it. 2t does not follo) that thereby the person thus un+ustifiably aligned should
suffer any loss of self;estee. After all, it is a truis to say that a an on the
bench is accountable only to his conscience and, in the ultiate analysis, to his
Ma4er. There is all the ore reason then not to be unduly bothered by the
rear4s in *uestion. Moreover, they eanated fro a source suffering fro the
pangs of desperation born of his continued detention. 2t could very )ell be that
the disappointent of e1pectations and frustration of hopes did lead to such an
inteperate outburst. There is, for eat least, relevance to this e1cerpt fro an
opinion by 0ustice 3ran4furter? B%ince courts, although representing the la), ...
are also sitting in +udgent, as it )ere, on their o)n function in e1ercising their
po)er to punish for contept, it should be used only in flagrant cases and )ith
the utost forbearance. 2t is al)ays better to err on the side of tolerance and
even of disdainful indifference.B
37
Chafee is no longer there. it has on function in e1ercising their po)er to punish
for contept, it should be used only in flagrant cases and )ith the utost
forbearance. 2t is al)ays better to err on the side of tolerance and even of
disdainful indifference.B
Chafee is no longer there. it has fallen do)n. /hat is there to penetrateE That is
+ust the point, petitioner Rodrigo coplains. That is not really true, or only true
partially. There are physical as )ell as intellectual restraints on his freedo. Cis
release is conditional. There are things he cannot say places he cannot go. That is
not liberty in a eaningful sense. This great )rit then has not lost its significance
for hi, as )ell as for others siilarly situated. The )ay he developed his
arguent calls to ind Cardo,o!s )arning that in a )orld of reality, a +uridical
concept ay not al)ays be pressed to the liit of its logic. There are
countervailing considerations. The fact that he )as aong those )hose detention
)as ordered by the President is one of the. There )as then an e1ecutive
deterination on the highest level that the state of affairs ar4ed by rebellious
activities did call for certain individuals being confined as a preventive easure.
Gnless there is a sho)ing of the arbitrariness of such a ove, the +udiciary has to
respect the actuation. 2t ust be assued that )hat )as to be done )ith the
thereafter ust have been given soe attention. At one e1tree, their
preventive detention could be terinated and their full freedo restored. At the
other, it could be continued if circustances did so )arrant. Cere, there )as a
iddle )ay chosen. Petitioner Rodrigo as )ell as several others )ere released
sub+ect to conditions. 2t cannot be dogatically aintained that such a solution
)as an affront to reason. Not only for the person loc4ed up, but perhaps even
ore so for his faily, the end of the incarceration )as an eagerly a)aited and
highly )elcoe event. That is *uite understandable. 2t did +ustify petitioner!s
assertion that in so agreeing to the conditions iposed, he )as not acting of his
o)n free )ill. Realistically, be had no choice or one inial at ost. Nonetheless,
it cannot be denied that he )as a recipient of )hat at the very least )as a clear
anifestation of the Philippine brand of artial la) being ipressed )ith a ild
character.
This being a habeas corpus petition, the appropriate *uestion for +udicial in*uiry is
the validity of the liits set to the conditional release of petitioner Rodrigo. The
guiding principle is supplied by this ringing affiration of 0ustice Malcol? BAny
restraint )hich )ill preclude freedo of action is sufficient.B
3*
The iplication for
e is that there ay be instances of the propriety of the invocation of the )rit
even )ithout actual incarceration. This is one of the. 2t is heartening that the
Court so vie) it. 2t is, to y ind, regrettable though that there appears to be
full acceptance of the po)er of the ilitary to ipose restrictions on petitioner
Rodrigo!s physical liberty. There is need, it )ould see to e, for a ore
discriinating appraisal, especially )here it could be sho)n that the order to that
effect proceeds fro a source lo)er than the President. The e1treely high
respect +ustifiably accorded to the action ta4en by the highest official of the land,
)ho by hiself is a separate and independent departent, not to ention the
one constitutional official authori,ed to proclai artial la), is not indicated.
There should be, of course, no casual or unreasoned disregard for )hat the
ilitary ay dee to be the appropriate easure under the circustances. This
reflection, though, gives e pause. Petitioner Rodrigo and others siilarly
situated )ere released. That step )ould not have been ta4en if circustances did
not +ustify it. 2t sees then reasonable to assue that full, rather than restricted,
freedo )as )arranted. The atter ay be put forth ore categorically, but 2
refrain fro doing so. The reason is practical. To insist that it should be thus ay
curb )hat appears to be the coendable tendency to put an end to the
preventive detention of those in actual confineent. As for restraints on
intellectual liberty ebraced in freedo of speech and of press, of assebly, and
of association, deference to controlling authorities copel e to say that the )rit
of habeas corpus is not the proper case for assailing the. 2t does not ean that
+udicial in*uiry is foreclosed. 3ar fro it. All that is intended to be conveyed is
that this reedy does not lend itself to that purpose. 2n so advocating this
approach, 2 a not unindful that it ight be loo4ed upon as lac4 of a)areness
for the ischief that ay be caused by irresponsible eleents, not to say the
rebels theselves. The )ords of /illoughby, )hose vie) on artial la) is the
ost sypathetic to the priacy of liberty, furnish the antidote? BAs long as the
eergency lasts then, they ust upon pain of arrest and subse*uent punishent
refrain fro coitting acts that )ill render ore difficult the restoration of a
state of noralcy and the enforceent of la).
39
"&. Reliance, as is *uite evident fro the foregoing, is )ellnigh solely placed on
Philippine authorities. /hile the persuasive character of Aerican Constitutional
la) doctrines is not entirely a thing of the past, still, the novelty of the *uestion
before us, copels in y vie) deference to the trend indicated by our past
decisions, read in the light not only of specific holdings but also of the broader
principles on )hich they are based. Even if they do not precisely control, they do
furnish a guide. Moreover, there sees to be a dearth of Gnited %tates %upree
Court pronounceents on the sub+ect of artial la), due no doubt to absence in
the Aerican Constitution of any provision concerning it. 2t is understandable )hy
no reference )as ade to such sub+ect in the earliest classic on Aerican
constitutional la) )ritten by 0ustice %tory.
4/
/hen the landar4 "$AA Milligan
case
41
ade its appearance, and uch ore so after %terling
41
follo)ed in "'7&
and 6uncan
43
in "'@A, a discussion thereof becae unavoidable. %o it is evident
fro subse*uent coentaries and case boo4s.
44
Cooley though, in his e*ually
faous )or4 that )as first published in "$A$ contented hiself )ith footnote
references to Milligan.
45
/atson vie)ed it in connection )ith the suspension of
the privilege of the )rit of habeas corpus.
46
2n the nineteen t)enties, there )as a
fuller treatent of the *uestion of artial la). Burdic4 anticipated /illoughby
)ith this appraisal? B%o;called artial la), e1cept in occupied territory of an
eney, is erely the calling in of the aid of ilitary forces by the e1ecutive, )ho
is charged )ith the enforceent of the la), )ith or )ithout special authori,ation
by the legislature. %uch declaration of artial la) does not suspend the civil la),
though it ay interfere )ith the e1ercise of one!s ordinary rights. The right to call
out the ilitary forces to aintain order and enforce the la) is siply part of the
police po)er. 2t is only +ustified )hen it reasonably appears necessary, and only
+ustifies such acts as reasonably appear necessary to eet the e1igency, including
the arrest, or in e1tree cases the 4illing of those )ho create the disorder or
oppose the authorities. /hen the e1igency is over the ebers of the ilitary
forces are criinally and civilly liable for acts done beyond the scope of
reasonable necessity. /hen honestly and reasonably coping )ith a situation of
insurrection or riot a eber of the ilitary forces cannot be ade liable for his
acts, and persons reasonably arrested under such circustances )ill not, during
the insurrection or riot, be free by )rit of habeas corpus.
47
/illoughby, as already noted, )as partial to the clais of liberty. This is *uite
evident in this e1cerpt in his opus? BThere is, then, strictly spea4ing, no such
thing in Aerican la) as a declaration of artial la) )hereby ilitary la) is
substituted for civil la). %o;called declarations of artial la) are, indeed, often
ade but their legal effect goes no further than to )arn citi,ens that the ilitary
po)ers have been called upon by the e1ecutive to assist hi in the aintenance
of la) and order, and that, )hile the eergency lasts, they ust, upon pain of
arrest and punishent not coit any acts )hich )ill in any )ay render ore
difficult the restoration of order and the enforceent of la). %oe of the
authorities stating substantially this doctrine are *uoted in the footnote belo).B
4*

/illis spo4e siilarly? BMartial la) proper, that is, ilitary la) in case of
insurrection, riots, and invasions, is not a substitute for the civil la), but is rather
an aid to the e1ecution of civil la). 6eclarations of artial la) go no further than
to )arn citi,ens that the e1ecutive has called upon the ilitary po)er to assist
hi in the aintenance of la) and order. /hile artial la) is in force, no ne)
po)ers are given to the e1ecutive and no civil rights of the individual, other than
the )rit of habeas corpus, are suspended. The relations bet)een the citi,en and
his state are unchanged.B
49
2t is readily evident that even )hen Milligan supplied the only authoritative
doctrine, Burdic4 and /illoughby did not ignore the priacy of civil liberties. /illis
)rote after %terling. 2t )ould indeed be surprising if his opinion )ere other)ise.
After 6uncan, such an approach becoes even ore strongly fortified. %ch)art,,
)hose treatise is the latest to be published, has this suary of )hat he
considers the present state of Aerican la)? BThe Milligan and /uncan cases
sho) plainly that artial la) is the public la) of necessity. Necessity alone calls it
forth. necessity +ustifies its e1ercise. and necessity easures the e1tent and
degree to )hich it ay be eployed. 2t is, the high Court has affired, an
unbending rule of la) that the e1ercise of ilitary po)er, )here the rights of the
citi,en are concerned, ay never be pushed beyond )hat the e1igency re*uires.
2f artial rule survives the necessity on )hich alone it rests, for even a single
inute, it becoes a ere e1ercise of la)less violence.B
5/
3urther? B"terling v.
Constantin is of basic iportance. Before it, a nuber of decisions, including one
by the highest Court, )ent on the theory that the e1ecutive had a free hand in
ta4ing artial;la) easures. Gnder the, it had been )idely supposed that a
artial;la) proclaation )as so far conclusive that any action ta4en under it )as
iune fro +udicial scrutiny. "terling v. Constantin, definitely discredits these
earlier decisions and the doctrine of conclusiveness derived fro the. Gnder
"terling v. Constantin, )here artial la) easures ipinge upon personal or
property rights 5 norally beyond the scope of ilitary po)er, )hose
intervention is la)ful only because an abnoral situation has ade it necessary
5 the e1ecutive!s ipse di1it is not of itself conclusive of the necessity.B
51
2t is not to be lost sight of that the basis for the declaration of artial la) in the
Philippines is not ere necessity but an e1plicit constitutional provision. -n the
other hand, Milligan, )hich furnished the foundation for %terling
51
and 6uncan
53

had its roots in the English coon la). There is pertinence therefore in
ascertaining its significance under that syste. According to the noted English
author, 6icey? B !Martial la),! in the proper sense of that ter, in )hich it eans
the suspension of ordinary la) and the teporary governent of a country or
parts of it by ilitary tribunals, is un4no)n to the la) of England. /e have
nothing e*uivalent to )hat is called in 3rance the !6eclaration of the %tate of
%iege,! under )hich the authority ordinarily vested in the civil po)er for the
aintenance of order and police passes entirely to the ary 8autorite ilitaire=.
This is an unista4able proof of the peranent supreacy of the la) under our
constitution.B
54
There )as this *ualification? BMartial la) is soeties eployed
as a nae for the coon la) right of the Cro)n and its servants to repel force
by force in the case of invasion, insurrection, riot, or generally of any violent
resistance to the la). This right, or po)er, is essential to the very e1istence of
orderly governent, and is ost assuredly recogni,ed in the ost aple anner
by the la) of England. 2t is a po)er )hich has in itself no special connection )ith
the e1istence of an ared force. The Cro)n has the right to put do)n breaches of
the peace. Every sub+ect, )hether a civilian or a soldier, )hether )hat is called a
!servant of the governent,! such for e1aple as a policean, or a person in no
)ay connected )ith the adinistration, not only has the right, but is, as a atter
of legal duty, bound to assist in putting do)n breaches of the peace. No doubt
policeen or soldiers are the persons )ho, as being specially eployed in the
aintenance of order, are ost generally called upon to suppress a riot, but it is
clear that all loyal sub+ects are bound to ta4e their part in the suppression of
riots.B
55
The picture )ould be incoplete, of course, if no reference )ere ade to
Rossiter. 2n his )or4 on Constitutional 6ictatorship, )here he discussed crisis
governents in the 3rench Republic, in 9reat Britain and in the Gnited %tate he
spo4e of artial rule. 3or hi, it Bis an eergency device designed for use in the
crises of invasion or rebellion. 2t ay be ost precisely defined as an e1tension of
ilitary governent to the civilian population, the substitution of the )ill of a
ilitary coander for the )ill of the people!s elected governent. 2n the event
of an actual or iinent invasion b a hostile po)er, a constitutional governent
ay declare artial rule in the enaced area. The result is the transfer of all
effective po)ers of governent fro the civil authorities to the ilitary, or often
erely the assuption of such po)ers by the latter )hen the regular governent
has ceased to function. 2n the event of a rebellion its initiation aounts to a
governental declaration of )ar on those citi,ens in insurrection against the
state. 2n either case it eans ilitary dictatorship 5 governent by the ary,
courts;artial, suspension of civil liberties, and the )hole range of dictatorial
action of an e1ecutive nature. 2n the odern deocracies the ilitary e1ercises
such dictatorship )hile reaining subordinate and responsible to the e1ecutive
head of the civil governent. Martial rule has a variety of fors and pseudonys,
the ost iportant of )hich are martial law, as it is 4no)n in the civil la)
countries of the British Epire and the Gnited %tates, and the state o) siege, as it
is 4no)n in the civil la) countries of continental Europe and :atin Aerica. The
state of siege and artial la) are t)o edges to the sae s)ord, and in action
they can hardly be distinguished. The institution of artial rule is a recognition
that there are ties in the lives of all counities )hen crisis has so copletely
disrupted the noral )or4ings of governent that the ilitary is the only po)er
reaining that can restore public order and secure the e1ecution of the la)s.
56
Cappily for the Philippines, the declaration of artial la) lends itself to the
interpretation that the Burdic4, /illoughby, /illis, %ch)art, forulations paying
due regard to the priacy of liberty possess relevance. 2t cannot be said that the
artial rule concept of Rossiter, latitudinarian in scope, has been adopted, even
on the assuption that it can be reconciled )ith our Constitution. /hat is
undeniable is that President Marcos has repeatedly aintained that Proclaation
No. "#$" )as precisely based on the Constitution and that the validity of acts
ta4en thereunder could be passed upon by the %upree Court. 3or e, that is
*uite reassuring, persuaded as 2 a li4e)ise that the vie) of Rossiter is opposed
to the fundaental concept of our polity, )hich puts a preiu on freedo. No
undue concern need then be felt as to the continuing reliance on Moyer v.
&eabody,
57
)here 0ustice Coles spea4ing for the Court, stated that the test of
the validity of e1ecutive arrest is that they be ade Bin good faith and in the
honest belief that they are needed in order to head the insurrection off ...B
5*
Ce
did state li4e)ise? B/hen it coes to a decision by the head of the state upon a
atter involving its life, the ordinary rights of individuals ust yield to )hat he
e1ecutive process for +udicial process. %ee .eely v. "anders, '' G% @@", @@A, &<
: ed. 7&(, 7&$, This )as aditted )ith regard to 4illing en in the actual clash of
ars and )e thin4 it obvious, although it )as disputed, that the sae is true of
teporary detention to prevent apprehended har.B
59
Nor )as this to anifest
less than full regard for civil liberties. Cis other opinions indicated the contrary.
More specifically, it )as fro his pen, in Chastleton Corporation v. "inclair,
6/

)here the doctrine that the +udiciary ay in*uire into )hether the eergency
)as at an end, )as given e1pression. Thus? B/e repeat )hat )as stated in Block
v. 1irsh, ..., as to the respect due to a declaration of this 4ind by the legislature
so far as it relates to present facts. But, even as to the, a court is not a liberty
to shut its eyes to an obvious ista4e, )hen the validity of the la) depends upon
the truth of )hat is declared. ... And still ore obviously, so far as this declaration
loo4s to the future, it can be no ore than prophecy, and is liable to be controlled
by events. A la) depending upon the e1istence of an eergency or other certain
state of facts to uphold it ay cease to operate if the eergency ceases or the
facts change, even though valid )hen passed.B
61
"7. 2t ay safely be concluded therefore that the role of Aerican courts
concerning the legality of acts ta4en during a period of artial la) is far fro
inial. /hy it ust he so )as e1plained by 6ean Rosto) in this )ise? BGnless
the courts re*uire a sho)ing, in cases li4e these, of an intelligible relationship
bet)een eans and ends, society has lost its basic protection against the abuse
of ilitary po)er. The general!s good intention ust be irrelevant. There should
be evidence in court that his ilitary +udgent had a suitable basis in fact. As
Colonel 3airan, a strong proponent of )idened ilitary discretion, points out?
!/hen the e1ecutive fails or is unable to satisfy the court of the evident necessity
for the e1traordinary easures it has ta4en, it can hardly e1pect the court to
assue it on faith.B
61
This is the )ay :ass)ell )ould suari,e the atter? B-n
the )hole, )e can conclude that the courts of this country have a body of ancient
principles and recent precedents that can be used to 4eep at a iniu
unnecessary encroachents upon private rights by the e1ecutive, civil or ilitary.
The vigor and sensitiveness )ith )hich the due process clause has been affired
in the last t)o decades is, in particular, an iportant developent.B
63
"@. 2t ay be that the approach follo)ed ay for soe be indicative of lac4 of full
a)areness of today!s stern realities. 2t is y subission that to so vie) the
transcendental issues before us is to adhere as closely as possible to the ideal
envisioned in E1 parte Milligan? BThe Constitution is a la) for rulers and for people
e*ually in )ar and peace and covers )ith the shield of its protection all classes of
en at all ties and under all circustances.B
64
2t is ever tiely to reiterate that
at the core of constitutionalis is a robust concern for individual rights. This is
not to deny that the +udicial process does not ta4e place in a social void. The
*uestions that call for decision are to be e1ained in the total social conte1t )ith
full appreciation of the environental facts, )hether vie)ed in its teporal or
other relevant aspects. They have to reconcile tie;tested principles to
conteporary probles. :egal nors cannot al)ays stand up against the
pressure of events. The great un*uestioned verities ay thus prove to be less
than ade*uate. %o uch is conceded. Nonetheless, even )ith the additional
difficulty that the Court today is copelled to enter terrain )ith boundaries not so
clearly defined, carrying )ith it the ris4 of e1ceeding the noral liits of +udicial
iprecision, 2 find yself unable to resist the copulsion of constitutional history
and traditional doctrines. The facts and issues of the petitions before us and the
andates of the fundaental la), as 2 vie) the in the light of accepted
concepts, blunt the edge of )hat other)ise could be considerations of decisive
ipact. 2 find yself troubled by the thought that, )ere it other)ise, it )ould
aount to free,ing the flu1 of the turbulent present )ith its grave and critical
probles in the icy peranence of +uristic doctrines. As of no), such an
uncofortable thought intrudes. Cence this brief concurring and dissenting
opinion.

TEE!N-EE, J.:
&re)atory statement? This separate opinion )as prepared and scheduled to be
proulgated )ith the +udgent of the Court 8penned by the Chief 0ustice= on
%epteber "&, "'(@. %uch proulgation )as ho)ever overta4en by the )elcoe
ne)s of the release fro detention on %epteber "", "'(@ of petitioner 0ose /.
6io4no upon the order of President 3erdinand E. Marcos, and the Court then
resolved to defer proulgation until the follo)ing )ee4. Cence, Part 2 of this
opinion dealing )ith the 6io4no petition should be read in such tie conte1t.
The t)o other parts thereof dealing )ith the A*uino and Rodrigo cases are to be
read as of the actual date of proulgation, since they reiterate a ain thee of
the opinion that the Court should adhere to the )ell;grounded principle of not
ruling on constitutional issues e1cept )hen necessary in an appropriate case. 2n
the )riter!s vie), the gratifying developent in the 6io4no case )hich rendered
his petition oot by virtue of his release once ore deonstrates the validity of
this principle.
2. -n the /iokno petition? 2 vote for the granting of petitioner 0ose /. 6io4no!s
otion of 6eceber &', "'(7 to )ithdra) the petition for habeas corpus filed on
%epteber &7, "'(& on his behalf and the suppleental petition and otions for
iediate release and for oral arguent of 0une &', "'(7 and August "@, "'(7
filed in support thereof, as prayed for.
". The present action is one of habeas corpus and the detainee!s o)n )ithdra)al
of his petition is decisive. 2f the detainee hiself )ithdra)s his petition and no
longer )ishes this Court to pass upon the legality of his detention and cites the
other pending habeas corpus cases )hich have not been )ithdra)n and )herein
the Court can rule on the constitutional issues if so inded,
1
such )ithdra)al of a
habeas corpus petition should be granted practically as a atter of absolute right
8)hatever be the otivations therefor= in the sae anner that the )ithdra)al
otions of the petitioners in the other; cases )ere previously granted by the
Court.
1
%ince there )ere seven 8(= ebers of the Court )ho voted for granting the
)ithdra)al otion as against five 8<= ebers )ho voted for denying the sae
and rendering a decision,
3
subit that this a+ority of seven 8(= out of the
Court!s ebership of t)elve 8"&= is a sufficient a+ority for granting the
withdrawal prayed for. A siple a+ority of seven is legally sufficient for the
granting of a )ithdra)al of a petition, since it does not involve the rendition of a
decision, on the erits. 2t is only )here a decision is to be rendered on the erits
by the Court en banc that the "'(7 Constitution re*uires the concurrence of at
least eight 8$= ebers.
4
2 therefore dissent fro the a+ority!s adhering to the five;eber inority vie)
that the a+ority of seven ebers is not legally sufficient for granting
)ithdra)al and that a decision on the erits be rendered not)ithstanding the
)ithdra)al of the petition.
&. The granting of the )ithdra)al of the petition is but in consonance )ith the
fundaental principle on the e1ercise of +udicial po)er )hich, in the )ords of the
%olicitor;9eneral, Bas 0ustice :aurel ephasi,ed, is +ustifiable only as a necessity
for the resolution of an actual case and controversy and therefore should be
confined to the very lis ota presented.B
5
%uch )ithdra)al is furtherore in accord )ith the respondents! stand fro the
beginning urging the Court not to ta4e cogni,ance 8for )ant of +urisdiction or as a
atter of +udicial restraint citing Brandeis! in+unction that BThe ost iportant
thing )e decide is )hat not to decideB
6
= or that Bat the very least, this Court
should postpone consideration of this case until the present eergency is over.B
7
Many of the other petitioners in the habeas corpus cases at bar )ere granted
leave to )ithdra) their petitions. Petitioner 6io4no!s )ithdra)al otion should
li4e)ise be granted in line )ith the )ell;established doctrine that the Court )ill
not rule on constitutional issues e1cept )hen necessary in an appropriate case.
7. But the %olicitor;9eneral no) ob+ects to the )ithdra)al on the ground of public
interest and that Bthis Tribunal ... has been used as the open foru for
underground propaganda by those )ho have political a1es to grindB )ith the
circulation of the )ithdra)al otion and that this Court )ould be Bputting the seal
of approvalB and in effect adit the Bunfair, untrue and conteptuousB
stateents ade in the )ithdra)al otion should this Court grant the
)ithdra)al.
*
2 see no point in the position ta4en by the %olicitor;9eneral of urging
the Court to deny the )ithdra)al otion only to render a decision that )ould
after all disiss the petition and sustain respondents! defense of political (uestion
and have the Court declare itself without 0urisdiction to ad+udicate the
constitutional issues presented
9
and as4ing the Court to ebrace the Bpragatic
ethodB of /illia 0aes )hich Bre+ects ... the a priori assuption that there are
iutable principles of +ustice. 2t tests a proposition by its practical
conse*uences.B
1/
The ob+ections are untenable.
The public interest ob+ection is et by the fact that there are still pending. other
cases 8principally the prohibition case of petitioner Benigno %. A*uino, 0r. in
another case, :;7(7A@ *uestioning the filing of grave charges under the Anti;
%ubversion Act, etc. against hi )ith a ilitary coission
11
and )hich is not
yet subitted for decision= )here the sae constitutional issues ay be resolved.
The other ob+ections are tenuous? The %olicitor;9eneral refutes his o)n
ob+ections in his closing stateent in his coent that Bfor their part,
respondents are confident that in the end they )ould be upheld in their defense,
as indeed petitioner and counsel have practically con)essed 0udgment in this
case.B
11
The propaganda ob+ection is not a valid ground for denying the )ithdra)al of the
petition and should not be held against petitioner )ho had nothing )hatsoever to
do )ith it. The ob+ection that granting the )ithdra)al otion )ould aount to an
adission of the Bunfair, untrue and conteptuous stateentsB ade therein is
untenable since it is patent that granting the )ithdra)al otion per se
8regardless of petitioner!s reasons= does not aount to an adission of the truth
or validity of such reasons and as conceded by the %olicitor;9eneral, neither )ill
denying the )ithdra)al otion per se disprove the reasons.
13
The untruth,
unfairness or costuacy of such reasons ay best be dealt )ith, clarified or
e1pounded by the Court and its ebers in the Court!s resolution granting
)ithdra)al or in the separate opinions of the individual 0ustices 8as has actually
been done and )hich the )riter )ill no) proceed to do=.
@. Petitioner!s first reason for )ithdra)al is sub+ective. After entioning various
factors, particularly, the fact that five of the si1 0ustices 8including the )riter= )ho
held in the Ratification cases
14
that the "'(7 Constitution had not been validly
ratified had ta4en on -ctober &', "'(7 an oath to iport and defend the ne)
Constitution, he e1presses his feeling that B82= cannot reasonably e1pect either
right or reason, la) or +ustice, to prevail in y case,B that Bthe unusual length of
the struggle also indicates that its conscience is losing the battleB and that Bsince
2 do not )ish to be Pa party to an 2 adverse decision, 2 ust renounce every
possibility of favorable +udgent.B
15
A party!s sub+ective evaluation of the Court!s
action is actually of no oent, for it has al)ays been recogni,ed that this Court,
possessed of neither the s)ord nor the purse, ust ultiately and ob+ectively
rest its authority on sustained public confidence in the truth, +ustice, integrity and
oral force of its +udgents.B
16
Petitioner!s second reason for )ithdra)al reads? B8%=econd, in vie) of the ne)
functioning under a ne) !Constitution,! different fro the Court and the
Constitution under )hich 2 applied for y release. 2 )as )illing to be +udged by
the old Court under the old Constitution, but not by the ne) Court under the ne)
Constitution, ....B
17
Petitioner is in error in his assuption that this Court is Bne) Court functioning
under a ne) Constitution different fro the Court and the Constitution under
)hich HheJ applied for HhisJ release.B The sae %upree Court has continued
save that it no) operates under Article I of the "'(7 Constitution )hich inter alia
increased its coponent ebership fro eleven to fifteen and transferred to it
adinistrative supervision over all courts and personnel thereof )ith the po)er of
discipline and disissal over +udges of inferior courts, in the sae anner that
the sae Republic of the Philippines 8of )hich the %upree Court is but a part=
has continued in e1istence but no) operates under the "'(7 Constitution.
1*
6uring the period of ninety days that the Ratification cases )ere pending before
the Court until its disissal of the cases per its resolution of March 7", "'(7
becae final on April "(, "'(7, the E1ecutive 6epartent )as operating under
the "'(7 Constitution in accordance )ith President 3erdinand E. Marcos!
Proclaation No. ""#& on 0anuary "(, "'(7 announcing the ratification and
corning into effect of the "'(7 Constitution )hile this Court as the only other
governental departent continued to operate tinder the "'7< Constitution
pending its final resolution on the said cases challenging the validity of
Proclaation No. ""#& and enforceent of the ne) Constitution. 8As per the
Court resolution of 0anuary &7, "'(7, it declined to ta4e over fro the
6epartent of 0ustice the adinistrative supervision over all inferior courts
e1pressing its sense that Bit is best that the status (uo be aintained until the
case aforeentioned 80avellana vs. E1ec. %ecretary= shall have been finally
resolved...B=
%uch a situation could not long endure )herein the only t)o great departents of
governent, the E1ecutive and the 0udicial,
19
for a period of three onths )ere
operating under t)o different Constitutions 8presidential and parliaentary=.
/hen this Court!s resolution of disissal of the Ratification cases by a a+ority of
si1 to four 0ustices becae final and )as entered on April "$, "'(7 B)ith the
result that there 8)ere= not enough votes to declare that the ne) Constitution is
not in force,B
1/
the Court and particularly the reaining three dissenting 0ustices
8not)ithstanding their vote )ith three others that the ne) Constitution had not
been validly ratified
11
had to abide under the Rule of :a) by the decision of the
a+ority disissing the cases brought to en+oin the enforceent by the E1ecutive
of the ne) Constitution and had to operate under it as the fundaental charter of
the governent, unless they )ere to turn fro legitiate dissent to internecine
dissidence for )hich they have neither the inclination nor the capability.
The Court as the head of the 0udicial 6epartent thenceforth assued the po)er
of adinistrative supervision over all courts and all other functions and liabilities
iposed on it under the ne) Constitution. Accordingly, this and all other e1isting
inferior courts continue to discharge their +udicial function and to hear and
deterine all pending cases under the old 8"'7<=Constitution
11
as )ell as ne)
cases under the ne) 8"'(7= Constitution )ith the full support of the ebers of
the 2ntegrated Bar of the Philippines 8none of )ho has ade petitioner!s clai
that this is a Bne) CourtB different fro the Bold CourtB=.
A a+or liability iposed upon all ebers of the Court and all other officials and
eployees )as that under Article ID22, section ' of the Transitory Provisions
13

)hich )as destructive of their tenure and called upon the Bto vacate their
respective offices upon the appointent and *ualification of their successors.B
Their ta4ing the oath on -ctober &', "'(7 Bto preserve and defend the ne)
ConstitutionB by virtue of their Bhaving been continued in officeB
14
on the
occasion of the oath;ta4ing of three ne) ebers of the Court
15
pursuant to
Article ID, section @
16
)as eant to assure their Bcontinuity of tenureB by )ay of
the President having e1ercised the po)er of replaceent under the cited
provision and in effect replaced the )ith theselves as ebers of the Court
)ith the sae order of seniority.
17
<. The )ithdra)al in effect gives cause for +udicial abstention and further
opportunity 8pending subittal for decision of the A*uino prohibition case in :;
7(7A@= to ponder and deliberate upon the host of grave and fundaental
constitutional *uestions involved )hich have thereby been rendered unnecessary
to resolve here and no).
2n the benchar4 case of Lansang vs. Garcia
1*
)hen the Court declared that the
President did not act arbitrarily in issuing in August, "'(" Proclaation No. $$',
as aended, suspending the privilege of the )rit of habeas corpus for persons
detained for the cries of insurrection or rebellion and other overt acts
coitted by the in furtherance thereof, the Court held through then Chief
0ustice Concepcion that Bour ne1t step )ould have been the follo)ing? The Court,
or a coissioner designated by it, )ould have received evidence on )hether 5
as stated in respondents! !Ans)er and Return! 5 said petitioners had been
apprehended and detained !on reasonable belief! that they had !participated in the
crie of insurrection or rebellion.!
8Co)ever, since in the interval of t)o onths during the pendency of the case,
criinal coplaints had been filed in court against the petitioners;detainees
8:u,viindo 6avid, 9ary -livar, et al.=, the Court found that Bit is best to let said
preliinary e1aination andNor investigation be copleted, so that petitioners!
release could be ordered by the court of first instance, should it find that there is
no probable cause against the, or a )arrant for their arrest could be issued
should a probable cause be established against the.B
19
The Court accordingly
ordered the trial court Bto act )ith utost dispatchB in conducting the preliinary
investigation for violation of the Anti;%ubversion Act and Bto issue the
corresponding )arrants of arrest, if probable cause is found to e1ist against the,
or other)ise, to order their release.B=
Can such a procedure for reception of evidence on the controverted allegations
concerning the detention as indicated in Lansang be li4e)ise applied to
petitioner!s case considering his prolonged detention for alost t)o years no)
)ithout chargesE
3/
2t should also be considered that it is conceded that even
though the privilege of the )rit of habeas corpus has been suspended, it is
suspended only as to certain specific cries and the Bans)er and returnB of the
respondents )ho hold the petitioner under detention is not conclusive upon the
courts )hich ay receive evidence and deterine as held in Lansang 8and as also
provided in the Anti;%ubversion Act HRepublic Act "(##J= )hether a petitioner has
been in )act apprehended and detained arbitrarily or Bon reasonable beliefB that
he has Bparticipated in the crie of insurrection or rebellionB or other related
offenses as ay be enuerated in the proclaation suspending the privilege of
the )rit.
Pertinent to this *uestion is the Court!s adoption in Lansang of the doctrine of
"terling vs. Constantin
31
enunciated through G.%. Chief 0ustice Cughes that even
)hen the state has been placed under artial la) B... 8/=hen there is a
substantial showing that the e!ertion o) state power has overridden private rights
secured by that Constitution, the sub+ect is necessarily one )or 0udicial in(uiry in
an appropriate proceeding directed against the individuals charged )ith the
transgression. To such a case the 3ederal +udicial po)er e1tends 8Art. 7, sec. &=
and, so e1tending, the court has all the authority appropriate to its e!ercise. ...
E*ually pertinent is the Court!s stateent therein announcing the ebers!
unanious conviction that Bit has the authority to in*uire into the e1istence of
said factual bases Hstated in the proclaation suspending the privilege of the )rit
of habeas corpus or placing the country under artial la) as the case ay be,
since the re*uireents for the e1ercise of these po)ers are the sae and are
provided in the very sae clauseJ in order to deterine the constitutional
sufficiency thereof.B
31
The Court stressed therein that Bindeed, the grant of po)er
to suspend the privilege is neither absolute nor un*ualified. The authority
conferred upon by the Constitution, both under the Bill of Rights and under the
E1ecutive 6epartent, is liited and conditional. The precept in the Bill of Rights
establishes a general rule, as )ell as an e1ception thereto. )hat is ore, it
postulates the forer in the negative, evidently to stress its iportance, by
providing that !8t=he privilege of the )rit of habeas corpus shall not be
suspended ....! 2t is only by )ay of e!ception that it perits the suspension of the
privilege !in cases of invasion, insurrection, or rebellion! 5 or under Art. D22 of the
Constitution, !iinent danger thereof! 5 !)hen the public safety re*uires it, in
any of )hich events the sae ay be suspended )herever during such period the
necessity for such suspension shall e1ist.! 3ar fro being full and plenary, the
authority to suspend the privilege of the )rit is thus circuscribed, confined and
restricted, not only by the prescribed setting or the conditions essential to its
e1istence, but also, as regards the tie )hen and the place )here it ay be
e1ercised. These factors and the aforeentioned setting or conditions ar4,
establish and define the e1tent, the confines and the liits of said po)er, beyond
)hich it does not e1ist. And, li4e the liitations and restrictions iposed by the
3undaental :a) upon the legislative departent, adherence thereto and
copliance there)ith ay, )ithin proper bounds, be in*uired into by the courts of
+ustice. -ther)ise, the e1plicit constitutional provisions thereon )ould be
eaningless. %urely, the fraes of our Constitution could not have intended to
engage in such a )asteful e1ercise in futility.B
33
/hile a state of artial la) ay bar such +udicial in*uiries under the )rit of
habeas corpus in the actual theater of )ar, )ould the proscription apply )hen
artial la) is aintained as an instruent of social refor and the civil courts
8as )ell as ilitary coissions= are open and freely functioningE /hat is the
e1tent and scope of the validating provision of Article ID22, section 7 8&= of the
Transitory Provisions of the "'(7 ConstitutionE
34
9ranting the validation of the initial preventive detention, )ould the validating
provision cover indefinite detention thereafter or ay in*uiry be ade as to its
reasonable relation to eeting the eergency situationE
/hat rights under the Bill of Rights, e.g. the rights to due process and to Bspeedy,
ipartial and public trialB
35
ay be invo4ed under the present state of artial
la)E
2s the e1ercise of artial la) po)ers for the institutionali,ation of refors
incopatible )ith recogni,ing the fundaental liberties granted in the Bill of
RightsE
The President is )ell a)are of the layan!s vie) of the Bcentral proble of
constitutionalis in our conteporary society ... )hether or not the Constitution
reains an efficient instruent for the oderation of conflict )ithin society. There
are t)o aspects of this proble. -ne is the regulation of freedo in order to
prevent anarchy. The other is the liitation of po)er in order to prevent tyranny.B
36
Cence, he has declared that BThe Ne) %ociety loo4s to individual rights as a
atter of paraount concern, reoved fro the vicissitudes of political
controversy and beyond the reach of a+orities. /e are pledged to uphold the Bill
of Rights and as the e1igencies ay so allo), )e are deterined that each
provision shall be e1ecuted to the fullest,B
37
and has ac4no)ledged that Bartial
la) necessarily creates a coand society ... HandJ is a temporary constitutional
e1pedient of safeguarding the republic ...B
3*
Ce has thus described the proclaation of artial la) and Bthe setting up of a
corresponding crisis governentB as constitutional authoritarianis,B )hich is a
recognition that )hile his governent is authoritarian it is essentially
constitutional and recogni,es the supreacy of the ne) Constitution.
Ce has further declared that Bartial la) should have legally terinated on
0anuary "(, "'(7 )hen the ne) Constitution )as ratifiedB but that Bthe Popular
claor anifested in the referendu H)asJ that the National Assebly he
teporarily suspendedB and the reaction in the 0uly, "'(7 referendu B)as
violently against stopping the use of artial la) po)ers,B adding that B2 intend to
subit this atter at least notice a year to the people, and )hen they say )e
should shift to the noral functions of governent, then )e )ill do so.B
39
The reali,ation of the prospects for restoration of noralcy and full
ipleentation of each and every provision of the Bill of Rights as pledged by the
President )ould then hopefully coe sooner rather than later and provides an
additional )eighty reason for the e1ercise of +udicial abstention under the
environental circustances and for the granting of the )ithdra)al otion.
22. +n the '(uino case? 2 aintain y original vote as first unaniously agreed by
the Court for disissal of the habeas corpus petition of Benigno %. A*uino, 0r. on
the ground that grave charges against hi for violation of the Anti;%ubversion Act
8Republic Act "(##=, etc. )ere filed in August, "'(7 and hence the present
petition has been superseded by the prohibition case then filed by hi
*uestioning the filing of the charges against hi )ith a ilitary coission
rather than )ith the civil courts 8)hich case is not yet subitted for decision=.
The said prohibition case involves the sae constitutional issues raised in the
6io4no case and ore, concerning the constitutionality of having hi tried by a
ilitary coission for offenses allegedly coitted by hi long before the
declaration of artial la). This is evident fro the special and affirative
defenses raised in respondents! ans)er )hich filed +ust last August &", "'(@ by
the %olicitor )hich reiterate the sae defenses in his ans)er to the petition at
bar. Cence, the sae constitutional issues ay )ell be resolved if necessary in
the decision yet to be rendered by the Court in said prohibition case.
2 therefore dissent fro the subse*uent vote of the a+ority to instead pass upon
and resolve in advance the said constitutional issues unnecessarily in the present
case.
222. +n the ,odrigo case? 2 subit that the habeas corpus petition of 3rancisco
B%ocB Rodrigo as )ell as the petitions of those others siilarly released should be
disissed for having been rendered oot and acadeic by virtue of their release
fro physical confineent and detention. That their release has been ade
sub+ect to certain conditions 8e.g. not being allo)ed to leave the 9reater Manila
area )ithout specific authori,ation of the ilitary authorities= does not ean that
their action )ould survive, since B8T=he restraint of liberty )hich )ould +ustify the
issuance of the )rit ust be ore than a ere oral restraint. it ust be actual
or physical .B
4/
They ay have soe other +udicial recourse for the reoval of
such restraints but their action for habeas corpus cannot survive since they are no
longer deprived of their physical liberty. 3or these reasons and those already
e1pounded hereinabove, 2 dissent fro the a+ority vote to pass upon and
resolve in advance the constitutional issues unnecessarily in the present case.

#!RRE&O, J., concurring?
2t is to y ind very unfortunate that, for reasons 2 cannot coprehend or do
not dee convincing, the a+ority of the Court has agreed that no ain opinion
be prepared for the decision in these, cases. Conestly, 2 feel that the grounds
given by the Chief 0ustice do not +ustify a deviation fro the regular practice of a
ain opinion being prepared by one 0ustice even )hen the ebers of the Court
are not all agreed as to the grounds of the +udgent as long as at least a
substantial nuber of 0ustices concur in the basic ones and there are enough
other 0ustices concurring in the result to for the re*uired a+ority. 2 do not see
such varying substantial disparity in the vie)s of the ebers of the Court
regarding the different issues here as to call for a suari,ation li4e the one that
)as done, )ith controversial conse*uences, in 0avellana. . Actually, the
suari,ation ade by the Chief 0ustice does not in y opinion portray
accurately the spectru of our vie)s, if one is to assay the doctrinal value of this
decision. The divergence!s stated are 2 thin4 ore apparent than real.
2n any event, it is y considered vie) that a historical decision li4e this, one li4ely
to be sui generis, at the sae tie that it is of utost transcendental iportance
because it revolves around the proper construction of the constitutional provisions
securing individual rights as they ay be, affected by those epo)ering the
9overnent to defend itself against the threat of internal and e1ternal
aggression, as these are actually operating in the setting of the -fficial
proclaation of the E1ecutive that rebellion endangering public safety actually
e1ists, deserves better treatent fro the Court. 2ndeed, 2 believe that our
points of seeing variance respecting the *uestions before us could have been
threshed out, if only enough effort in that direction had been e1erted by all. The
trouble is that fro the very beginning any ebers of the Court, yself
included, announced our desire to have our vie)s recorded for history, hence,
individuali,ation rather than consensus becae the order of the day. 2n
conse*uence, the convenient solution )as forged that as long as there )ould be
enough votes to support a legally binding +udgent, there need not be any
opinion of the Court, everyone could give his o)n vie)s and the Chief 0ustice
)ould +ust try to analy,e the opinions of those )ho )ould care to prepare one
and then a4e a certification of the final result of the voting. 2t )as only at the
last inute that, at y suggestion, supported by 0ustice Castro, the Chief!s
prepared certification )as odified to assue the for of a +udgent, thereby
giving this decision a better seblance of respectability.
As )ill be seen, this separate opinion of concurrence is not due to any
irreconcilable conflict of conviction bet)een e and any other eber of the
Court. Truth to tell, at the early stages of our efforts to decide these but after the
Court had ore or less already arrived at a consensus as to the result, 2 )as
ade to understand that 2 could prepare the opinion for the Court. Apparently,
ho)ever, for one reason or another, soe of our colleagues felt that it is
unnecessary to touch on certain atters contained in the draft 2 had subitted,
incoplete and unedited as it )as, hence, the plan )as abandoned. My
e1planation that a decision of this iport should be addressed in part to the
future and should attept to ans)er, as best )e can, not only the *uestions
raised by the parties but also the relevant ones that )e are certain are bothering
any of our countryen, not to spea4 of those )ho are interested in the correct
+uridical iplications of the unusual political developents being )itnessed in the
Philippines these days, failed to persuade the. 2 still feel very strongly, ho)ever,
the need for articulating the thoughts that )ill enable the )hole )orld to visuali,e
and coprehend the e1act length, breath and depth of the +uridical foundations of
the current constitutional order and thus be better positioned to render its verdict
thereon.
The follo)ing then is the draft of the opinion 2 prepared for the Court. 2 feel 2
need not ad+ust it to give it the tenor of an individual opinion. %oething inside
e dictates that 2 should let it stand as 2 had originally prepared it. 2 a
eboldened to do this by the conviction that actually, )hen properly analy,ed, it
)ill be reali,ed that )hatever differences there ight be in the various opinions
)e are subitting individually, such differences lie only in the distinctive ethods
of approach )e have each preferred to adopt rather than in any basically
substantial and irreconcilable disagreeent. 2f )e had only striven a little ore, 2
a confident, )e could have even found a coon ode of approach. 2 a
referring, of course, only to those of us )ho sincerely feel the urgency of
resolving the fundaental issues herein, regardless of purely technical and
strained reasons there ight be to apparently +ustify an attitude of indifference, if
not concealed antagonis, to the need for authoritative +udicial clarification of the
+uridical aspects of the Ne) %ociety in the Philippines.
-n %epteber "", "'(@, petitioner 6io4no )as released by the order of the
President, Bunder e1isting rules and regulations.B The Court has, therefore,
resolved that his particular case has becoe oot and acadeic, but this
developent has not affected the issues insofar as the other petitioners,
particularly %enator A*uino, are concerned. And inasuch as the principal
arguents of petitioner 6io4no, although presented only in the pleadings filed on
his behalf, apply )ith ore or less e*ual force to the other petitioners, 2 feel that
y reference to and discussion of said arguents in y draft ay )ell be
preserved, if only to aintain the purported coprehensiveness of y treatent
of all the iportant aspects of these cases.
Before proceeding any further, 2 )ould li4e to e1plain )hy 2 a saying )e have no
basic disagreeents.
E1cept for 0ustices Ma4asiar and Esguerra )ho consider the recitals in the
Proclaation to be absolutely conclusive upon the courts and of 0ustice
Teehan4ee )ho considers it unnecessary to e1press any opinion on the atter at
this point, the rest or eight of us have actually in*uired into the constitutional
sufficiency of the Proclaation. /here )e have differed is only as to the e1tent
and basis of the in*uiry. /ithout coitting theselves e1pressly as to )hether
the issue is +usticiable or other)ise, the Chief 0ustice and 0ustice Castro
unista4ably appear to have actually conducted an in*uiry )hich as far as 2 can
see is based on facts )hich are uncontradicted in the record plus additional facts
of +udicial notice. No independent evidence has been considered, nor is any
reference ade to the evidence on )hich the President had acted. -n their part,
0ustices Antonio, 3ernande, and A*uino are of the vie) that the Proclaation is
not sub+ect to in*uiry by the courts, but assuing it is, they are of the conviction
that the record aply supports the reasonableness, or lac4 of arbitrariness, of the
President!s action. Again, in arriving at this latter conclusion, they have relied
e1clusively on the sae factual bases utili,ed by the Chief 0ustice and 0ustice
Castro. 0ustices 3ernando and MuFo, Pala categorically hold that the issue is
+usticiable and, on that preise, they ade their o)n in*uiry, but )ith no other
basis than the sae undisputed facts in the record and facts of +udicial notice
fro )hich the others have dra)n their conclusions. 3or yself, 2 a +ust a4ing
it very clear that the in*uiry )hich the Constitution conteplates for the
deterination of the constitutional sufficiency of a proclaation of artial la) by
the President should not go beyond facts of +udicial notice and those that ay be
stated in the proclaation, if these are by their very nature capable of
un*uestionable deonstration. 2n other )ords, eight of us virtually hold that the
E1ecutive!s Proclaation is not absolutely conclusive 5 but it is not to be
interfered )ith )henever it )ith facts undisputed in the record as )ell as those of
+udicial notice or capable of un*uest deonstration. Thus, it is obvious that
although )e are split bet)een upholding +usticiability or non;+usticiability, those
)ho believe in the latter have nonetheless conducted an in*uiry, )hile those )ho
adhere to the forer theory, insisting on follo)ing :ansang, have liited their
in*uiry to the uncontroverted facts and facts of +udicial notice. 2ndeed, the truth
is that no one has as4ed for in*uiry into the evidence before the President )hich
is )hat the real iport of +usticiability eans. 2n the final analysis, none of us has
gone beyond )hat in y huble opinion the Constitution perits in the preises.
2n other )ords, )hile a declaration of artial la) is not absolutely conclusive, the
Court!s in*uiry into its constitutional sufficiency ay not, contrary to )hat is
iplied in :ansang, involve the reception of evidence to be )eighed against those
on )hich the President has acted, nor ay it e1tend to the investigation of )hat
evidence the President had before hi. %uch in*uiry ust be liited to )hat is
undisputed in the record and to )hat accords or does not accord )ith facts of
+udicial notice.
3ollo)ing no) is y separate concurring opinion )hich as 2 have said is the draft
2 subitted to the Court!s approval?
This is a cluster of petitions for habeas corpus see4ing the release of petitioners
fro detention, upon the ain ground that, allegedly, Proclaation "#$" issued
by President 3erdinand E. Marcos on %epteber &", "'(& placing the )hole
country under artial la) as )ell as the general orders subse*uently issued also
by the President by virtue of the said proclaation, pursuant to )hich petitioners
have been apprehended and detained, t)o of the until the present, )hile the
rest have been released conditionally, are unconstitutional and null and void,
hence their arrest and detention have no legal basis.
The petitioners in 9. R. No. :;7<<7$ are all +ournalists, naely, 0oa*uin P. Roces,
Teodoro M. :ocsin, Rolando 3adul, Rosalind 9alang, 9o Eng 9uan, Ma1io M.
%oliven, Renato Constantino and :uis R. Mauricio. Their petition )as filed at about
noon of %epteber &7, "'(&.
Alost three hours later of the sae day, the petition in 9. R. No. :;7<<7' )as
filed, )ith Caren 2. 6io4no, as petitioner, acting on behalf of her husband, 0ose
/. 6io4no, a senator, )ho is one of those still detained.
T)o days later, early in the orning of %epteber &<, "'(&, the petition of
Ma1io D. %oliven, Napoleon 9. Raa and 0ose Mari Dele,, all edia en, )as
doc4eted as 9. R. No. :;7<<@#. The last t)o )ere also delegates to the
Constitutional Convention of "'(".
2n all the three foregoing cases, the proper )rits of habeas corpus )ere issued
returnable not later than @?## p.. of %epteber &<, "'(&, and hearing of the
petitions )as held on %epteber &A, "'(&.
1
:ate in the afternoon of %epteber &<, "'(&, another petition )as filed on behalf
of %enators Benigno %. A*uino, 0r. and Raon D. Mitra, 0r., and forer %enator
3rancisco B%ocB Rodrigo, also a TD coentator. 86elegate Napoleon Raa also
appears as petitioner in this case.= 2t )as doc4eted as 9. R. No. :;7<<@A.
The ne1t day, %epteber &A, "'(&, a petition )as filed by Doltaire 9arcia 22,
another delegate to the Constitutional Convention, as 9. R. No. :; 7<<@(.
1
2n this t)o cases the )rits prayed for )ere also issued and the petitions )ere
heard together on %epteber &', "'(&.
2n 9. R. No. :;7<<<A, the petition )as filed by Tan Chin Cian and Deronica :.
Kuyitung on %epteber &(, "'(&, but the sae )as )ithdra)n by the latter on
-ctober A, "'(& and the forer on -ctober ', "'(&, since they )ere released
fro custody on %epteber 7#, "'(& and -ctober ', "'(&, respectively. The
Court allo)ed the )ithdra)als by resolution on -ctober "", "'(&.
-n -ctober &, "'(&, the petition of +ournalists Aando 6oronila, 0uan :.
Mercado, Cernando 0. Abaya, Ernesto 9ranada, :uis Beltran, Tan Chin Cian,
8already a petitioner in 9. R. No. :;7<<<A= Bren 9uiao, 8for )ho a subse*uent
petition )as also filed by his )ife in 9. R. No. :;7<<(", but both petitions on his
behalf )ere iediately )ithdra)n )ith the approval of the Court )hich )as
given by resolution on -ctober "", "'(&= Ruben Cusipag, Roberto -rdoFe,,
Manuel Alario and /illie Baun )as filed in 9. R. No. :;7<<A(. All these
petitioners, e1cept 0uan :. Mercado, Manuel Alario, and Roberto -rdoFe,
)ithdre) their petition and the Court allo)ed the )ithdra)als by resolution of
-ctober 7, "'(&.
And on -ctober 7, "'(&, Ernesto Rondon, also a delegate to the Constitutional
Convention and a radio coentator, filed his petition in 9. R. No. :;7<<(7.
Again, in all these last four cases, 9. R. Nos., :;7<<<A, 7<<A(, 7<<(" and 7<<(7,
the corresponding )rits )ere issued and a +oint hearing of the petition )as held
-ctober A, "'(&, e1cept as to the petitioners )ho had as of then announced the
)ithdra)al of their respective petitions.
The returns and ans)ers of the %olicitor 9eneral in all these nine cases, filed on
behalf of the principal respondents, the secretary of National 6efense, Con. 0uan
Ponce Enrile, the Chief of %taff of the Ared 3orces of the Philippines, 9eneral
Roeo Espino, and the Chief of the Philippine Constabulary, 9eneral 3idel D.
Raos, )ere practically identical as follo)s?
,T<,* T- =,+Tand '*"=, T- T1 &T+T+-*
C-ME N-/ respondents, by the undersigned counsel, and appearing before this
Conorable Court only for purposes of this action, as hereunder set forth, hereby
state by )ay of return to the )rit and ans)er to the petition, as follo)s?
'/M+""+-*"?/*+'L"
". They A6M2T the allegation in paragraphs 2 and D of the Petition.
&. They A6M2T the allegations in paragraph 22 of the Petition that the petitioners
)ere arrested on %epteber &&, "'(& and are presently detained at 3ort
Bonifacio, Ma4ati, Ri,al, but %PEC232CA::K 6ENK the allegation that their
detention is illegal, the truth being that stated in %pecial and Affirative 6efenses
of this Ans)er and Return.
7. They %PEC232CA::K 6ENK the allegations in paragraphs 222, 2D, D2 and D22, of
the Petition, the truth of the atter being that stated in the %pecial and
Affirative 6efenses of this Ans)er and Return.
Respondents state by )ay of
"&C+'L '*/ '$$+,M'T+2 /$*""
<. Pursuant to said Proclaation , the President issued 9eneral -rders Nos. ", &,
7, 7;A, @, <, A, and ( and :etters of 2nstruction Nos. ", & and 7. True copies of
&, 7, @, <, A, (, $, ', "# and "". A copy of the President!s stateent to the
A. 3inally, the petition states no cause of action.
& , ' @ ,
2N D2E/ /CERE-3, it is respectfully prayed of this Conorable %upree Court that
the petition be disissed.Manila, Philippines, %epteber &(, "'(&.
At the hearings, the follo)ing )ell;4no)n and distinguished ebers of the bar
appeared and argued for the petitioners? Petitioner 6io4no argued on his o)n
behalf to suppleent the arguents of his counsel of record. Attys. 0o4er 6.
Arroyo appeared and argued for the petitioners in :;7<<7$ and :7<<A(. 3rancis E.
9architorena, assisted by -scar 6io4no Pere,, appeared and argued for the
petitioner in :;7<<7'. Raon A. 9on,ales, assisted by Manuel B. 2bong
appeared and argued for the petitioners in :;7<<@#. %enators 9erardo Ro1as and
0ovito R. %alonga, assisted by Attys. Pedro :. Kap, %edfrey A. -rdoFe,, Custodio
-. Parlade, :eopoldo :. Africa, 3rancisco Rodrigo 0r., Magdaleno Palacol and 6a4ila
3. Castro, appeared and argued for the petitioners in :;7<<@A. Atty. E. Doltaire
9arcia %r. appeared and argued in behalf of his petitioner son in :;7<<@(. Attys.
Raul 2. 9oco and Teodulo R. 6ino appeared for the petitioners in :;7<<<A. Atty.
Roberto P. Tolentino appeared for the petitioner in :;7<<(". and Atty. A*uilino
Pientel 0r. assisted by Atty. Modesto R. 9alias 0r. appeared and argued for the
petitioner in :;7<<($.
-n -ctober 7", "'(&, forer %enator :oren,o M. TaFada, together )ith his
la)yer;sons, Attorneys Renato and /igberto TaFada, entered their appearance as
counsel for all the petitioners in 9. R. No. :;7<<7$, e1cept 3adul, 9alang and 9o
Eng 9uan, for petitioner 6io4no in 9. R. No. :;7<<7' and for petitioners A*uino,
Mitra, Rodrigo and Raa in 9. R. No. :7<<@A.
3or the respondents, %olicitor 9eneral Estelito P. Mendo,a, Assistant %olicitors
9eneral Bernardo P. Pardo and Rosalio A. de :eon 8both of )ho are +udges
no)=, %olicitor Reynato %. Puno 8no) Assistant %olicitor 9eneral= and %olicitors
0ose A. R. Melo and 0ose A. 0anolo appeared in all the cases, but only the %olicitor
9eneral argued. :ater, Assistant %olicitor 9eneral Dicente D. Mendo,a also
appeared and co;signed all the subse*uent pleadings and eoranda for
respondents.
After the hearings of %epteber &A and &' and -ctober A, "'(&, the parties )ere
re*uired to file their respective eoranda. -n Noveber ', "'(& petitioners in
all the filed their consolidated "#';page eorandu, together )ith the
ans)ers, contained in $A pages, to soe 77 *uestions posed by the Court in its
resolution of %epteber &', "'(&, and later, on 6eceber ", "'(&, an $$;page
reply to the eorandu of respondents, )ith anne1es. 2n a separate
Manifestation of Copliance and %ubission filed siultaneously )ith their reply,
petitioners stressed that?
@. That undersigned counsel for Petitioners did not as4 for any e1tension of the
period )ithin )hich to file the Reply Meorandu for Petitioners, despite
over)heling pressure of )or4, because 5
a. every day of delay )ould ean one day ore of indescribable isery and
anguish on the part of Petitioners and their failies. .
b. any further delay )ould only diinish )hatever tie is left 5 ore than a
onth!s tie 5 )ithin )hich this Court can deliberate on and decide these
petitions, having in ind soe irreversible events )hich ay plunge this nation
into an entirely ne) constitutional order, naely, the approval of the draft of the
proposed Constitution by the Constitutional Convention and the !plebiscite! )as
scheduled on 0anuary "<, "'(7.
c. the proposed Constitution, if !ratified! ight pre+udice these petitions, in vie) of
the follo)ing transitory provision?
All proclaations, orders, decrees , instructions, and acts proulgated, issued, or
reain valid, legal, binding, and effective even after the lifting of artial la) or
subse*uent proclaations, decrees, instructions, or other acts of the incubent
President, or unless e1pressly and e1plicitly odified or repealed by the regular
National Assebly. 8Article ID22, sec. 7, par. & of the proposed Constitution=.
<. 2n vie) of the fact that they )ere arrested and detained allegedly in 4eeping
)ith the e1isting Constitution, it is only huane and +ust that these petitions 5 to
be accorded preference under Rule &&, section " of the Rules of Court 5 be
disposed of )hile there is still tie left, in accordance )ith the present
Constitution and not in accordance )ith a ne) constitutional order being ushered
in, under the aegis of a artial rule, the constitutionality and validity of )hich is
the very point at issue in the instant petitions.
A. %ince, according to the unanious vie) of the authorities, as cited in their
Meorandu, 5 the overriding purpose of artial la) is 5 and cannot go
beyond 5 the preservation of the constitutional status (uo, and not to alter it or
hasten its alteration, it )ould be e1treely un+ust and inhuan, to say the least,
to allo) these petitions for the great )rit of liberty to be iperiled, by virtue of a
ne) Constitution 5 !subission! and !ratification of )hich are being pressed under
artial la) 5 that )ould purportedly ratify all E1ecutive edicts issued and acts
done under said regie soething that has never been done as far as is 4no)n in
the entire history of the Anglo;Aerican legal syste. 8pp. @"@;@"A, Rollo, :;
7<<7'.=
At this +uncture, it ay be stated that as of -ctober "", "'(&, the follo)ing
petitioners had already )ithdra)n? Aando 6oronila, Cernando 0. Abaya, Ernesto
9ranada, :uis Beltran, Bren 9uiao, Ruben Cusipag, /illie Baun, Tan Chin Cian and
Deronica :. Kuyitung. hence, of the original nine cases )ith a total of 7&
petitioners,
3
only the si1 above;entitled cases reain )ith "$ petitioners.
4
The
reaining petitioners are? 0oa*uin P. Roces, Teodoro M. :ocsin, %r., Rolando 3adul,
Mauricio, 0ose /. 6io4no thru Caren 6io4no, Napoleon 9. Raa, 0ose Mari
Dele,, Benigno %. A*uino, Raon D. Mitra, 0r., 3rancisco %. Rodrigo, 0uan :.
Mercado, Roberto -rdoFe,, Manuel Alario and Ernesto Rondon but only
%enators 6io4no and A*uino are still in confineent, the rest having been
released under conditions hereinafter to be discussed. The case of petitioner
9arcia in 9. R. No. :;7<<@( is deeed abated on account of his death.
-ver the opposition of these reaining petitioners, respondents! counsel )as
given several e1tensions of their period to file their eorandu, and it )as not
until 0anuary "#, "'(7 that they )ere able to file their reply of 7< pages.
Previously, their eorandu of (( pages )as filed on Noveber "(, "'(&.
Thus, the cases )ere declared subitted for decision only on 3ebruary &A, "'(7,
per resolution of even date, only to be reopened later, as )ill be stated anon.
2n the ean)hile, practically the sae counsel for petitioners in these cases
engaged the governent la)yers in another and separate transcendental +udicial
tussle of t)o stages relative to the Ne) Constitution. -n 6eceber (, "'(&, the
first of the so;called Plebiscite Cases 89. R. No. :;7<'&<, Charito Planas vs.
Coelec, 9. R. No. :;7<'&', Pablo C. %anidad vs. Coelec, 9. R. No. :;7<'@#,
9erardo Ro1as et al. vs. Coelec, 9. R. No. :;7<'@", Eddie B. Monteclaro vs.
Coelec, 9. R. No. :;7<'@&, %edfrey A. -rdoFe, vs. Treasurer, 9. R. No. :;7<'@$,
Didal Tan vs. Coelec, 9. R. No. :;7<'<7, 0ose /. 6io4no et als. vs. Coelec, 9.
R. No. :;7<'A", 0acinto 0iene, vs. Coelec, 9. R. No. :;7<'A<, Raul M.
9on,ales vs. Coelec and 9. R. No. :;7<'(', Ernesto Cidalgo vs. Coelec= )as
filed. These cases too4 ost of the tie of the Court until 0anuary &&, "'(7,
)hen they )ere declared oot and acadeic because of the issuance of
Proclaation ""#& on 0anuary "(, "'(7, but on 0anuary &#, "'(7, as a se*uel to
the Plebiscite Cases, 0osue 0avellana filed Case No. 9. R. No. :;7A"@& against the
E1ecutive %ecretary and the %ecretaries of National 6efense, 0ustice and 3inance.
This started the second series of cases 4no)n as the Ratification Cases, naely,
said 9. R. No. :7A"@& and 9. R. No. :;7A"A@, 2idal Tan vs. The !ecutive
"ecretary et al.# 9. R. No. :;7A"A<, Gerardo ,o!as et al. vs. 'le0andro Melchor
etc. et al.# 9. R. No. :;7A&7A, ddie B. Monteclaro vs. The !ecutive "ecretary,
and 9. R. No. :;7A&$7, *apoleon 2. /ilag vs. The 1onorable !ecutive "ecretary.
The ain thrust of these petitions )as that the Ne) Constitution had not been
validly ratified, hence the -ld Constitution continued in force and, therefore,
)hatever provisions the Ne) Constitution ight contain tending to validate the
proclaations, orders, decrees, and acts of the incubent President )hich are
being relied upon for the apprehension and detention of petitioners, have no legal
effect. 2n any event, the advent of a ne) constitution naturally entailed the
conse*uence that any *uestion as to the legality of the continued detention of
petitioners or of any restraint of their liberties ay not be resolved )ithout ta4ing
into account in one )ay or another the pertinent provisions of the ne) charter.
Accordingly, the resolution of these t)o series of cases becae a pre+udicial
atter )hich the Court had to resolve first. 2t )as not until March 7", "'(7 that
they )ere decided adversely to the petitioners therein and it )as only on April "(,
"'(7 that entry of final +udgent )as ade therein.
3ro April "$, "'(7, the ebership of the Court )as depleted to nine, in vie)
of the retireent, effective on said date, of then Chief 0ustice Roberto
Concepcion. /ith its nine reaining ebers, doubts )ere e1pressed as to
)hether or not the Court could act on constitutional atters of the nature and
agnitude of those raised in these cases, the re*uired *uoru for the resolution
of issues of unconstitutionality under the Ne) Constitution being ten ebers.
8%ection & 8&=, Article 2I, Constitution of the Philippines of "'(7=. Prescinding
fro this point, it is a fact that even if it is not re*uired e1pressly by the
Constitution, by the Court!s o)n policy )hich the Constitution authori,es it to
adopt, all cases involving constitutional *uestions are beard en banc in )hich the
*uoru and at the sae tie the binding vote is of eight 0ustices. /ith only nine
ebers out of a possible ebership of fifteen, it )as not e1actly fair for all
concerned that the court should act, particularly in a case )hich in truth does not
involve only those )ho are actual parties therein but the )hole people as )ell as
the 9overnent of the Philippines. %o, the Court, even as it )ent on inforally
discussing these cases fro tie to tie, preferred to )ait for the appointent
and *ualification of ne) ebers, )hich too4 place only on -ctober &', "'(7,
)hen 0ustices Estanislao 3ernande,, Cecilia MuFo, Pala and Raon A*uino
+oined the Court.
Meantie, subse*uent to the resolution of 3ebruary &A, "'(7, declaring these
cases subitted for decision, or, ore particularly on 0une &', "'(7, counsel for
petitioner Caren 2. 6io4no in 9. R. No. filed a '';page %uppleental Petition
and Motion for 2ediate Release )hich the Court had to refer to the
respondents, on )hose behalf, the %olicitor 9eneral filed an ans)er on 0uly 7#,
"',(7. -n August "@, "'(7, counsel for petitioner 6io4no filed a otion as4ing
that the said petition and otion be set for hearing, )hich the Court could not do,
in vie) precisely of the *uestion of *uoru. As a atter of fact, in the related
case of Benigno ". '(uino# Jr. vs. Military Commission No. & et al., 9. R. No. :;
7(7A@, further reference to )hich )ill be ade later, a preliinary hearing had to
be held by the Court on %unday, August &@, "'(7, on the sole *uestion of
)hether or not )ith its ebership of nine then, the Court could act on issues of
constitutionality of the acts of the President.
At this point, it ay be entioned incidentally that thru several repeated
anifestations and otions, Counsel 3rancis E. 9architorena of Petitioner 6io4no
invited the attention of the Court not only to alleged denial to his client of Bthe
essential access of and freedo to confer and counicate )ith counselB but
also to alleged deplorable sub;huan conditions surrounding his detention. And in
relation to said anifestations and otions, on 3ebruary "', "'(7, said petitioner,
6io4no, together )ith petitioner Benigno %. A*uino and +oined by their coon
counsel, %enator :oren,o M. TaFada filed )ith this Court a petition for andaus
praying that respondents be coanded Bto perit petitioner TaFada to visit and
confer freely and actively )ith petitioners 6io4no and A*uino at reasonable hours
pursuant to the provisions of RA $<( and RA "#$7 and in pursuance of such
decision, 8to direct said respondents= 8"= to clear the conference roo of
petitioners of all representatives of the Ared 3orces and all un)anted third
persons, and prohibit their presence. 8&= to reove or cause the reoval of all
listening devices and other siilar electronic e*uipent fro the conference roo
of petitioners, )ith the further direction that no such instruents be hereafter
installed, and 87= to desist fro the practice of e1aining 8a= the notes ta4en by
petitioner TaFada of his conferences )ith petitioners 6io4no and A*uino. and 8b=
such other legal docuents as petitioner TaFada ay bring )ith hi for
discussion )ith said petitioners.B 89. R. No. :;7A7"<=. 3or obvious reasons, said
petition )ill be resolved in a separate decision. 2t ay be stated here, ho)ever,
that in said 9. R. No. :;7A7"<, in attention to the coplaint ade by %enator
TaFada in his Reply dated April &, "'(7, that Mesdaes 6io4no and A*uino )ere
not being allo)ed to visit their husbands, and, )orse, their very )hereabouts
)ere not being ade 4no)n to the, on April A, "'(7, after hearing the
e1planations of counsel for therein respondents, the Court issued the follo)ing
resolution?
Gpon huanitarian considerations the Court RE%-:DE6 unaniously to grant,
pending further action by this Court, that portion of the prayer in petitioners!
%uppleent andNor Aendent to Petition! filed on April A, "'(7 that the )ives
and inor children of petitioners 6io4no and A*uino be allo)ed to visit the,
sub+ect to such precautions as respondents ay dee necessary.
/e have ta4en pains to recite all the circustances surrounding the progress of
these cases fro their inception in order to correct the ipression conveyed by
the pleadings of petitioner 6io4no, that their disposition has been unnecessarily, it
not deliberately, delayed. The Court cannot yield to anyone in being concerned
that individual rights and liberties guaranteed by the fundaental la) of the land
are duly protected and safeguarded. 2t is fully cogni,ant of ho) iportant not
only to the petitioners but also to the aintainance of the rule of la) is the issue
of legality of the continued constraints on the freedos of petitioners. Gnder
ordinary circustances, it does not really ta4e the Court uch tie to deterine
)hether a deprivation of personal liberty is legal or illegal. But, aside fro the
unusual procedural setbac4s related above, it +ust happens that the basic issues
to resolve here do not affect only the individual rights of petitioners. 2ndeed, the
iportance of these cases transcends the interests of those )ho, li4e petitioners,
have coe to the Court. Actually, )hat is directly involved here is the issue of the
legality of the e1isting governent itself. Accordingly, /e have to act )ith utost
care. Besides, in a sense, the legality of the Court!s o)n e1istence is also involved
here, and /e do not )ant anyone to even suspect /e have hurried precipitately
to uphold -urselves.
2n addition to these considerations, it ust be borne in ind that there are
thousands of other cases in the Court needing its continued attention. /ith its
clogged doc4et. the Court, could ill afford to give petitioners any preference that.
)ould entail corresponding in+ustice to other litigants before it.
/hat is ore, under the Ne) Constitution, the adinistrative +urisdiction overall
lo)er courts, including the Court Appeals, has been transferred fro the
6epartent of 0ustice to the %upree Court, and because that 6epartent
refrained fro attending to any adinistrative function over the courts since
0anuary "(, "'(7, on April "$, "'(7, after the Ratification Cases becae final,
/e found in -ur hands a vast accuulation of adinistrative atters )hich had
to be acted upon )ithout further delay, if the sooth and orderly functioning of
the courts had to be aintained. And, of course. the Court has to continuously
attend to its ne) adinistrative )or4 fro day to day, )hat )ith all 4inds of
coplaints and charges being filed daily against +udges, cler4s of court and other
officers and eployees of the different courts all over the country, )hich the
Court en banc has to tac4le. 2t should not be surprising at all that a great portion
of our sessions en banc has to be devoted to the consideration and disposition of
such adinistrative atters.
3urtherore, in this sae connection, account ust also be ta4en of the fact that
the transfer of the adinistrative functions of the 6epartent to the Court
naturally entailed probles and difficulties )hich consued -ur tie, if only
because soe of the personnel had to ac*uaint theselves )ith the ne)
functions entrusted to the, )hile corresponding ad+ustents had to be ade in
the duties and functions of the personnel affected by the transfer.
PRE:2M2NARK 2%%GE%
No), before proceeding to the discussion and resolution of the issues in the
pending petitions, t)o preliinary atters call for disposition, naely, first, the
otion of petitioner 0ose /. 6io4no, thru counsel %enator TaFada, to be allo)ed
to )ithdra) his basic petition and second, the ob+ection of petitioner, 3rancisco
B%ocB Rodrigo, to the Court!s considering his petition as oot and acadeic as a
conse*uence of his having been released fro his place of confineent in 3ort
Bonifacio. Related to the latter is the e1press anifestation of the other
petitioners? 0oa*uin P. Roces, Teodoro M. :ocsin, %r., Rolando 3adul, Rosalind
9alang, 9o Eng 9uan, Ma1io D. %oliven, Renato Constantino, :uis R. Mauricio,
Napoleon 9. Raa, 0ose Mari Dele,. Raon D. Mitra, 0r., 0uan :. Mercado, Roberto
-rdoFe,, Manuel Alario and Ernesto Rondon to the effect that they reain as
petitioners, not)ithstanding their having been released 8under the sae
conditions as those iposed on petitioner Rodrigo thereby iplying that they are
not )ithdra)ing, as, in fact, they have not )ithdra)al their petitions and )ould
)ish the resolved on their erits.8Manifestation of counsel for petitioners dated
March "<, "'(@.=
2
Anent petitioner 6io4no!s otion to )ithdra), only seven ebers of the Court,
naely, Chief 0ustice Ma4alintal and 0ustices >aldivar, 3ernando, Teehan4ee,
MuFo, Pala, A*uino and the )riter of this opinion, voted to grant the sae. %aid
nuber being short of the eight votes re*uired for binding action of the Court en
banc even in an incident, pursuant to %ection "" of Rule <A, the said otion is
denied, )ithout pre+udice to the right of each eber of the Court to render his
individual opinion in regard to said otion.
5
-ne of the reason vigorously advanced by petitioner 6io4no in his otion to
)ithdra) is that he cannot subit his case to the %upree Court as it is presently
constituted, because it is different fro the one in )hich he filed his petition, and
that, furtherore, he is invo4ing, not the present or Ne) Constitution of the
Philippines the incubent 0ustices have no) s)orn to protect and defend but the
Constitution of "'7<
6
under )hich they )ere serving before. 2ndeed, in the
BManifestation of Copliance and %ubissionB filed by his counsel as early as
6eceber ", "'(7, a siilar feeling )as already indicated, as ay be gathered
fro the portions thereof *uoted earlier in this opinion.
Cad petitioner reiterated and insisted on the position asserted by hi in said
anifestation shortly after the ratification of the Ne) Constitution on 0anuary "(,
"'(7 or even later, after the decision of this Court in the Ratification Cases
becae final on April "(, "'(7, perhaps, there could have been soe 4ind of
+ustification for -ur then and there declaring his petition oot and acadeic,
considering his personal attitude of refusing to recogni,e the passing out of the
"'7< constitution and of the %upree Court under it. But the fact is that as late
as 0une &', "'(7, ore than si1 onths after the ratification of the Ne)
Constitution and ore than t)o onths after this Court had declared that Bthere
is no ore +udicial obstacle to the Ne) Constitution being considered as in force
and effectB, petitioner 6io4no, thru counsel TaFada, riled a B%uppleental Petition
and Motion for 2ediate ReleaseB )herein nary a )ord ay be found suggesting
the point that both the Constitution he is invo4ing and the Court he has subitted
his petition to have already passed into ine1istence. -n the contrary, he insisted
in this last otion that Ban order be issued 8by this Court= directing respondents
to iediately file charges against hi if they have evidence supporting the
sae.B Be it noted, in this connection, that by resolution of the Court of 0une ",
"'(7, it had already ipleented the provisions on the 0udiciary of the Ne)
Constitution and had constituted itself )ith its nine ebers into the 3irst
6ivision, thereby a4ing it unista4ably clear that it )as already operating as
the %upree Court under the Ne) Constitution. The fact no) capitali,ed by
petitioner that the 0ustices too4 the oath only on -ctober &', "'(7 is of no signer,
the truth being that neither the 0ustices! continuation in office after the Ne)
Constitution too4 effect nor the validity or propriety of the Court!s resolution of
0une ", "'(7 +ust entioned )ere *uestioned by hi before. Accordingly, the
Motion in his otion to )ithdra) relative to the Ne) Constitution and the present
%upree Court appear to be obvious afterthoughts intended only to tend color to
his refusal to have the issue of alleged illegality of his detention duly resolved,
reali,ing perchance the untenability thereof and the inevitability of the denial of
his petition, albeit none of this )ill ever be aditted, as ay be gathered fro his
anifestation that he )ould not )ant to have anything to do )ith any ruling of
the Court adverse to his pretensions. 0ust the sae, the ne) oaths of the 0ustices
and the applicability hereto of the -ld and the Ne) Constitution )ill be discussed
in another part of this opinion, if only to satisfy the curiosity of petitioner.
Although the other petitioners have not +oined the sub+ect )ithdra)al otion, it
ight +ust as )ell be stated, for )hatever relevant purpose it ay serve, that,
)ith particular reference to petitioner Rodrigo, as late as Noveber &(,"'(7,
after three ne) +ustices )ere added to the ebership of the Court in partial
obedience to the andate of the Ne) Constitution increasing its total
ebership to fifteen, and after the Court had, by resolution of Noveber "<,
"'(7, already constituted itself into t)o divisions of si1 0ustices each, said
petitioner filed a Manifestation Bfor the purpose of sho)ing that, insofar as 8he=
herein petitioner is concerned, his petition for habeas corpus is not oot and
acadeic.B Notably, this anifestation deals specifically )ith the atter of his
Bconditional releaseB as being still a ground for habeas corpus but does not even
suggest the fundaental change of circustances relied upon in petitioner
6io4no!s otion to )ithdra). -n the contrary, said anifestation indicates
unconditional subission of said petitioner to the +urisdiction of this Court as
presently constituted. -f siilar tenor is the anifestation of counsel for the
reaining petitioners in these cases dated March "<, "'(@. 2n other )ords, it
appears *uite clearly that petitioners should be deeed as having subitted to
the +urisdiction of the %upree Court as it is presently constituted in order that it
ay resolve their petitions for habeas corpus even in the light of the provisions of
the Ne) Constitution.
22
Coing no) to the conditions attached to the release of the petitioners other
than %enators 6io4no and A*uino, it is to be noted that they )ere all given
identical release papers reading as follo)s?
CEA6LGARTER% <TC M2:2TARK 2NTE::29ENCE 9R-GP, 2%A3P Cap 9eneral
Eilio Aguinaldo Lue,on City
M<AP < 6eceber "'(&
and the ensuing :#2s. Any violation of these provisions )ould sub+ect you to
iediate arrest and confineent.
e1pected duration of stay thereat. Contact this -ffice through telephone No. '(;
radioNTD broadcast.
& L / G
release.
to y 4no)ledge.
8%96.= 3. R-6R29- Address? A# 0uana Rodrigue, Lue,on City Tel No. (#;&<;AA.
(#@';&# (#;&(;<<
2t is the subission of these petitioners that their release under the foregoing
conditions is not absolute, hence their present cases before the Court have not
becoe oot and acadeic and should not be disissed )ithout consideration of
the erits thereof. They clai that in truth they have not been freed, because
actually, )hat has been done to the is only to enlarge or e1pand the area of
their confineent in order to include the )hole 9reater Manila area instead of
being liited by the boundaries of the ary caps )herein they )ere previously
detained. They say that although they are allo)ed to go else)here, they can do
so only if e1pressly and specifically peritted by the ary authorities, and this is
nothing ne), since they could also go out of the caps before )ith proper passes.
They aintain that they never accepted the above conditions voluntarily. 2n other
)ords, it is their position that they are in actual fact being still so detained and
restrained of their liberty against their )ill as to entitle the in la) to the reedy
of habeas corpus.
/e find erit in this particular subittal regarding the reach of habeas corpus.
/e readily agree that the fundaental la) of the land does not countenance the
diinution or restriction of the individual freedos of any person in the
Philippines )ithout due process of la). No one in this country ay suffer, against
his )ill, any 4ind or degree of constraint upon his right to go to any place not
prohibited by la), )ithout being entitled to this great )rit of liberty, for it has not
been designed only against illegal and involuntary detention in +ails, prisons and
concentration caps, but for all fors and degrees of restraint, )ithout authority
of la) or the consent of the person concerned, upon his freedo to ove freely,
irrespective of )hether the area )ithin )hich he is confined is sall or large, as
long as it is not co;e1tensive )ith that )hich ay be freely reached by anybody
else, given the desire and the eans. More than half a century ago in "'"', this
Court already dre) the broad and all;encopassing scope of habeas corpus in
these une*uivocal )ords? BA prie specification of an application for a )rit of
habeas corpus is restraint of liberty. The essential ob+ect and purpose of the )rit
of habeas corpus is to in*uire into all anners of involuntary restraint as
distinguished fro voluntary, and to relieve a person therefro if such restraint is
illegal. Any restraint )hich )ill preclude freedo of action is sufficient.B
6
. There
is no reason at all at this tie, hopefully there )ill never be any in the future, to
detract a )hit fro this noble attitude. 6efinitely, the conditions under )hich
petitioners have been released fall short of restoring to the the freedo to
)hich they are constitutionally entitled. -nly a sho)ing that the iposition of said
conditions is authori,ed by la) can stand in the )ay of an order that they be
iediately and copletely )ithdra)n by the proper authorities so that the
petitioners ay again be free en as )e are.
And so, /e coe to the basic *uestion in these cases? Are petitioners being
detained or other)ise restrained of liberty, evidently against their )ill, )ithout
authority of la) and due processE
T1 $'CT"
Aside fro those already ade reference to above, the other bac4ground facts of
these cases are as follo)s?
-n %epteber &", "'(&, President 3erdinand E. Marcos
7
signed the follo)ing
proclaation?
&,-CL'M'T+-* *-. 4AB4
PR-C:A2M2N9 A %TATE -3 MART2A: :A/ 2N TCE PC2:2PP2NE%
/CEREA%, on the basis of carefully evaluated and verified inforation, it is
definitely established that la)less eleents )ho are oved by a coon or
siilar ideological conviction, design, strategy and goal and en+oying the active
oral and aterial support of a foreign po)er and being guided and directed by
intensely devoted, )ell trained, deterined and ruthless groups of en and
see4ing refuge under the protection of our constitutional liberties to proote and
attain their ends, have entered into a conspiracy and have in fact +oined and
banded their resources and forces together for the prie purpose of, and in fact
they have been and are actually staging, underta4ing and )aging an ared
insurrection and rebellion against the 9overnent of the Republic of the
Philippines in order to forcibly sei,e political and state po)er in this country,
overthro) the duly constituted 9overnent, and supplant our e1isting political,
social, econoic and legal order )ith an entirely ne) one )hose for of
governent, )hose syste of la)s, )hose conception of 9od and religion, )hose
notion of individual rights and faily relations, and )hose political, social,
econoic, legal and oral precepts are based on the Mar1ist;:eninist;Maoist
teachings and beliefs.
/CEREA%, these la)less eleents, acting in concert through seeingly innocent
and harless, although actually destructive, front organi,ations )hich have been
infiltrated or deliberately fored by the, have continuously and systeatically
strengthened and broadened their eberships through sustained and careful
recruiting and enlistent of ne) adherents fro aong our peasantry, laborers,
professionals, intellectuals, students, and ass edia personnel, and through
such sustained and careful recruitent and enlistent have succeeded in
spreading and e1panding their control and influence over alost every segent
and level of our society throughout the land in their ceaseless effort to erode and
)ea4en the political, social, econoic, legal and oral foundations of our e1isting
9overnent, and to influence, anipulate and ove peasant, labor, student and
terroristic organi,ations under their influence or control to coit, as in fact they
have coitted and still are coitting, acts of violence, depredations, sabotage
and in+uries against our duly constituted authorities, against the ebers of our
la) enforceent agencies, and )orst of all, against the peaceful ebers of our
society.
/CEREA%, in the fanatical pursuit of their conspiracy and )idespread acts of
violence, depredations, sabotage and in+uries against our people, and in order to
provide the essential instruent to direct and carry out their criinal design and
unla)ful activities, and to achieve their ultiate sinister ob+ectives, these la)less
eleents have in fact organi,ed, established and are no) aintaining a Central
Coittee, coposed of young and dedicated radical students and intellectuals,
)hich is charged )ith guiding and directing the ared struggle and propaganda
assaults against our duly constituted 9overnent, and this Central Coittee is
no) iposing its )ill and asserting its sha authority on certain segents of our
population, especially in the rural areas, through varied eans of subterfuge,
deceit, coercion, threats, intiidation!s, achinations, treachery, violence and
other odes of terror, and has been and is illegally e1acting financial and other
fors of contributes fro our people to raise funds and aterial resources to
support its insurrectionary and propaganda activities against our duly constituted
9overnent and against our peace;loving people.
/CEREA%, in order to carry out, as in fact they have carried out, their
preeditated plan to stage, underta4e and )age a full scale ared insurrection
and rebellion in this country, these la)less eleents have organi,ed, established
and are no) aintaining a )ell trained, )ell ared and highly indoctrinated and
greatly e1panded insurrectionary force, popularly 4no)n as the !Ne) People!s
Ary! )hich has since vigorously pursued and still is vigorously pursuing a
relentless and ruthless ared struggle against our duly constituted 9overnent
and )hose unitigated forays, raids, abuscades assaults and reign of terror and
acts of la)lessness in the rural areas and in our urban centers brought about the
treacherous and cold;blooded assassination of innocent civilians, ilitary
personnel of the 9overnent and local public officials in any parts of the
country, notably in the Cagayan Dalley, in Central :u,on, in the %outhern Tagalog
Region, in the Bicol Area, in the Disayas and in Mindanao and )hose daring and
)anton guerrilla activities have generated and fear and panic aong our people,
have created a cliate of chaos and disorder, produced a state of political, social,
psychological and econoic instability in our land, and have inflicted great
suffering and irreparable in+ury to persons and property in our society.
/CEREA%, these la)less eleents, their cadres, fello)en, friends, sypathi,ers
and supporters have for any years up to the present tie been ounting
sustained, assive and destructive propaganda assaults against our duly
constituted 9overnent its intruentalities, agencies and officials, and also
against our social, political, econoic and religious institutions, through the
publications, broadcasts and disseination!s of deliberately slanted and overly
e1aggerated ne)s stories and ne)s coentaries as )ell as false , vile, foul and
scurrilous stateents, utterances, )ritings and pictures through the press;radio;
television edia and through leaflets, college capus ne)spapers and soe
ne)spapers published and still being published by these la)less eleents,
notably the !Ang Bayan,! !Pulang Bandila! and the !Ang Mounista,! all of )hich are
clearly )ell;conceived, intended and calculated to align and discredit our duly
constituted 9overnent, its instruentalities, agencies and officials before our
people, and thus underine and destroy the faith and loyalty and allegiance of
our people in and alienate their support for their duly constituted 9overnent, its
instruentalities, agencies and officials, and thereby gradually erode and )ea4en
as in fact they had so eroded and )ea4ened the )ill of our people to sustain and
defend our 9overnent and our deocratic )ay of life.
/CEREA%, these la)less eleents having ta4en up ars against our duly
constituted 9overnent and against our people, and having coitted and are
still coitting acts of ared insurrection and rebellion consisting of ared raids,
forays, sorties, abushes, )anton acts of urders, spoilage, plunder, looting,
arsons, destruction of public and private buildings, and attac4s against innocent
and defenseless civilian lives and property, all of )hich activities have seriously
endangered and continue to endanger public order and safety and the security of
the nation, and acting )ith cunning and anifest precision and deliberation and
)ithout regard to the health, safety and )ell;being of the people, are no)
ipleenting their plan to cause )ide spread, assive and systeatic
destruction and paraly,ation of vital public utilities and service particularly )ater
systes, sources of electrical po)er, counication and transportation facilities,
to the great detrient, suffering, in+ury and pre+udice of our people and the
nation and to generate a deep psychological fear and panic aong our people.
/CEREA%, the %upree Court in the cases brought before it, doc4eted as 9. R.
Nos. :;77'A@, :;77'A<, :;77'(7, :;77'$&, :;7@##@, :;7@#"7, :;7@#7', :;7@&A<,
and :;7@77', as a conse*uence of the suspension of the privilege of the )rit of
habeas corpus by e as President of the Philippines in y Proclaation No. $$',
dated August &", "'(", as aended, has found that in truth and in fact there
e1ists an actual insurrection and rebellion in the country by a si,eable group of
en )ho have publicly risen in ars to overthro) the 9overnent. Cere is )hat
the %upree Court said in its decision proulgated on 6eceber "", "'("?
Philippines, especially in Manila, fro the late t)enties to the early thirties, then
oveent seeed to have )arned notably. but, the outbrea4 of /orld /ar 22 in
the Pacific and the iseries, the devastation and havoc, and the proliferation of
several ties )ith the Ared 3orces of the Republic. This propted then
President Luirino to issue Proclaation No. &"#, dated -ctober &&, "'<#,
suspending the privilege of the )rit of habeas corpus the validity of )hich )as
upheld in Montenegro v. Castaeda. 6ays before the proulgation of said
Proclaation, or on -ctober "$, "'<#, ebers of the Counist Politburo in
the Philippines )ere apprehended in Manila. %ubse*uently accused and convicted
of the crie of rebellion, they served their respective sentences.
4no)n as the Anti;%ubversion Act, )as approved, upon the grounds stated in the
regie sub+ect to alien doination and control,
Philippines constitutes a clear, present and grave danger to the security of the
Philippines. and
Philippines and its activities, there is urgent need for special legislation to cope
)ith this continuing enace to the freedo and security of the country ....
filed in these cases by the petitioners herein 5
the Philippines= aong the )or4ers, the Malayang %aahan ng ga Magsasa4a
8MA%AMA= aong the peasantry. the Mabataang Ma4abayan 8MM= aong the
aong the intellectualsNprofessionals, the PMP has e1erted all;out effort to
of nationalis.
a People!s 6eocratic Revolution states, inter alia?
The Counist Party of the Philippines is deterined to ipleent its general
prograe for a people!s deocratic revolution. All 3ilipino counists are
ready to sacrifice their lives for the )orthy cause of achieving the ne) type of
independent, deocratic, united, +ust and prosperous ...
Counist Party of the Philippines assues this tas4 at a tie that both the
international and national situations are favorable, to ta4ing the road of ared
revolution ...
National 6efense 5 conducted raids, resorted to 4idnappings and ta4en part in
other violent incidents nubering over &7#, in )hich it inflicted @#@ casualties,
violence are indispensable to the attainent of their ain and ultiate ob+ective,
and act in accordance )ith such belief, although they disagree on the eans to be
used at a given tie and in a particular place. and 8b= there is a Ne) People!s
Ary, other, of course, than the Ared 3orces of the Republic and antagonistic
thereto. %uch Ne) People!s Ary is per se proof of the e1istence of the rebellion,
especially considering that its establishent )as announced publicly by the
reorgani,ed CPP. %uch announceent is in the nature of a public challenge to the
duly constitution Authorities and ay be li4ened to a declaration of )ar, sufficient
to establish a )ar status or a condition of belligerency even before the actual
coenceent of hostilities.
/e entertain therefore, no doubts about the e1istence of a si,eable group of en
)ho have publicly risen in ars to overthro) the 9overnent and have thus been
and still are engage in rebellion against the 9overnent of the Philippines.
/CEREA%, these la)less eleents have to a considerable e1tent succeeded in
ipeding our duly constituted authorities fro perforing their functions and
discharging their duties and responsibilities in accordance )ith our la)s and our
Constitution to the great daage, pre+udice and detrient of the people and the
nation.
/CEREA%, it is evident that there is throughout the land a state of anarchy and
la)lessness, chaos and disorder, turoil and destruction of a agnitude
e*uivalent to an actual )ar bet)een the forces of our duly constituted
9overnent and the Ne) People!s Ary and their satellite organi,ations because
of the unitigated forays, raids, abuscades, assaults, violence, urders,
assassinations, acts of terror, deceits, coercions, threats, intiidation!s, treachery,
achinations, arsons, plunders and depredations coitted and being coitted
by the aforesaid la)less eleents )ho have pledged to the )hole nation that they
)ill not stop their dastardly effort and schee until and unless they have fully
attained their priary and ultiate purpose of forcibly sei,ing political and state
po)er in this country by overthro)ing our present duly constituted 9overnent,
by destroying our deocratic )ay of life and our established secular and religious
institutions and beliefs, and by supplanting our e1isting political, social, econoic,
legal and oral order )ith an entirely ne) one )hose for of governent, )hose
otion of individual rights and faily relations, and )hose political, social,
econoic and oral precepts are based ;on the Mar1ist;:eninist;Maoist teachings
and beliefs.
/CEREA%, the %upree Court in its said decision concluded that the unla)ful
activities of the aforesaid la)less eleents actually pose a clear, present and
grave danger to public safety and the security of the nation and in support of that
conclusion found that?
... the E1ecutive had inforation and reports 5 subse*uently confired, in any
by the above;entioned Report of the %enate Ad Coc Coittee of %even ; to
the effect that the Counist Party of the Philippines does not erely adhere to
:enin!s idea of a s)ift ared uprising that it has, also, adopted Co Chi Minh!s
terrorist tactics and resorted to the assassination of uncooperative local officials
that, in line )ith this policy, the insurgents have 4illed < ayors, &# barrio
captains and 7 chiefs of police. that there )ere fourteen 8"@= eaningful bobing
incidents in the 9reater Manila Area in "'(#. that the Constitutional Convention
Call )as bobed on 0une "&, "'(". that, soon after the Pla,a Miranda incident,
the NA/A%A ain pipe at the Lue,on City;%an 0uan boundary )as bobed. that
this )as follo)ed closely by the bobing of the Manila City Call, the C-ME:EC
Building, the Congress Building and the MERA:C- sub;station at Cubao, Lue,on
City. and that the respective residences of %enator 0ose 0. Roy and Congressan
Eduardo Co+uangco )ere, li4e)ise, bobed, as )ere the MERA:C- ain office
preises, along -rtigas Avenue, and the 6octor!s Pharaceuticals, 2nc. Building,
in Caloocan City.
... the reorgani,ed Counist Party of the Philippines has, oreover, adopted
resist of the 9overnent, of the political, econoic and intellectual leadership,
and of the people theselves. that conforably to such concept, the Party has
placed special ephasis upon a ost e1tensive and intensive progra of
subversion be the establishent of front organi,ations in urban centers, the
)hich are the Malayang %aahan ng Magsasa4a8MA%AMA=, the Mabataang
%aahang 6eo4rati4o ng Mabataan 8%6M=, the %aahang Molave 8%M= and the
Philippines of )hich seventy;three 8(7= )ere in the 9reater Manila Area, si1ty
thirty;three 877= ended in violence, resulting in fifteen 8"<= 4illed and over five
that the nuber of deonstrations heretofore staged in "'(" has already
e1ceeded those of "'(#. and that t)enty;four 8&@= of these deonstrations )ere
ore.
%ubse*uent events ... have also proven ... the threat to public safety posed by
the Ne) People!s Ary. 2ndeed, it appears that, since August &", "'(", it had in
Northern :u,on si1 8A= encounters and staged one 8"= raid, in conse*uences of
)hich seven soldiers lost their lives and t)o 8&= others )ere )ounded, )hereas
the insurgents suffered five 8<= casualties. that on August &A, "'(", a )ell;ared
group of NPA, trained by defector :t. Dictor Corpus, attac4ed the very coand
post of T3 :A/2N in 2sabela, destroying t)o 8&= helicopters and one 8"= plane,
and )ounding one 8"= soldier. that the NPA had in Central :u,on a total of four
8@= encounters, )ith t)o 8&= 4illed and three 87= )ounded on the side of the
9overnent, one 8"= B%6G 4illed and three 87= MM%6M leader, an unidentified
dissident, and Coander Panchito, leader of the dissident group )ere 4illed that
on August &A, "'(", there )as an encounter in the barrio of %an Pedro, 2riga City,
Caarines %ur, bet)een the PC and the NPA, in )hich a PC and t)o 8&= MM
ebers )ere 4illed. that the current disturbances in Cotabato and the :anao
provinces have been rendered ore cople1 by the involveent of the CPPNNPA,
for, in id;"'(", a MM group, headed by 0ovencio Esparago,a, contacted the
Cigaonan tribes, in their settleent in Magsaysay, Misais -riental, and offered
the boo4s, paphlets and brochures of Mao Tse Tung, as )ell as conducted
teach;ins in the reservation. that Esparago,a )as reportedly 4illed on %epteber
&&, "'(", in an operation of the PC in said reservation. and that there are no)
t)o 8&= NPA cadres in Mindanao.
2t should, also be noted that adherents of the CPP and its front organi,ations are,
according to intelligence findings, definitely capable of preparing po)erful
Constitutional Convention Call )as a !Clayore! ine, a po)erful e1plosive device
used by the G.%. Ary, believed to have been one of any pilfered fro the
assassinations, 4idnappings, terroris and ass destruction of property and that
situation. that a si,eable part of our ared forces discharges other functions, and
country, particularly Manila and its suburbs, the Cagayan Dalley, 2fugao,
>abales, :aguna, Lue,on and the Bicol Region, re*uired that the rest of our
ared forces be spread thin over a )ide area.
/CEREA%, in the un)avering prosecution of their revolutionary )ar against the
3ilipino people and their duly constituted 9overnent, the aforesaid la)less
eleents have, in the onths of May, 0une and 0uly, "'(&, succeeded in bringing
and introducing into the country at 6igoyo Point, Palanan, 2sabela and at other
undeterined points along the Pacific coastline of :u,on, a substantial *uantity of
)ar aterial consisting of M;"@ rifles estiated to be soe 7,<## pieces, several
do,ens of @# roc4et launchers )hich are said to be Chico copies of a
Russian prototype roc4et launcher, large *uantities of $# roc4ets and
aunitions, and other cobat paraphernalia, of )hich )ar aterial soe had
been discovered and captured by governent ilitary forces, and the bringing
and introduction of such *uantity and type of )ar aterial into the country is a
ute but elo*uent proof of the sinister plan of the aforesaid la)yers eleents to
hasten the escalation of their present revolutionary )ar against the 3ilipino people
and their legitiate 9overnent.
/CEREA%, in the e1ecution of their overall revolutionary plan, the aforesaid
la)less eleents have prepared and released to their various field coanders
and Party )or4ers a docuent captioned !RE92-NA: PR-9RAM -3 ACT2-N "'(&,!
a copy of )hich )as captured by eleents of the ""Ath and ""'th Philippine
Constabulary Copanies on 0une "$, "'(& at Barrio Taringsing, Cordon, 2sabela,
the te1t of )hich reads as follo)s?
RE92-NA: PR-9RAM -3 ACT2-N "'(&
The follo)ing Regional Progra of Action "'(& is prepared to be carried out as
part of the overall plan of the party to foent discontent and precipitate the tide
of nation)ide ass revolution. The fascist Marcos and his reactionary of Congress
is e1pected to prepare theselves for the "'(7 hence?
0anuary 5 0une?
". 2ntensify recruitent of ne) party ebers especially fro the )or4ers;
farers class. Cadres are being trained in order to organi,e the different regional
bureaus. These bureaus ust concentrate on ass action and organi,ation to
advanceent of the ass revolutionary oveent. Reference is to the !Borador
ng Prograa sa Pag4ilos at Glat ng Panlipunang Pagsisiyasat! as approved by the
Central Coittee.
&. Recruit and train ared city partisans and urban guerrillas and organi,e the
into units under Party cadres and activities of ass organi,ations. These units
ust undergo speciali,ed training on e1plosives and deolition and other and
other fors of sabotage.
7. 2ntensify recruitent and training of ne) ebers for the Ne) People!s Ary
in preparation for liited offensive in selected areas in the regions.
@. %upport a ore aggressive progra of agitation and proraganda against the
reactionary ared forces and against the Con;Con.
0uly 5 August?
6uring this period the Party e1pects the puppet Marcos governent to allo)
increase in bus rates thus aggravating further the plight of students, )or4ers and
the farers.
". All Regional Party Coittees ust plan for a general stri4e oveent. The
Regional -perational Coands ust plan for ared support if the fascist forces
of Marcos )ill try to intiidate the oppressed 3ilipino asses.
&. Conduct sabotage against schools, colleges and universities hi4ing tuition fees.
7. Conduct sabotage and agitation against puppet +udges and courts hearing
cases against top party leaders.
@. Create regional chaos and disorder to draati,e the inability of the fascist
Marcos 9overnent to 4eep and aintain peace and order thru?
a= Robbery and hold;up of ban4s controlled by Aerican iperialists and those
belonging to the eneies of the people.
b= Attac4 ilitary caps, G% bases and to)ns.
c= More violent stri4es and deonstrations.
%epteber 5 -ctober?
2ncrease intensity of violence, disorder and confusion?
". 2ntensify sabotage and bobing of governent buildings and ebassies and
other utilities?
a= Congress.
b= %upree Court.
c= Con;Con.
d= City Call.
e= G% Ebassy.
f= 3acilities of G% Bases.
g= Provincial Capitols.
h= Po)er Plants.
i= P:6T.
+= Radio %tations.
&. %poradic attac4s on caps, to)ns and cities.
7. Assassinate high 9overnent officials of Congress, 0udiciary, Con;Con and
private individuals sypathetic to puppet Marcos.
@. Establish provisional revolutionary governent in to)ns and cities )ith the
support of the asses.
<. /ith the sypathetic support of our allies, establish provisional provincial
revolutionary governents.
CENTRA: C-MM2TTEE C-MMGN2%T PARTK -3 TCE PC2:2PP2NE%
/CEREA%, in line )ith their !RE92-NA: PR-9RAM -3 ACT2-N "'(&,! the
aforesaid la)less eleents have of late been conducting intensified acts of
violence and terroris!s during the current year in the 9reater Manila Area such
as the bobing of the Arca building at Taft Avenue, Pasay City, on March "<. of
the 3ilipinas -rient Air)ays board roo at 6oestic Road, Pasay City on April &7.
of the Dietnaese Ebassy on May 7#. of the Court of 2ndustrial Relations on
0une &7. of the Philippine Trust Copany branch office in Cubao, Lue,on City on
0une &@. of the Philalife building at Gnited Nations Avenue, Manila, on 0uly 7. of
the Tabacalera Cigar Q Cigarette 3actory Copound at Mar*ue, de Coillas,
Manila on 0uly &(. of the P:6T e1change office at East Avenue, Lue,on City, and
of the Philippine %ugar 2nstitute building at North Avenue, 6ilian, Lue,on City,
both on August "<. of the 6epartent of %ocial /elfare building at %an Rafael
%treet, %apaloc, Manila, on August "(. of a )ater ain on Aurora Boulevard
and Madison Avenue, Lue,on City on August "'. of the Philalife building again
on August 7#. this tie causing severe destruction on the 3ar East Ban4 and
Trust Copany building nearby of the arored car and building of the Philippine
Ban4ing Corporation as )ell as the buildings of the 2nvestent 6evelopent, 2nc.
and the 6aily %tar Publications )hen another e1plosion too4 place on Railroad
%treet, Port Area, Manila also on August 7#. of 0oe!s 6epartent %tore on Cariedo
%treet, Luiapo, Manila, on %epteber <, causing death to one )oan and in+uries
to soe 7$ individuals. and of the City Call of Manila on %epteber $. of the
)ater ains in %an 0uan, Ri,al on %epteber "&. of the %an Miguel Building in
Ma4ati, Ri,al on %epteber "@. and of the Lue,on City Call on %epteber "$,
"'(&, as )ell as the attepted bobing of the Congress Building on 0uly "$,
)hen an une1ploded bob )as found in the %enate Publication 6ivision and the
attepted bobing of the 6epartent of 3oreign Affairs on August 7#.
/CEREA%, in line )ith the sae !RE92-NA: PR-9RAM -3 ACT2-N "'(&,! the
aforesaid la)less eleents have also fielded in the 9reater Manila area several of
their !%parro) Gnits! or !%ibad Gnits! to underta4e li*uidation issions against
ran4ing governent officials, ilitary personnel and proinent citi,ens and to
further heighten the destruction!s and depredations already inflicted by the
upon our innocent people, all of )hich are being deliberately done to so) terror,
fear and chaos aongst our population and to a4e the 9overnent loo4 so
helpless and incapable of protecting the lives and property of our people.
/CEREA%, in addition to the above;described social disorder, there is also the
e*ually serious disorder in Mindanao and %ulu resulting fro the unsettled conflict
bet)een certain eleents of the Christian and Musli population of Mindanao and
%ulu, bet)een the Christian !2lagas! and the Musli !Barracudas,! and bet)een
our 9overnent troops, and certain la)less organi,ations such as the Mindanao
2ndependence Moveent.
/CEREA%, the Mindanao 2ndependence Moveent )ith the active aterial and
financial assistance of foreign political and econoic interests, is engaged in an
open and unconcealed attept to establish by violence and force a separate and
independent political state out of the islands of Mindanao and %ulu )hich are
historically, politically and by la) parts of the territories and )ithin the +urisdiction
and sovereignty of the Republic of the Philippines.
/CEREA%, because of the aforesaid disorder resulting fro ared clashes,
4illings, assacres, arsons, rapes, pillages, destruction of )hole villages and
to)ns and the inevitable cessation of agricultural and industrial operations, all of
)hich have been brought about by the violence inflicted by the Christians, the
Muslis, the !2lagas,! the !Barracudas,! and the Mindanao 2ndependence
Moveent against each other and against our governent troops, a great any
parts of the islands of Mindanao and %ulu are virtually no) in a state of actual
)ar.
/CEREA%, the violent disorder in Mindanao and %ulu has to date resulted in the
4illing of over ",### civilians and about &,### ared Muslis and Christians, not
to ention the ore than five hundred thousand of in+ured displaced and
hoeless persons as )ell as the great nuber of casualties aong our
governent troops, and the paraly,ation of the econoy of Mindanao and %ulu.
/CEREA%, because of the foregoing acts of ared insurrection, )anton
destruction of huan and lives and property, unabated and unrestrained
propaganda attac4s against the 9overnent and its institutions,
instruentalities, agencies and officials, and the rapidly e1panding ran4s of the
aforesaid la)less eleents, and because of the spreading la)lessness and
anarchy throughout the land all of )hich prevented the 9overnent to e1ercise
its authority, e1tend its citi,enry the protection of its la)s and in general e1ercise
its sovereignty overall of its territories, caused serious deorali,ation aong our
people and have ade the apprehensive and fearful, and finally because public
order and safety and the security of this nation deand that iediate, s)ift,
decisive and effective action be ta4en to protect and insure the peace, order and
security of the country and its population and to aintain the authority of the
9overnent.
/CEREA%, in cases of invasion, insurrection or rebellion or iinent danger
thereof, 2, as President of the Philippines, have under the Constitution, three
course of action open to e, naely? 8a= call out the ared forces to suppress
the present la)less violence. 8b= suspend the privilege of the )rit of habeas
corpus to a4e the arrest and apprehension of these la)less eleents easier and
ore effective. or 8c= place the Philippines or any part thereof under artial la).
/CEREA%, 2 have already utili,ed the first t)o courses of action, first, by calling
upon the ared forces to suppress the aforesaid la)less violence, coitting to
that specific +ob alost <#R of the entire ared forces of the country and
creating several tas4 forces for that purpose such as Tas4 3orce %aranay, Tas4
3orce Palanan, Tas4 3orce 2sarog, Tas4 3orce Pag4a4aisa and Tas4 3orce :ancaf
and, second, by suspending the privilege of the )rit of habeas corpus on August
&", "'(" up to 0anuary "", "'(&, but in spite of all that, both courses of action
)ere found inade*uate and ineffective to contain, uch less solve, the present
rebellion and la)lessness in the country as sho)n by the fact that?
". The radical left has increased the nuber and area of operation of its front
organi,ations and has intensified the recruitent and training of ne) adherents in
the urban and rural areas especially fro aong the youth.
&. The Mabataang Ma4abayan 8MM=, the ost ilitant and outspo4en front
organi,ation of the radical left, has increased the nuber of its chapters fro &##
as of the end of "'(# to 7"( as of 0uly 7", "'(& and its ebership fro "#,###
as of the end of "'(# to "<,### as of the end of 0uly, "'(&, sho)ing very clearly
the rapid gro)th of the counist oveent in this country.
7. The %aahang 6eo4rati4o ng Mabataan 8%6M=, another ilitant and
outspo4en front organi,ation of the radical left, has also increased the nuber of
its chapters fro an insignificant nuber at the end of "'(# to "<' as of the end
of 0uly, "'(& and has no) a ebership of soe ",@'< highly indoctrinated,
intensely coitted and alost fanatically devoted individuals.
@. The Ne) People!s Ary, the ost active and the ost violent and ruthless
ilitary ar of the radical left, has increased its total strength fro an estiated
A,<## coposed of <A# regulars, ",<## cobat support and @,@## service
support= as of 0anuary ", "'(& to about (,'## 8coposed of ",#&$ regulars,
",$## cobat support and <,#&< service support= as of 0uly 7", "'(&, sho)ing a
ar4ed increase in its regular troops of over "##R in such a short period of si1
onths.
<. The establishent of sanctuaries for the insurgents in 2sabela, in >abales, in
Caarines %ur, and in soe parts of Mindanao, a developent heretofore
un4no)n in our capaign against subversion and insurgency in this country.
A. The disappearance and dropping out of school of soe 7,### high school and
college students and )ho are reported to have +oined )ith the insurgents for
training in the handling of firears and e1plosives.
(. The bringing and introduction into the country of substantial )ar aterial
consisting of ilitary hard)are and supplies through the MD Maragatan at 6igoyo
Point, Palanan, 2sabela, and the fact that any of these ilitary hard)are and
supplies are no) in the hands of the insurgents and are being used against our
9overnent troops.
$. The infiltration and control of the edia by persons )ho are sypathetic to the
insurgents and the conse*uent intensification of their propaganda assault against
the 9overnent and the ilitary establishent of the 9overnent.
'. The foration at the grass;root level of !political po)er organs,! heretofore
un4no)n in the history of the Counist oveent in this country, coposed of
Barrio -rgani,ing Coittees 8B-Cs= to obili,e the barrio people for active
involveent in the revolution. the Barrio Revolutionary Coittees 8BRCs= to act
as !local governents in barrios considered as CPPNNPA baili)ic4s. the /or4ers
-rgani,ing Coittees 8/-Cs= to organi,e )or4ers fro all sectors. the %chool
-rgani,ing Coittees 8%-Cs= to conduct agitation and propaganda activities
and help in the e1pansion of front groups aong the studentry. and the
Counity -rgani,ing Coittees 8C-Cs= )hich operate in the urban areas in
the sae anner as the 8B-Cs=.
/CEREA%, the rebellion and ared action underta4en by these la)less eleents
of the counist and other ared aggrupations organi,ed to overthro) the
Republic of the Philippines by ared violence and force have assued the
Philippines.
6one in the City of Manila, this &"st day of %epteber, in the year of -ur :ord,
nineteen hundred and seventy;t)o,
-n %epteber &&, "'(& at ' o!cloc4 in the evening, clearance for the
ipleentation of the proclaation )as granted, and for )ith, the follo)ing
general order, aong others, )as issued?
G*,'L -,/, *-. 3
8-R6ER2N9 TCE %ECRETARK -3 NAT2-NA: 6E3EN%E T- ARRE%T TCE PER%-N%
NAME6 2N TCE ATTACCE6 :2%T, A% /E:: A% -TCER PER%-N% /C- MAK CADE
C-MM2TTE6 CR2ME% AN6 -33EN%E% ENGMERATE6 2N TCE -R6ER=.
Pursuant to Proclaation No. "#$", dated %epteber &", "'(&, in y capacity as
Coander;in;Chief of all the Ared 3orces of the Philippines and for being
active participants in the conspiracy and state po)er in the country and to ta4e
over the 9overnent by force, the e1tent of )hich has no) assued the
proportion of an actual )ar against our people and their legitiate 9overnent
and in order to prevent the fro further coitting acts that are iniical or
in+urious to our people, the 9overnent and our national interest, 2 hereby order
you as %ecretary of National 6efense to for )ith arrest or cause the arrest and
ta4e into your custody the individuals naed in the attached list and to hold the
until other)ise so ordered by e or by y duly designated representative.
:i4e)ise, 2 do hereby order you to arrest and ta4e into custody and to hold the
until other)ise ordered released by e or by y duly authori,ed representative,
such persons as ay have coitted cries and offenses in furtherance or on
rebellion, as )ell as persons )ho have coitted cries against national security
and the la) of nations, cries against the fundaental la)s of the state, cries
against public order, cries involving usurpation of authority, title, iproper use
of nae, unifor and insignia, including persons guilty of cries as public
officers, as )ell as those persons )ho ay have violated any decree or order
proulgated by e personally or proulgated upon y direction.
8%96.= 3ER62NAN6 E. MARC-% PRE%26ENT REPGB:2C -3 TCE PC2:2PP2NE%
2n the list referred to in this order )ere the naes, aong others, of all the
petitioners herein. Thus, fro shortly after idnight of %epteber &&, "'(& until
they )ere all apprehended, petitioners )ere ta4en one by one, either fro their
hoes or places of )or4, by officers and en of the Ared 3orces of the
Philippines, )ithout the usual )arrant of arrest, and only upon orders of the
respondent %ecretary of National 6efense directed to his co;respondent, the Chief
of %taff of the Ared 3orces. They have been since then confined either at Cap
Bonifacio, Cap Crae or soe other ilitary cap, until, as earlier adverted to,
they )ere released sub+ect to certain conditions, )ith the e1ception of petitioners
6io4no and A*uino, )ho are still in custody up to the present.
The particular case o) petitioner# '(uino.
As regards petitioner A*uino, it appears fro his allegations in his petition and
suppleental petition for prohibition in 9. R. No. :;7(7A@, already referred to
earlier, 8"= that on August "", "'(7, si1 criinal charges, for illegal possession of
firears, etc., urder and violation of RA "(## or the Anti;%ubversion Act, )ere
filed against hi )ith Military Coission No. &, created under 9eneral -rders
Nos. $, "& and 7', 8&= that on August &$, "'(7, the President created, thru
Adinistrative -rder No. 7<<, a special coittee to underta4e the preliinary
investigation or reinvestigation of said charges, and 87= that he *uestions the
legality of his prosecution in a ilitary coission instead of in a regular civilian
court as )ell as the creation of the special coittee, not only because of alleged
invalidity of Proclaation "#$" and 9eneral -rder No. & and the orders
authori,ing the creation of ilitary coissions but also because Adinistrative
-rder No. 7<< constitutes allegedly a denial of the e*ual protection of the la)s to
hi and to the others affected thereby.
3ro the procedural standpoint, these developents did not )arrant the filing of
a separate petition. A suppleental petition in 9.R. No. :;7<<@A, )herein he is
one of the petitioners, )ould have sufficed. But inasuch as petitioner A*uino has
chosen to file an independent special civil action for prohibition in said 9.R. No. :;
7(7A@ )ithout )ithdra)ing his petition for habeas corpus in 9.R. No. :;7<<@A,
/e )ish to a4e it clear that in this decision, the Court is going to resolve, for
purposes of the habeas corpus petition of said petitioner, only the issues he has
raised that are coon )ith those of the rest of the petitioners in all these cases,
thereby leaving for resolution in 9.R. No. :;7(7A@ all the issues that are peculiar
only to hi. 2n other )ords, insofar as petitioner A*uino is concerned, the Court
)ill resolve in this decision the *uestion of legality of his detention by virtue of
Proclaation "#$" and 9eneral -rder No. &, such that in 9.R. No. :;7(7A@, )hat
)ill be resolved )ill be only the constitutional issues related to the filing of
charges against hi )ith Military Coission No. &, preised already on
)hatever )ill be the Court!s resolution in the instant cases regarding
Proclaation "#$" and 9eneral -rder No. &.
/ith respect to the other petitioners, none of the stands charged )ith any
offense before any court or ilitary coission. 2n fact, they all contend that
they have not coitted any act for )hich they can be held criinally liable.
9oing bac4 to the facts, it ay be entioned, at this +uncture, that on the day
Proclaation "#$" )as signed, the Congress of the Philippines )as actually
holding a special session scheduled to end on %epteber &&, "'(&. 2t had been in
uninterrupted session since its regular opening in 0anuary, "'(&. 2ts regular
session )as ad+ourned on May "$, "'(&, follo)ed by three special session of
thirty days each,
*
fro May "' to 0une &&, 0une &7 to 0uly &( and 0uly &$ to
August 7", and one special session of t)enty days, fro %epteber " to
%epteber &&. As a atter of fact, petitioner A*uino )as in a conference of a
+oint coittee of the %enate and the Couse of Representatives )hen he )as
arrested in one of the roos of the Cilton Cotel in Manila.
2t ust also be stated at this point that on Noveber 7#, "'(&, the Constitutional
Convention of "'(", )hich convened on 0une ", "'(" and had been in continuous
session since then, approved a Ne) Constitution. that on 0anuary "(, "'(7,
Proclaation ""#& )as issued proclaiing the ratification thereof. and that in the
Ratification Cases aforeentioned, the %upree Court rendered on March 7",
"'(7, a +udgent holding that Bthere is no further +udicial obstacle to the Ne)
Constitution being considered in force and effect.B Aong the pertinent provisions
of the Ne) Constitution is %ection 7 8&= of Article ID22 )hich reads thus?
incubent President, or unless e1pressly and e1plicitly odified or repeated by
the regular National Assebly.
Before closing this narration of facts, it is relevant to state that relative to
petitioner 6io4no!s otion to )ithdra), respondent filed under date of May "7,
"'(@ the follo)ing Manifestation?
C-ME N-/ respondents, by the undersigned counsel, and to this Conorable
Court respectfully subit this anifestation?
". 2n a Motion dated 6eceber &', "'(7 petitioner, through counsel, prayed for
the )ithdra)al of the above;entitled case, ore particularly the pleadings filed
therein, Respondents! Coents dated 0anuary "(, "'(@, petitioners! Reply
dated March (, "'(@, and respondents! Re+oinder dated March &(, "'(@ )ere
subse*uently subitted to this Conorable Court?
&. The otion to )ithdra) has been used for propaganda purposes against the
9overnent, including the %upree. Court :ately, the propaganda has been
intensified and the detention of petitioner and the pendency of his case in this
Court have been e1ploited.
7. /e are a)are that the issues raised in this case are of the utost gravity and
delicacy. This is the reason )e said that the decision in these cases should be
postponed until the eergency, )hich called for the proclaation of artial la),
is over. /hile this position is aply supported by precedents and is based on
sound policy considerations, )e no) feel that to protect the integrity of
governent institutions, including this Court, fro scurrilous propaganda no)
being )aged )ith relentlessness, it )ould be in the greater interest of the Nation
to have the otion to )ithdra) resolved and if denied, to have the petition itself
decided.
@. This is not to say that the eergency is over, but only to e1press a +udgent
that in vie) of recent tactics eployed in the propaganda against the
9overnent, it is preferable in the national interest to have the issues stirred by
this litigation settled in this foru. 3or, indeed, )e ust state and reiterate that?
Respectfully subitted. Manila, Philippines, May "7, "'(@. 8Dol. 22, Rollo, :;
7<<7'.=
and that earlier, in connection )ith the issue of +urisdiction of the %upree Court
over the instant cases, the respondents invo4ed 9eneral -rders Nos. 7 and 7;A
reading, as follo)s?
G*,'L -,/, *-. C
/CEREA%, artial la) having been declared under Proclaation No. "#$", dated
%epteber &", "'(& and is no) in effect throughout the land.
/CEREA%, artial la), having been declared because of )anton destruction of
lives and property, )idespread la)lessness and anarchy and chaos and disorder
no) prevailing throughout the country, )hich condition has been brought about
by groups of en )ho are actively engaged in a criinal conspiracy to sei,e
political and state po)er in the Philippines in order to ta4e over the 9overnent
by force and violence, they e1tent of )hich has no) assued the proportion of an
actual )ar against our people and their legitiate 9overnent. and
/CEREA%, in order to a4e ore effective the ipleentation of the aforesaid
Proclaation No. "#$" )ithout unduly affecting the operations of the
9overnent, and in order to end the present national eergency )ithin the
shortest possible tie.
N-/, TCERE3-RE, 2, 3ER62NAN6 E. MARC-%, Coander;in;Chief of all the
Ared 3orces of the Philippines, and pursuant to Proclaation No. "#$", dated
%epteber &", "'(&, do hereby order that henceforth all e1ecutive departents,
bureaus, offices, agencies and instruentalities of the National 9overnent,
governent;o)ed or controlled corporations, as )ell as all governents of all the
provinces, cities, unicipalities and barrios throughout the land shall continue to
function under their present officers and eployees and in accordance )ith
e1isting la)s, until other)ise ordered by e or by y duly designated
representative.
2 do hereby further order that the 0udiciary shall continue to function in
accordance )ith its present organi,ation and personnel, and shall try and decide
in accordance )ith e1isting la)s all criinal and civil cases, e1cept the follo)ing
cases?
". Those involving the validity, legality or constitutionality of any decree, order or
acts issued, proulgated or perfored by e or by y duly designated
&. Those involving the validity or constitutionality of any rules, orders, or acts
issued, proulgated or perfored by public servants pursuant to decrees, orders,
rules and regulations issued and proulgated by e or by y duly designated
7. Those involving cries against national security and the la) of nations.
@. Those involving cries against the fundaental la)s of the %tate.
<. Those involving cries against public order.
A. Those cries involving usurpation of authority, ran4, title, and iproper use of
naes, unifors, and insignia.
(. Those involving cries coitted by public officers.
8%96.= 3ER62NAN6 E. MARC-% President Republic of the PhilippinesB .
G*,'L -,/, *-. C7' .
%ub;paragraph " of the second paragraph of the dispositive portion of 9eneral
-rder No. 7, dated %epteber &&, "'(&, is hereby aended to read as follo)s?
111 111 111
". Those involving the validity, legality, or constitutionality of Proclaation No.
"#$", dated %epteber &", "'(&, or of any decree, order or acts issued,
proulgated or perfored by e or by y duly designated representative
pursuant thereto.
111 111 111
6one in the City of Manila, this &@th day of %epteber, in the year of -ur :ord,
:i4e)ise relevant are the issuance by the President on 0anuary "(, "'(7 of
Proclaation ""#@ reading thus?
&,-CL'M'T+-* *-. 44AD
6EC:AR2N9 TCE C-NT2NGAT2-N -3 MART2A: :A/.
/CEREA%, Barangays 8Citi,ens Asseblies= )ere created in barrios in
unicipalities and in districtsN)ards in chartered cities pursuant to Presidential
6ecree No. $A, dated 6eceber 7", "'(&, coposed of all persons )ho are
residents of the barrio, district or )ard for at least si1 onths, fifteen years of
age or over, citi,ens of the Philippines and )ho are registered in the list of Citi,en
Assebly ebers 4ept by the barrio, district or )ard secretary.
/CEREA%, the said Barangays )ere established precisely to broaden the base of
citi,en participation in the deocratic process and to afford aple opportunities
for the citi,enry to e1press their vie)s on iportant national issues.
/CEREA%, pursuant to Presidential 6ecree No. $A;A, dated 0anuary <, "'(7 and
Presidential 6ecree No. $A;B, dated 0anuary (, "'(7, the *uestion )as posed
before the Barangays? 6o you )ant artial la) to continueE
/CEREA%, fifteen illion t)o hundred t)enty;four thousand five hundred
eighteen 8"<,&&@,<"$= voted for the continuation of artial la) as against only
eight hundred forty;three thousand fifty;one 8$@7,#<"= )ho voted against it.
virtue of the po)ers in e vested by the Constitution, do hereby declare that
artial la) shall continue in accordance )ith the needs of the tie and the desire
of the 3ilipino people.
6one in the City of Manila, this "(th day of 0anuary, in the year of -ur :ord,
nineteen hundred and seventy;three.
and the holding of a referendu on 0uly &(;&$, "'(7 )hich as evidenced by the
C-ME:EC proclaation of August 7, "'(7 resulted in the follo)ing?
office beyond "'(7.
has initiated under Martial :a)E
"$,#<&,#"A ; KE%
",$<A,(@@ ; N-
8Phil. 6aily E1press, August @, "'(7=
T1 $<*/'M*T'L +""<"
3irst of all, petitioners challenge the factual preises and constitutional
sufficiency of Proclaation "#$". 2nvo4ing the Constitution of "'7< under )hich it
)as issued, they vigorously aintain that B)hile there ay be rebellion in soe
reote as in 2sabela, there is no basis for the nation)ide iposition of artial
la), since? 8a= no large scale rebellion or insurrection e1ists in the Philippines. 8b=
public safety does not re*uire it, inasuch as no departent of the civil
governent 5 is sho)n to have been unable to open or function because of or
due to, the activities of the la)less eleents described in the Proclaation. 8c=
the E1ecutive has given the nation to understand 5 and there e1ists no evidence
to the contrary 5 that the ared forces can handle the situation )ithout !utili,ing
the e1traordinary of the President etc.!. and 8d= the proble in the 9reater Manila
Area ... )here petitioners )ere sei,ed and arrested )as, at the tie artial la)
)as, plain la)lessness and criinality.B 8pp. A';(# Petitioners! Meorandu=. 2n
his suppleental petition, petitioner 6io4no individually posits that especially
these days, )ith the iproved conditions of peace and order, there is no ore
constitutional +ustification for the continuance of artial la). 2n other )ords,
petitioners *uestion not only the constitutional sufficiency both in fact and in la)
of the proclaation but also the legality of their detention and constraints,
independently of any finding of validity of the proclaation, )hile in his
suppleental petition petitioner 6io4no individually subits that the Court should
declare that it has already becoe illegal to continue the present artial la)
regie because the eergency for )hich it )as proclaied, if it ever e1isted, has
already ceased, as attested by various public and official declaration of no less
than the President hiself. -n the other hand, respondents )ould )ant the Court
to lay its hands off the instant petitions, claiing that under 9eneral -rders Nos.
7 and 7;A, afore*uoted, the President has ordered that the 0udiciary shall not try
and decide cases Binvolving the validity, legality or constitutionalityB of
Proclaation "#$" and any order, decree or acts issued or done pursuant to said
Proclaation. They contend ost veheently that this Court has no +urisdiction
to in*uire into the factual bases of the proclaation, any *uestion as to the
propriety or constitutional sufficiency of its issuance being, according to the,
political and non;+usticiable. They point out, in this connection, that in the above;
entioned referendu of 0anuary "#;"<, "'(7 and ore so in that of 0uly &(;&$,
"'(7, the sovereign people ipressed their seal of approval on the continuation
of artial la) for as long as the President ay dee it )ise to aintain the
sae. And on the assuption the Court can a4e an in*uiry into the factual
bases of the Proclaation, they clai there )as ore than efficient +ustification
for its issuance, in the light of the criterion of arbitrariness sanctioned by Gs in
Lansang vs. Garcia, @& %CRA @@$. Respondents further aintain that it is only by
another official proclaation by the President, not by a declaration, that artial
la) ay be lifted. Additionally, in their ans)er of 0uly &A, "'(7 to petitioner
6io4no!s suppleental petition, respondents contend that the e1press provisions
of the above;*uoted transitory provision of the Ne) Constitution, have ade
indubitable that Proclaation "#$" as )ell as all the ipugned 9eneral -rders
are constitutional and valid.
Thus, the fundaental *uestions presented for the Court!s resolution are?
". 6oes the %upree Court have +urisdiction to resolve the erits of the instant
petitionsE Put differently, are not the issues herein related to the propriety or
constitutional sufficiency of the issuance of the Proclaation purely political,
)hich are not for the +udiciary, but for the people and the political departents of
the governent to deterineE And vie)ed fro e1isting +urisprudence in the
Philippines, is not the doctrine laid do)n by this Court in Lansang vs. Garcia#
supra, applicable to these casesE
&. Even assuing :ansang to be applicable, and on the basis of the criterion of
arbitrariness sanctioned therein, can it be said that the President acted arbitrarily,
capriciously or )hisically in issuing Proclaation "#$"E
7. Even assuing also that said proclaation )as constitutionally issued, ay not
the %upree Court declare upon the facts of record and those +udicially 4no)n to
it no) that the necessity for artial la) originally found by the President to e1ist
has already ceased so as to a4e further continuance of the present artial la)
regie unconstitutionalE
@. Even assuing again that the placing of the country under artial la) is
constitutional until the President hiself declares other)ise, is there any legal
+ustification for the arrest and detention as )ell as the other constraints upon the
individual liberties of the petitioners, and, in the affirative, does such
+ustification continue up to the present, alost t)o years fro the tie of their
apprehension, there being no criinal charges of any 4ind against the nor any
)arrants of arrest for their apprehension duly issued pursuant to the procedure
prescribed by la)E
<. 3inally, can there still be any doubt regarding the constitutionality of the
issuance of Proclaation "#$" and all the other proclaations and orders,
decrees, instructions and acts of the President issued or done by hi pursuant to
said Proclaation, considering that by the ters of %ection 7 8&= of Article ID22 of
the Constitution of the Philippines of "'(7, Ball proclaations, orders, decrees,
instructions and acts proulgated, issued or done by the incubent President
shall be part of the la) of the land, and shall reain valid, legal, binding and
effectiveB until revo4ed or superseded by the incubent President hiself or by
the regular National Assebly established under the sae ConstitutionE
2
T1 +""< -$ J<,+"/+CT+-*
By its very nature, the issue of +urisdiction vigorously urged by the %olicitor
9eneral calls for prior resolution. 2ndeed, )henever the authority of the Court to
act is seriously challenged, it should not proceed any further until that authority is
clearly established. And it goes )ithout saying that such authority ay be found
only in the e1isting la)s andNor the Constitution.
3or a oent, ho)ever, there )as a feeling aong soe ebers of the Court
that the iport of the transitory provisions of the Ne) Constitution referred to in
the fifth above has ade the issue of +urisdiction posed by the *uestion
respondents of secondary iportance, if not entirely acadeic. Gntil, upon further
reflection, a consensus eerged that for Gs to declare that the transitory
provision invo4ed has rendered oot and acadeic any controversy as to the
legality of the ipugned acts of the President is to assue that the issue is
+usticiable, thereby bypassing the very issue of +urisdiction. /e are as4ed to
resolve. /e feel that )hile perhaps, such reliance on the transitory provision
referred to ay legally suffice to dispose of the cases at bar, it cannot ans)er
persistent *ueries regarding the po)ers of the %upree Court in a artial la)
situation. 2t )ould still leave unsettled a host of controversies related to the
continued e1ercise of e1traordinary po)ers by the President. /ithal, such
assuption of +usticiability )ould leave the Court open to successive petitions
as4ing that artial la) be lifted, )ithout -ur having resolved first the correctness
of such assuption. 2ndeed, nothing short of a categorical and definite ruling of
this Court is iperative regarding the pretended non;+usticiability of the issues
herein, if the people are to 4no), as they ust, )hether the present
governental order has legitiate constitutional foundations or it is supported by
nothing ore than na4ed force and self;created stilts to 4eep it above the ur4y
)aters of unconstitutionality. Thus, it is but proper that /e tac4le first the
*uestions about the authority of the Court to entertain and decide these cases
before discussing the ateriality and effects of the transitory provision relied
upon by respondents.
As a atter of fact, it is not alone the atter of +urisdiction that /e should
decide. Beyond the purely legal issues placed before Gs by the parties, ore
fundaental probles are involved in these proceedings. There are all;iportant
atters )hich a historical decision li4e this cannot ignore on the prete1t that -ur
duty in the preises is e1clusively +udicial. /hether all the ebers of the Court
li4e it or not, the Court has to play its indispensable and decisive role in resolving
the probles confronting our people in the critical circustances in )hich they
find theselves. After all, )e cannot dissociate ourselves fro the, for )e are
3ilipinos )ho ust share the coon fate to )hich the denoueent of the
current situation )ill consign our nation. The priority issue before Gs is )hether
/e )ill sub+ect the assailed acts of the President to +udicial scrutiny as to its
factual bases or /e )ill defer to his findings predicated on evidence )hich are in
the very nature of things officially available only to hi, but in either case, our
people ust 4no) that -ur decision has deocratic foundations and confors
)ith the great principles for )hich our nation e1ists.
The Ne) Constitution itself is in a large sense a product of the political convulsion
no) sha4ing precariously the unity of the nation. Gpon the other hand, that those
presently in authority had a hand in one )ay or another in its forulation,
approval and ratification can hardly be denied. To +ustify, therefore, the restraint
upon the liberties of petitioners through an e1clusive reliance on the andates of
the ne) charter, albeit logically and technically tenable, ay not suffice to 4eep
our people united in the faith that there is genuine deocracy in the e1isting
order and that the rule of la) still prevails in our land. %oeho) the disturbing
thought ay 4eep lingering )ith soe, if not )ith any, of our countryen that
by predicating -ur decision on the basis alone of )hat the Ne) Constitution
ordains, /e are in effect allo)ing those presently in authority the dubious
privilege of legali,ing their acts and e1culpating theselves fro their supposed
constitutional transgressions through a device )hich ight yet have been of their
o)n furtive a4ing.
Besides, /e should not be as naive as to ignore that in troublous ties li4e the
present, siplistic solutions, ho)ever solidly based, of constitutional
controversies li4ely to have grave political conse*uences )ould not sound cogent
enough unless they ring in coplete harony )ith the tune set by the founders
of our nation )hen they solenly consecrated it to the ideology they considered
best conducive to the contentent and prosperity of all our people. And the
coitent of the Philippines to the ideals of deocracy and freedo is ever
evident and indubitable. 2t is )rit in the artyrdo of our revolutionary forbears
)hen they violently overthro) the yo4e of %panish dispotis. 2t is an indelible
part of the history of our passionate and ,ealous observance of deocratic
principles and practices during the ore than four decades that Aerica )as )ith
us. 2t is reaffired in bright crison in the blood and the lives of the countless
3ilipinos )ho fought and died in order that our country ay not be sub+ugated
under the ilitaris and totalitarianis of the 0apanese then, )ho )ere even
enticing us )ith the idea of a 9reater East Asia Co;Prosperity %phere. And today,
that our people are sho)ing considerable disposition to suffer the iposition of
artial la) can only be e1plained by their belief that it is the last recourse to save
theselves fro the inroads of ideologies antithetic to those they cherish and
uphold.
/ithal, the eyes of all the peoples of the )orld on both sides of the baboo and
iron curtains are focused on )hat has been happening in our country since
%epteber &", "'(&. Martial la) in any country has such a)esoe iplications
that any nation under it is naturally an interesting study sub+ect for the rest of
an4ind. Those )ho consider theselves to be our ideological allies ust be
4eeping apprehensive )atch on ho) steadfastly )e shall reain living and
cherishing our coon fundaental political tenets and )ays of life, )hereas
those of the opposite ideology ust be eagerly anticipating ho) soon )e )ill +oin
the in the conviction that, after all, real progress and developent cannot be
achieved )ithout giving up individual freedo and liberty and unless there is
concentration of po)er in the e1ercise of governent authority. 2t is true the
Philippines continues to en+oy recognition of all the states )ith )ho it had
diploatic relations before artial la) )as proclaied but it is not difficult to
iagine that soon as it has becae definite or any)ay apparent to those
concerned that the Philippines has ceased to adhere to the iutable concepts of
freedo and deocracy enshrined in its o)n fundaental la) corresponding
reactions )ould anifest theselves in the treatent that )ill be given us by
these states.
2n our chosen for of governent, the %upree Court is the departent that
ost authoritatively spea4s the language of the Constitution. Cence, ho) the
present artial la) and the constraints upon the liberties of petitioners can be
+ustified under our Constitution )hich provides for a republican deocratic
governent )ill be read by the )hole )orld in the considerations of this decision.
3ro the they )ill 4no) )hither )e are going as a nation. More iportantly, by
the sae to4en, history and the future generations of 3ilipinos )ill render their
o)n +udgent on all of us )ho by the )ill of 6ivine Providence have to play our
respective roles in this epochal chapter of our national life. By this decision,
everyone concerned )ill deterine ho) truly or other)ise, the Philippines of
today is 4eeping faith )ith the fundaental precepts of deocracy and liberty to
)hich the nation has been irrevocably coitted by our heroes and artyrs since
its birth.
And )e should not gloss over the fact that petitioners have coe to this Court for
the protection of their rights under the provisions of the -ld Charter that have
reained unaltered by the Ne) Constitution. 2t )ould not be fair to the, if the
provisions invo4ed by the still ean )hat they had al)ays eant before, to
deterine the fate of their petitions on the basis erely of a transitory provision
)hose consistency )ith deocratic principles they vigorously challenge.
2n this delicate period of our national life, )hen faith in each other and unity
aong all of the coponent eleents of our people are indispensable, /e cannot
treat the attitude and feelings of the petitioners, especially %enator 6io4no . )ho
is still under detention )ithout foral charges, )ith apathy and indifferent
unconcern. Their pleadings evince *uite distinctly an apprehensive, nay a fast
d)indling faith in the capacity of this Court to render the +ustice. Bluntly put,
their pose is that the +ustice they see4 ay be found only in the correct
construction of the "'7< Constitution, and they a4e no secret of their fears that
because the incubent ebers of the Court have ta4en an oath to defend and
protect the Ne) Constitution, their hopes of due protection under the Bill of
Rights of the -ld Charter ay fall on deaf ears. Petitioner 6io4no, in particular,
)ith the undisguised concurrence of his chief counsel, forer %enator TaFada,
despairingly be)ails that although they are Bconvinced beyond any nagging doubt
that 8they are= on the side of right and reason and la) and +ustice, 8they are=
e*ually convinced that 8they= cannot reasonably e1pect either right or reason, la)
or +ustice, to prevail in 8these= case8s=.B
To be sure, /e do not feel bound to soothe the sub+ective despondency nor to
cool do)n the infuriated feelings of litigants and la)yers by eans other than the
sheer ob+ectiveness and deonstrated technical accuracy of our decisions. Gnder
the peculiar ilieu of these cases, ho)ever, it is perhaps best that /e do not
spare any effort to a4e everyone see that in discharging the grave responsibility
incubent upon Gs in the best light that 9od has given Gs to see it, /e have
e1plored every angle the parties have indicated and that /e have e1hausted all
+urisprudential resources )ithin our coand before arriving at our conclusions
and rendering our verdict. 2n a )ay, it could indeed be part of the nobility that
should never be lost in any court of +ustice that no party before it is left sul4ing
)ith the thought that he lost because not all his iportant arguents in )hich he
sincerely believes have been duly considered or )eighed in the balance.
But, of course, petitioners! eotional isgivings are anifestly baseless. 2t is too
evident for anyone to ignore that the provisions of the -ld Constitution petitioners
are invo4ing reain unaltered in the Ne) Constitution and that )hen it coes to
the basic precepts underlying the ain portions of both fundaental la)s, there
is no disparity, uch less any antagonis bet)een the, for in truth, they are
the sae identical tenets to )hich our country, our governent and our people
have al)ays been ineradicably coitted. 2nsofar, therefore, as said provisions
and their underlying principles are concerned, the ne) oath ta4en by the
ebers of the Court ust be understood, not in the disturbing sense petitioners
ta4e the, but rather as a continuing guarantee of the 0ustices! uns)erving fealty
and steadfast adherence to the self;sae tenets and ideals of deocracy and
liberty ebodied in the oaths of loyalty they too4 )ith reference to the "'7<
Constitution.
Contrary to )hat is obviously the erroneous ipression of petitioner 6io4no, the
fundaental reason that ipelled the ebers of the Court to ta4e the ne)
oaths that are causing hi un)arranted agony )as precisely to regain their
independence fro the E1ecutive, inasuch as the transitory provisions of the
"'(7 Constitution had, as a atter of course, sub+ected the +udiciary to the usual
rules attendant in the reorgani,ation of governents under a ne) charter. Gnder
%ections ' and "# of Article ID22, Bincubent ebers of the 0udiciary ay
continue in office until they reach the age of seventy years unless sooner
replacedB by the President, but Ball officials )hose appointents are by this
Constitution vested in the 8President= shall vacate their offices upon the
appointent and *ualification of their successors.B 2n other )ords, under said
provisions, the 0ustices ceased to be peranent. And that is precisely )hy our
ne) oaths containing the phrase Bna pinagpapatuloy sa panunung4ulanB, )hich
petitioner 6io4no uncharitably ridicules ignoring its real iport, )as prepared by
the %ecretary of 0ustice in consultation )ith the Court, and not by the President
or any other subordinate in the E1ecutive office, purposely to a4e sure that the
oath ta4ing cereony )hich )as to be presided by the President hiself )ould
connote and signify that thereby, in fact and in conteplation of la), the
President has already e1ercised the po)er conferred upon hi by the afore*uoted
transitory constitutional provisions to replace anyone of us )ith a successor at
anytie.
There )as no Presidential edict at all for the 0ustices to ta4e such an oath. The
President infored the Court that he )as deterined to restore the peranence
of the respective tenures of its ebers, but there )as a feeling that to e1tend
ne) appointents to the as successors to theselves )ould sound soeho)
absurd, And so, in a conference aong the President, the %ecretary of 0ustice and
all the 0ustices, a utually acceptable construction of the pertinent transitory
provision )as adopted to the effect that an official public announceent )as to
be ade that the incubent 0ustices )ould be continued in their respective
offices )ithout any ne) appointent, but they )ould ta4e a fittingly )orded oath
the te1t of )hich )as to be prepared in consultation bet)een the %ecretary of
0ustice and the Court. Thus, by that oath ta4ing, all the ebers of the Court,
other than the Chief 0ustice and the three ne) Associate 0ustices, )ho because of
their ne) appointent are not affected by the transitory provisions, are no)
e*ually peranent )ith the in their constitutional tenures, as officially and
publicly announced by the President hiself on that occasion. -ther)ise stated,
the reorgani,ation of the %upree Court conteplated in the transitory provisions
referred to, )hich, incidentally )as also a feature of the transitory provisions of
the "'7< Constitution, albeit, liited then e1pressly to one year, 8%ection @,
Article ID2= has already been accoplished, and all the 0ustices are no)
unreachably beyond the presidential prerogative either e1plicit or iplicit in the
ters of the ne) transitory provisions.
2t is, therefore, in these faith and spirit and )ith this understanding, supported
)ith prayers for guidance of 6ivine Providence, that /e have deliberated and
voted on the issues in these cases 5 certainly, )ithout any clai of onopoly of
)isdo and patriotis and of loyalty to all that is sacred to the Philippines and
the 3ilipino people.
22
As already stated, the 9overnent!s insistent posture that the %upree Court
should abstain fro in*uiring into the constitutional sufficiency of Proclaation
"#$" is predicated on t)o fundaental grounds, naely, 8"= that under 9eneral
-rder No. 7, as aended by 9eneral -rder No. 7;A, Bthe 0udiciary8)hich includes
the %upree Court= shall continue to function in accordance )ith its present
organi,ation and personnel, and shall try and decide in accordance )ith e1isting
la)s all criinal and civil cases, e1cept the follo)ing? ". Those involving the
validity, legality or constitutionality of Proclaation "#$" dated %epteber &",
"'(& or of any decree, order or acts issued, proulgated or perfored by 8the
President= or by 8his= duly designated representative pursuant thereto,B and 8&=
the *uestions involved in these cases are political and non;+usticiable and,
therefore, outside the doain of +udicial in*uiry.
5 A 5
9ENERA: -R6ER% N-%. 7 AN6 7;A CADE CEA%E6 T- BE -PERAT2DE 2N%-3AR A%
TCEK EN0-2N TCE 0G62C2ARK -3 0GR2%62CT2-N -DER CA%E% 2ND-:D2N9 TCE
DA:262TK -3 TCE PR-C:AMAT2-N%, -R6ER% -R ACT% -3 TCE PRE%26ENT.
Anent the first ground thus invo4ed by the respondents, it is not )ithout
iportance to note that the %olicitor 9eneral relies barely on the provisions of the
general orders cited )ithout elaborating as to ho) the %upree Court can be
bound thereby. Considering that the totality of the +udicial po)er is vested in the
Court by no less than the Constitution, both the -ld and the Ne), the absence of
any independent sho)ing of ho) the President ay by his o)n fiat
constitutionally declare or order other)ise is certainly significant. 2t ay be that
the %olicitor 9eneral considered it ore prudent to tone do)n any possible frontal
clash )ith the Court, but as /e see it, the siplistic tenor of the %olicitor
9eneral!s defense ust be due to the fact too )ell 4no)n to re*uire any
evidential proof that by the President!s o)n acts, publici,ed here and abroad, he
had ade it plainly understood that 9eneral -rders Nos. 7 and 7;A are no longer
operative insofar as they )ere intended to divest the 0udiciary of +urisdiction to
pass on the validity, legality or constitutionality of his acts under the aegis of
artial la). 2n fact, according to the President, it )as upon his instructions given
as early as %epteber &@, "'(&, soon after the filing of the present petitions, that
the %olicitor 9eneral subitted his return and ans)er to the )rits /e have issued
herein. 2t is a atter of public 4no)ledge that the president!s repeated avo)al of
the 9overnent!s subission to the Court is being proudly acclaied as the
distinctive characteristic of the so;called Bartial la) 5 Philippine styleB, since
such attitude endo)es it )ith the deocratic flavor so disally absent in the
artial la) prevailing in other countries of the )orld.
Accordingly, even if it )ere to be assued at this +uncture that by virtue of the
transitory provision of the Ne) Constitution a4ing all orders of the incubent
President part of the la) of the land, 9eneral -rders Nos. 7 and 7;A are valid, the
position of the respondents on the present issue of +urisdiction based on said
orders has been rendered untenable by the very acts of the President, )hich in
the )ords of the sae transitory provision have Bodified, revo4ed or
supersededB the. And in this connection, it is iportant to note that the
transitory provision +ust referred to te1tually says that the acts of the incubent
President shall Breain valid, legal, binding and effective ... unless odified,
revo4ed or superseded by subse*uent proclaations, orders, decrees,
instructions or other acts of the incubent President, or unless e1pressly and
e1plicitly odified, or repealed by the regular National AsseblyB, thereby
iplying that the odificatory or revocatory acts of the president need not be as
e1press and e1plicit as in the case of the National Assebly. 2n other )ords,
)hen it coes to acts of the President, ere deonstrated inconsistency of his
posterior acts )ith earlier ones )ould be enough for iplied odification or
revocation to be effective, even if no stateent is ade by hi to such effect.
Rationali,ing his attitude in regard to the %upree Court during artial la),
President Marcos has the follo)ing to say in his boo4 entitled BNotes on the Ne)
%ociety of the PhilippinesB?
-ur artial la) is uni*ue in that it is based on the supreacy of the civilian
authority over the ilitary and on coplete subission to the decision of the
%upree Court, and ost iportant of all, the people. ... 8p. "#7=.
111 111 111
Thus, upon the approval by the Constitutional Convention of a ne) Constitution, 2
organi,ed the barangays or village councils or citi,ens asseblies in the barrios 8a
barrio is the sallest political unit in the Philippines=. 2 directed the ne)
Constitution to be subitted to the barangays or citi,ens asseblies in a foral
plebiscite fro 0anuary "# to "<, "'(7. The barangays voted alost unaniously
to ratify the Constitution, continue )ith artial la) and )ith the refors of the
Ne) %ociety.
This action )as *uestioned in a petition filed before our %upree Court in the
cases entitled Javellana vs. !ecutive "ecretary et al, 9.R. No. :;7A"@7,7A"A@,
7A"A<, 7A&7A and 7A&$7. The issue raised )as )hether 2 had the po)er to call a
plebiscite. )hether 2 could proclai the ratification of the ne) Constitution. 2n
raising this issue, the petitioners 8)ho, incidentally, )ere :iberals or political
opposition leaders= raised the fundaental issue of the po)er of the President
under a proclaation of artial la) to issue decrees.
2nasuch as the issues in turn raised the *uestion of the legitiacy of the entire
9overnent and also to eet the insistent suggestion that, in the event of an
adverse decision, 2 proclai a revolutionary governent, 2 decided to subit to
tile +urisdiction of the %upree Court as 2 had done in the Lansang vs. Garcia
case 8already *uoted= in "'(" )hen alost the sae parties in interest
*uestioned y po)ers as President to suspend the privilege of the )rit of habeas
corpus. 8Refer to pp. "7;"(.= .
This )ould, at the sae tie, cal the fears of every cynic )ho had any
isgivings about y intentions and claied that 2 )as ready to set up a
dictatorship. 3or )ho is the dictator )ho )ould subit hiself to a higher body
li4e the %upree Court on the *uestion of the constitutionality or validity of his
actionsE 8pp. "#7;"#@.=
111 111 111
2t )ill be noted that 2 had subitted yself to the +urisdiction of the %upree
Court in all cases *uestioning y authority in "'(" in the case of Lansang vs.
Garcia on the *uestion of the suspension of the privilege of the )rit of habeas
corpus and in the case +ust cited on the proclaation of artial la) as )ell as the
other related cases. 8pp. "#<;"#A.=
Nothing could be ore indicative, than these )ords of the President hiself, of
his resolute intent to render 9eneral -rders Nos. 7 and 7;A inoperative insofar as
the %upree Court!s +urisdiction over cases involving the validity, legality or
constitutionality of his acts are concerned. Actually, the tenor and purpose of the
said general orders are standard in artial la) proclaations, and the President!s
attitude is ore of an e1ception to the general practice. Be that as it ay, )ith
this developent, petitioners have no reason to charge that there is a BdisrobingB
of the %upree Court. But even as the President une*uivocally reaffirs, over
and above artial la), his respect for the %upree Court!s constitutionally
assigned role as the guardian of the Constitution and as the final authority as to
its correct interpretation and construction, it is entirely up to the Court to
deterine and define its o)n constitutional prerogatives vis;a;vis the
proclaation and the e1isting artial la) situation, given the reasons for the
declaration and its avo)ed ob+ectives. .
5 B 5
MAK TCE %GPREME C-GRT 2NLG2RE 2NT- TCE 3ACTGA: BA%E% -3 TCE
2%%GANCE -3 PR-C:AMAT2-N "#$" T- 6ETERM2NE 2T% C-N%T2TGT2-NA:
%G332C2ENCKE
The second ground vigorously urged by the %olicitor 9eneral is ore
fundaental, since, prescinding fro the force of the general orders +ust
discussed, it stri4es at the very core of the +udicial po)er vested in the Court by
the people thru the Constitution. 2t is claied that insofar as the instant petitions
ipugn the issuance of Proclaation "#$" as having been issued by the President
in e1cess of his constitutional authority, they raise a political *uestion not sub+ect
to in*uiry by the courts. And )ith reference to the plea of the petitioners that
their arrest, detention and other restraints, )ithout any charges or )arrants duly
issued by the proper +udge, constitute clear violations of their rights guaranteed
by the fundaental la), the stand of the respondents is that the privilege of the
)rit of habeas corpus has been suspended autoatically in conse*uence of the
iposition of artial la), the propriety of )hich is left by the Constitution to the
e1clusive discretion of the President, such that for the proper e1ercise of that
discretion he is accountable only to the sovereign people, either directly at the
polls or thru their representatives by ipeachent.
Never before has the %upree Court of the Philippines been confronted )ith a
proble of such transcendental conse*uences and iplications as the present one
entails. There is here an e1ertion of e1tree state po)er involving the proclaied
assuption of the totality of governent authority by the E1ecutive, predicated
on his o)n declaration that a state of rebellion assuing Bthe agnitude of an
actual state of )ar against our people and the Republic of the PhilippinesB e1ists
8&&nd )hereas of Proclaation "#$"= and that Bthe public order and safety and
the security of this nation deand that iediate, s)ift, decisive and effective
action be ta4en to protect and insure the peace, order and security of the country
and its population and to aintain the authority of the governent.B 8"'th
)hereas, id.= Gpon the other hand, petitioners deny the factual bases of the
Proclaation and insist that it is incubent upon the Court, in the nae of
deocracy, liberty and the constitution, to in*uire into the veracity thereof and to
declare, upon finding the to be untrue, that the proclaation is unconstitutional
and void. Respondents counter ho)ever, that the very nature of the proclaation
deands but the court should refrain fro a4ing any such in*uiry, considering
that, as already stated, the discretion as to )hether or not artial la) should be
iposed is lodged by the Constitution in the President e1clusively.
As /e enter the e1treely delicate tas4 of resolving the grave issues thus thrust
upon Gs, /e are iediately encountered by absolute verities to guide Gs all the
)ay. The first and ost iportant of the is that the Constitution
9
is the
supree la) of the land. This eans aong others things all the po)ers of the
governent and of all its officials fro the President do)n to the lo)est eanate
fro it. None of the ay e1ercise any po)er unless it can be traced thereto
either te1tually or by natural and logical iplication. .
The second is that it is settled that the 0udiciary provisions of the Constitution
point to the %upree Court as the ultiate arbiter of all conflicts as to )hat the
Constitution or any part thereof eans. /hile the other 6epartents ay adopt
their o)n construction thereof, )hen such construction is challenged by the
proper party in an appropriate case )herein a decision )ould be ipossible
)ithout deterining the correct construction, the %upree Court!s )ord on the
atter controls.
The third is that in the sae )ay that the %upree Court is the designated
guardian of the Constitution, the President is the specifically assigned protector of
the safety, tran*uility and territorial integrity of the nation. This responsibility of
the President is his alone and ay not be shared by any other 6epartent.
The fourth is that, to the end +ust stated, the Constitution e1pressly provides that
Bin case of invasion, insurrection or rebellion or iinent danger thereof, )hen
the public safety re*uires it, he 8the E1ecutive= Bay 8as a last resort= ... place
the Philippines or any part thereof under artial la)B.
1/
The fifth is that in the sae anner that the E1ecutive po)er conferred upon the
E1ecutive by the Constitution is coplete, total and unliited, so also, the +udicial
po)er vested in the %upree Court and the inferior courts, is the very )hole of
that po)er, )ithout any liitation or *ualification.
The si1th is that although the Bill of Rights in the Constitution strictly ordains that
Bno person shall be deprived of life, liberty or property )ithout due process of
la)B,
11
even this basic guarantee of protection readily reveals that the
Constitution!s concern for individual rights and liberties is not entirely above that
for the national interests, since the deprivation it en+oins is only that )hich is
)ithout due process of la), and la)s are al)ays enacted in the national interest
or to proote and safeguard the general )elfare. -f course, it is understood that
the la) thus passed, )hether procedural or substantive, ust afford the party
concerned the basic eleents of +ustice, such as the right to be heard,
confrontation, and counsel, inter alia.
And the seventh is that )hereas the Bill of Rights of the "'7< Constitution
e1plicitly en+oins that B8T=he privilege of the )rit of habeas corpus shall not be
suspended e1cept in cases of invasion, insurrection, or rebellion, )hen the public
during such period the necessity for such suspension shall e1istB,
11
there is no
siilar in+unction )hether e1pressed or iplied against the declaration of artial
la).
3ro these incontrovertible postulates, it results, first of all, that the ain
*uestion before Gs is not in reality one of +urisdiction, for there can be no
conceivable controversy, especially one involving a conflict as to the correct
construction of the Constitution, that is not conteplated to be )ithin the +udicial
authority of the courts to hear and decide. The +udicial po)er of the courts being
unliited and un*ualified, it e1tends over all situations that call for the
ascertainent and protection of the rights of any party allegedly violated, even
)hen the alleged violator is the highest official of the land or the governent
itself. 2t is, therefore, evident that the Court!s +urisdiction to ta4e cogni,ance of
and to decide the instant petitions on their erits is beyond challenge.
2n this connection, ho)ever, it ust be borne in ind that in the for of
governent envisaged by the fraers of the Constitution and adopted by our
people, the Court!s indisputable and plenary authority to decide does not
necessarily ipose upon it the duty to interpose its fiat as the only eans of
settling the conflicting clais of the parties before it. 2t is ingrained in the
distribution of po)ers in the fundaental la) that hand in hand )ith the vesting
of the +udicial po)er upon the Court, the Constitution has coevally conferred upon
it the discretion to deterine, in consideration of the constitutional prerogatives
granted to the other 6epartents, )hen to refrain fro iposing +udicial
solutions and instead defer to the +udgent of the latter. 2t is in the very nature
of republican governents that certain atters are left in the residual po)er of
the people theselves to resolve, either directly at the polls or thru their elected
representatives in the political 6epartents of the governent. And these
reserved atters are easily distinguishable by their very nature, )hen one
studiously considers the basic +unctions and responsibilities entrusted by the
charter to each of the great 6epartents of the governent. To cite an obvious
e1aple, the protection, defense and preservation of the state against internal or
e1ternal aggression threatening its veiny e1istence is far fro being )ithin the
abit of +udicial responsibility. The distinct role then of the %upree Court of
being the final arbiter in the deterination of constitutional controversies does
not have to be asserted in such conteplated situations, thereby to give )ay to
the ultiate prerogative of the people articulated thru suffrage or thru the acts of
their political representatives they have elected for the purpose.
2ndeed, these fundaental considerations are the ones that lie at the base of
)hat is 4no)n in Aerican constitutional la) as the political *uestion doctrine,
)hich in that +urisdiction is un*uestionably deeed to be part and parcel of the
rule of la), e1actly li4e its apparently ore attractive or popular opposite, +udicial
activis, )hich is the fullest e1ertion of +udicial po)er upon the theory that
unless the courts intervene in+ustice ight prevail. 2t has been invo4ed and
applied by this Court in varied fors and odes of pro+ection in several
oentous instances in the past,
13
and it is the ain support of the stand of the
%olicitor 9eneral on the issue of +urisdiction in the case at bar. 2t is also referred
to as the doctrine of +udicial self;restraint or abstention. But as the noenclatures
theselves iply, activis and self;restraint are both sub+ective attitudes, not
inherent iperatives. The choice of alternatives in any particular eventuality is
naturally dictated by )hat in the Court!s considered opinion is )hat the
Constitution envisions should be done in order to accoplish the ob+ectives of
governent and of nationhood. And perhaps it ay be added here to avoid
confusion of concepts, that /e are not losing sight of the traditional approach
based on the doctrine of separation of po)ers. 2n truth, /e perceive that even
under such ode of rationali,ation, the e1istence of po)er is secondary, respect
for the acts of a coordinate, co;e*ual and co;independent 6epartent being the
general rule, particularly )hen the issue is not encroachent of deliited areas of
functions but alleged abuse of a 6epartent!s o)n basic prerogatives.
2n the final analysis, therefore, /e need not indulge in any further discussion as
to )hether or not the Court has +urisdiction over the erits of the instant
petitions. 2t is definite that it has. Rather, the real *uestion before Gs is )hether
or not the Court should act on the. %tated differently, do /e have here that
appropriate occasion for activis on the part of the Court, or, do the iperatives
of the situation deand, in the light of the reservations in the fundaental la)
+ust discussed, that /e defer to the political decision of the E1ecutiveE After
ature deliberation, and ta4ing all relevant circustances into account, /e are
convinced that the Court should abstain in regard to )hat is in all probability the
ost iportant issue raised in the, naely, )hether or not the Court should
in*uire into the constitutional sufficiency of Proclaation "#$" by receiving
evidence tending to belie the factual preises thereof. 2t is -ur considered vie)
that under the Constitution, the discretion to deterine ultiately )hether or not
the Philippines or any part thereof should be placed under artial la) and for ho)
long is lodged e1clusively in the E1ecutive, and for this reason, it is best that /e
defer to his +udgent as regards the e1istence of the grounds therefor, since,
after all, it is not e1pected that the %upree Court should share )ith hi the
delicate constitutional responsibility of defending the safety, security, tran*uility
and territorial integrity of the nation in the face of a rebellion or invasion. This is
not abdication of +udicial po)er, uch less a violation of -ur oaths Bto support
and defend the ConstitutionB. rather, this is deference to an act of the E1ecutive
)hich, in -ur )ell;considered vie), the Constitution conteplates the Court
should refrain fro revie)ing or interfering )ith. To -ur ind, the follo)ing
considerations, inter alia, ipel no other conclusion?
5 " 5
2t has been said that artial la) has no generally accepted definition, uch less a
precise eaning. But as /e see it, no atter ho) variously it has been described,
a coon eleent is plainly recogni,able in )hatever has been said about it 5 it
does not involve e1ecutive po)er alone. To be ore e1act, artial la) is state
po)er )hich involves the totality of governent authority, irrespective of the
6epartent or official by )ho it is adinistered. This is because, as aditted by
all, artial la) is every governent!s substitute for the established governental
achinery rendered inoperative by the eergency that brings it forth, in order to
aintain )hatever legal and social order is possible during the period of
eergency, )hile the governent is engaged in battle )ith the eney.
-ther)ise, )ith the brea4do)n of the regular governent authority or the
inability of the usual offices and officials to perfor their functions )ithout
endangering the safety of all concerned, anarchy and chaos are bound to prevail
and protection of life and property )ould be nil. /hat is )orse, the confusion and
disorder )ould detract the defense efforts. 2t is indispensable therefore that soe
4ind of governent ust go on, and artial la) appears to be the logical
alternative. Cence, fro the point of vie) of safeguarding the people against
possible governental abuses, it is not the declaration of artial la) and )ho
actually adinisters it that is of supree iportance. %oeone has of necessity
to be in coand as surrogate of the )hole ebattled governent. 2t is )hat is
actually done by the adinistrator affecting individual rights and liberties that
ust pass constitutional standards, even as these are correspondingly ad+usted
to suit the necessities of the situation. But this is not to say that redress of
constitutional offenses )ould iediately and necessarily be available, for even
the procedure for securing redress, its for and tie ust depend on )hat such
necessities )ill perit. Die)ed in depth, this is all that can be visuali,ed as
conteplated in the supposedly fundaental principle invo4ed by petitioners to
the effect that necessity and necessity alone is the +ustification and the easure
of the po)ers that ay be e1ercised under artial la).
5 & 5
2n countries )here there is no constitutional provision sanctioning the iposition
of artial la), the po)er to declare or proclai the sae is nevertheless
conceded to be the ost vital inherent prerogative of the state because it is
a1ioatic that the right of the state to defend itself against disintegration or
sub+ugation by another cannot be less than an individual!s natural right of self;
defense. The resulting repression or restraint of individual rights is therefore
+ustified as the natural contribution that the individual o)es to the state, so that
the governent under )hich he lives ay survive. After all, such subordination to
the general interest is supposed to be teporary, coincident only )ith the
re*uireents of the eergency.
At the sae tie, under the general practice in those countries, it is considered
as nothing but logical that the declaration or proclaation should be ade by the
E1ecutive. %o it is that none of the cases cited by petitioners, including those of
1earon vs. Calus "$7, %.E. &@ and 'llen vs. -klahoma City, <& Pac. Rep. &nd
%eries, pp. "#<@;"#<', ay be deeed as a binding precedent sustaining
definitely that it is in the po)er of the courts to declare an E1ecutive!s
proclaation or declaration of artial la) in case of rebellion or insurrection to be
unconstitutional and unauthori,ed. -ur o)n research has not yielded any
+urisprudence upholding the contention of petitioners on this point. /hat is clear
and incontrovertible fro all the cases cited by both parties is that the po)er of
the E1ecutive to proclai artial la) in case of rebellion has never been
challenged, not to say outla)ed. 2t has al)ays been assued, even if the e1tent
of the authority that ay be e1ercise under it has been sub+ected to the
applicable provision of the constitution, )ith soe courts holding that the
enforceability of the fundaental la) )ithin the area of the artial la) regie is
un*ualified, and the others aintaining that such enforceability ust be
coensurate )ith the deands of the eergency situation. 2n other )ords,
there is actually no authoritative +urisprudential rule for Gs to follo) in respect to
the specific *uestion of )hether or not the E1ecutive!s deterination of the
necessity to ipose artial la) during a rebellion is revie)able by the +udiciary. 2f
/e have to go via the precedential route, the ost that /e can find is that the
legality of an E1ecutive!s e1ercise of the po)er to proclai artial la) has never
been passed upon by any court in a categorical anner so as to leave no roo
for doubt or speculation.
5 7 5
2n the Philippines, /e do not have to resort to assuptions regarding any
inherent po)er of the governent to proclai a state of artial la). /hat is an
iplied inherent prerogative of the governent in other countries is e1plicitly
conferred by our people to the governent in une*uivocal ters in the
fundaental la). More iportantly in this connection, it is to the E1ecutive that
the authority is specifically granted Bin cases of invasion, insurrection or rebellion,
)hen public safety re*uires itB, to Bplace the Philippines or any part thereof under
Martial :a)B. To be sure, petitioners adit that uch. But they insist on trying to
sho) that the factual preises of the Proclaation are not entirely true and are,
in any event, constitutionally insufficient. They urge the Court to pass on the
erits of this particular proposition of fact and of la) in their petitions and to
order thereafter the nullification and setting aside thereof.
/e do not believe the Court should interfere.
The pertinent constitutional provision is e1plicit and une*uivocal. 2t reads as
follo)s?
8&= The President shall be coander;in;chief of all ared forces of the
the public safety re*uires it, he ay suspend the privileges of the )rit of habeas
corpus, or place the Philippines or any part thereof under artial la) 8%ection
"#8&=, Article D22, "'7< Constitution.=
87= %EC. "&. The prie Minister shall be coander;in;chief of all ared forces
of the Philippines and, )henever it becoes necessary, he ay call out such
ared forces to prevent or suppress la)less violence, invasion, insurrection, or
rebellion. 2n case of invasion, insurrection, or rebellion, or iinent danger
8%ection "&, Article 2I, "'(7 Constitution.=
E1cept for the reference to the Prie Minister in the Ne) Constitution instead of
to the President as in the -ld, the )ording of the provision has reained
unaltered ipssissimis verbis Accordingly, the t)o Constitutions cannot vary in
eaning, they should be construed and applied in the light of e1actly the sae
considerations. 2n this sense at least, petitioners! invocation of the "'7<
Constitution has not been rendered acadeic by the enforceent of the ne)
charter. 3or the purposes of these cases, /e )ill in the ain consider their
arguents as if there has been no 0avellana decision.
No), since in those countries )here artial la) is an e1tra;constitutional concept,
the E1ecutive!s proclaation thereof, as observed above, has never been
considered as offensive to the fundaental la), )hether )ritten or un)ritten,
and, in fact, not even challenged, )hat reason can there be that here in the
Philippines, )herein the Constitution directly and definitely coits the po)er to
the E1ecutive, another rule should obtainE Are )e 3ilipinos so incapable of
electing an E1ecutive )e can trust not to uncereoniously cast aside his
constitutionally )orded oath solenly and ephatically iposing upon hi the
duty Bto defend and protect the ConstitutionBE -r is the Court to be persuaded by
possible partisan pre+udice or the sub+ective rationali,ation inforing personal
abitionsE
Reserving for further discussion the effect of :ansang upon the copelling force
of the opinions in Barcelon vs. Baker, < Phil. $( and Montenegro vs. Castaeda,
'" Phil. $A&, relative to the issue at hand, /e cannot lightly disregard the
ponderous reasons discussed in said opinions supporting the vie) that the
E1ecutive!s choice of eans in dealing )ith a f rebellion should be conclusive. 2n
Barcelon, this Court said?
Thus the *uestion is s*uarely presented )hether or not the +udicial departent of
the 9overnent ay investigate the facts upon )hich the legislative and
e1ecutive branches of the 9overnent acted in providing for the suspension and
in actually suspending the privilege of the )rit of habeas corpus in said provinces.
Cas the 9overnor;9eneral, )ith the consent of the Coission, the right to
suspend the privilege of the )rit of habeas corpusE 2f so, did the 9overnor;
9eneral suspend the )rit of habeas corpus in the Provinces of Cavite and
Batangas in accordance )ith such authorityE
A paragraph of section < of the act of Congress of 0uly ", "'#&, provides?
This provision of the act of Congress is the only provision giving the 9overnor;
9eneral and the Philippine Coission authority to suspend the privilege of the
)rit of habeas corpus. No *uestion has been raised )ith reference to the
authority of Congress to confer this authority upon the President or the 9overnor;
9eneral of these 2slands, )ith the approval of the Philippine Coission.
This provision of the act of Congress a4es t)o conditions necessary in order
that the President or the 9overnor;9eneral )ith the approval of the Philippine
Coission ay suspend the privilege of the )rit of habeas corpus. They are as
follo)s?
8"= /hen there e1ists rebellion, insurrection, or invasion. and
8&= /hen public safety ay re*uire it.
2n other )ords, in order that the privilege of the )rit of habeas corpus ay be
suspended, there ust e1ist rebellion, insurrection, or invasion, and the public
safety ust re*uire it. This fact is aditted, but the *uestion is, /ho shall
deterine )hether there e1ists a state of rebellion, insurrection, or invasion, and
that by reason thereof the public safety re*uires the suspension of the privilege of
the )rit of habeas corpusE
2t has been argued and aditted that the 9overnor;9eneral, )ith the approval of
the Philippine Coission, has discretion, )hen insurrection, rebellion, or
invasion actually e1ist, to decide )hether the public safety re*uires the
suspension of the privilege of the )rit of habeas corpus. but the fact )hether
insurrection, rebellion, or invasion does actually e1ist is an open *uestion, )hich
the +udicial departent of the 9overnent ay in*uire into and that the
conclusions of the legislative and e1ecutive departents 8the Philippine
Coission and the 9overnor;9eneral= of the 9overnent are not conclusive
upon that *uestion.
2n other )ords, it is contended that the +udicial departent of the 9overnent
ay consider an application for the )rit of habeas corpus even though the
privileges of the sae have been suspended, in the anner provided by la), for
the purposes of ta4ing proof upon the *uestion )hether there actually e1ists a
state of insurrection, rebellion, or invasion.
The applicants here adit that if a state of rebellion, insurrection, or invasion
e1ists, and the public safety is in danger , then the President, or 9overnor;
9eneral )ith the approval of the Philippine Coission, ay suspend the
privilege of the )rit of habeas corpus.
2nasuch as the President, or 9overnor;9eneral )ith the approval of the
Philippine Coission, can suspend the privilege of the )rit of habeas corpus
only under the conditions entioned in the said statute, it becoes their duty to
a4e an investigation of the e1isting conditions in the Archipelago, or any part
thereof, to ascertain )hether there actually e1ists a state of rebellion,
insurrection, or invasion, and that the public safety re*uires the suspension of the
privilege of the )rit of habeas corpus. /hen this investigation is concluded, the
President, or the 9overnor;9eneral )ith the consent of the Philippine
Coission, declares that there e1ist these conditions, and that the public safety
re*uires the suspension of the privilege of the )rit of habeas corpus, can the
+udicial departent of the 9overnent investigate the sae facts and declare
that no such conditions e1istE
The act of Congress, above *uoted, )isely provides for the investigation by t)o
departents of the 9overnent 5 the legislative and e1ecutive 5 of the e1isting
conditions, and +oint action by the t)o before the privilege of the )rit of habeas
corpus can be suspended in these 2slands.
9eneral by telegraph 82f this landing of troops and that the people of the district
to repel such invasionE 2t sees that all en interested in the aintainance and
ay the +udicial departent of the 9overnent call the officers actually engaged
in the field before it and a)ay fro their posts of duty for the purpose of
e1plaining and furnishing proof to it concerning the e1istence or non;e1istence of
the facts proclaied to e1ist by the legislative and e1ecutive branches of the
%tateE 2f so, then the courts ay effectually tie the hands of the e1ecutive, )hose
special duty it is to enforce the la)s and aintain order, until the invaders have
actually accoplished their purpose. The interpretation contended for here by the
+eopardi,e public interests and the safety of the )hole people. 2f the +udicial
rebels or insurrections or invaders has been accoplished. But it is urged that the
their application for the )rit of habeas corpus, that the legislative and e1ecutive
Moreover it can not be assued that the legislative and e1ecutive branches of the
the 9overnent of the condition of the Gnion as to the prevalence of peace and
Can the +udicial departent of the governent, )ith its very liited achinery
district, than the other branches of the governentE /e thin4 not. 8At p. '";'A.=
111 111 111
The sae general *uestion presented here )as presented to the %upree Court
of the Gnited %tates in the case of Martin vs. Mott, in 0anuary, "$&(. An act of
Congress of "('< provided 5
necessary to repel such invasion, and to issue his orders for that purpose to such
officer or officers of the ilitia as he shall thin4 proper.
2n this case 8Martin vs. Mott= the *uestion )as presented to the court )hether or
not the President!s action in calling out the ilitia )as conclusive against the
courts. The %upree Court of the Gnited %tates, in ans)ering this *uestion,
said? .
The po)er thus confided by Congress to the President is, doubtless, of a very
high and delicate nature. A free people are naturally +ealous of the e1ercise of
ilitary po)er. and the po)er to call the ilitia into actual service is certainly felt
to be one of no ordinary agnitude. But it is not a po)er )hich can be e1ecuted
)ithout corresponding responsibility. 2t is, in its ters, a liited po)er, confined
to cases of actual invasion, or of iinent danger of invasion. 2f it be a liited
po)er, the *uestion arises, By )ho is the e1igency to be ad+udged of and
decidedE 2s the President the sole and e1clusive +udge )hether the e1igency has
arisen, or is it to be considered as an open *uestion, upon )hich every officer to
)ho the orders of the President are addressed, ay decide for hiself, and
e*ually open to be contested by very ilitiaan )ho shall refuse to obey the
orders of the PresidentE /e are all of the opinion that the authority to decide
)hether the e1igency has arisen belongs e1clusively to the President and his
decision is conclusive upon all other persons. /e thin4 that this construction
necessarily results fro the nature of the po)er itself and fro the anifest
ob+ect conteplated by the act of Congress. The po)er itself is to be e1ercised
upon sudden eergencies, upon great occasions of state and under
circustances )hich ay be vital to the e1istence of the Gnion. ... 2f a superior
officer has a right to contest the orders of the President, upon his o)n doubts as
to the e1igency having arisen, it ust be e*ually the right of every inferior officer
and soldier .... %uch a course )ould be subversive of all discipline and e1pose the
best disposed officer to the chances of erroneous litigation. Besides, in any
instances, the evidence upon )hich the President ight decide that there is
iinent danger of invasion ight be of a nature not constituting strict technical
proof, or the disclosure of the evidence ight reveal iportant secrets of state
)hich the public interest and even safety ight iperiously deand to be 4ept in
concealent.
/henever the statute gives a discretionary po)er to any person, to be e1ercised
by hi upon his o)n opinion of certain facts it is a sound rule of construction that
the statute constitutes hi the sole and e1clusive +udge of the e1istence of those
facts. And in the present case )e are all of opinion that such is the true
construction of the act of "('<. 2t is no ans)er that such po)er ay be abused,
for there is no po)er )hich is not susceptible of abuse.! 8Martin vs. Mott, "&
/heat., "' 8&< G.%.=. Danderheyden vs. Koung, "" 0ohns., N.K. "<#.=
0ustice 0oseph %tory for any years a eber of the %upree Court of the
Gnited %tates, in discussing the *uestion )ho ay suspend the privilege of the
)rit of habeas. corpus under the Constitution of the Gnited %tates, said?
2t )ould see, as the po)er is given to Congress to suspend the )rit of habeas
corpus in cases of rebellion, insurrection, or invasion, that the right to +udge
)hether the e1igency has arisen ust conclusively belong to that body.! 8%tory on
the Constitution, <th ed., see. "7@&.=
0ustice 0aes Met, for any years a +ustice of the supree court of the %tate of
Ne) Kor4, in discussing the sae *uestion, cites the case of Martin vs. Mott, and
says? .
2n that case it )as decided and settled by the %upree Court of the Gnited %tates
that it belonged e1clusively to the President to +udge )hen the e1igency arises in
)hich he had authority, under the Constitution, to call forth the ilitia, and that
his decision )as conclusive upon all other persons. 8Ment!s Coentaries, "@th
ed., vol. ", botto p. 7&7.=
0ohn Randolph Tuc4er, for any years a professor of constitutional and
international la) in /ashington and :ee university, in discussing this *uestion,
said? .
By an act passed in "('< Congress gave to the President po)er to call out the
ilitia for certain purposes, and by subse*uent acts, in "$#(, po)er )as given to
hi to be e1ercised )henever he should dee it necessary, for the purposes
stated in the Constitution. and the %upree Court 8Gnited %tates= has decided
that this e1ecutive discretion in a4ing the call 8for %tate ilitia= could not be
+udicially *uestioned.! Tuc4er on the Constitution, Dol. 22, p. <$".=
0ohn Norton Poeroy, an einent la) )riter upon constitutional *uestions, said? .
2n Martin vs. Mott it )as decided that under the authority given to the President
by the statute of "('<, calling forth the ilitia under certain circustances, the
po)er is e1clusively vested in hi to deterine )hether those circustances
e1ist. and )hen he has deterined by issuing his call, no court can *uestion his
decision. 8Poeroy!s Constitutional :a), sec. @(A.=
Cenry Capbell Blac4, a )ell;4no)n )riter on the Constitution, says?
By an early act of Congress it )as provided that in case of an insurrection in any
%tate against the governent thereof it shall be la)ful for the President of the
Gnited %tates, on application of the legislature of such %tate, or of the e1ecutive
8)hen the legislature can not be convened=, to call forth such a nuber of the
ilitia of any other %tate or %tates as ay be applied for, as he ay +udge
sufficient to suppress such insurrection. By this act the po)er of deciding )hether
the e1igency has arisen upon )hich the 9overnent of the Gnited %tates is bound
to interfere is given to the President. 8Blac4!s Constitutional :a), p. "#&.=
0udge Thoas M. Cooley, in discussing the right of the +udicial departent of the
9overnent to interfere )ith the discretionary action of the other departents of
the 9overnent, in his )or4 on constitutional la), said?
Congress ay confer upon the President the po)er to call the 8the ilitia=
forth, and this a4es hi the e1clusive +udge )hether the e1igency has arisen for
the e1ercise of the authority and renders one )ho refuses to obey the call liable
to punishent under ilitary la). 8Cooley!s Principles of Constitutional :a), p.
"##.=.
But it ay be argued by those )ho contend for the contrary doctrine, to )it, that
the acts of the 9overnor;9eneral, )ith the approval of the Philippine Coission,
are not conclusive upon the courts and that none of the foregoing citations are
e1actly in point, that none of these cases or authors treat of a case e1actly li4e
the one presented. /e are fortunate, ho)ever, in being able to cite, in ans)er to
that contention, the case of Cenry /illia Boyle, )here e1actly the sae
*uestion )as presented to the supree court of the %tate of 2daho, )hich the
applicants present here and )here the courts held the doctrine of the cases
applied. 2n the case of Boyle, he had been arrested after the privilege of the )rit
of habeas corpus had been suspended. Ce applied for a )rit of habeas corpus to
the supree court of 2daho, alleging, aong other things, in his application?
3irst? That !no insurrection, riot, or rebellion no) e1ists in %hoshone County.! and
%econd. That !the 9overnor has no authority to proclai artial la) or suspend
the )rit of habeas corpus.
2n reply to this contention on the part of the applicant, Boyle, the court said?
Counsel have argued ably and ingeniously upon the *uestion as to )hether the
authority to suspend the )rit of habeas corpus rests )ith the legislative and
e1ecutive po)ers of the 9overnent, but, fro our vie)s of this case, that
*uestion cuts no figure. /e are of the opinion that )henever, for the purpose of
putting do)n insurrection or rebellion, the e1igencies of the case deand it, )ith
the successful accoplishent of this end in vie), it is entirely copetent for the
e1ecutive or for the ilitary officer in coand, if there be such, either to
suspend the )rit or disregard it if issued. The statutes of this %tate 82daho= a4e
it the duty of the governor, )henever such a state or condition e1ists as the
proclaation of the governor sho)s does e1ist in %hoshone County, to proclai
such locality in a state of insurrection and to call in the aid of the ilitary of the
%tate or of the 3ederal 9overnent to suppress such insurrection and reestablish
peranently the ascendency of the la). 2t )ould be an absurdity to say that the
action of the e1ecutive, under such circustances, ay be negatived and set at
naught by the +udiciary, or that the action of the e1ecutive ay be interfered )ith
or ipugned by the +udiciary. 2f the courts are to be ade a sanctuary, a seat of
refuge )hereunto alefactors ay fall for protection fro punishent +ustly due
for the coission of crie they )ill soon cease to be that palladiu of the rights
of the citi,en so ably described by counsel.
-n application for a )rit of habeas corpus, the truth of recitals of alleged facts in
a proclaation issued by the governor proclaiing a certain county to be in a
state of insurrection and rebellion )ill not be in*uired into or revie)ed. The action
of the governor in declaring %hoshone County to be in state of insurrection and
rebellion, and his action in calling to his aid the ilitary forces of the Gnited
%tates for the purpose of restoring good order and the supreacy of the la), has
the effect to put in force, to a liited e1tent, artial la) in said county. %uch
action is not in violation of the Constitution, but in harony )ith it, being
necessary for the preservation of governent. 2n such case the 9overnent ay,
li4e an individual acting in self;defense, ta4e those steps necessary to preserve its
e1istence. 2f hundreds of en can asseble theselves and destroy property and
4ill and in+ure citi,ens, thus defeating the ends of governent, and the
9overnent is unable to ta4e all la)ful and necessary steps to restore la) and
aintain order, the %tate )ill then be ipotent if not entirely destroyed, and
anarchy placed in its stead.
2t having been deonstrated to the satisfaction of the governor, after soe si1 or
seven years of e1perience, that the e1ecution of the la)s in %hoshone County
through the ordinary and established eans and ethods )as rendered
practically ipossible, it becae his duty to adopt the eans prescribed by the
statute for establishing in said county the supreacy of the la) and insuring the
punishent of those by )hose unla)ful and criinal acts such a condition of
things has been brought about. and it is not the province of the courts to
interfere, delay, or place obstructions in the path of duty prescribed by la) for the
e1ecutive, but rather to render hi all the aid and assistance in their po)er, in his
efforts to bring about the consuation ost devoutly prayed for by every good,
la);abiding citi,en in the %tate.! 82n re Boyle, @< :.R.A., "$'', $7&.= 8At pp. '';
"#@.=.
These observations are follo)ed on pages "#@ to ""< by a copilation of decided
cases centrally holding that B)henever the Constitution or a statute gives a
discretionary po)er to any person, to be e1ercised by hi upon his o)n opinion
of certain facts, such person is to be considered the sole and e1clusive +udge of
the e1istence of those facts.B 3or the sa4e of brevity, /e shall not *uote the
discussion anyore. /e are confident there can be no dissent insofar as the
general proposition stated is concerned.
Notably, in the unanious decision of this Court in Montenegro, these vie)s are
totally adopted in a very brief passage thus?
B. 2n his second proposition appellant insists there is no state of invasion,
insurrection, rebellion or iinent danger thereof. !There are! he adits
!interittent sorties and lightning attac4s by organi,ed bands in different places!.
but, he argues, !such sorties are occassional, locali,ed and transitory. And the
proclaation spea4s no ore than of overt acts of insurrection and rebellion, not
of cases of invasion, insurrection or rebellion or iinent danger thereof.! -n this
sub+ect it is noted that the President concluded fro the facts recited in the
proclaation, and others connected there)ith, that !there is actual danger of
rebellion )hich ay e1tend throughout the country.! %uch official declaration
iplying uch ore than iinent danger of rebellion aply +ustifies the
suspension of the )rit.
To the petitioner!s unpracticed eye the repeated encounters bet)een dissident
eleents and ilitary troops ay see sporadic, isolated or casual. But the
officers charged )ith the Nation!s security analy,ed the e1tent and pattern of
such violent clashes and arrived at the conclusion that they are )arp and )oof of
a general schee to overthro) this governent vi et armis, by force and ars.
Barcelon vs. Ba4er 8< Phil., $(, pp. '$ an "##= the authority to decide )hether
the e1igency has arisen re*uiring suspension belongs to the President and !his
decision is final and conclusive upon the courts and upon all other persons.
2ndeed as 0ustice 0ohnson said in that decision, )hereas the E1ecutive branch of
the 9overnent is enabled thru its civil and ilitary branches to obtain
inforation about peace and order fro every *uarter and corner of the nation,
the +udicial departent, )ith its very liited achinery can not be in better
position to ascertain or evaluate the conditions prevailing in the Archipelago. 8At
pp. $$A;$$(.=
There are actually any ore +udicial precedents and opinions of 4no)ledgeable
and authoritative te1t)riters, that can be copied here, aintaining )ith
ine1orable logic )hy the E1ecutive is incoparably best e*uipped and prepared to
cope )ith internal and e1ternal aggression and that, indeed, the protection of the
country against such contingencies is his sole responsibility not supposed to be
shared by the 0udiciary. But the proposition appears to Gs so plain and ineluctable
that to suon all of the to -ur assistance could only open Gs to the suspicion
that the Philippine %upree Court has to depend on borro)ed thin4ing to resolve
the ost critical issues bet)een individual rights, on the one hand, and state
po)er e1erted as a atter of self;defense against rebellion and subversion
iperilling the country!s o)n survival, on the other. Ephatically, /e don!t have
to. Than4 9od /e have enough native genius and indigenous eans and
resources to cope )ith the ost delicate probles of statehood. :et others listen
to and abide by the platitudinous and elegantly phrased dicta in Milligan, supra,
6uncan and /hite,
14
they )ho are in and of the )ealthiest and ightiest po)er
in the )orld, that only actual ilitary cobat and related operations can +ustify
artial la), but /e, )ho are in and of a sall and )ea4 developing nation, let us
hear4en and follo) the hoe;spun advice of our barrio fol4s cautioning everyone
thus?
Mung ang bahay o ay pa)id at 4a)ayan pagdili ng ulap at luala4as na ang
hanging agsara 4a na ng bintana at suhayan o ang iyong bahay. 8/hen your
house is ade of nipa and baboo, and you see the clouds dar4ening and the
)inds start blo)ing, it is tie for you to close your )indo)s and strengthen the
support of your house.=
This could e1plain )hy under the Constitution, artial la) can be declared not
only in case of actual rebellion, but even only )hen there is iinent danger
thereof. And that is )hy the open court rule established in Milligan and reiterated
in 6uncan and /hite is not controlling in this +urisdiction.
Besides, inasuch as our people have included in the Constitution an e1press
coitent of the po)er to the President, )hy do /e have to resort to the
pronounceents of other courts of other countries )herein said po)er is only
ipliedE Regardless of )hat other courts believe their E1ecutive ay do in
eergencies, our tas4 is not to slavishly adopt )hat those courts have said, for
there is no evidence that such )as the intent of our constitutional fathers. gather,
/e should deterine for -urselves )hat is best for our o)n circustances in the
Philippines, even if /e have to give due consideration to the e1perience other
peoples have gone through under ore or less siilar crises in the past.
2n any event, regardless of their )eight insofar as the suspension of the privilege
of the )rit of habeas corpus is concerned, /e consider the reasons given in the
above;*uoted opinions in Barcelon and Montenegro of particular relevance )hen it
coes to the iposition of artial la).
5 @ 5
2t ay be that the e1istence or non;e1istence or iinence of a rebellion of the
agnitude that )ould +ustify the iposition of artial la) is an ob+ective fact
capable of +udicial notice, for a rebellion that is not of general 4no)ledge to the
public cannot conceivably be dangerous to public safety. But precisely because it
is capable of +udicial notice, no in*uiry is needed to deterine the propriety of the
E1ecutive!s action.
Again, )hile the e1istence of a rebellion ay be )idely 4no)n, its real e1tent and
the dangers it ay actually pose to the public safety are not al)ays easily
perceptible to the unpracticed eye. 2n the present day practices of rebellion, its
inseparable subversion aspect has proven to be ore effective and iportant
than Bthe rising 8of persons= publicly and ta4ing ars against the 9overnentB by
)hich the Revised Penal Code characteri,es rebellion as a crie under its sanction
8Art. "7@, Revised Penal Code=. %ubversion is such a covert 4ind of anti;
governent activity that it is very difficult even for ary intelligence to deterine
its e1act area of influence and effect, not to ention the details of its forces and
resources. By subversion, the rebels can e1tend their field of action unnoticed
even up to the highest levels of the governent, )here no one can al)ays be
certain of the political cople1ion of the an ne1t to hi, and this does not
e1clude the courts. Ars, aunitions and all 4inds of )ar e*uipent travel and
are transferred in deep secrecy to strategic locations, )hich can be one!s
neighborhood )ithout hi having any idea of )hat is going on. There are so
any insidious )ays in )hich subversives act, in fact too any to enuerate, but
the point that iediately suggests itself is that they are ostly incapable of
being proven in court, so ho) are /e to a4e a +udicial in*uiry about the that
can satisfy our +udicial conscienceE
The Constitution definitely coits it to the E1ecutive to deterine the factual
bases and to forth)ith act as proptly as possible to eet the eergencies of
rebellion and invasion )hich ay be crucial to the life of the nation. Ce ust do
this )ith un)avering conviction, or any hesitancy or indecision on his part )ill
surely detract fro the needed precision in his choice of the eans he )ould
eploy to repel the aggression. The apprehension that his decision ight be held
by the %upree Court to be a transgression of the fundaental la) he has s)orn
to Bdefend and preserveB )ould deter hi fro acting )hen precisely it is ost
urgent and critical that he should act, since the eney is about to stri4e the
ortal blo). 6ifferent en can honestly and reasonably vary in assessing the
evidentiary value of the sae circustance, and the prospect of being considered
as a constitutional felon rather than a saviour of the country should the 0ustices
disagree )ith hi, )ould put the E1ecutive in an unenviable predicaent,
certainly un)ise and iprudent for any Constitution to conteplate he should be
in. But )hat is )orse is that the Court is not e*uipped in any )ay )ith the eans
to ade*uately appreciate the insidious practices of subversion, not to say that it
cannot do it )ith ore or at least e*ual accuracy as the E1ecutive. Besides, the
Court )ould then be acting already )ith considerable hindsight considerations
)hich can iperceptibly influence its +udgent in overriding the E1ecutive!s
finding.
More than ever before, )hen rebellion )as purely a surface action, and vie)ing
the atter fro all angles, it appears ineludible that the Court should refrain fro
interfering )ith the E1ecutive!s delicate decision. After all, the sacred rights of
individuals enshrined in the Bill of Rights and the other constitutional processes
ever valuable to the people, but )hich adittedly cannot, by the )ay, be ore
iportant than the very survival of the nation, are not necessarily s)ept a)ay by
a state of artial la), for, as already pointed out earlier, the validity of the
Proclaation is one thing, the adinistration of the governent under it is
soething else that has to be done )ith the closest adherence to the
fundaental la) that the obvious necessities of the situation )ill perit. As /e
see it, it is in this sense that the Constitution is the supree la) e*ually in ties
of peace and of )ar and for all classes of en, if /e ust refer again to
petitioners! reliance on Milligan. At the sae tie, let us not overloo4, in
connection )ith this favorite authority of petitioners, that the 3ederal %upree
Court!s postulation therein, that it )as Bhappily proved by the result of the great
effort to thro) off 8the= +ust authorityB of the Gnited %tates during the Civil /ar
that the constitution of that country contains )ithin itself all that is necessary for
its preservation, is not factually accurate, for all the )orld 4no)s that if the
Aerican Gnion survived the ordeal of possible disintegration and is the great
nation that she is today, it )as not because President :incoln confined hiself
strictly to the po)ers vested in the presidency by the constitution, but because he
)as )ise enough to resort to inherent e1traconstitutional state prerogatives,
e1ercisable by the E1ecutive alone, )hich President Marcos did not have to do,
considering that our Constitution e1pressly confers upon hi the authority to
utili,e such state po)er in defense of the nation.
5 < 5
The historical developent of the po)ers of the Philippine E1ecutive unista4ably
points to the sae direction. Practically all the constitutions that cae into being
during the revolutionary period before the turn of the last century, of )hich the
Malolos Constitution is typical, either entrusted e1ecutive po)er to a coission
or ade the E1ecutive largely dependent on the legislature. /hen the Aericans
ended their ilitary occupation, after subduing the Aguinaldo forces of
independence, they had their o)n version of governental po)ers. 2n the
Philippine Bill of "'#&, nothing )as entioned about artial la), and the po)er
of the 9overnor 9eneral to suspend the privilege of the )rit of habeas corpus )as
conditioned on, aong other things, the concurrence of the Philippine
Coission of )hich, notably, the 9overnor 9eneral )as the head. /hen in
"'#<, the 9overnor 9eneral suspended the Privilege in the provinces of Cavite
and Batangas, the case of Barcelon vs. Baker# supra, arose. -ver the dissent of
0ustice /illard )ho invo4ed Milligan, the %upree Court held that the
proclaation ordering such suspension )as not revie)able by the 0udiciary.
/ith a little touch of irony, in "'"A, )hen the Gnited %tates Congress, )ith the
avo)ed intent of granting greater political autonoy to the Philippines, enacted
the 0ones :a), it reoved the need for legislative concurrence in regards to the
suspension of the Privilege, because the legislature )as to be in 3ilipino hands,
and in addition to preserving such po)er of suspension, granted the 9overnor;
9eneral the sole authority to declare artial la), sub+ect only to revocation by
the President of the Gnited %tates. /ithout forgetting that at that tie, the
9overnor;9eneral being then an Aerican, those po)ers served as )eapons of
the coloni,er to consolidate its hold on the sub+ect people, such plenitude of
po)er in the E1ecutive )as to appear later to the 3ilipino leaders as soething
that should be adopted in our fundaental la). %o it )as that in the
Constitutional Convention of "'7@, the first the Philippines ever held in peace
tie, the delegates, dra)ing heavily fro the e1perience of the country during
the autonoous period of the 0ones :a), and perchance persuaded in no sall
easure by the personality of President Manuel :. Lue,on, lost no tie in
adopting the concept of a strong e1ecutive. Their decision )as studied and
deliberate. 2ndeed, it is the unanious observation of all students of our
Constitution, that under it, )e have in the Philippines the strongest e1ecutive in
the )orld. 3ully a)are of this feature and appearing rather elated by the apparent
success of the delegates to reconcile the possible evils of dictatorship )ith the
need of an e1ecutive )ho B)ill not only 4no) ho) to govern, but )ill actually
governB, President Claro M. Recto of the Convention rear4ed in his valedictory
address ad+ourning the Assebly as follo)s?
6uring the debate on the E1ecutive Po)er it )as the alost unanious opinion
that )e had invested the E1ecutive )ith rather e1traordinary prerogatives. There
is uch truth in this assertion. But it is because )e cannot be insensible to the
events that are transpiring around us, events )hich, )hen all is said and done,
are nothing but history repeating itself. 2n fact, )e have seen ho) dictatorships,
)hether blac4 or red, capitalistic or proletarian, fascistic or counistic, ancient
or odern, have served as the last refuge of peoples )hen their parliaents fail
and they are already po)erless to save theselves fro isgovernent and
chaos. :earning our lesson fro the truth of history, and deterined to spare our
people the evils of dictatorship and anarchy, )e have thought it prudent to
establish an e1ecutive po)er )hich, sub+ect to the fiscali,ation of the Assebly,
and of public opinion, )ill not only 4no) ho) to govern, but )ill actually govern,
)ith a fir and steady hand, unebarrassed by ve1ations, interferences by other
departents, or by unholy alliances )ith this and that social group. Thus,
possessed )ith the necessary gifts of honesty and copetence, this E1ecutive )ill
be able to give his people an orderly and progressive governent, )ithout need
of usurping or abdicating po)ers, and cunning subterfuges )ill not avail to
e1tenuate his failures before the bar of public opinion.B 8BThe Philippine
Constitution 5 %ources, Ma4ing, Meaning, and ApplicationB published by the
Philippine :a)yers! Association, p. <@#.=
-f particular relevance to the present discussion is the fact that )hen an attept
)as ade by a fe) delegates led by 6elegate %alvador Araneta of Manila to
sub+ect the E1ecutive!s po)er to suspend the privilege of the )rit of habeas
corpus to concurrence or revie) by the National Assebly and the %upree
Court, the effort did not prosper, thereby strongly indicating, if it did not a4e it
indubitably definite, that the intent of the fraers of the fundaental la) is that
the E1ecutive should be the sole +udge of the circustances )arranting the
e1ercise of the po)er thus granted. 2n any event, the only evidence of any
thin4ing )ithin the convention advocating the revocation of the Barcelon doctrine
of )hich together )ith Milligan, they )ere or ought to have been a)are, )hat
)ith the best 4no)n la)yers in the Philippines in their idst, collapsed )ith the
re+ection of the Araneta proposal.
2t )as in the light of this historical developent of the E1ecutive Po)er that in
"'<", the %upree Court decided unaniously the case of Montenegro vs.
Castaeda# supra, reiterating the doctrine of conclusiveness of the E1ecutive!s
findings in the Barcelon case.
3or all that it ay be )orthy of ention here, if only because practically the sae
3ilipino inds, led by President 0ose P. :aurel, )ere largely responsible for its
forulation, the Constitution of the %econd Philippine Republic born under aegis
of the 0apanese occupation of the Philippines during the %econd /orld /ar,
provided also for a strong e1ecutive. -n this point, President :aurel hiself had
the follo)ing to say?
The fundaental reason and necessity for the creation of a political center of
gravity under the Republic is that, in any for of governent 5 and this is
especially true in an eergency, in a national crisis 5 there ust be a an
responsible for the security of the state, there ust be a an )ith ade*uate
po)ers, to face any given situation and eet the probles of the nation. There
ust be no shifting of responsibility. there ust be no evasion of responsibility.
and if a governent is to be a real governent and a scientific governent there
ust be no t)o centers of gravity but one. 8& -.9.H0.M.A.J, $(7 H"'@7J.=B 8The
Philippine Presidency by 2rene R. Cortes, p. "@.=.
The foregoing is a logical follo);up of )hat :aurel had said in the "'7@
Convention thus?
governent, but abnorally, in e1tree cases, he is suddenly ushered in as a
Minerva, full;gro)n and in full panoply of )ar, to occupy the vantage ground E the
ready protector and de)ender o) the li)e and honor o) his nation. 8Ephasis
supplied.= 8The Philippine Constitution, published by the Phil. :a)yers Association,
Dol. ", "'A' Ed., p. "$7.=.
Thus, it is not surprising at all that )ithout changing one )ord in the provision
granting to the E1ecutive the po)er to cope )ith the eergencies under
discussion, the "'(" Convention fortified thru related provisions in the transitory
portion of the Constitution the applicability of the Barcelon and Montenegro
concepts of the E1ecutive!s po)er, as applied to the iposition of artial la),
thereby )ea4ening pro tanto as )ill be seen in the follo)ing pages, the ipact of
-ur :ansang doctrine, for the purposes of the precise issue no) before Gs.
At this +uncture, it ay be pointed out that the po)er granted to the E1ecutive to
place the country or any part thereof under artial la) is independent of the
legislative grant to hi of eergency Po)ers authori,ed under the follo)ing
provision of the "'7< Constitution?
%ec. &A. 2n ties of )ar or other national eergency, the Congress ay by la)
authori,e the President, for a liited period and sub+ect to such restrictions as it
ay prescribe, to proulgate rules and regulations to carry out a declared
national policy. 8Art. D2, sec. &A, "'7< Constitution.=.
This provision is copied verbati in the "'(7 Charter e1cept for the reference to
the Prie Minister instead of to the President and the addition of the follo)ing
sentence indicating ore ephatically the teporary nature of the delegation?
Gnless sooner )ithdra)n by resolution of the National Assebly, such po)ers
shall cease upon its ne1t ad+ournent. 8%ection "<, Article D222, "'(7
Constitution of the Philippines.=
The point that iediately surges to the ind upon a reading of this provision is
that in ties of )ar or other national eergency it is definitely to the E1ecutive
that the people thru the fundaental la) entrust the running of the governent,
either by delegation of the legislative po)er to hi thru an e1press enactent of
the :egislature to that effect or by direct authori,ation fro the Constitution itself
to utili,e all the po)ers of governent should he find it necessary to place the
country or any part thereof under artial la). Additional evidence of such clear
intent is the fact that in the course of the deliberations in the Constitutional
Convention of "'7@ of the proposal to incorporate the above provision in the
charter, 6elegate /enceslao Din,ons of Caarines Norte oved to delete the
sae for fear that the concentration of po)ers in one an ay facilitate the
eergence of a dictatorship. Ce said in part?
The po)er to proulgate rules and regulations in ties of eergency or )ar is
not recogni,ed in any constitution e1cept, perhaps, the Constitution of 6enar4,
)hich provides that in case of special urgency the Ming ay, )hen the Reichstag
is not in session, issue la)s of teporary application. %uch la)s, ho)ever, shall
not be contrary to the Constitution, and they shall be subitted to the Reichstag
in its ne1t session. %o, even in a 4ingdo li4e 6enar4, the po)ers of the Ming
are liited in ties of eergency.
Gnder the Constitution )e are drafting no), there is absolutely no liit e1cept
)hen the National Assebly specifies at the inception of the grant of po)er.
2 )ant to )arn, Mr. President, of a future condition in our Republic )hen )e shall
no longer be under the tutelage of any foreign po)er, )hen )e shall have to )or4
for our o)n destiny. 2 )ant to say that 2 a not very positive in stating here that
)e shall have a dictatorship because the structure of the governent that )e are
creating perits its establishent, but the po)er to proulgate rules and
regulations )ill give rise to a strong an )ho ay, in a desire to gratify his
personal abitions, sei,e the reins of governent.B 8Page 7'", Dolue 3ive, The
Philippine Constitution, 2ts -rigins, Ma4ing, Meaning, and Application, a
publication of the Philippine :a)yers Association, "'(&.=.
6espite such elo*uent )arning, the assebly voted do)n his otion.
2t is no) contended that instead of declaring artial la), President Marcos should
have sought fro Congress the approval of an eergency po)ers act siilar to
Coon)ealth Acts A## and A(" passed respectively on August "', "'@#, long
before the 0apanese invasion, and 6eceber "A,"'@", )hen the Nippon Ary
)as already on its )ay to Manila fro :ingayen and other landing points in the
North.
To start )ith, Congress )as not una)are of the )orsening conditions of peace and
order and of, at least, evident insurgency, )hat )ith the nuerous easily
verifiable reports of open rebellious activities in different parts of the country and
the series of rallies and deonstrations, often bloody, in Manila itself and other
centers of population, including those that reached not only the portals but even
the session hall of the legislature, but the legislators seeed not to be sufficiently
alared or they either )ere indifferent or did not 4no) )hat to do under the
circustances. 2nstead of ta4ing iediate easures to alleviate the conditions
denounced and decried by the rebels and the activists, they debated and argued
long on palliatives )ithout coing out )ith anything substantial, uch less
satisfactory in the eyes of those )ho )ere seditiously shouting for refors. 2n any
event, in the face of the inability of Congress to eet the situation, and propted
by his appraisal of a critical situation that urgently called for iediate action,
the only alternative open to the President )as to resort to the other constitutional
source of e1traordinary po)ers, the Constitution itself.
2t is significant to note that Coon)ealth Act A(" granted the President
practically all the po)ers of governent. 2t provided as follo)s?
%ec. ". The e1istence of )ar bet)een the Gnited %tates and other countries of
Europe and Asia, )hich involves the Philippines, a4es it necessary to invest the
President )ith e1traordinary po)ers in order to eet the resulting eergency.
%ec. &. Pursuant to the provisions of Article D2, section "A, of the Constitution,
the President is hereby authori,ed, during the e1istence of the eergency, to
proulgate such rules and regulations as he ay dee necessary to carry out
the national policy declared in section " hereof. Accordingly he is, aong other
things, epo)ered 8a= to transfer the seat of the 9overnent or any of its
subdivisions, branches, departents, offices, agencies or instruentalities. 8b= to
reorgani,e the 9overnent of the Coon)ealth including the deterination of
the order of precedence of the heads of the E1ecutive 6epartents. 8c= to create
ne) subdivisions, branches, departents, offices, agencies or instruentalities of
governent and to abolish any of those already e1isting. 8d= to continue in force
la)s and appropriations )hich )ould lapse or other)ise becoe inoperative, and
to odify or suspend the operation or application of those of an adinistrative
character. 8e= to ipose ne) ta1es or to increase, reduce, suspend, or abolish
those in e1istence. 8f= to raise funds through the issuance of bonds or other)ise,
and to authori,e the e1penditure of the proceeds thereof. 8g= to authori,e the
National, provincial, city or unicipal governents to incur in overdrafts for
purposes that he ay approve. 8h= to declare the suspension of the collection of
credits or the payent of debts. and 8i= to e1ercise such other po)ers as he ay
dee necessary to enable the 9overnent to fulfill its responsibilities and to
aintain and enforce its authority.
%ec. 7. The President of the Philippines shall as soon as practicable upon the
convening of the Congress of the Philippines report thereto all the rules and
regulations proulgated by hi under the po)ers herein granted.
%ec. @. This act shall ta4e effect upon its approval, and the rules and regulations
proulgated hereunder shall be in force and effect until the Congress of the
Philippines shall other)ise provide.
3ro this e1tensive grant of iense po)ers, it ay be deduced that the
difference bet)een artial la) and the delegation of legislative po)er could be
+ust a atter of procedure in that the investent of authority in the forer is by
the Constitution )hile in the latter it is by the :egislature. The resulting
constitutional situation is the sae in both governent by the E1ecutive. 2t can
be said that even the priacy of ilitary assistance in the discharge of
governent responsibilities )ould be covered by the e1ercise of the delegated
authority fro Congress.
/hat is ost iportant, ho)ever, is that the Constitution does not prohibit the
declaration of artial la) +ust because of the authority given to the :egislative to
invest the E1ecutive )ith e1traordinary po)ers. 2t is not to be supposed that in
the face of the inability or refusal of the :egislature to act, the people should be
left helpless and )ithout a governent to cope )ith the eergency of an internal
or e1ternal aggression. Much less is it logical to aintain that it is the %upree
Court that is called upon to decide )hat easures should be ta4en in the
preises. 2ndeed, the fundaental la) loo4s to the E1ecutive to a4e the choice
of the eans not only to repel the aggression but, as a necessary conse*uence,
to underta4e such curative easures and refors as are iediately available
and feasible to prevent the recurrence of the causes of the eergency.
Petitioners are capitali,ing on the pronounceents of this Court in :ansang. /e
feel, ho)ever, that such e1cessive reliance is not altogether )ell placed.
The e1act iport of the :ansang doctrine is that it is )ithin the constitutional
prerogative of the %upree Court to in*uire into the veracity of the factual bases
recited by the E1ecutive in a proclaation ordering the suspension of the privilege
of the )rit of habeas corpus, for the purpose of deterining )hether or not the
E1ecutive acted arbitrarily in concluding fro the evidence before hi that there
)as indeed a rebellion and that public necessity, as conteplated in the
Constitution, re*uired such suspension. 2n other )ords, /e held therein that the
issue of legality or illegality of a proclaation suspending the Privilege is a
+usticiable one, in regard to )hich the Court could a4e independent findings
based on the evidence on )hich the President hiself acted. Actually, ho)ever, no
real hearing )as held for the purpose in that case. /hat ight perhaps be
considered as such a hearing )as )hat too4 place on -ctober &$ and &',"'(",
)hen, because of the )illingness e1pressed by the respondents therein to ipart
to the Court classified inforation relevant to the cases, sub+ect to appropriate
security easures, the Court et behind closed doors, and in the presence of
three attorneys representing the petitioners therein and the %olicitor 9eneral it
)as briefed by the Chief of %taff of the Ared 3orces and other ran4ing ilitary
officials on said classified inforation, after )hich the parties )ere granted tie
to file their respective eoranda of observations on the atters revealed in the
briefing, )hich they did. 8%ee @& %CRA, at pp. @AA;@A(=. 2n the present cases
there has been no such hearing, not even a briefing )herein petitioners )ere
represented. And it is gravely doubtful )hether any ove in that direction )ould
prosper, considering there are not enough ebers of the Court, )ho believe in
the +uridical relevance thereof, to constitute the re*uired a+ority for a binding
action to order such a hearing or even +ust a siilar briefing as before.
Be that as it ay, the iportant point is that :ansang referred to the e1tent of
the po)ers of the Court in regard to a proclaation suspending the Privilege
)hereas )hat is before Gs no) is a proclaation iposing artial la). /e hold
that the po)ers of the E1ecutive involved in the t)o proclaations are not of the
sae constitutional level and the prerogatives of the Court relative to habeas
corpus are distinct fro those in the perspective of artial la).
To start )ith, it is too evident to adit of dispute that the afore*uoted
constitutional provision touching on the three po)ers of the E1ecutive, the calling
of the ared forces, the suspension of the privilege and the iposition of artial
la) conteplates varying and ascending degrees of la)lessness and public
disorder. /hile it is true that te1tually any of the three courses of action
entioned ay be ta4en by the E1ecutive on the occasion of an invasion,
insurrection or rebellion, the degree of resulting repression of individual rights
under each of the varies so substantially that it cannot be doubted that the
constitution conteplates that the deterination as to )hich of the should be
ta4en should depend on the degree of gravity of the prevailing situation. 2n other
)ords, it is the actual agnitude of the rebellion to be suppressed and the degree
and e1tent of danger to public safety resulting therefro that deterines )hether
it should be the first, the second or the third that should be ta4en in order that
there ay be a direct proportion bet)een the degree of gravity of the crisis and
the restraint of individual rights and liberties. /hen the situation is not very
serious but is nevertheless beyond the control of the regular peace authorities of
the place affected, then the ared forces can be called. %hould the conditions
deteriorate in such a )ay as to involve a considerable segent of the population,
thereby a4ing it difficult to aintain order and to differentiate the loyal 3ro
the disloyal aong the people, )ithout detaining soe of the, either
preventively or for their delivery to the proper authorities after the eergency or
as soon as it eases, then the privilege of the )rit of habeas corpus ay also be
suspended. But the oent the situation assues very serious proportions, to
the e1tent that there is a brea4do)n of the regular governent achinery either
because the officials cannot physically function or their functioning )ould
endanger public safety, artial la) ay be iposed. There is thus a ar4ed
gradation of the circustances constituting rebellion and danger to public safety
in the provision, and it is to be supposed that the easure to be adopted by the
E1ecutive should be that )hich the situation deands.
The calling of the ared forces is done by the E1ecutive in his capacity as
Coander;in;Chief. The po)er thus e1ercised is purely e1ecutive and does not
cause any disturbance in the constitutional order in the governent. 2n the case
of suspension of the Privilege, individual rights guaranteed by the Bill of Rights
are restrained, but other)ise the regular constitutional achinery and the po)ers
and functions of the different officials of the governent, including the courts,
reain unaffected. Moreover, the suspension of the Privilege, although preised
on the deand of public safety, need not be necessarily predicated on the
re*uireents of national security as should be the case )ith artial la). Again,
the po)er e1ercised in suspension is e1ecutive po)er and nothing ore. But
)hen artial la) is proclaied, there is, as already observed earlier, a
surrogation of the regular governent achinery by the constitutionally
designated adinistrator )ith the aid of the ilitary. /hat is e1ercised in this
instance is not e1ecutive po)er alone but state po)er )hich involves the totality
of governent authority, but )ithout an actual ilitary ta4eover, if only because
the civilian President reains at the head.
2n this connection, it is very iportant to note that )hereas the Bill of Rights
e1plicitly prohibits the suspension of the Privilege of the )rit of habeas corpus
e1cept under the detailed circustances prescribed therein, including the
liitations as to the tie and place )hen and )here it ay stay suspended, there
is no siilar in+unction in regard to the iposition of artial la). 2n other )ords,
the grant of the po)er to declare artial la) in the E1ecutive portion of the
Constitution is not countered, unli4e in the case of habeas corpus, by a
prohibition in the Bill of Rights, the sanctuary of individual liberties.
2nvo4ing :ansang, petitioners argue that if an order of suspension of the Privilege
)hich involves less repression of constitutional processes than artial la) is
revie)able by the courts, )ith ore reason should the iposition of artial la),
)hose effect upon the constitutional rights and processes is ore pervasive, be
sub+ect to a +udicial test of constitutionality. Die)ing it fro the angle of individual
rights, the arguent sounds plausible, but )hen it is considered that the fraers
of the Bill of Rights never bothered to put the sae or any siilar brea4s to the
iposition of artial la) as that )hich they placed in regard to suspension, it can
be readily seen that because of the gravity of the crisis predicating the e1tree
reedy of artial la), the constitution itself a4es the invocation of individual
rights subordinate to the national interest involved in the defense of the state
against the internal aggression that confronts it. 3ro this consideration, it
follo)s that )hatever standard of constitutionality )as established by the Court in
:ansang relative to %uspension is not necessarily the easure of the po)ers the
Court can e1ercise over the E1ecutive!s proclaation of artial la). /hat the
Constitution purposely and )ith good reason differentiates, the Court ay not
e*uate.
At any rate, /e do not believe this is the proper occasion for the Court to alter or
odify )hat /e said in :ansang. All that /e say here is that :ansang does not
reach the artial la) po)ers of the E1ecutive, if only because that case involved
e1clusively the *uestion of legality of the detention, during the %uspension, of
soe individuals, the petitioners therein, )hereas here /e are dealing )ith the
deprivation of liberty of petitioners as a direct conse*uence of artial la), and in
effect the real *uestion before Gs no) is the legality of the artial la) regie
itself, )hich, as already deonstrated, occupies a different level in the
constitutional order of E1ecutive po)er, specially )hen considered fro the point
of vie) of the Bill of Rights.
But even if /e ust refer to the considerations of the Court in forulating
:ansang, /e cannot disregard the ipact of conteporary constitutional
developents related thereto. The Convention of "'(" had barely started its
relevant deliberations )hen :ansang )as decided. 2t is to be assued that the
delegates )ere )ell infored about its iport. 2ndeed, they ust have focused
their attention thereto )hen artial la) )as proclaied in %epteber of "'(&, if
only because soe of the delegates )ere apprehended and detained and had
forth)ith filed the petitions no) pending before Gs. The delegates 4ne) or ought
to have 4no)n that under the e1isting Constitution, the Bill of Rights ade no
ention of the possible iposition of artial la) in the section prohibiting the
suspension of the privilege of the )rit of habeas corpus. 2nstead of seeing to it
that in the charter they )ere drafting the prohibition as to habeas corpus should
be e1tended to the declaration of artial la), in order to a4e the contingency
thereof as difficult as in the case of the forer, they evidently found ore reason
to concur in the construction pursued by President Marcos of the prerogatives
)hich the Constitution epo)ers hi to utili,e during a rebellion or invasion.
Accordingly, to erase further doubts on the atter, the Convention enacted the
transitory provision earlier referred to a4ing the Proclaation, aong others,
part of the la) of the land, )hich provision, /e dee, at this point, not as a fiat
placing the Proclaation definitely beyond the pale of unconstitutionality, but as a
conteporary authoritative construction of the current charter by the body
precisely called to e1aine it carefully and deterine its defects that should be
corrected, to the end that the rights of the people ay be best safeguarded.
Derily, such construction is entitled to due respect fro Gs, particularly because it
has been in effect, if not directly, approved by the people, not only in the
referendu of 0anuary "#;"<, "'(7 assailed by petitioners but in the other one
held by secret ballot on 0uly &(;&$, "'(7 under the supervision of the
Coission on Elections. And in the light of such construction, -ur considered
vie) is that :ansang is not controlling on the issues regarding artial la)
involved in these cases.
Perhaps, it ay not be aiss to add here that although the records of the
Constitutional Convention of "'7@ do not reveal the actual reasons for the
re+ection of the aendent proposed by 6elegate Dicente 0. 3rancisco to include
in the Bill of Rights provision regarding habeas corpus the reference ade to
iinent danger of invasion, insurrection or rebellion in the enueration of the
po)ers of the E1ecutive relative to the sae sub+ect, it is *uite possible that in
the ind of the convention it )as not absolutely necessary to suspend the
Privilege )hen the danger is only iinent unless the eleent of public safety
involved already re*uires the iposition of artial la). Relatedly, 6elegate
Araneta )ho as earlier entioned, proposed to sub+ect the suspension of the
Privilege to legislative or +udicial concurrence or revie), and )ho appeared to be
the ost bothered, aong the delegates, about the e1ertion of e1ecutive po)er
during the eergencies conteplated, never said a )ord against the anner in
)hich the E1ecutive )as being granted the authority to ipose artial la), uch
less proposed any restriction upon it the )ay he did )ith the suspension of the
Privilege. This goes to sho) that the feeling in the assebly )as to regard artial
la) differently fro the suspension and to recogni,e that its iposition should not
be traelled nor shac4led by any provision of the Bill of Rights.
5 ( 5
There are insurountable pragatic obstacles to the theory of +usticiability
sustained by petitioners. .
The ost iportant of this is that there is no 4no)n or recogni,ed procedure
)hich can be adopted in the proposed in*uiry into the factual bases of the
E1ecutive!s proclaation to insure that the degree of +udicious and fair hearing
and deterination of facts ight be appro1iated. Adittedly, the ordinary rules
of pleading, practice and evidence are out of the *uestion. The relevant eleental
facts are scattered throughout the length and breath of the country, and there is
no conceivable +udicial caera that can catch the )hole picture )ith ade*uate
fidelity to the truth. Perhaps +udicial notice can help, but the eleents of public
safety are not properly susceptible of +udicial notice )hen it coes to covert
subversive activities. The probles of deonstration are anifold, and )hen it is
borne in ind that, in the very nature of things and under universally accepted
nors of state protection, there is a )all, ipenetrable even to the +udiciary,
behind )hich the state rightfully 4eeps a)ay fro other 6epartents atters
affecting national security, one )ill reali,e the futility of believing that the Court
can, assuing it )ere, by soe curious )ay of reasoning, legally re*uired to do
so, properly perfor its +udicial attributes )hen it coes to deterining in the
face of an apparently nation)ide rebellion, )hether or not artial la) should be
proclaied by the E1ecutive, instead of resorting to the lesser reedies of calling
the ared forces or suspending the Privilege. Besides, for the Court to be able to
decide )hether or not the action of the E1ecutive is arbitrary, it ust, in +ustice to
both parties, and to hi in particular, act in the light of the sae evidence fro
)hich he dre) his conclusion. Co) can such evidence be all gathered and
presented to the CourtE
%oe ebers of the Court are of the fir conviction that it is -ur constitutional
duty to indulge in the suggested in*uiry, so /e can be assured in -ur o)n
conscience, and for the protection of the people, )hether or not President Marcos
has acted arbitrarily. But prescinding fro the difficulties of deonstration +ust
discussed, fro )hat evidence is the Court going to dra) its o)n conclusions in
the cases at bar, )hen /e have not even been told )hat evidence the President
had before hi, e1cept those that ay be inferred fro the )hereases of the
Proclaation )hich are disputed by petitionersE -n the other hand, ho) can /e
have all the evidence before G%, )hen in the very nature thereof /e cannot have
access to the, since they ust be 4ept under the forbidding covers of national
security regulationsE Even the standing ordinary rules of evidence provide in this
respect thus? .
%EC. &". &rivileged communication. 5
111 111 111
8e= A public officer cannot be e1ained during his ter of office or after)ards, as
to counications ade to hi in official confidence, )hen the court finds that
the public interest )ould suffer by the disclosure. 8Rule "7#, Revised Rules of
Court of the Philippines=.
The inevitable conclusion is that the Constitution ust have intended that the
decision of the E1ecutive should be his alone.
2f /e should hold that the atter before Gs is +usticiable, the practical result
)ould be that even if the Court should no) decide in the style of :ansang that the
President did not act arbitrarily in issuing the Proclaation, /e )ould have to be
ready to entertain future petitions, one after the other, filed by )hosoever ay be
inded to allege, for his o)n purpose, that conditions have so iproved as to
)arrant the lifting of artial la). Accordingly, every no) and then the Court
)ould have to hear the parties and evaluate their respective evidence. The
9overnent )ould have to appear and prove all over again the +ustifications for
its action. The conse*uence )ould be that instead of devoting his tie to the
defense of the nation, the President )ould be preparing hiself for the court
battle. 2t is ridiculous to thin4 that the ebers of the Constitutional Convention
had conceived placing such difficulties in the )ay of the E1ecutive )hich a4e of
his function of defending the state a continuous running battle in t)o separate
fronts, one )ith the eney another )ith the courts. 2t is suggested that the Court
can suarily disiss any such future petitions in cavalier fashion by siply
holding on to the finding /e )ould a4e in these cases. But ne) allegations and
arguents are bound to be ade, and it is definitely iproper for Gs to +ust
suarily uphold the E1ecutive everytie a case coes up.
/hat is ore absurd is that the %upree Court is not the only court in )hich a
petition to lift ay be filed. 2agine if petitions )ere filed in t)o or three Courts
of 3irst 2nstance, )hat )ould happenE 2n this connection, /e are in no position to
en+oin the lo)er courts to entertain such petitions because they ay refer to the
proposed lifting of artial la) only in the respective provinces )here the courts
are, and /e cannot hold, precisely because of -ur o)n characteri,ation of the
nature of the issue as +usticiable, or ore siply that the Proclaation is sub+ect
to the revie) of factual bases by the court, that any of said courts is )ithout
+urisdiction to entertain the petition. %tated other)ise, every court )ould then be
open to pass on the reasonability or arbitrariness of the President!s refusal or
failure to lift artial la). /e do not ean to insinuate that the lo)er court +udges
ay not be prepared for the purpose, but the spectacle alone of several of such
petitions pending in various courts, )ithout visuali,ing anyore the potentiality of
one +udge or another upholding the proponent, is soething that )ill not only
foreseeably coplicate our international relations but )ill also detract fro our
iage as a people trained in the field of governent. All of these considerations
suggest again that it is best that the 0udiciary abstain fro assuing a role not
clearly indicated in the Constitution to pertain to it.
5 C 5
TCE %GPREME C-GRT AB%TA2N% 3R-M RED2E/2N9 PR-C:AMAT2-N "#$",
BECAG%E, 2N TCE :29CT -3 TCE C-N%26ERAT2-N% CERE2N 62%CG%%E6, 2T 2%
C-ND2NCE6 TCAT TCE C-N%T2TGT2-N C-NTEMP:ATE% TCAT TCE 6EC:ARAT2-N
-3 MART2A: :A/ %C-G:6 BE TCE RE%P-N%2B2:2TK %-:E:K -3 TCE EIECGT2DE,
BGT %C-G:6 ANK -CCA%2-N -3 -PEN 6E32ANCE AN6 MAN23E%T 62%RE9AR6
-3 TCE PERT2NENT C-N%T2TGT2-NA: PR-D2%2-N AR2%E, TCE C-GRT 2% N-T
P-/ER:E%% T- B%GPP-RT AN6 6E3EN6B TCE C-N%T2TGT2-N.
The greatest fear entertained by those )ho )ould sustain the Court!s authority to
revie) the action of the President is that there ight be occasions )hen an
E1ecutive drun4 )ith po)er ight )ithout rhye or reason ipose artial la)
upon the helpless people, using the very Constitution itself as his )eapon of
oppression to establish here a real dictatorship or totalitarian governent. The
vie) is that it is only the %upree Court that can prevent such a disal
eventuality by holding that it has the final authority and inescapable duty to
define the constitutional boundaries of the po)ers of the E1ecutive and to
deterine in every case properly brought before it )hether or not any such po)er
has been abused beyond the liits set do)n by the fundaental la), and that
unless /e hold here that the Court can deterine the constitutional sufficiency of
Proclaation "#$" in fact and in la), the 3ilipino people )ould have no protection
against such in abusive E1ecutive.
/e here declare ephatically that such apprehension is definitely unfounded.
Precisely, in this decision, /e are holding that the Court has the +urisdiction, the
po)er and the authority to pass on any challenge to an E1ecutive!s declaration of
artial la) alleged in a proper case affecting private or individual rights to be
un)arranted by the Constitution. 2n these cases, ho)ever, )e do not see any
need for the interposition of our authority. 2nstead )hat appears clear to Gs, in
the light of the considerations /e have discuss above, and so /e hold, is that the
%olicitor 9eneral is einently correct in contending that in the circustantial and
constitutional ilieu of the ipugned Proclaation, /e should abstain fro
conducting the suggested in*uiry to deterine their constitutional sufficiency.
2n the )ay /e see the artial la) provision of the Constitution, only t)o
hypotheses can be considered relative to the Constitutional proble before Gs.
Either the E1ecutive acts in confority )ith the provision or he does not. 2n other
)ords, either he iposes artial la) because there is actually a rebellion
endangering the public safety or he does it for his o)n personal desire to grab
po)er, not)ithstanding the absence of the factual grounds re*uired by the
fundaental la). 2n the latter case, the Court )ould have the constitutional
po)er and duty to declare the proclaation issued null and void. But to do this it
does not have to conduct a +udicial in*uiry by the reception of evidence. 2t should
be guided solely by facts that are of +udicial notice. Thus, if the predicative
recitals of the proclaation are confired by facts of general public 4no)ledge,
obviously any further in*uiry )ould be superfluous. -n the other hand, in the
contrary hypothesis, that is, it is publicly and generally 4no)n that there is no
rebellion of the nature and e1tent conteplated in the Constitution, no aount of
evidence offered by the E1ecutive can +udicially create such a rebellion. 2ndeed,
as observed else)here in this opinion, a rebellion that does not coe to the
+udicial notice of the Court cannot )arrant the iposition of artial la),
particularly in reference to one iposed over the )hole country. But once it is
4no)n to the Court by +udicial notice that there is a rebellion, it )ould constitute
anundue interference )ith the constitutional duties and prerogatives of the
E1ecutive for the Court to indulge in an in*uiry as to the constitutional sufficiency
of his decision. /hether or not public safety re*uires the drastic action of
iposing artial la) already involves the e1ercise of +udgent, )hich as far as
/e can see is coitted to the responsibility of the E1ecutive as the protector
and defender of the nation. -ur considered vie) is that in such circustances,
the Constitution rather e1pects the Court to defer to his decision. Gnder this
concept of the po)ers of the Court relative to the e1ercise by the E1ecutive of his
artial la) prerogatives, the Court does not relin*uish its authority as guardian of
the Constitution and the E1ecutive, guided solely by his o)n sense of
responsibility under his solen oath Bto defend and preserveB the Constitution,
can proceed )ith his tas4 of saving the integrity of the governent and the
nation, )ithout any fear that the Court )ould reverse his +udgent.
To be sure, it could have sufficed for Gs to point out, in ans)er to the contention
about possible abuse, that it is a1ioatic in constitutional la) that the possibility
that an official ight abuse the po)ers conferred upon hi by la) or by the
Charter does not ean that the po)er does not e1ist or should not be granted.
This Court affired this principle not only in Barcelon vs. Baker# *uoted supra,
)hich )as the precursor perhaps of the e1tree of +udicial self;restraint or
abstention in this +urisdiction but even in 'ngara vs. lectoral Commission, A7
Phil. "7', reputedly the vanguard of +udicial activis in the Philippines, 0ustice
:aurel postulated reassuringly on this point in Angara thus? BThe possibility of
abuse is not an arguent against the concession of po)er as there is no po)er
that is not susceptible of abuseB 8at p. "((=. And /e could have copleented
this ratiocination )ith the observation that it is ost unli4ely that the 3ilipino
people )ould be penali,ed by 6ivine Providence )ith the iposition upon the of
an E1ecutive )ith the frightening characteristics oinously portrayed by those
)ho advocate that the Court, assuing its o)n iunity fro being abusive,
arbitrary or iprovident, should not recogni,e any constitutionally envisioned
deference to the other 6epartents of the 9overnent, particularly the
E1ecutive.
/e can feel, ho)ever, that the people need further reassurance. -n this score, it
is opportune to recall that in 'velino vs. Cuenco, $7 Phil. A$, in spite of the fact
that in the Resolution of March @, "'@', this Court refused to intervene in the
controversy bet)een the parties as to )hether or not there )as a valid election of
a ne) President of the %enate, upon the ground that the issue involved )as
purely political, in the subse*uent Resolution of March "@, "'@', upon reali,ing
that a critical situation, detriental to the national interest, subsisted as a
conse*uence of its abstention, the Court reversed itself and assued the po)er
to state categorically the correct solution to the conflict based on its interpretation
of the pertinent provisions of the Constitution.
Again, in 0anuary, "'A&, in the space of several hours, 7<# appointents to
different positions in the governent, including 0ustices of the %upree Court
and of the Court of Appeals and +udges of the lo)er courts, fiscals, officers of the
Ary, directors of bureaus, 9overnor of the Central Ban4, and others )ere sent
by the President then to the Coission on Appointents on 6eceber &',
"'A", the day preceding his last half;day in office, 6eceber 7#, "'A". Gpon the
said appointents being ipugned in the %upree Court, the Court, aghast by
the nuber of and the speed in the a4ing of said appointents, the fact that
they )ere ade under circustances that betrayed not only lac4 of proper and
deliberate consideration of the *ualifications of the appointees but also an evident
intent to deprive the succeeding President fro filling the vacancies that had been
left vacant even after the results sho)ing the defeat of the incubent President
had already been publicly 4no)n and conceded, the departure fro long
established practices in their preparation as )ell as the other undesirable
circustances that surrounded the sae, proptly struc4 the do)n as the
product of an iprovident e1ercise of po)er, obno1ious to the precepts underlying
the principled governent conceived in the Constitution.
15
The violation of the
spirit and intent of the Constitution appeared anifest to the Court on the basis
of facts )hich )ere ainly if not all of +udicial notice and, therefore, needed no
further deonstration in an in*uiry or investigation by the Court. Gnder ore or
less a siilar setting of circustances, )hich occurred in the latter part of the
ter of the President )hose tenure e1pired on 6eceber 7#, "'AA, the %upree
court reiterated the above ruling in Guevarra vs. +nocentes, "A %CRA 7('.
Thus everyone can see that )hen situations arise )hich on their faces and
)ithout the need of in*uiry or investigation reveal an un*uestionable and palpable
transgression of the Constitution, the %upree Court has never been )ithout
eans to uphold the Constitution, the policy of +udicial self;restraint iplicit
therein not)ithstanding. The precedents +ust related relate to peaceful
controversies, and, of course, the alleged violation of the Constitution by the
E1ecutive in the e1ercise of a po)er granted to hi to eet the e1igencies of
rebellion and the dangers to public safety it entails has to be considered fro a
different perspective. Even then, the %upree Court )ould not be po)erless to
act, Gntil all of its ebers are incarcerated or 4illed and there are not enough of
the to constitute a *uoru, the Court )ould al)ays be there ready to stri4e
do)n a proclaation of artial la) as unconstitutional, )henever fro the facts
anifest and generally 4no)n to the people and to it, and )ithout its having
conducted any in*uiry by the reception of evidence, it should appear that the
declaration is ade )ithout any rational basis )hatsoever and is predicated only
on the distorted otives of the E1ecutive. 3or as long, ho)ever, as the recitals or
grounds given in a proclaation accord substantially )ith facts of +udicial notice,
either because they are of public 4no)ledge or are by their nature capable of
un*uestionable deonstration, /e have no reason to interfere )ith the discharge
by the E1ecutive of a responsibility iposed upon hi by the Constitution and in
)hich there is no indication therein that the Court should share. But )hen, as +ust
stated, it is generally 4no)n or it is of public 4no)ledge that there is no rebellion
or, there being one, that it poses no conceivable danger to the public safety, and,
9od forbid, artial la) is proclaied, the Court, even )ithout the need of any
4ind of +udicial in*uiry into the facts alleged in the proclaation, )ill certainly act
and declare the pretentious E1ecutive a constitutional outla), )ith the result that
the regular governent established by the Constitution ay continue in the
hands of those )ho are constitutionally called upon to succeed hi, unless he
overcoes the legitiate governent by force. 2n truth, such is the only )ay the
%upree Court should act in discharging its duty to uphold the Constitution by
the use of the +udicial po)er, if it is to give to the E1ecutive or the :egislature, as
the case ay be, the due regard that the Constitution conteplates should be
accorded to the in consideration of their o)n functions hid responsibilities
iplicit in the principle of separation of po)ers ebodied therein.
22
TCE C-N%T2TGT2-N 2% MERE:K 2N A %TATE -3 ANAE%TCE%2A, %2NCE A MA0-R
%GR9ERK 2% NEE6E6 T- %ADE TCE NAT2-N!% :23E.
The foregoing discussion covers, as ust have been noted, the resolution not only
of the issue of +urisdiction raised by the respondents but also of the corollary
*uestion of the application of the :ansang doctrine. Not only that, fro )hat has
been said, it is obvious that since it is to the President that the Constitution has
coitted the discretion to ipose artial la), it follo)s that he alone should
have the discretion and the prerogative to declare )hen it should cease or be
lifted. E1actly the sae considerations copelling the conclusion that the Court
ay not revie) the constitutional sufficiency of his proclaation of artial la)
a4e it ineludible to conclude that the people have also left it to the E1ecutive to
decide )hen conditions )ould perit the full restoration of the regular
constitutional processes. /ith characteristic perceptive insight, in his thesis to be
cited infra, 0ustice 9uillero %. %antos of the Court of Appeals, discourses on this
point as follo)s?
@@. =hen Martial ,ule is Terminated 5
2n both England and the Gnited %tates artial rule terinates ipso facto upon the
cessation of the public eergency that called it forth. To this proposition there
has been no dissent. Martial rule ust cease )hen the public safety no longer
re*uire its further e1ercise.
@<. =ho Terminates Martial ,ule 5
%ince the declaration of artial rule has been coitted to the +udgent of the
President, it follo)s that its terination is to be fi1ed by the sae authority.
8Barcelon vs. Ba4er, "'#<, < Phil. $(.= Again, to this vie) there cannot he any
valid ob+ection. 2t )ould see only natural that since the President has been
e1pressly authori,ed to declare artial rule no other authority should he
peritted to terinate it.B 8Martial :a), Nature, Principles and Adinistration by
9uillero %. %antos, p. (<.=
Needless to say, it is our Constitution that controls in the cases at bar, not the
Aerican theory. 2n fact, )hen President :aurel proclaied artial la) during the
%econd /orld /ar, he e1pressly provided, to avoid any doubt about the atter,
thus?
$. The proclaation of artial la) being an eergency easure deanded by
iperative necessity, it shall continue as long as the need for it e1ists and shall
terinate upon proclaation of the President of the Republic of the Philippines.
2n the interest of truth and to set -ur perspective aright it ay not be said that
under Proclaation "#$" and the anner in )hich it has been ipleented,
there has been a total suspension, uch less an abrogation, of the Constitution.
Even te1tually, the ensuing orders issued by the President have left virtually
unaltered the established constitutional order in all levels of governent and
society e1cept those that have to be ad+usted and sub+ected to potential changes
deanded by the necessities of the situation and the attainent of the ob+ectives
of the declaration. Repeatedly and ephatically, the President has solenly
reassured the people that there is no ilitary ta4eover and that the declared
principle in the Constitution that BCivilian authority is at all ties supree over
the ilitaryB 8%ection $, Article 22, "'(7 Charter= shall be rigorously observed.
And earlier in this opinion, /e have already discussed ho) he restored the
security of tenure of the ebers of the Court and ho) the +udicial po)er has
been retained by the courts, e1cept in those cases involving atters affecting
national security and public order and safety )hich the situation deands should
be dealt )ith by the e1ecutive ars of the governent.
/hen President :incoln proclaied artial la) in Mentuc4y in "$A@, he did not
copletely overhaul the e1isting achinery, he let it continue insofar as it did not
obstruct the ilitary operations and related activities. Ce ordered thus?
/hereas any citi,ens of the %tate of Mentuc4y have +oined the forces of the
insurgents, and such insurgents have, on several occasions. entered the said
%tate of Mentuc4y in large force, and, not )ithout aid and cofort furnished by
disaffected and disloyal citi,ens of the Gnited %tates residing therein, have not
only disturbed the public peace, but have overborne the civil authorities and
ade flagrant civil )ar, destroying property and life in various parts of the %tate?
And )hereas it has been ade 4no)n to the President of the Gnited %tates by the
officers coanding the national aries, that cobinations have been fored in
the said %tate of Mentuc4y )ith a purpose of inciting rebel forces to rene) the
said operations of civil )ar )ithin the said %tate, and thereby to ebarrass the
Gnited %tates aries no) operating in the said %tate of Dirginia and 9eorgia, and
even to endanger their safety? ... !The artial la) herein proclaied, and the
things in that respect herein ordered, )ill not be deeed or ta4en to interfere
)ith the holding of la)ful elections, or )ith the proceedings of the constitutional
legislature of Mentuc4y, or )ith the adinistration of +ustice in the courts of la)
e1isting therein bet)een citi,ens of the Gnited %tates in suits or proceedings
)hich do not affect the ilitary operations or the constituted authorities of the
governent of the Gnited %tates. 8Martial :a), Nature, Principles and
Adinistration by 9uillero %. %antos, pp. '(;'$.=.
2ncidentally, there is here a clear repudiation of the open court theory, and )hat
is ore, even the holding of regular elections and legislative sessions )ere not
suppressed. "A Accordingly, the undeniable fact that the Philippine Congress )as
in session, albeit about to ad+ourn, )hen artial la) )as declared on %epteber
&", "'(& is not necessarily an arguent against the e1ercise by the President of
the po)er to a4e such a declaration.
President :aurel!s o)n declaration of artial la) during the 0apanese occupation
did not involve a total blac4out of constitutional governent. 2t reads in its
pertinent portions thus?
111 111 111
@. All e1isting la)s shall continue in force and effect until aended or repealed by
the President, and all the e1isting civil agencies of an e1ecutive character shall
continue e1ercising their po)ers and perforing their functions and duties, unless
they are inconsistent )ith the ters of this Proclaation or incopatible )ith the
e1peditious and effective enforceent of artial la) herein declared.
<. 2t shall be the duty of the Military 9overnors to suppress treason, sedition,
disorder and violence. and to cause to be punished all disturbances of public
peace and all offenders against the criinal la)s. and also to protect persons in
their legitiate rights. To this end and until other)ise decreed, the e1isting courts
of +ustice shall assue +urisdiction and try offenders )ithout unnecessary delay
and in a suary anner, in accordance )ith such procedural rules as ay be
prescribed by the Minister of 0ustice. The decisions of courts of +ustice of the
different categories in criinal cases )ithin their original +urisdiction shall be final
and unappealable? &rovided# however, That no sentence of death shall be carried
into effect )ithout the approval of the President.
A. The e1isting courts of +ustice shall continue to be invested )ith, and shall
e1ercise, the sae +urisdiction in civil actions and special proceedings as are no)
provided in e1isting la)s, unless other)ise directed by the President of the
Republic of the Philippines.
Proclaation "#$" is in no sense any ore constitutionally offensive. 2n fact, in
ordering detention of persons, the Proclaation pointedly liits arrests and
detention only to those Bpresently detained, as )ell as all others )ho ay
hereafter be siilarly detained for the cries of insurrection or rebellion, and all
other cries and offenses coitted in furtherance or on the occasion thereof, or
incident thereto, or in connection there)ith, for cries against national security
and the la) of nations, cries against public order, cries involving usurpation of
authority, ran4, title and iproper use of naes, unifors and insignia, cries
coitted by public officers, and for such other cries as )ill be enuerated in
orders that 2 shall subse*uently proulgate, as )ell as cries as a conse*uence
or proulgated upon y direction.B 2ndeed, even in the affected areas, the
Constitution has not been really suspended uch less discarded. As conteplated
in the fundaental la) itself, it is erely in a state of anaesthesia, to the end
that the uch needed a+or surgery to save the nation!s life ay be successfully
underta4en.
5 222 5
TCE 2MP-%2T2-N -3 MART2A: :A/ AGT-MAT2CA::K CARR2E% /2TC 2T TCE
%G%PEN%2-N -3 TCE PR2D2:E9E -3 TCE /R2T -3 CABEA% C-RPG% 2N ANK
EDENT, TCE PRE%26ENT2A: -R6ER -3 ARRE%T AN6 6ETENT2-N CANN-T BE
A%%A2:E6 A% 6EPR2DAT2-N -3 :2BERTK /2TC-GT 6GE PR-CE%%.
The ne1t issue to consider is that )hich refers to the arrest and continued
detention and other restraints of the liberties of petitioner, and their ain
contention in this respect is that the proclaation of artial la) does not carry
)ith it the suspension of the privilege of the )rit of habeas corpus, hence
petitioners are entitled to iediate release fro their constraints.
/e do not believe such contention needs e1tended e1position or elaboration in
order to be overruled. The priary and fundaental purpose of artial la) is to
aintain order and to insure the success of the battle against the eney by the
ost e1peditions and efficient eans )ithout loss of tie and )ith the iniu
of effort. This is self;evident. The arrest and detention of those contributing to the
disorder and especially of those helping or other)ise giving aid and cofort to the
eney are indispensable, if artial la) is to ean anything at all. This is but
logical. To fight the eney, to aintain order aidst riotous chaos and ilitary
operations, and to see to it that the ordinary constitutional processes for the
prosecution of la);brea4ers are three functions that cannot huanly be
underta4en at the sae tie by the sae authorities )ith any fair hope of
success in any of the. To *uote fro Malcol and :aurel, BMartial la) and the
privilege of that )rit 8of habeas corpus are )holly incopatible )ith each other.B
8Malcol and :aurel, Philippine Constitutional :a), p. &"#=. 2t siply is not too
uch for the state to e1pect the people to tolerate or suffer inconveniences and
deprivations in the national interest, principally the security and integrity of the
country.
Mere suspension of the Privilege ay be ordered, as discussed earlier, )hen the
situation has not reached very critical proportions iperilling the very e1istence of
the nation, as long as public safety deands it. 2t is, therefore, absurd to
contend, that )hen artial la), )hich is precisely the ultiate reedy against
the gravest eergencies of internal or e1ternal aggression, is proclaied, there is
no suspension of the Privilege unless this is separately and distinctly ordered.
Considering that both po)ers spring fro the sae basic causes, it stands to
reason that the graver sanction includes the lesser. 2t is claied that President
:aurel treated the t)o atters separately in his afore*uoted proclaation. /e do
not believe that the precedent cited controls. 2t only proves that to avoid any
doubt, )hat President :aurel did ay be adopted. There can be no denying the
point that )ithout suspension of the Privilege, artial la) )ould certainly be
ineffective. %ince artial la) involves the totality of governent authority, it ay
be assued that by ordering the arrest and detention of petitioners and the other
persons entioned in the Proclaation, until ordered released by hi, the
President has by the tenor of such order virtually suspended the Privilege.
Relatedly, as pointed out by the %olicitor 9eneral no less than petitioner 6io4no
hiself postulated in a lecture at the G.P. :a) Center that?
There are only, as far as 2 4no), t)o instances )here persons ay be detained
)ithout )arrant but )ith due process. The first is in cases of artial la) or )hen
the )rit of habeas corpus is suspended. 2n those cases, it is not that their
detention is legal, it is that )e cannot in*uire into the legality of their detention.
Because artial la) eans actually the suspension of la) and the substitution of
the )ill of our Congress. The second instance is that )hich is provided for in Rule
""7, section A of the Rules of Court and %ection 7( of the Revised Charter of the
City of Manila. Essentially it consists of cases )here the crie is coitted right
in the presence of the person /ho is a4ing the arrest or detention. 8Trial
Probles in City Q Municipal Courts, "'(#, p. &A(, G. P. :a) center 0udicial
Conference %eries.= .
2n his )ell docuented and very carefully prepared and coprehensive thesis on
Martial :a), Nature, Principles and Adinistration, published by Central :a)boo4
Publishing Co., 2nc, in "'(&, 0ustice 9uillero %. %antos of the Court of Appeals
and forerly of the 0udge Advocate 9eneral!s %ervice, Ared 3orces of the
Philippines, a4es these pointed observations?
/hether the e1istence of artial la) and the suspension of the privilege of the
)rit of habeas corpus !are one and the sae thing!, or !the forer includes the
latter and uch ore,! had been the sub+ect of !an angry )ar of paphlets
bet)een Professors Parsons and Par4er of the Carvard :a) %chool at the
outbrea4 of the Civil /ar.! 83airan, p. @7. /iener p. '.= 2t has also been a
difficult *uestion to decide in soe +urisdictions )hether the suspension of the
privilege of the )rit aounted to a declaration of artial la). 8/inthrop, pp. $&#
Q $&$, citing E1 parte 3ield, ' A. :.R. <#(. Bouvier!s :a) 6ictionary, 7rd 3rancis
Ra)is Ed., "'"@, p. &"#<, citing " Callec4 2nt. :a) <@'.
2n the face of the constitutional provisions 8Art. """, %ec. ", Clause 8"@= and fn ',
supra.= in our +urisdiction, there sees to be no roo for doubt that the t)o are
different. /hile the grounds for the suspension of the privilege of the )rit and the
proclaation of artial la) are the sae, there can be no *uestion that
suspension of the )rit eans )hat it says, that during the suspension of the
privilege, the )rit, if issued, )ill be to no avail. but artial la) has ore than +ust
this effect. The only *uestion )hich apparently reains to be deterined here, is,
)hether the declaration of artial la) ipso facto carries )ith it the suspension of
the privilege of the )rit, or )hether a declaration of artial la) ust necessarily
include a declaration suspending the privilege of the )rit in order to consider the
sae inoperative. But it appears that the forer is the better vie), 8Malcol and
:aurel, Philippine Constitutional :a), p. 7"#= although in the Gnited %tates it has
been held that *ualified artial rule ay e1ist )here the )rit has, in legal
conteplation, not been suspended, 83airan, p. @@= and that the status of
artial la) does not of itself suspend the )rit. 8Military :a) H6oestic
6isturbancesJ, Basic 3ield Manual, /ar 6epartent, HG%J fn "' Q "<, p. "(
H"'@<J.= 8%ee pp. @";@&.=
-f course, /e are not bound by the rule in other +urisdictions.
3orer 6ean Dicente 9. %inco of the College of :a) of the Gniversity of the
Philippines, of )hich he becae later on President, a noted authority on
constitutional la) fro )ho any of us have learned the sub+ect, li4e)ise
sustains the vie) that the proclaation of artial la) autoatically suspends the
privilege of the )rit of habeas corpus. 8D. %inco, Phil. Political :a), p. &<', ""th
Ed., "'A&=
No), as to the constitutional propriety of detaining persons on suspicion of
conspiracy )ith the eney )ithout the need of the regular +udicial process, /e
have also the authoritative support of no less than )hat a distinguished eber
of this Court, considered as one of the best infored in Aerican constitutional
la), Mr. 0ustice Enri*ue 3ernando, and the principal counsel of petitioners, forer
%enator TaFada, hiself an authority, on the sub+ect, had to say on the point in
their +oint authorship, used as te1tboo4 in any la) schools, entitled Constitution
of the Philippines, to )it?
-nce artial la) has been declared, arrest ay be necessary not so uch for
punishent but by )ay of precaution to stop disorder. As long as such arrests are
the President, as Coander;in;Chief, cannot thereafter, )hen he is out of office,
belief. =hen it comes to a decision by the head o) a state upon a matter involving
its li)e# the ordinary rights o) individuals must yield to what he deems the
necessities o) the moment. &ublic danger warrants the substitution o) e!ecutive
)or 0udicial process. 8Ephasis supplied.= 8Constitution of the Philippines by
TaFada Q 3ernando, Dol. &, pp. <&7;<&<.=
The authority cited by 0ustice 3ernando and %enator TaFada says?
The plaintiff!s position, stated in a fe) )ords, is that the action of the governor,
sanctioned to the e1tent that it )as by the decision of the supree court, )as the
action of the state and therefore )ithin the "@th Aendent. but that, if that
action )as unconstitutional, the governor got no protection fro personal liability
for his unconstitutional interference )ith the plaintiff!s rights. 2t is aditted, as it
ust be. that the governor!s declaration that a state of insurrection e1isted is
conclusive of that fact. 2t sees to be aditted also that the arrest alone )ould
riot necessarily have given a right to bring this suit. Luther v. Borden, ( Co). ",
@<, @A, "& :. ed. <$", A##, A#". But it is said that a detention for so any days,
alleged to be )ithout probable cause, at a tie )hen the courts )ere open,
)ithout an attept to bring the plaintiff before the, a4es a case on )hich he
has a right to have a +ury pass.
/e shall not consider all of the *uestions that the facts suggest, but shall confine
ourselves to stating )hat )e regard as a sufficient ans)er to the coplaint,
)ithout iplying that there are not others e*ually good. -f course, the plaintiff!s
position is that he has been deprived of his liberty )ithout due process of la). But
it is failiar that )hat is due process of la) depends on circustances. 2t varies
)ith the sub+ect;atter and the necessities of the situation. Thus, suary
proceedings suffice for ta1es, and e1ecutive decisions for e1clusion fro the
county. 6en e1 de. Murray v. 1oboken Land F +mprov. Co. "$ Co). &(&, "< :.
ed. 7(&. <nited "tates v. Ju Toy, "'$ G.%. &<7, &A7, @' :. ed. "#;@#, "#@@, &<
%up. Ct. Rep. A@@. /hat, then, are the circustances of this caseE By agreeent
the record of the proceedings upon habeas corpus )as ade part of the
coplaint, but that did not a4e the averents of the petition for the )rit
averents of the coplaint. The facts that )e are to assue are that a state of
insurrection e1isted and that the governor, )ithout sufficient reason but in good
faith, in the course of putting the insurrection do)n, held the plaintiff until he
thought that he safely could release hi.
2t )ould see to be aditted by the plaintiff that he )as president of the
/estern 3ederation of Miners, and that, )hoever )as to blae, trouble )as
apprehended )ith the ebers of that organi,ation. /e ention these facts not
as aterial, but siply to put in ore definite for the nature of the occasion on
)hich the governor felt called upon to act. 2n such a situation )e ust assue
that he had a right, under the state Constitution and la)s, to call out troops, as
)as held by the supree court of the state. The Constitution is suppleented by
an act providing that !)hen an invasion of or insurrection in the state is ade or
threatened, the governor shall order the national guard to repel or suppress the
sae.! :a)s of "$'(, chap. A7, art. (, Q &, p. &#@. That eans that he shall
a4e the ordinary use of the soldiers to that end. that he ay 4ill persons )ho
resist, and, of course, that he ay use the ilder easure of sei,ing the bodies
of those )ho he considers to stand in the )ay of restoring peace. %uch arrests
are not necessarily for punishent, but are by )ay of precaution, to prevent the
office, on the ground that he had not reasonable ground for his belief. 2f )e
suppose a governor )ith a very long ter of office, it ay be that a case could be
iagined in )hich the length of the iprisonent )ould raise a different
*uestion. But there is nothing in the duration of the plaintiff!s detention or in the
allegations of the coplaint that )ould )arrant %ubitting the +udgent of the
governor to revision by a 2t is not alleged that his +udgent )as not honest, if
that be aterial, or that the plaintiff )as detained after fears of the insurrection
)ere at an end.
No doubt there are cases )here the e1pert on the spot ay he called upon to
+ustify his conduct later in court, not)ithstanding the fact that he had sole
coand at the tie and acted to the best of his 4no)ledge. That is the position
of the captain of a ship. But, even in that case, great )eight is given to his
deterination, and the atter is to be +udged on the facts as they appeared then,
and not erely in the light of the event. Lawrence v. Minturn, "( Co). "##, ""#,
"< :. ed. <$, A&. The %tar of Cope, ' /all. &#7, "' :. ed. A7$. The 9eranic
8-ceanic %tea Nav. Co. v. Ait4en= "'A G.%. <$', <'@, <'<, @' :. ed. A"#, A"7,
&< %up. Ct. Rep. 7"(. /hen it coes to a decision by the head of the state upon
a atter involving its life, the ordinary rights of individuals ust yield to )hat he
e1ecutive process for +udicial process. %ee .eely v. "anders, '' G.%. @@", @@A, &<
:. ed. 7&(, 7&$. 8Moyer vs. Peabody, &"& G.%. @"A, @"(.=
Relatedly, in the decision of the %upree Court of Colorado dealing )ith the sae
detention of Charles C. Moyer by order of the state governor, it )as held?
By the reply it is alleged that, not)ithstanding the proclaation and
deterination of the 9overnor that a state of insurrection e1isted in the county of
%an Miguel, that as a atter of fact these conditions did not e1ist at the tie of
such proclaation or the arrest of the petitioner, or at any other tie. By % <, art.
@, of our Constitution, the governor is the coander in chief of the ilitary
forces of the state, e1cept )hen they are called into actual service of the Gnited
%tates. and he is thereby epo)ered to call out the ilitia to suppress
insurrection. 2t ust therefore becoe his duty to deterine as a fact )hen
conditions e1ist in a given locality )hich deand that, in the discharge of his
duties as chief e1ecutive of the state, he shall eploy the ilitia to suppress. This
being true# the recitals in the proclamation to the e))ect that a state o)
insurrection e!isted in the country o) "an Miguel cannot be controverted.
-ther)ise, the legality of the orders of the e1ecutive )ould not depend upon his
+udgent, but the +udgent of another coordinate branch of the state
governent ............
........................................................
.... +)# then# the military may resort to the e!treme o) taking human li)e in order
to suppress insurrection it is impossible to imagine upon what hypothesis it can
be success)ully claimed that the milder means o) sei%ing the person o) those
participating in the insurrection or aiding and abetting it may not be resorted to.
The po)er and authority of the ilitia in such circustances are not unli4e that of
the police of a city, or the sheriff of a county, aided by his deputies or posse
coitatus in suppressing a riot. Certainly such o))icials would be 0usti)ied in
arresting the rioters and placing them in 0ail without warrant# and detaining the
there until the riot was suppressed. Callett 0., in Re Application of %heran Par4er
8no opinion for publication=. +)# as contended by counsel )or petitioner# the
military# as soon as the rioter or insurrectionist is arrested# must turn him over to
the civil authorities o) the country# the arrest might# and in many instances
would# amount to a mere )arce. Ce could be released on bail, and left free to
again +oin the rioters or engage in aiding and abetting their action, and, if again
arrested, the sae process )ould have to be repeated, and thus the action of the
ilitary )ould be rendered a nullity. Again, if it be conceded that, on the arrest of
a rioter by the ilitary, he ust at once be turned over to the custody of the civil
officers of the county, then the ilitary, in sei,ing ared insurrectionists and
depriving the of their ars, )ould be re*uired to forth)ith return the to the
hands of those )ho )ere eploying the in acts of violence. or be sub+ect to an
action of replevin for their recovery )hereby iediate possession of such ars
)ould be obtained be the rioters, )ho )ould thus again be e*uipped to continue
their la)less conduct. To deny the right o) the militia to those whom they arrest
while engaged in suppressing acts o) violence and until order is restored would
lead to the most absurd results. The arrest and detention of an insurrectionist,
either actually engaged in acts of violence or in aiding and abetting others to
coit such acts, violates none of his constitutional rights. Ce is not tried by any
ilitary court, or denied the right of trial by +ury. neither is he punished for
violation of the la), nor held )ithout due process of la). Cis arrest and detention
is such circumstances merely to prevent him )rom taking part or aiding in a
continuation o) the conditions which the governor# in the discharge o) his o))icial
duties and in the e!ercise o) authority con)erred by law# is endeavoring to
suppress. /hen this end is reached, he could no longer be restrained of his liberty
by the ilitary, but ust be, +ust as respondents have indicated in their return to
the )rit, turned over to the usual civil authorities of the county, to be dealt )ith in
the ordinary course of +ustice, and tried for stich offenses against the la) as he
ay have coitted. 2t is true that petitioner is not held by virtue of any
)arrant, but if his arrest and detention are authori,ed by la) he cannot coplain
because those steps have not been ta4en )hich are ordinarily re*uired before a
citi,en can be arrested and detained.
..........................
.... The same power which determines the e!istence o) an insurrection must also
decide when the insurrection has been suppressed. 8Ephasis supplied.= 8Re
Moyer, 7< Colo, "<', $< Pac. "'# H"'#@J.=
2t is evident, therefore, that regardless of )hether or not the privilege of the )rit
of habeas corpus is e1pressly suspended during artial la), arrest, detention and
other restraints of liberty of individuals ay not be assailed as violative of the due
process clause. The Presidential orders to such effect constitute substantive and
procedural due process at the sae tie and ay therefore be invo4ed as valid
defenses against any reedy or prayer for release. 9iven the validity of the
declaration of artial la), the sole tests of legality of constraints other)ise
fro)ned upon in noral ties by the fundaental la) are substantial relevance
and reasonableness. 2n the very nature of things, and absent any obvious
sho)ing of palpable bad faith, the E1ecutive should en+oy respectful deference in
the deterination of his grounds. As a rule, the Courts are not supposed to a4e
any in*uiry into the atter.
/e accordingly hold that, as )ell deonstrated by the %olicitor 9eneral, a
proclaation of artial la) autoatically results in the suspension of the
privilege of the )rit of habeas corpus and, therefore, the arrest, detention and
restraints upon petitioners are authori,ed by the Constitution. 2n any event, the
Presidential order of arrest and detention constitute due process and is, therefore,
a valid defense to any allegation of illegality of the constraints upon petitioners.
/e further hold that the duration of such constraints ay be co;e1tensive )ith
artial la) unless other)ise ordered by the E1ecutive.
2D
T1 $$CT -$ T1 '&&,-2'L '*/ ,'T+$+C'T+-* -$ T1 *= C-*"T+T<T+-*
-* T1 +*"T'*T &T+T+-*"
All that reains no) for resolution is the *uestion of )hat effect did the approval
and ratification of the Ne) Constitution have upon the instant petitionsE
/hen petitioners cae to this Court in %epteber and -ctober "'(& to ipugn
the legality of their arrest and detention by virtue of Proclaation "#$" and
9eneral -rder No. &, their coon fundaental theory )as that said
proclaation and order )ere violative of the Constitution of the Philippines of
"'7<, not only because, according to the, there )as no +ustification for its
placing the country under artial la) but also because, even assuing its
propriety, there )as allegedly no legal basis for the apprehension and detention of
petitioners )ithout any )arrant of arrest and )ithout even any charges being filed
against the. Thus, in his return of the )rit of habeas corpus issued by the Court,
as )ell as in his oral arguent at the hearings, the %olicitor 9eneral liited
hiself to barely invo4ing the provision of the said Constitution epo)ering the
President to proclai artial la), even as he denied the allegation that there )as
no factual basis therefor, and siply contended that the arrest and detention of
petitioners )ere ade pursuant to orders validly issued under the po)ers of the
President flo)ing fro the proclaation. .
5 A 5
As already noted, ho)ever, even before these cases could be subitted for
decision, on Noveber 7#, "'(&, the Constitutional Convention of "'(" approved
a draft constitution designed to supersede the Constitution of "'7< and on
0anuary "(, "'(7, thru Proclaation ""#&, the President declared that draft
constitution to have been ratified by the people in the referendu of 0anuary "#;
"<, "'(7, and, as also stated earlier, said proclaation becae the sub+ect of t)o
series of cases in this Court )hich ultiately ended )ith the decision of March 7",
"'(7 ad+udging that Bthere is no further +udicial obstacle to the Ne) Constitution
being considered in force and effect.B And aong the salient and pertinent
provisions of the Ne) Constitution or the Constitution of "'(7, as the ne) charter
ay distinctively be referred to, is that of %ection 7 8&= of Article ID22 te1tually
reproduced earlier above.
2n vie) of the coprehensive or all;inclusive tenor of the constitutional in+unction
contained in said provision, referring as it does to Ball proclaations, orders,
decrees, instructions, and acts proulgated issued, or done by the incubent
PresidentB, there can be no doubt that Proclaation "#$" and 9eneral -rder &,
herein assailed by petitioners, are aong those en+oined to he Bpart of the la) of
the land.B The *uestion that arises then is, did their having been ade part of the
la) of the land by no less than an e1press andate of the fundaental la)
preclude further controversy as to their validity and efficacyE
2n pondering over this *uestion, it is iportant to bear in ind the circustances
that attended the fraing and final approval of the draft constitution by the
Convention. As already noted, t)o actuations of the President of indubitable
transcendental iport overtoo4 the deliberations of the constituent assebly,
naely, the issuance by hi of Proclaation "#$" placing the Philippines under
artial la) and his e1ercise, under said proclaation, of non;e1ecutive po)ers,
inclusive of general legislative authority. As to be e1pected in a country, li4e the
Philippines, long accustoed to strict constitutionalis, and the superiority of
civilian authority over, the ilitary, soon enough, these t)o actuations spa)ned
constitutional controversies of serious diensions, so uch so that several cases
involving the, including the instant ones, are no) pending in the %upree
Court. %urely, the ebers of the Convention )ere )ell a)are of these
developents. 2n other )ords, the delegates in convention assebled )ere living
)itnesses of the anner in )hich, for the first tie in our constitutional history,
the artial la) clause of the charter )as being actually ipleented, and they
4ne) the grave constitutional issues such ipleentation had provo4ed.
2ndeed, no constituent assebly Could have been better circustanced to
forulate the fundaental la) of the land. The Convention had a full and first;
hand vie) of the controversial operation of the ost iportant part of the charter
it )as called to iprove upon 5 its artial la) clause. Derily, no other aspect of
the constitution could have coanded ore the ost serious attention of the
delegates. They 4ne) or ought to have 4no)n that the placing of the country or
any part thereof under artial la) could possibly affect the continued operation
therein of the constitution or at least, the enforceability of particular provisions
thereof. Therefore, if the Convention felt that )hat )as being done by the
President as )itnessed by the )as not )ithin the conteplation of the e1isting
fundaental la) or that it )as inconsistent )ith the underlying principles of
deocracy and constitutionalis to )hich the nation has been irrevocably
coitted since its birth and )hich )ere to reain as the foundations of the ne)
charter, the delegates )ould have considered it to be their bounden duty to our
people and to the future generations of 3ilipinos, to anifest their conviction by
providing appropriate safeguards against any repetition thereof in the constitution
they )ere drafting. And so, )hen it is considered that as finally approved, the
Ne) Constitution reproduces in e1actly the sae ters or verbati the artial
la) clause of the "'7< charter, the ineludible conclusion is that our ne)
constitutional fathers did not see anything repugnant to the concepts of the old
constitution in )hat the President has done or )as doing. As /e see it, this
attitude of the Convention constitutes an authoritative conteporary construction
of the provision in controversy, and considering that the President!s anner of
ipleenting artial la) has been sanctioned by the people not only in the
referendu of 0anuary "#;"<, "'(7 but also in that of 0uly &(;&$, "'(7, reliance
on such attitude in deterining the eaning and intent of said provision cannot
be out of place.
2n the light of these considerations, /e do not see in the transitory provision
under discussion any idea of ratification or validation of soething void or
unauthori,ed. Rather, )hat /e perceive in it are revelations of )hat lay in the
core of the artial la) clause of the "'7< Constitution as it )as conceived and
forulated by its )ise and farsighted fraers. 2t )ould be unreasonable, illogical
and un)orthy of the "'(" delegates to ipute to the an intent to erely ratify,
confir or validate the President!s acts, on the assuption that they )ere
originally unauthori,ed by the charter, for that )ould iply that they )ere
concerned only about straightening out the present situation, )hen it is +ust as
iportant to insure that future acts of the President are not tainted )ith illegality.
/e cannot entertain any thought that the delegates )ere not sufficiently apprised
on the iplications of their acts. 2ndeed, the Ne) Constitution has not iparted
e! propio vigore any eleent of validity to the acts in *uestion, it has only
e1pressed in blac4 and )hite )hat the -ld Constitution did not dee necessary to
lay do)n )ith precision in respect to the. Die)ed this )ay, )hat the transitory
provision under discussion eans is that both the acts of the President before as
)ell as those after ratification of the Ne) Constitution are valid 5 not validated 5
and, as +ust stated, )hat reinforces this construction and places the said acts
beyond possible attac4s for unconstitutionality are the results of the t)o
referendus of 0anuary and 0uly, "'(7.
/ithal, having absolute faith in the high sense of duty and the patriotic courage
of the ebers of the Convention, /e also re+ect the suggestion that they )ere
in any )ay ipeded, under the circustances then obtaining, fro freely
e1pressing theselves. /e cannot for a oent entertain the thought that any
other 3ilipino can ever have less courage and love of country and concern for the
future of our people than the ebers of this Court )ho are presently called
upon to a4e oentous decisions affecting no less than the legality and
legitiacy of the very 9overnent adittedly in effective control of the )hole
territory of the nation, regardless of possible personal conse*uences to
theselves.
The fact of the atter is that Proclaation "#$" did not a4e ention of the
Convention at all. -n the contrary, +udicial notice ay be ta4en of the increased
funds appropriated by the President so as to enable it to proceed )ith its
deliberations, unbothered by any apprehension regarding the inade*uacy of the
funds )hich the Congress had appropriated for it, and )hich )ere then fast
d)indling, )ithout any certainty of further congressional appropriations. 2ndeed,
)hen 6elegate Mala) of the 3irst 6istrict of Ri,al proposed in a foral resolution
that the sessions be suspended until after the lifting of artial la), the assebly
voted over)helingly to turn do)n the proposal. There is no evidence at all that
any for of undue pressure )as brought to bear upon the delegates in any
respect related to their constituent functions. 2t has not been sho)n that the
arrest and detention of a nuber of delegates, soe of )ho are petitioners
herein, )as in any )ay connected )ith or caused by their actuations related to
their constituent functions. /hat 9eneral -rder No. & asserts is that the President
ordered the B%ecretary of National 6efense to forth)ith arrest or cause the arrest
and ta4e into custody the individuals naed in the attached list 8aong the,
the said delegates= and to hold the until other)ise so ordered by e or y duly
designated representativeB for their Bbeing active participants or for having given
aid and cofort in the conspiracy to sei,e political and state po)er in the country
and to ta4e over the 9overnent by force, the e1tent of )hich has no) assued
the proportion of an actual )ar against -ur people and our legitiate
iniical or in+urious to our people, the 9overnent and our national interest, and
to hold said individuals until other)ise so ordered by e or by y duly
designated representative.B Even then, said delegates )ere allo)ed to cast their
votes in the assebly )hen the final draft )as subitted for approval of the
ebers of the Convention. Thus, it can be safely asserted that the freedo of
the Convention to act and to perfor )hatever )as incubent upon it as a
constituent body suffered no substantial diinution or constraint on account of
the proclaation of artial la).
To reiterate then, %ection 7 8&=, Article ID22 of the Ne) Constitution en+oins that
Ball proclaations, orders, decrees, instructions and acts proulgated, issued or
done by the incubent President shall be part of the la) of the land and shall
reain valid, legal, binding and effective even after the lifting of artial la) or
subse*uent proclaations, orders, decrees, instructions or other acts of the
the regular National Assebly.B Notably, the provision does not only a4e all
such proclaations, orders, decrees, etc. Bpart of the la) of the landB, in )hich
case, it )ould have been perhaps possible to argue, that they had +ust been
accorded the status of legislative enactents, ordinarily sub+ect to possible attac4
on constitutional grounds. The provision actually goes further. 2t e1pressly ordains
that the proclaations, orders, etc. referred to should Breain valid, legal,
binding, and effectiveB ... until revo4ed, odified, repealed or superseded in the
anners therein stipulated. /hat is ore, the provision refers to and
conteplates not only proclaations, orders, decrees, instructions and acts of
e1ecutive character, but even those essentially legislative, as ay be gathered
fro the nature of the proclaations, decrees, orders, etc. already e1isting at the
tie of the approval of the draft constitution and of the acceptance thereof by the
people. Accordingly, and because there is no doubt that Proclaation "#$" and
9eneral -rder No. &, herein challenged, are aong the proclaations and orders
conteplated in said provision, the Court has no alternative but to hold, as it
hereby holds, in consonance )ith the authoritative construction by the
Constitutional Convention of the fundaental la) of the land, that Proclaation
"#$" of President Marcos placing the Philippines under artial la) as )ell as
9eneral -rder No. &, pursuant to )hich petitioners are either in custody or
restrained of their freedos Buntil other)ise so ordered by 8the President= or
8his= duly designated representativeB are valid, legal, binding and effective, and
conse*uently, the continued detention of petitioner A*uino as )ell as the
constraints on the freedos of the other petitioners resulting fro the conditions
under )hich they )ere released fro custody are legal and constitutional. /e feel
/e are confired in this conclusion by the results of the referendu of 0uly &(;
&$, "'(7 in )hich "$,#<&,#"A voter gave their affirative approval to the
follo)ing *uestion?
office beyond "'(7.
has initiated under Martial la)E
/e hasten to add to avoid isunderstanding or confusion of concepts, that it is
not because of the fiat or force of the Ne) Constitution itself that the transitory
provision is being relied upon for the purposes of the instant petitions. At this
point, and )ithout pre+udice to loo4ing into the atter insofar as other issues and
other cases affecting artial la) and the orders issued under it are concerned, all
that /e say is that the said provision constitutes an authoritative conteporary
construction of the artial la) clause of the Constitution giving light regarding
the eergency po)ers that the E1ecutive ay e1ercise after its proclaation.
5 B 5
But petitioner 6io4no
17
)ould dilute the force of this conclusion by trying to find
fault )ith the dispositive portion of the decision of this Court in the Ratification
Cases. Ce contends that actually, si1 +ustices rendered opinions e1pressly holding
that the Ne) Constitution has not been validly ratified in accordance )ith Article
ID of the "'7< Constitution and that the said dispositive portion Bis not consistent
)ith their findings, )hich )ere also the findings of the a+ority of the Court.B
-ther)ise stated, the position of petitioner 6io4no is that the decision in the
Ratification Cases has no binding legal force as regards the *uestion of )hether
or not the Ne) Constitution is indeed in force and effect. This is practically an
attept to a4e the Court resolve the sae points )hich counsels for the
petitioners in the Ratification Cases subitted to the Court on the last day for the
finality of the decision therein, but )ithout as4ing for either the reconsideration or
odification thereof, because they erely )anted to record for posterity their
o)n construction of the +udgent of the Court.
1*
/ithout in any )ay attepting to reopen the issues already resolved by the Court
in that decision, but for the sa4e of erasing any doubt as to the true iport of -ur
+udgent therein, and in order that those )ho )ould peruse the sae ay not
be led astray by counsel!s isconstruction thereof, the )riter feels it is here
opportune to say a fe) )ords relative to petitioner!s observations, considering
specially that -ur discussion above is predicated on the preise that the Ne)
Constitution is in full force and effect.
To start )ith, it is evident that the phrase in *uestion saying that Bthere is no
further +udicial obstacle to the Ne) Constitution being considered in force and
effectB )as in actual fact approved specifically by the ebers of the Court as
the +uridical result of their variant separate opinions. 2n fact, even those )ho
dissented, e1cept 0ustice >aldivar, accepted by their silence the accuracy of said
conclusion.
19
Cad any of the other +ustices, particularly, Chief 0ustice Ma4alintal
and 0ustice Castro felt that their +oint opinion did not +ustify such a +udgent,
they )ould have certainly ob+ected to its tenor, as 0ustice >aldivar did. 8%ee
footnote ""=. %urely, it is not for anyone to say no) that the Court isstated its
+udgent.
2n the particular case of Counsels TaFada and Arroyo, )hile it is true that on the
last day for the finality of that decision, they filed a BConstanciaB, separately fro
the Manifestation to the sae effect of the other counsel, discussing e1tensively
the alleged inconsistency bet)een the collective result of the opinions of the
a+ority of the Court and the dispositive portion of the +udgent, li4e the other
counsel, ho)ever, they did not a4e any prayer for relief, stating that their only
purpose is Bto save our people fro being isled and confused, in order to place
things in their proper perspective, and in order to 4eep faith )ith the "'7<
Constitution. ... so that )hen history passes +udgent upon the real )orth and
eaning of the historic Resolution of this Conorable Court proulgated on March
7", "'(7, it ay have all the facts before it,B for )hich reason, the a+ority of
the Court, over the dissent of 0ustices >aldivar, Antonio, Esguerra and the )riter,
did not consider it necessary to act, believing it )as not e1actly the occasion to
disabuse the inds of counsels about the +uridical integrity of the Court!s
actuation ebodied in the resolution. 2n a sense, therefore, said counsels should
be deeed to be in estoppel to raise the sae points no) as arguents for any
affirative relief, soething )hich they did not as4 for )hen it )as ore
appropriate to do so.
2n the second place, laying aside the division of vie)s aong the ebers of the
Court on the *uestion of )hether or not there has been copliance )ith the
provisions of Article ID of the "'7< Constitution, the vital and decisive fact is that
the a+ority of the Court held that the *uestion of )hether or not the Ne)
Constitution is already in force and effect is a political *uestion and the Court
ust perforce defer to the +udgent of the political departents of the
governent or of the people in that respect. 2n is true soe of the 0ustices could
not find sufficient basis for deterining )hether or not the people have accepted
the Ne) Constitution, but, on that point, four 0ustices, 0ustices Ma4asiar, Antonio,
Esguerra and the )riter, did vote categorically in the affirative, )hile t)o
0ustices, then Chief 0ustice Concepcion and 0ustice >aldivar, voted in the negative.
And in the +oint opinion of no) Chief 0ustice Ma4alintal and 0ustice Castro, it is
crystal clear that the reference therein to their inability to accurately appraise the
people!s verdict )as erely casual, the thrust of their position being that )hat is
decisive is the President!s o)n attitude regarding the situation, that is, )hether
he )ould ta4e the report of the Matipunan ng ga Barangay to the effect that the
people have approved and ratified the Ne) Constitution as definitive and final or
he )ould prefer to subit the ne) charter to the sae 4ind of election )hich
used to be held for the ratification of constitutional aendents, his decision
either )ay not being sub+ect to +udicial in*uiry. %tated differently, our
distinguished colleagues )ere of the vie) that )hether or not the Ne)
Constitution ay be held to have been duly ratified pursuant to Article ID of the
"'7< Constitution and even their o)n negative conclusion in such respect, have
no bearing on the issue of the enforceability of the Ne) Constitution on the basis
of its having been accepted by the people, and that although they )ere not
possessed of sufficient 4no)ledge to deterine this particular fact, the President!s
o)n finding thereon is conclusive upon the Court, since, according to the such a
decision is political and outside the pale of +udicial revie). To *uote their o)n
)ords?
Co)ever, a finding that the ratification of the draft Constitution by the Citi,ens
Asseblies, as certified by the President in Proclaation No. ""#&, )as not in
accordance )ith the constitutional and statutory procedure laid do)n for the
purpose does not *uite resolve the *uestions raised in these cases. %uch a
finding, in our opinion, is on a atter )hich is essentially +usticiable, that is,
)ithin the po)er of this Court to in*uire into. 2t iports nothing ore than a
siple reading and application of the pertinent provisions of the "'7<
Constitution, of the Election Code and of other related la)s and official acts. No
*uestion of )isdo or of policy is involved. But fro this finding it does not
necessarily follo) that this Court ay +ustifiably declare that the Constitution has
not becoe effective, and for that reason give due course to these petition or
grant the )rits herein prayed for. The effectivity of the Constitution in the final
analysis, is the basic and ultiate *uestion )hich considerations other than the
copetence of this Court, are relevant and unavoidable.
111 111 111
2f indeed it be accepted that the Citi,ens Asseblies had ratified the "'(7
Constitution and that such ratification as )ell as the establishent of the
governent thereunder fored part of a revolution, albeit peaceful, then the
issue of )hether or not that Constitution has becoe effective and, as a
necessary corollary )hether or not the governent legitiately functions under it
instead of under the "'7< Constitution, is political and therefore non;+udicial in
nature. Gnder such a postulate )hat the people did in the Citi,ens Asseblies
should be ta4en as an e1ercise of the ultiate sovereign po)ers. 2f they had risen
up in ars and by force deposed the then e1isting governent and set up a ne)
governent in its place, there could not be the least doubt that their act )ould be
political and not sub+ect to +udicial revie) but only to the +udgent of the sae
body politic act, in the conte1t +ust set forth, is based on realities. 2f a ne)
governent gains authority and doinance through force, it can be effectively
challenged only by a stronger force. no 0udicial revie) is concerned, if no force
had been resorted to and the people. in defiance of the e1isting Constitution but
peacefully because of the absence of any appreciable opposition, ordained a ne)
Constitution and succeeded in having the governent operate under it. Against
such a reality there can be no ade*uate +udicial relief. and so courts forbear to
ta4e cogni,ance of the *uestion but leave it to be decided through political
eans.
111 111 111
But then the President, pursuant to such recoendation. did proclai that the
Constitution had been ratified and had coe into effect. The ore relevant
consideration, therefore, as far as )e can see, should be as to )hat the President
had in ind in convening the Citi,ens Asseblies, subitting the Constitution to
the and proclaiing that the favorable e1pression of their vie)s )as an act of
ratification. 2n this respect sub+ective factors, )hich defy +udicial analysis and
ad+udication, are necessarily involved.
2n positing the proble )ithin an identifiable frae of reference )e find no need
to consider )hether or not the regie established by President Marcos since he
declared artial la) and under )hich the ne) Constitution )as subitted to the
Citi,ens Asseblies )as a revolutionary one. The pivotal *uestion is rather
)hether or not the effectivity of the said Constitution by virtue of Presidential
Proclaation No. ""#&, upon the recoendation of the Matipunan ng ga
Barangay, )as intended to be definite and irrevocable, regardless of non;
copliance )ith the pertinent constitutional and statutory provisions prescribing
the procedure for ratification. /e ust confess that after considering all the
available evidence and all the relevant circustances )e have found no
reasonably reliable ans)er to the *uestion.
111 111 111
2n the light of this seeing abivalence, the choice of )hat course of action to
pursue belongs to the President. /e have earlier ade reference to sub+ective
factors on )hich this Court, to our ind, is in no position to pass +udgent.
Aong the is the President!s o)n assessent of the )ill of the people as
e1pressed through the Citi,ens Asseblies and of the iportance of the "'(7
Constitution to the successful ipleentation of the social and econoic refors
he has started or envisioned. 2f he should decide that there is no turning bac4,
that )hat the people recoended through the Citi,ens Asseblies, as they
)ere reported to hi, deanded that the action he too4 pursuant thereto be final
and irrevocable, then +udicial revie) is out of the *uestion.
2n articulating our vie) that the procedure of ratification that )as follo)ed )as
not in accordance )ith the "'7< Constitution and related statutes, )e have
discharged our s)orn duty as )e conceive it to be. The President should no)
perhaps decide, if he has not already decided, )hether adherence to such
procedure is )eighty enough a consideration, if only to dispel any cloud of doubt
that ay no) and in the future shroud the nation!s Charter.
2n the deliberation of this Court one of the issues forulated for resolution is
)hether or not the ne) Constitution, since its subission to the Citi,ens
Asseblies, has found acceptance aong the people, such issue being related to
the political *uestion theory propounded by the respondents. /e have not tarried
on the point at all since )e find no reliable basis on )hich to for a +udgent.
Gnder a regie of artial la), )ith the free e1pression of opinions through the
usual edia vehicles restricted, )e have no eans of 4no)n, to the point of
+udicial certainty, )hether the people have accepted the Constitution. 2n any
event, )e do not find the issue decisive insofar as our vote in these cases is
concerned. To interpret the Constitution 5 that is +udicial. That Constitution
should be deeed in effect because of popular ac*uiescence 5 that is political,
and therefore beyond the doain of +udicial revie). 80ADE::ANA ;vs; TCE
EIECGT2DE %ECRETARK 5 <# %CRA "A";"A&. "A@. "AA;"A(. "(#;"("=
1/
2t only reains for the )riter to reiterate here a fe) considerations already
touched in the separate opinions in the Ratification Cases )hich in his considered
vie) ay )ell be ta4en into account by those )ho )ould read again the +udgent
of the Court therein.
5 " 5
Caving coe to the conclusion that the *uestion of )hether or not the Ne)
Constitution is legally in force and effect is political and outside the doain of
+udicial revie), it )as not strange that the Court should siply rule that there
should be no further +udicial obstacle to the enforceent of the charter, should
that be, as it appeared to be, the intent of those actually in authority in the
governent. 2t is iplicit in the political *uestion doctrine that the Court!s opinion
as to the correctness of the legal postures involved is of no oent, for the
siple reason that the reedy against any error therein lies either )ith the
sovereign people at the polls or )ith the Political departent concerned in the
discharge of its o)n responsibility under the fundaental la) of the land, and not
)ith the Court. Even if it )ere other)ise desirable, if only for the benefit of those
interested in the settleent of the specific legal proble posed, any categorical
ruling thereon )ould transcend the bounds of +udicial propriety. 3or the Court to
hold it is )ithout po)er to decide and in the sae breath to actually decide is an
intolerable incongruity, hence any pronounceent or holding ade under the
circustances could have no ore force than an obiter dictum, no atter ho)
rich in erudition and precedential support. Conse*uently, to say that the Ne)
Constitution ay be considered by those in authority to be in force and effect
because such is the andate e1pressed by the people in the for announced by
the President!s but a proper anner of e1pressing the Court!s abstention fro
)resting the po)er to decide fro those in )ho such prerogative is
constitutionally lodged. This is neither to dodge a constitutional duty nor to refrain
fro getting involved in a controversy of transcendental iplications 5 it is plain
adherence to a principle considered paraount in republican deocracies )herein
the political *uestion doctrine is deeply ibedded as an ine1tricable part of the
rule of la). 2t is an unpardonable isconception of the doctrine for anyone to
believe that for the %upree Court to bo) to the perceptible or audible voice of
the sovereign people in appropriate instances is in any sense a departure fro or
a disregard of la) as applied to political situations, for the very rule that en+oins
+udicial interference in political *uestions is no less a legal principle than any other
that can be conceived, 2ndeed, +ust as, in la), +udicial decision rendered )ithin
abit of the courts! authority deserve the respect of the people, by the sae
to4en, the people!s verdict on )hat inherently is theirs to decide ust be
accorded due deference by the +udiciary. -ther)ise, +udges )ould be ore
po)erful than the people by )ho they have been given no ore prerogative
than to act solely )ithin the boundaries of the +udicial sphere. /ithal, a court ay
err in finding that a given situation calls for its abstention, in the sae )ay it ay
coit ista4es of +udgent about any order atter it decides, still its decision,
conceding its honesty, cannot be faulted as an assault on the rule of la). Thus, in
a broad sense, it ay be said that it is a necessary corollary of the truth that the
adinistration of +ustice in courts presided be huan beings cannot perfect that
even the honest ista4e of a +udge is la).
The )riter further subits that, as pointed out in his separate opinion in the
Ratification Cases, those )ho veheently insist that the referendu of 0anuary
"#;"<, "'(7 )as not the 4ind of election conteplated in Article ID of the "'7<
Constitution see to overloo4 that the said provision refers only to the ode of
ratifying aendents thereto and a4es no ention at all a ne) constitution
designed to supersede it is to be subitted for approval by the people. 2ndeed,
the )riter )ould readily agree, as )as already ade clear in the aforeentioned
opinion, that if )hat )ere subitted to the people in the 0anuary, "'(7
referendu had been erely an aendent or a bundle of aendents to the
"'7< Constitution, the results thereof could not constitute a valid ratification
thereof. But since it )as a )hole integral charter that the Citi,ens! Asseblies had
before the in that referendu, it is evident that the ratification clause invo4ed
cannot be controlling.
That a ne) constitution is not conteplated is indicated in the te1t of the
provision it itself. 2t says? B%uch aendents shall be valid as part of this
Constitution )hen approved by a a+ority of the votes cast ....B Co) can it be
ever conceived that the "'(7 Constitution )hich is an entire charter in itself,
differing substantially in its entirely and radically in ost of its provisions, fro
the "'7< Constitution be part of the latterE 2n other )ords, the ode ratification
prescribed in Article ID is only for aendents that can be ade part of the
)hole constitution, obviously not to an entire charter precisely purported to
supersede it.
And it is but logical that a constitution cannot and should not attept to bind
future generations as to ho) they )ould do a)ay )ith it in favor of one suitable
to their ore recent needs and aspirations. 2t is true that in Tolentino vs.
Comelec, @" %CRA (#&, this Court, thru the )riter, held that?
2n our discussion of the issue of +urisdiction, /e have already ade it clear that
the Convention cae into being by a call of a +oint session of Congress pursuant
to %ection " of Article ID of the Constitution, already *uoted earlier in this
opinion. /e reiterate also that as to atters not related to its internal operation
and the perforance of its assigned ission to propose aendents to the
Constitution, the Convention and its officers and ebers are all sub+ect to all
the provisions of the e1isting Constitution. No), /e hold that even as to its latter
tas4 of proposing aendents to the Constitution, it is sub+ect to the provisions
of %ection " of Article ID. This ust be so, because it is plain to Gs that the
fraers of the Constitution too4 care that the process of aending the sae
should not be underta4en )ith the sae ease and facility in changing an ordinary
legislation. Constitution a4ing is the ost valued po)er, second to none, of the
people in a constitutional deocracy such as the one our founding fathers have
chosen for this nation, and )hich )e of the succeeding generations generally
cherish. And because the Constitution affects the lives, fortunes, future and every
other conceivable aspect of the lives of all the people )ithin the country and
those sub+ect to its sovereignty, every degree of care is ta4en in preparing and
drafting it. A constitution )orthy of the people for )hich it is intended ust not
be prepared in haste )ithout ade*uate deliberation and study. 2t is obvious that
correspondingly, any aendent of the Constitution itself, and perforce ust be
conceived and prepared )ith as uch care and deliberation. 3ro the very nature
of things, the drafters of an original constitution, as already observed earlier,
operate )ithout any liitations, restraints or inhibitions save those that they ay
ipose upon theselves. This is not necessarily true of subse*uent conventions
called to aend the original constitution. 9enerally, the fraers of the latter see
to it that their handi)or4 is not lightly treated and as easily utilated or changed,
not only for reasons purely personal but ore iportantly, because )ritten
constitutions are supposed to be designed so as to last for soe tie, if not for
ages, or for, at least, so long as they can be adopted to the needs and e1igencies
of the people, hence, they ust he insulated against precipitate and hasty actions
otivated by ore or less passing political oods or fancies. Thus, as a rule, the
original constitutions carry )ith the liitations and conditions, ore or less
stringent, ade so by the people theselves, in regard to the process of their
aendent. And )hen such liitations or conditions are so incorporated in the
original constitution, it does not lie in the delegates of any subse*uent convention
to clai that they ay ignore and disregard such conditions because they are as
po)erful and onipotent as their original counterparts. 8At page (&@;(&A=.
But this passage should not be understood, as it )as not eant to be understood,
to refer to the people!s inalienable right to cast aside the )hole constitution itself
)hen they find it to be in their best interests to do so. 2t )as so indicated already
in the resolution denying the otion for reconsideration?
This is not to say that the people ay not, in the e1ercise of their inherent
revolutionary po)ers, aend the Constitution or proulgate an entirely ne) one
other)ise, but as long as any aendent is forulated and subitted under the
aegis of the present Charter, any proposal for such aendent )hich is not in
confority )ith the letter, spirit and intent of the provision of the Charter for
effecting aendents cannot receive the sanction of this Court. 8Resolution of
Motion for reconsideration, Tolentino vs. Coelec 9.R. No. :;7@"<#, 3ebruary @,
"'("=.
3or it is rather absurd to thin4 that in approving a ne) fundaental la) )ith
)hich they )ould replace the e1isting one, they have to adhere to the andates
of the latter, under pain of getting stuc4 )ith it, should they fall. -ne can easily
visuali,e ho) the evil forces )hich doinated the electoral process during the old
society )ould have gone into play in order to stifle the urge for change, had the
ode of ratification in the anner of past plebiscites been the one observed in
the subission of the Ne) Constitution. To reiterate )hat the )riter said in the
Ratification Cases?
Consider that in the present case )hat is involved is not +ust an aendent of a
particular provision of an e1isting Constitution. here, it is, as 2 have discussed
earlier above, an entirely ne) Constitution that is being proposed. This iportant
circustance a4es a great deal of difference.
No less than counsel Tolentino for herein respondents Puyat and Roy, )ho )as
hiself the petitioner in the case 2 have +ust referred to is, no) inviting -ur
attention to the e1act language of Article ID and suggesting that the said Article
ay be strictly applied to proposed aendents but ay hardly govern the
ratification of a ne) Constitution. 2t is particularly stressed that the Article
specifically refers to nothing else but Baendents to this ConstitutionB )hich if
ratified Bshall be valid as part of this Constitution.B 2ndeed, ho) can a )hole ne)
Constitution be by any anner of reasoning an aendent to any other
constitution and ho) can it, if ratified, for part of such other constitutionE ...
2t is not strange at all to thin4 that the aending clause of a constitution should
be confined in its application only to proposed changes in any part of the sae
constitution itself, for the very fact that a ne) constitution is being adopted
iplies a general intent to put aside the )hole of the old one, and )hat )ould be
really incongruous is the idea that in such an eventuality, the ne) Constitution
)ould sub+ect its going into effect any provision of the constitution it is to
supersede, to use the language precisely of %ection A, Article ID22, the effectivity
clause, of the Ne) Constitution. My understanding is that generally, constitutions
are self;born, they very rarely, if at all, coe into being, by virtue of any
provision of another constitution. This ust be the reason )hy every constitution
has its o)n effectivity clause, so that if, the Constitutional Convention had only
anticipated the idea of the referendu and provided for such a ethod to be used
in the ratification of the Ne) Constitution, 2 )ould have had serious doubts as to
)hether Article ID could have had priority of application. 80avellana ;vs; The
E1ecutive %ecretary;<# %CRA "'(;"'$=.
%ince in the )ithdra)al otion of petitioner 6io4no, the )hole trust of his posture
relative to the alleged non;enforceability of the Constitution of "'(7 revolves
around supposed non;copliance in its ratification, )ith Article ID of the "'7<
Charter, and inasuch as it is evident that the letter and intent of that invo4ed
provision do not )arrant, as has +ust been e1plained, the application thereof to
the Ne) Constitution, for the siple reason that the sae is not in fact and in la)
as )ell as in for and in intent a ere aendent to the -ld Constitution, but
an integrally ne) charter )hich cannot conceivably be ade +ust a part thereof,
one cannot but vie) said otion to )ithdra) as having been designed for no
other purpose than to serve as a vehicle for the ventilation of petitioner!s political
rather than legal outloo4 )hich deserves scant consideration in the deterination
of the erits of the cases at bar.
2n any event, that a constitution need not be ratified in the anner prescribed by
its predecessor and that the possible invalidity of the ode of its ratification does
not affect its enforceability, as long as the fact of its approval by the people or
their ac*uiescence thereto is reasonably sho)n, is aply deonstrated in the
scholarly dissertation ade by our learned colleague, Mr. 0ustice 3eli1 D. Ma4asiar,
in his separate opinion in the Ratification Cases, )hich carried the concurrence of
0ustices Antonio, Esguerra and the )riter. And that )hat too4 place in the
Philippines in 0anuary, "'(7 is not an unprecedented practice peculiar to our
country, is li4e)ise plainly sho)n therein, since it appears that no less than the
Constitution of the Gnited %tates of Aerica, the nation )hose close adherence to
constitutionalis petitioners )ould )ant the 3ilipinos to eulate, )as also ratified
in a )ay not in confority )ith the Articles of Confederation and Perpetual Gnion,
the Constitution )hich it replaced, and the reason for it )as only because those in
authority felt that it )as ipossible to secure ratification, if the aendent
clause of the Articles )ere to be observed, and so they resorted to e1tra;
constitutional eans to accoplish their purpose of having a ne) constitution.
3ollo)ing is the pertinent portion of Mr. 0ustice Ma4asiar!s illuinating dis*uisition
based on actual historical facts rather than on theoretical and philosophical
hypotheses on )hich petitioners )ould see to rely?
The classic e1aple of an illegal subission that did not ipair the validity of the
ratification or adoption of a ne) Constitution is the case of the 3ederal
Constitution of the Gnited %tates. 2t should be recalled that the thirteen 8"7=
original states of the Aerican Gnion 5 )hich succeeded in liberating theselves
fro England after the revolution )hich began on April "', "((< )ith the s4irish
at :e1ington, Massachusetts and ended )ith the surrender of 9eneral Corn)allis
at Kor4to)n, Dirginia, on -ctober "',"($" 8Encyclopedia Brit., Dol. ", "'77 Ed., p.
((A= 5 adopted their Articles of Confederation and Perpetual Gnion, that )as
)ritten fro "((A to "((( and ratified on March ", "($" 8Encyclopedia Brit., Dol.
"", "'AA Ed., p. <&<=. About si1 years thereafter, the Congress of the
Confederation passed a resolution on 3ebruary &", "($( calling for a 3ederal
Constitutional Convention B)or the sole and e!press purpose o) revisaing the
articles o) con)ederation ....! 8Appendi1 ", The 3ederalist, Modern :ibrary ed., p.
<((, ephasis supplied=.
The Convention convened at Philadelphia on May "@, "($(. Article I222 of the
Articles of Confederation and Perpetual Gnion stated specifically?
The articles of this confederation shall be inviolably observed by every state, and
the union shall be perpetual. nor shall any alteration at any time herea)ter be
made in any o) them> unless such alteration be agreed to in a congress o) the
united states# and be a)terwards con)irmed by the legislatures o) every state.
8%ee the 3ederalist, Appendi1 "", Modern :ibrary Ed., "'7(, p. <$@. ephasis
supplied=.
But the foregoing re*uireents prescribed by the Articles of Confederation and
Perpetual Gnion for the alteration and for the ratification of the 3ederal
Constitution as drafted by the Philadelphia Convention )ere not follo)ed. 3earful
that the said 3ederal Constitution )ould not be ratified by the state legislatures as
prescribed, the Philadelphia Convention adopted a resolution re*uesting the
Congress of the Confederation to pass a resolution providing that the 3ederal
Constitution should be subitted to elected state conventions and if ratified by
the conventions in nine 8'= states, not necessarily in all thirteen 8"7= states, the
said Constitution shall ta4e effect.
Thus, history Professor Ed)ard Earle Mead of Princeton Gniversity recorded that?
2t )ould have a counsel of perfection to consign the ne) Constitution to the
tender ercies of the legislatures of each and all of the "7 states. E1perience
clearly indicated that ratification )ould have had the sae chance as the
scriptural cael passing thru the eye of a needle. +t was there)ore determined to
recommend to Congress that the new Constitution be submitted to conventions in
the several states specially elected to pass and when it should be rati)ied by nine
o) the thirteen states ....! 8The 3ederalist, Modern :ibrary Ed., "'7(, 2ntroduction
by Ed)ard Earle Mead, pp. viii;i1 ephasis supplied=.
Cistorian %auel Eliot Morison siilarly recounted?
The Convention, anticipating that the influence of any state politicians )ould be
Anti federalist, provided for ratification of the Constitution by popularly elected
conventions in each state. %uspecting that Rhode 2sland, at least, )ould prove
recalcitrant, it declared that the Constitution )ould go into effect as soon as nine
states ratified. The convention ethod had the further advantage that +udges,
inisters, and others ineligible to state legislatures could be elected to a
convention. The nine;state provision )as, of course, ildly revolutionary. But the
Congress of the Confederation, still sitting in Ne) Kor4 to carry on federal
governent until relieved, forally subitted the ne) constitution to the states
and politely faded out before the first presidential inauguration.! 8The -1ford
Cistory of the A. People by %auel Eliot Morison, "'A< ed., p. 7"&=.
And so the Aerican Constitution )as ratified by nine 8'= states on 0une &", "($$
and by the last four states on May &', "('# 8"& C. 0. p. A(' footnote, "A C.0.%.
&( 5 by the state conventions and not by all thirteen 8"7= state legislatures as
re*uired by Article I222 of the Articles of Confederation and Perpetual Gnion
afore*uoted 5 and in spite of the fact that the 3ederal Constitution as originally
adopted suffers fro two basic in)irmities# namely the absence o) a bill o) rights
and o) a provision a))irming the power o) 0udicial review.
The liberties of the Aerican people )ere guaranteed by the subse*uent
aendents to the 3ederal Constitution. The doctrine of +udicial revie) has
becoe part of Aerican constitutional la) only by virtue of a +udicial
pronounceent by Chief 0ustice Marshall in the case of Marbury vs. Madison
8"$#7, " Branch "7(=.
Gntil this date, no challenge has been launched against the validity of the
ratification of the Aerican Constitution, nor against the legitiacy of the
governent organi,ed and functioning thereunder.
2n the "'@A case of =heeler vs. Board o) Trustees 87( %E &nd 7&&, 7&A; 77#=,
)hich enunciated the principle that the validity of a ne) or revised Constitution
does not depend on the ethod of its subission or ratification by the people, but
on the )act o) )iat or approval or adoption or ac(uiescence by the people# which
)act o) rati)ication or adoption or ac(uiescence is all that is essential, the Court
cited precisely the case of the irregular revision and ratification by state
conventions of the 3ederal Constitution, thus?
No case identical in its facts )ith the case no) under consideration has been
called to our attention, and )e have found none, /e thin4 that the principle )hich
)e apply in the instant case )as very clearly applied in the creation of the
constitution of the Gnited %tates. The convention created by a resolution of
Congress had authority to do one thing, and one only, to )it, aend the articles
of confederation. This they did not do, but subitted to the sovereign po)er, the
people, a ne) constitution. 2n this anner )as the constitution of the Gnited
%tates subitted to the people and it becae operative as the organic la) of this
nation )hen it had been properly adopted by the people.
Poeroy!s Constitutional :a), p. <<, discussing the convention that forulated
the constitution of the Gnited %tates, has this to say BThe convention proceeded
to do, and did accoplish, )hat they )ere not authori,ed to do by a resolution of
Congress that called the together. That resolution plainly conteplated
aendents to the articles of confederation, to be subitted to and passed by
the Congress, and after)ards ratified by all the state legislatures, in the anner
pointed out by the e1isting organic la). But the convention soon becae
convinced that any aendents )ere po)erless to effect a cure. that the disease
)as too deeply seated to be reached by such tentative eans. They sa) the
syste they )ere called to iprove ust be totally abandoned, and that the
national idea ust be re;established at the center of their political society. 2t )as
ob+ected by soe ebers, that they had no po)er, no authority, to construct a
ne) governent. They had no authority, if their decisions )ere to he final. and
no authority )hatever, under the articles of confederation, to adopt the course
they did. But they 4ne) that their labors )ere only to be suggestions. and that
they as )ell as any private individuals, and any private individuals as )ell as they,
had a right to propose a plan of governent to the people for their adoption.
They )ere, in fact, a ere asseblage of private citi,ens, and their )or4 had no
ore binding sanction, than a constitution drafted by Mr. Cailton in his office,
)ould have had. The people, by their e1pressed )ill, transfored this suggestion,
this proposal, into an organic la), and the people ight have done the sae )ith
a constitution subitted to the by a single citi,en.
111 111 111
... =hen the people adopt a completely revised constitution# the )raming or
submission o) the instrument is not what gives its binding )orce and e))ect. The
)iat o) the people# and only the )iat o) the people# can breathe li)e into a
Constitution.
... =e do not hesitate to say that a court is never 0usti)ied in placing by
implication a limitation upon the sovereign. This would be an authori%ed e!ercise
o) sovereign power by the court. 82n %tate v. %)ift A' 2nd. <#<, <"', the 2ndiana
%upree Court said? !The people of a %tate ay for an original constitution, or
abrogate an old one and for a ne) one, at and tie, )ithout and political
restriction e1cept the constitution of the Gnited %tates. .... 87( %E 7&(;7&$, 7&',
ephasis supplied.=
2n the "'#7 case of =eston vs. ,yan, the court held?
2t reains to be said that if )e felt at liberty to pass upon this *uestion, and )ere
copeller to hold that the act of 3ebruary &7, "$$(, is unconstitutional and void,
it )ould not, in our opinion, by any eans follo) that the aendent is not a
part of our state Constitution. 2n the recent case of Taylor vs. Commonwealth
8Da.= @@ %.E. (<@, the "upreme Court o) 2irginia hold that their state Constitution
o) 45A3# having been acknowledged and accepted by the o))icers administering
the state government# and by the people# and being in )orce without t opposition
must be regarded as an e!isting Constitution# irrespective o) the (uestion as to
whether or not the convention which promulgated it had authority so to do
without submitting it to a vote o) the people. 2n Brittle v. &eople, & Neb. "'$, is a
siilar holding as to certain provisions of the Nebras4a Constitution of "$$A,
)hich )ere added by the :egislature at the re*uireent of Congress, though
never subitted to the people for their approval. 8'( N/ 7@';7<#. ephasis
supplied=.
Against the decision in the /heeler case, supra., confiring the validity of the
ratification and adoption of the Aerican Constitution, in spite of the fact that
such ratification )as a clear violation of the prescription on alteration and
ratification of the Articles of Confederation and Perpetual Gnion, petitioners in 9.
R. No. :;7A"A< disissed this ost significant historical fact by calling the 3ederal
Constitution of the Gnited %tates as a revolutionary one, invo4ing the opinion
e1pressed in Dol. "A, Corpus 0uris %ecundu, p. &(, that it )as a revolutionary
constitution because it did not obey the re*uireent that the Articles of
Confederation and Perpetual Gnion can be aended only )ith the consent of all
thirteen 8"7= state legislatures. This opinion does not cite any decided case, but
erely refers to the footnotes on the brief historical account of the Gnited %tates
Constitution on p. A(' of Dol. "&, C0%. Petitioners, on p. "$ of their ain Notes,
refer G% to pp. &(#;7"A of the -!)ord 1istory o) the 'merican &eople, "'A< Ed.
by %auel Eliot Morison, )ho discusses the Articles of Confederation and
Perpetual Gnion in Chapter ID222 captioned !Revolutionary Constitution Ma4ing,
"((< "($"! 8pp. &(#;&$"=. 2n Chapter II on !The Creative Period in Politics,
"($<;"($$,! Professor Morison delineates the genersis of the 3ederal Constitution,
but does not refer to it even iplicitly as a revolutionary constitution 8pp. &'(;
7"A=. Co)ever, the 3ederal Constitution ay be considered revolutionary fro
the vie)point of Mc2ver if the ter revolution is understood in !its /26ER sense to
ebrace decisive changes in the character of governent, even though they do
not involve the violent overthro) of an established order, ...! 8R.M. Mac2ver, The
/eb of 9overnent, "'A< ed., p. &#7=.
2t is rather ridiculous to refer to the Aerican Constitution as a revolutionary
constitution, The Artycles of Confederation and Perpetual Gnion that )as in force
fro 0uly "&, "((A to "($$, forged as it )as during the )ar of independence )as
revolutionary constitution of the thirteen 8"7= states. 2n the e1isting 3ederal
Constitution of the Gnited %tates )hich )as adopted seven 8(= or nine 8'= years
after the thirteen 8"7= states )on their independence and long after popular
support for the governent of the Confederation had stabili,ed )as not a product
of a revolution. The 3ederal Constitution )as a !creation of the brain and purpose
of an! in an era of peace. 2t can only be considered revolutionary in the sense
that it is a radical departure fro its predecessor, the Articles of Confederation
and Perpetual Gnion.
2t is e*ually absurd to affir that the present 3ederal Constitution of the Gnited
%tates is not the successor to the Articles of Confederation and Perpetual Gnion.
The fallacy of the stateent is so obvious that no further refutation is needed.
8GA "C,' 3A5734G= .
Moreover, )hether a proposal subitted to the people is +ust an aendent to
an e1isting constitution )ithin the conteplation of its aendent clause or is a
ne) charter not coprehended by its language ay not be deterined solely by
the siple processes of analysis of and coparison bet)een the contents of one
and the other. Dery uch depends on )hat the constituent assebly, reflecting its
understanding of the desire of the people it represents, actually intends its
handi)or4 to be, as such intent ay be deduced fro the face of the docuent
itself. 3or the truth is that )hatever changes in for and in substance a
constitution ay undergo, as long as the sae political, social and econoic
ideologies as before continue to be the otivation behind such changes, the
result can never be, in a strict sense, a ne) constitution at all. 2ndeed, in such
circustance, any alteration or odification of any provision of a constitution, no
atter ho) e1tensive, can al)ays he traced as founded on its o)n bedroc4,
thereby proving identity. 2t is therefore the e1pressed desire of the a4ers of the
charter that is decisive. And that is )hy the Ne) Constitution has its o)n
effectivity clause )hich a4es no reference ho)soever to Article ID of the past
charter.
11
No), ho) the founding fathers of Aerica ust have regarded the difference
bet)een a constitutional aendent, on the one hand, and a ne) constitution,
on the other, )hen they found the Articles of Confederation and Perpetual Gnion
no longer ade*uate for the full developent of their nation, as can be deduced
fro the historical account above, is at least one case in point 5 they e1ercised
their right to ratify their ne) fundaental la) in the ost feasible anner,
)ithout regard to any constitutional constraints. And yet, it is the constitution that
is reputed to have stood all tests and )as, in fact, the odel of any national
constitutions, including our o)n of "'7<, if it cannot be accurately regarded also
as the odel of the present one.
/ith the foregoing considerations in ind, it can be readily seen ho) pointless it
is to contend, as petitioner 6io4no does in his otion to )ithdra), that )hat he
dees as the failure of the 0anuary, "'(7 referendu to confor )ith the
re*uireents of Article ID of the "'7< Constitution detracts fro the
enforceability of the Ne) Constitution, in the light of the President!s assertion
contained in Proclaation ""#& that it has been approved and ratified by the
people, coupled )ith his evident fir and irreversible resolution to consider it to
have been, indeed, duly ratified, and in the face of the indisputable fact that the
)hole governent effectively in control of the entire Philippine territory has been
operating under it )ithout any visible resistance on the part of any significant
sector of the populace. To allude to the filing of the petitions in the Plebiscite and
the Ratification Cases and the occasional appearances in soe public places of
soe underground propaganda )hich, any)ay, has not cut any perceptible
ipression any)here, as indicative or evidence of opposition by the people to the
Ne) Constitution )ould be, to use a coonplace but apt e1pression, to ista4e
the trees for the forest.
2t is thus abundantly clear that the passionate and tenacious raciocination in
petitioner 6io4no!s )ithdra)al otion tending to assail the cogency of our
opinions and their consistency )ith the +udgent in the Ratification Cases, to the
e1tent of using ters that could signify doubt in the good faith and intellectual
integrity of soe ebers of the Court and of trying to ebarrass the Court
itself before the bar of history, does not in fact have any plausible basis
)hatsoever.
C - * C L < " + - *
The instant cases are uni*ue. To -ur 4no)ledge never before has any national
tribunal of the highest authority been called upon to pass on the validity of a
artial la) order of the E1ecutive issued in the face of actual or iinent danger
of a rebellion 5 threatening the very e1istence of the nation. The petitions herein
treat of no ore than the deprivation of liberty of the petitioners, but in reality
)hat is involved here is the legitiacy of the governent itself. No %upree
Court of any other country in the )orld, /e reiterate, has ever been confronted
)ith such a transcendental issue.
This is, therefore, a decision that affects not the petitioners alone, but the )hole
country and all our people. 3or this reason, /e have endeavored to the best of
our ability to loo4 at all the issues fro every conceivable point of vie). /e have
gone over all the +urisprudence cited by the parties, the )ritings of learned and
4no)ledgeable authorities they have *uoted and )hatever /e could avail of by
-urselves. /e trust /e have not isunderstood any of the contentions of the
parties and their able and learned counsels and that /e have not overloo4ed any
authority relevant to the. And /e ust say /e perceive no cause to do)ngrade
their love of and loyalty to our coon otherland even if differences there are
bet)een our convictions as to ho) to earlier attain the national destiny. 2ndeed,
/e have not considered as really persuasive any insinuations of otivations born
of political partisanship and personal abitions.
/e do not ean to belittle or depreciate foreign +urisprudence, but /e have
deliberately refrained fro relying on alien opinions, +udicial or other)ise, in order
to stress that the 3ilipinos can solve their o)n probles )ith their o)n resources
intellectual or other)ise. Any)ay, /e doubt if there is enough relevant parallelis
bet)een occurrences in other countries passed upon by the courts )ith )hat is
happening here today.
Principally, by this decision, /e hold that the po)er to proclai artial la) is
lodged by the Constitution e1clusively in the E1ecutive, but the grant of +udicial
po)er to the %upree Court also by the Constitution is plenary and total and,
therefore, )hen it is a atter of +udicial notice, because it is coonly 4no)n by
the general public or is capable of un*uestionable deonstration, that any
particular declaration of artial la) is devoid of any of the constitutionally
re*uired bases, the Court has the full authority and it )ould not hesitate to stri4e
do)n any such iprovident proclaation and to ad+udge that the legitiate
governent continue )ithout the offending E1ecutive, )ho shall be replaced in
accordance )ith the rules of succession provided in the e1isting Constitution and
la)s. 2n the cases at bar, ho)ever, the Court, )ith the abstention of only one
eber )ho has preferred not to eit any opinion on the issue at this tie,
holds that the President had good and sufficient grounds in issuing Proclaation
"#$", )hether the sae is e1ained in the light of its o)n recitals, as soe
0ustices advocate, or of facts of +udicial notice together )ith those undisputed in
the record, in the anner the rest of Gs have actually tested it. /e further hold
that in restraining the liberties of petitioners, the President has not overstepped
the boundaries fi1ed by the Constitution.
3or doctrinal purposes, it is best to add to all the foregoing that a +udicial
challenge against the iposition of artial la) by the E1ecutive in the idst of
the actualities of a real assault against the territorial integrity and life of the
nation, inevitably calls for the reconciliation, )hich /e feel /e have been able to
effectuate here, of t)o e1trees in the allocation of po)ers under the
Constitution 5 the resort by the E1ecutive to the ultiate )eapon )ith )hich the
fundaental la) allo)s hi to defend the state against factual invasion or
rebellion threatening the public safety, on the one hand, and the assertion by the
%upree Court of the irreducible plenitude of its +udicial authority, on the other.
No other conflict of prerogatives of such total diensions can conceivably arise
fro the operation of any other t)o parts of the charter. This decision then could
)ell be sui generis, hence, )hatever has been said here )ould not necessarily
govern *uestions related to adverse clais of authority related to the lo)er levels
of the hierarchy of po)ers in the Constitution.
/e hubly subit this decision to the +udgent of all our people, to history and
to the generations of 3ilipinos still unborn, confident that it carries all that /e
4no) and all that /e are. As /e do this, /e are fully a)are that in this critical
stage of our life as a nation, our overriding need is unity. 2t is -ur fervent hope
that by this decision, /e have duly perfored -ur constitutionally assigned part
in the great effort to reduce if not to eliinate the reaining fundaental causes
of internecine strife.
May 6ivine Providence continue to al)ays 4eep the Philippines in the right paths
of deocracy, freedo and +ustice for allS
J < / G M * T
/CERE3-RE, the petitions in all the above;entitled cases are disissed. No costs.
' / / * / < M
The follo)ing are y reasons for voting in favor of granting the otion to
)ithdra)?
2t is eleentary that the reedy of habeas corpus e1ists only against involuntary
confineent. The oent, therefore, that after initially *uestioning the legality of
his detention, the petitioner see4s )ithdra)al of his petition at any stage of the
case before +udgent, his detention becoes in la) autoatically, by his o)n
act, voluntary or )ith his e1press consent, hence, the reason for further in*uiry
into the circustances thereof ceases copletely, and the court!s duty to proceed
further and render +udgent coes to an end. By allo)ing the )ithdra)al, no
interest of +ustice )ould be pre+udiced, no +uridical har needing redress could be
caused to anyone. Accordingly, the petitioner!s otive for his )ithdra)al, )hether
e1pressed or unarticulated, are absolutely iaterial, albeit, in the case at bar,
petitioner hiself suggests that, )hile acceding to his re*uest, the ebers of
the Court ay e1press their vie)s thereon. 8%ur;Re+oinder dated May &", "'(@,
p. 7=.
2n the ind of the )riter, the grounds alleged by petitioner 6io4no and his
counsel have an apparent tendency to offend the dignity of the Court and to
underine the respect and faith of the people in its capacity to adinister +ustice.
/hat is )orse, they ay be false and baseless, as they are eotional and
personal. Gnless properly e1plained, they give the ipression that ovant is
ipeaching the integrity and good faith of soe ebers of the Court. 2n the
preises, said petitioner and counsel could be re*uired to sho) cause )hy they
should not be held in contept of the Court, but there being no foral charge to
such effect in the instant proceedings, and in order not to confuse the discussion
and resolution of the transcendental issues herein, it is preferable, and the Court
has opted, to ta4e up the atter of the possible responsibility for contept
separately, either otu propio or upon the initiative of )hoever ay allege to be
aggrieved thereby. 3or the present, it has to be stated, ho)ever, that under no
circustances ay any party or counsel vent his personal feelings and eotions
in any pleading or paper Bled )ith the Court, particularly )hile his case is pending
therein. Personalities that are directed to)ards the occupants of the +udicial office
naturally ar the legal issues before the, correspondingly a4ing ore difficult
their proper and ipartial resolution. Even if the +udges concerned are actually, as
they are supposed to be, unoved by the, still there can be no assurance that
the litigants and the public in general )ill be convinced of their absolute
ipartiality in their subse*uent actuations, and to that e1tent, the interests of
+ustice are bound to suffer. 2t is but in 4eeping )ith the highest traditions of the
+udiciary that such iproprieties are not allo)ed to pass unnoticed and are dealt
)ith by the court either moto propio or upon corresponding coplaint, )hether in
an independent proceeding or as an incident )ithin the pending case. No court
)orthy of its position should tolerate the.
But assaults upon the dignity and integrity of the court, are one thing, and the
issues of the case at hand are another. Regardless of )hat the +udge thin4s is the
belief of those concerned about the otivations of the court!s subse*uent
resolution of the issues, unless he inhibits hiself fro further acting in the case,
circustances peritting, it is his inescapable duty to render +udgent, ta4ing
care, of course, that he reains, in fact, ob+ective and ipartial. 2t is, therefore,
of no oent, for the purposes of disposing of petitioner 6io4no!s otion to
)ithdra), )hether or not the charges leveled by hi and his counsel against the
Court or any of its ebers are founded or unfounded and )hether or not the
sae constitute actionable isconduct on their part, as participants in the case
before Gs andNor as ebers of the Bar and officers of the Court. Any possible
action for such probable isconduct has no bearing on the *uestion of )hether or
not, observing the usual rules and practices, the Court should disiss his ain
petition, the alleged illegality of his detention having been duly cured by his
voluntary subission thereto.
All these is not to say that 2 have not given thought to the iperative necessity of
resolving the issues of public interest raised in petitioner 6io4no!s petition. 2 can
also see that it is iportant to the 9overnent that he does not escape the legal
effects of the decision in these cases. But if these are the ain reasons for
denying his otion to )ithdra), 2 believe that the 9overnent!s apprehensions
are rather unfounded. /hile 2 )ould not say that by his )ithdra)al, petitioner
ipliedly adits the correctness of the stand of the 9overnent, )hat )ith the
avalanche of protests against alleged in+ustice and supposed legal errors running
through his pleadings, 2 a of the considered vie) that in la), he cannot
correctly pretend that the rulings of the Court in the other cases herein in respect
to the issues therein that are coon )ith those of his petition are not binding
on hi at least by precedential force. And inasuch as in the cases not
)ithdra)n, all the issues of public interest raised in his case )ill have to be
resolved, 2 do not see any purpose in insisting that he should reain a petitioner
)hen he refuses, as a atter of conscience, to a)ait the unfavorable verdict he
foresees in his o)n case, )hich he hiself anticipates )ill not set hi free
any)ay. -f course, he protests that nothing he can say can convince the Court,
and, on the other hand, perhaps, the ost technically accurate and palpably +ust
decision the court ay fashion )ill not convince hi, but it has to be a strange
court that )ill yield to a litigant!s point of vie) +ust because he sincerely feels he
is right, )hereas it is not unusual for a litigant to pretend not to see the
correctness and +ustice of the court!s +udgent unfavorable to his interests.

!NTONIO, J.:
These applications for )rits of habeas corpus present for revie) Proclaation No.
"#$" of the President of the Philippines, placing the country under artial la) on
%epteber &", "'(&, and the legality of the arrest and detention of prisoners
under the aforesaid proclaation. The issues posed have confronted every
deocratic governent in every clie and in every age. They have al)ays
recurred in ties of crisis )hen the nation!s safety and continued e1istence are in
peril. 2nvolved is the proble of haroni,ing t)o basic interests that lie at the
foundation of every deocratic constitutional syste. The first is contained in
Rosseau!s forulation, !the people!s first intention is that the %tate shall not
perish,B in other )ords, the right of the %tate to its e1istence. The second are the
civil liberties guaranteed by the Constitution, )hich Biply the e1istence of an
organi,ed syste aintaining public order )ithout )hich liberty itself )ould be
lost in the e1cesses of unrestrained abuses. ...B 8Co1 vs. Ne) Capshire, 7"&
G.%. <A' H"'@#J=.
The petitions for habeas corpus initially raise the legality of the arrest and
detention of petitioners. As the respondents, ho)ever, plead, in defense, the
declaration of artial la) and the conse*uent suspension of the privilege of
habeas corpus, the validity of Proclaation No. "#$" is the ultiate constitutional
issue.
Cearings )ere held on %epteber &A and &' and -ctober A, "'(&.
1
Mean)hile, soe of the petitioners )ere allo)ed to )ithdra) their petitions.
1

Most of the petitioners )ere subse*uently released fro custody under certain
conditions and soe of the insist that their cases have not becoe oot as
their freedo of oveent is restricted.
3
As of this date, only petitioner Benigno
A*uino, 0r. 8:;7<<@A= reains in ilitary custody.
-n August "", "'(7, petitioner Benigno A*uino, 0r. )as charged before the
ilitary coission )ith the cries of subversion under the Anti;%ubversion Act
8Republic Act No. "(##=, urder and illegal possession of firears. -n August &7,
"'(7, he filed an action for certiorari and prohibition 8:;7<<@A= )ith this Court,
assailing the validity of his trial before the ilitary coission, because the
creation of ilitary tribunals for the trial of offenses coitted by civilians is
unconstitutional in the absence of a state of )ar or status of belligerency. being
artial la) easures, they have ceased )ith the cessation of the eergency.
and he could not e1pect a fair trial because the President of the Philippines had
pre+udged his case. That action is pending consideration and decision.
-n 6eceber &$, "'(7, petitioner 6io4no oved to )ithdra) his petition 8:;
7<<7'=, claiing that there )as delay in the disposition of his case, and that as a
conse*uence of the decision of this Court in Javellana v. !ecutive "ecretary
8:7A"@&, March 7", "'(7= and of the action of the ebers of this Court in
ta4ing an oath to support the Ne) Constitution, he has reason to believe that he
cannot Breasonably e1pect to get +ustice in this case.B Respondents oppose this
otion on the ground that public interest or *uestions of public iportance are
involved and the reasons given are factually untrue and conteptuous. -n
%epteber "", "'(@, petitioner 6io4no )as released fro ilitary custody. 2n
vie) of his release, it )as the consensus of the a+ority of the Court to consider
his case as oot. /e shall no) proceed to discuss the issues posed by the
reaining cases.
". 2s the deterination by the President of the Philippines of the necessity for the
e1ercise of his po)er to declare artial la) political, hence, final and conclusive
upon the courts, or is it +usticiable and, therefore, his deterination is sub+ect to
revie) by the courtsE
&. Assuing :ansang to be applicable, can it be said that the President acted
arbitrarily in issuing Proclaation No. "#$"E
7. Assuing that the issues are +usticiable, can the %upree Court upon the facts
of record and those +udicially 4no)n to 2t no) declare that the necessity for
artial la) has already ceasedE
@. Gnder a regie of artial la), can the Court in*uire into the legal +ustification
for the arrest and detention as )ell as the other constraints upon the individual
liberties of the petitionersE 2n the affirative, does 2t have any ade*uate legal
basis to declare that their detention is no longer authori,ed by the Constitution.
2
C-*"T+T<T+-* +*T*// "T,-*G HC<T+2
The right of a governent to aintain its e1istence is the ost pervasive aspect
of sovereignty. To protect the nation!s continued e1istence, fro e1ternal as )ell
as internal threats, the governent Bis invested )ith all those inherent and
iplied po)ers )hich, at the tie of adopting the Constitution, )ere generally
considered to belong to every governent as such, and as being essential to the
e1ercise of its functionsB 8Mr. 0ustice Bradley, concurring in :egal Tender Cases
HG%J "& /all. @<(, <<@, <<A, &# :. ed. &$(, 7"@, 7"<=. To attain this end, nearly
all other considerations are to be subordinated. The constitutional po)er to act
upon this basic principle has been recogni,ed by all courts in every nation at
different periods and diverse circustances.
These po)ers )hich are to be e1ercised for the nation!s protection and security
have been lodged by the Constitution under Article D22, %ection "# 8&= thereof, on
the President of the Philippines, )ho is clothed )ith e1clusive authority to
deterine the occasion on )hich the po)ers shall be called forth.
The constitutional provision e1pressly vesting in the President the po)er to place
Bthe Philippines or any part thereof under artial la) in case of invasion,
insurrection or rebellion or iinent danger thereof )hen the public safety
re*uires it,B
4
is ta4en bodily fro the 0ones :a) )ith the difference that the
President of the Gnited %tates had the po)er to odify or vacate the action ta4en
by the 9overnor;9eneral.
5
Although the Civil 9overnor, under %ection < of the
Philippine Bill of "'#&, could, )ith the approval of the Philippine Coission,
suspend the privilege of the )rit of habeas corpus no po)er to proclai artial
la) )as specifically granted. This po)er is not entioned in the 3ederal
Constitution of the Gnited %tates. 2t siply designates the President as
coander;in;chief?
The President shall be Coander;in;Chief of the Ary and Navy of the Gnited
%tates and of the ilitia of the several states )hen called into actual service of
the Gnited %tates ...
6
2ts absence in the 3ederal Constitution not)ithstanding, President Abraha
:incoln during the Civil /ar placed soe parts of the country under artial la).
Ce predicated the e1ercise of this po)er on his authority as Coander;in;Chief
of the Ared 3orces and on the ground of e1tree necessity for the preservation
of the Gnion. /hen not e1pressly provided in the Constitution, its +ustification,
therefore, )ould be necessity. Thus soe authoritative )riters vie) it as Bnot a
part of the Constitution but is rather a po)er to preserve the Constitution )hen
constitutional ethods prove inade*uate to that end. 2t is the la) of necessity.B
7

%ince the eaning of the ter Bartial la)B is obscure, as is the po)er
e1ercisable by the Chief E1ecutive under artial la), resort ust be had to
precedents. Thus the po)ers of the Chief E1ecutive under the Coander;in;
Chief clause of the 3ederal Constitution have been dra)n not only fro general
and specific provisions of the Constitution but fro historical precedents of
Presidential action in ties of crises. :incoln invo4ed his authority under the
Coander;in;Chief clause of the 3ederal Constitution for the series of
e1traordinary easures )hich he too4 during the Civil /ar, such as the calling of
volunteers for ilitary service, the augentation of the Ary and Navy, the
payent of T& illion fro the un appropriated funds in the Treasury to persons
unauthori,ed to receive it, the closing of the Post -ffice to Btreasonable
correspondence,B the bloc4ade of %outhern ports, the suspension of the )rit of
habeas corpus, the arrests and detentions of persons B)ho )ere represented to
hi as being engaged in or conteplating Btreasonable practicesB 5 all this for
the ost part )as done )ithout the least statutory authori,ation fro Congress.
The actions of :incoln Bassert for the President,B according to Cor)in, Ban
initiative of indefinite scope and legislative in effect in eeting the doestic
aspects of a )ar eergency.B
*
The creation of public offices is conferred by the
3ederal Constitution to Congress. 6uring /orld /ar ", ho)ever, President /ilson,
on the basis of his po)er under the BCoander;in;ChiefB clause of the 3ederal
Constitution, created Bpublic offices,B )hich )ere copied in lavish scale by
President Roosevelt in /orld /ar 22. BThe principal canons of constitutional
interpretation are in )artie set aside,B according to Cor)in, Bso far as concerns
both the scope of national po)er and the capacity of the President to gather unto
hiself all the constitutionally available po)ers in order the ore effectively to
focus the upon the tas4 of the hour.B
9
The presidential po)er, Bbuilding on
accuulated precedents has ta4en on at ties, under the stiulation of
eergency conditions,B according to t)o einent coentators, the Bdiensions
of e1ecutive prerogative as described by 0ohn :oc4e, of a po)er to )it, to fill
needed gaps in the la), or even to supersede it so far as ay be re*uisite to
reali,e the fundaental la) of nature and governent, naely, that as uch as
ay be all the ebers of society are to be preserved.B
1/
There is no *uestion that the fraers of the "'7< Constitution )ere a)are of
these precedents and of the scope of the po)er that had been e1ercised by the
Presidents of the Gnited %tates in ties of grave crisis. The fraers of the
Constitution B)ere not only idealists but also practical;inded en.B B/hile they
ab+ured )ars of aggression they )ell 4ne) that for the country to survive
provisions for its defense had to be ade.B "" .
22
THT<'LL@ /M-*"T,'BL C-*"T+T<T+-*'L C-MM+TM*T -$ +""< T- T1
&,"+/*T
2nstead of a4ing the President of the Philippines siply the coander;in;chief
of all the ared forces, )ith authority )henever it becoes necessary to call out
or rebellion, the fraers of the "'7< Constitution e1pressly conferred upon hi
the e1clusive po)er and authority to suspend the privileges of the )rit of habeas
corpus or place the Philippines, or any part thereof, under artial la).
corpus or place the Philippines or any part thereof under artial la).
1
The condition )hich )ould )arrant the e1ercise of the po)er )as not confined to
actual invasion, insurrection or rebellion, but also to imminent danger thereo),
)hen the public safety re*uires it. 2t is evident, therefore, that )hile Aerican
Presidents derived these e1traordinary po)ers by iplication fro the %tate!s
right to self;preservation, the President of the Philippines )as e1pressly granted
by the Constitution )ith all the po)ers necessary to protect the nation in ties of
grave peril.
The safety and )ell;being of the nation re*uired that the President should not be
hapered by lac4 of authority but )as to be a Bstrong e1ecutive )ho could
aintain the unity of the nation )ith sufficient po)ers and prerogatives to save
the country during great crises and dangers.B
13
As 6elegate 0ose P. :aurel coprehensively e1plained?
governent, but abnorally, in e1tree cases, he is suddenly ushered is as a
Minerva, full;gro)n and in full panoply of )ar, to occupy the vantage ground as
the ready protector and de)ender o) the li)e and honor o) his nation. 8Ephasis
%upplied.=
14
The concentration of an aplitude of po)er in the hands of the Coander;in;
Chief of the Ared 3orces of the Philippines, )ho is at the sae tie the elected
civilian Chief of %tate, is predicated upon the fact that it is he )ho ust initially
shoulder the burden and deal )ith the eergency. By the nature of his position
he possesses and )ields the e1traordinary po)ers of self;preservation of the
deocratic, constitutional state. 2n ties of crisis there is indeed unification of
responsibility and centrali,ation of authority in the Chief E1ecutive. BThe
concentration of governental po)er in a deocracy faced by an eergency,B
)rote Rossiter, Bis a corrective to the crisis inefficiencies inherent in the doctrine
of the separation of po)ers. ... 2n noral ties the separation of po)ers fors a
distinct obstruction to arbitrary governental action. By this sae to4en in
abnoral ties it ay for an insurountable barrier to decisive eergency
action in behalf of the %tate and its independent e1istence. There are oents in
the life of any governent )hen all the po)ers ust )or4 together in unaniity
of purpose and action, even if this eans the teporary union of e1ecutive,
legislative and +udicial po)ers in the hands of one an. The ore coplete the
separation of po)ers in a constitutional syste, the ore difficult and yet the
ore necessary )ill be their fusion in tie of crisis.B 8Rossiter, Constitutional
6ictatorship, &$$;&$'.=
2t )as intended, ho)ever, that the e1ercise of these e1traordinary po)ers is for
the preservation of the %tate, its deocratic institutions, and the peranent
freedo of its citi,ens.
222
,"&-*"+B+L+T@ +M&L+" B,-'/ '<T1-,+T@ '*/ /+"C,T+-*
The conditions of )ar, of insurrection or rebellion, or of any other national
eergency are as varied as the eans re*uired for eeting the and it is,
therefore, )ithin the conteplation of the Constitution that t he Chief E1ecutive,
to preserve the safety of the nation on those ties of national peril, should have
the broadest authority copatible )ith the eergency in selecting the eans and
adopting the easures )hich in his honest +udgent are necessary for the
preservation of the nation!s safety. BThe circustances that endanger the safety
of nations are infinite,B )rote Ale1ander Cailton, Band for this reason no
constitutional shac4les can )isely be iposed on the po)er to )hich the care of it
is coitted ... This is one of those truths )hich to a correct and unpre+udiced
ind carries its o)n evidence along )ith it, and ay be obscured, but cannot be
ade plainer by arguent or reasoning ... The eans ought to be in proportion
to the end. the persons fro )hose agency the attainent of any end is
e1pected ought to possess the eans byJ )hich it is to be attained.B
15
Mr.
Madison e1pressed the sae idea in the follo)ing ters? B2t is vain to ipose
constitutional barriers to the ipulse of self;preservation. 2t is )orse than in vain,
because it plants in the Constitution itself necessary usurpations of po)er.B
16
BGn*uestionably,B )rote Chief 0ustice Taney in Luther v. Borden 8( Co). @@,
H"$@'", "& :.ed. A##=, Ba %tate ay use its ilitary po)er to put do)n an ared
insurrection, too strong to be controlled by the civil authority. The po)er is
essential to the e1istence of every governent, essential to the preservation of
order and free institutions, and is as necessary to the %tates of this Gnion as to
any other governent. The %tate itself ust deterine )hat degree of force the
crisis deands. And if the 9overnent of Rhode 2sland deeed the ared
opposition so foridable, and so raified throughout the %tate, as to re*uire the
use of its ilitary force and the declaration of artial la), )e see no ground upon
)hich this Court can *uestion its authority.B
2n the Pri,e cases 8"( :. ed. @(A, H"$A7J=, the Court ascribed to the President of
the Gnited %tates, by virtue of his po)ers as Chief E1ecutive and as Coander;
in;Chief, the po)er )hich in Luther v. Borden is attributed to the governent as a
)hole, to treat of insurrection as a state of )ar, and the scene of the insurrection
as a seat or theater of )ar. As 0ustice 9rier in the Pri,e cases significantly stated?
B/hether the President in fulfilling his duties as Coander;in;Chief, in
suppressing an insurrection, has et )ith such hostile resistance, and a civil war
o) such alarming proportions as will compel him to accord to them the character
o) belligerents# is a (uestion to be decided by him# and this court must be
governed by the decisions and acts o) the &olitical /epartment of the governent
to )hich this po)er )as entrusted. !Ce ust deterine )hat degree of force the
crisis deands. 8Ephasis supplied.=
2n 1irabayashi v. <nited "tates, )here the Court upheld the curfe) regulations
affecting persons of 0apanese ancestry as valid ilitary easures to prevent
espionage and sabotage, there )as again re;affirance of the vie) that the
Constitution has granted to the President and to Congress in the e1ercise of the
)ar po)ers a B)ide scope for the e1ercise of +udgent and discretion in
deterining the nature and e1tent of the threatened danger and in the selection
of the eans for resisting it.B
%ince the Constitution coits to the E1ecutive and to Congress the e1ercise of
the )ar po)er in all the vicissitudes and conditions of )arfare, it has necessarily
given the )ide scope for the e1ercise of +udgent and discretion in deterining
the nature and e1tent of the threatened in+ury or danger and in the selection of
the eans for resisting it. E1 parte Luirin, supra 87"( G% &$, &', ante, "&, "7, A7
% Ct &=. Pri,e Cases, supra 8& Blac4 HG%J A(#, "( : ed @((=. Martin v. Mott, "&
/heat. HG%J "', &', A : ed <7(, <@#=. /here, as they did here, the conditions
call for the e1ercise of +udgent and discretion and for the choice of eans by
those branches of the 9overnent on )hich the Constitution has place the
responsibility of )ar;a4ing, it is not for any court to sit in revie) of the )isdo
of their action or substitute its +udgent for theirs.
The actions ta4en ust be appraised in the light of the conditions )ith )hich the
President and Congress )ere confronted in the early onths of "'@&, any of
)hich, since disclosed, )ere then peculiarly )ithin the 4no)ledge of the ilitary
authorities.
17
The easures to be ta4en in carrying on )ar and to suppress insurrection,B
according to 0ustice %)ayne, in "tewart v. .ahn,
1*
Bare not defined. The decision
of all *uestions rests )holly in the discretion of those to )ho the substantial
po)ers involved are confided by the Constitution. 2n the latter case, the po)er is
not liited to victories in the field and the dispersion of the insurgent forces. 2t
carries )ith it inherently the po)er to guard against the iediate rene)al of the
conflict, and to reedy the evils )hich have arisen fro its rise and progress.
The thrust of those authorities is that the President as coander;in;chief and
chief e1ecutive on )ho is coitted the responsibility is epo)ered, indeed
obliged, to preserve the state against doestic violence and alien attac4. 2n the
discharge of that duty, he necessarily is accorded a very broad authority and
discretion in ascertaining the nature and e1tent of the danger that confronts the
nation and in selecting the eans or easures necessary for the preservation of
the safety of the Republic.
The ters BinsurrectionB and BrebellionB are in a large easure incapable of
precise or e1act legal definitions and are ore or less elastic in their eanings.
As to )hen an act or instance of revolting against civil or political authority ay
be classified as an BinsurrectionB or as a BrebellionB is a *uestion better addressed
to the President, )ho under the Constitution is the authority vested )ith the
po)er of ascertaining the e1istence of such e1igencies and charged )ith the
responsibility of suppressing the. To suppress such danger to the state, he is
necessarily vested )ith a broad authority and discretion, to be e1ercised under
the e1igencies of each particular occasion as the sae ay present itself to his
+udgent and deterination. Cis actions in the face of such eergency ust be
vie)ed in the conte1t of the situation as it then confronted hi. 2t is not for any
court to sit in revie) of the )isdo of his action as coander;in;chief or to
substitute its +udgent for his.
2D
*/ $-, <*8<"T+-*+*G '/1,*C T- &-L+T+C'L /C+"+-*
2t is, ho)ever, insisted that even )ith the broad discretion granted to the
President by the Constitution in ascertaining )hether or not conditions e1ist for
the declaration of artial la), his findings in support of such declaration should
nevertheless be sub+ect to +udicial revie).
2t is iportant to bear in ind that /e are here dealing )ith a plenary and
e1clusive po)er conferred upon the Chief E1ecutive by the Constitution. The
po)er itself is to be e1ercised upon sudden eergencies, and under
circustances )hich ay be vital to the e1istence of the governent. A propt
and unhesitating obedience to orders issued in connection there)ith is
indispensable as every delay and obstacle to its iediate ipleentation ay
+eopardi,e the public interests.
By reason of his uni*ue position as Chief E1ecutive and as Coander;in;Chief of
the Ared 3orces of the Philippines, it is he, ore than any other high official of
the governent, )ho has the authority and the eans of obtaining through the
various facilities in the civil and ilitary agencies of the governent under his
coand, inforation proptly and effectively, fro every *uarter and corner of
the state about the actual peace and order condition of the country. 2n connection
)ith his duty and responsibility, he is necessarily accorded the )ise and ob+ective
counsel of trained and e1perienced specialists on the sub+ect. Even if the Court
could obtain all available inforation, it )ould lac4 the facility of deterining
)hether or not the insurrection or rebellion or the iinence thereof poses a
danger to the public safety. Nor could the courts recreate a coplete picture of
the eergency in the face of )hich the President acted, in order to ade*uately
+udge his ilitary action. Absent any +udicially discoverable and anageable
standards for resolving +udicially those *uestions, such a tas4 for a court to
underta4e ay )ell;nigh be ipossible. -n the other hand, the President, )ho is
responsible for the peace and security of the nation, is necessarily copelled by
the Constitution to a4e those deterinations and decisions. The atter is
coitted to hi for deterination by criteria of political and ilitary
e1pediency. There e1ists, therefore, no standard ascertainable by settled +udicial
e1perience by reference to )hich his decision can be revie)ed by the courts.
19

2ndeed, those are ilitary decisions and in their very nature, Bilitary decisions
are not susceptible of intelligent and +udicial appraisal. They do not pretend to
rest on evidence, but are ade on inforation that often )ould not be adissible
and on assuptions that could not be proved. 2nforation in support of an order
could not be disclosed to courts )ithout danger that it )ould reach the eney.
Neither can courts act on counications ade in confidence. Cence, courts can
never have any real alternative to accepting the ere declaration of the authority
that issued the order that it )as reasonably necessary fro a ilitary vie)point.B
1/
Ce is necessarily constituted the +udge of the e1istence of the e1igency in the
first instance and is bound to act according to his belief of the facts.
Both reason and authority, therefore, dictate that the deterination of the
necessity for the e1ercise of the po)er to declare artial la) is )ithin the
e1clusive doain of the President and his deterination is final and conclusive
upon the courts and upon all persons. 8cf. 3airan, Martial Rule and the
%uppression of 2nsurrection, p. ((" .=
11
This construction necessarily results fro
the nature of the po)er itself, and fro the anifest ob+ect conteplated by the
Constitution.
8a= Barcelon v. Baker.
The e1isting doctrine at the tie of the fraing and adoption of the "'7<
Constitution )as that of Barcelon v. Baker 8< Phil. $(=. +t enunciated the principle
that when the Governor7General with the approval o) the &hilippine Commission#
under "ection G o) the 'ct o) Congress o) July 4# 45A3# declares that a state o)
rebellion# insurrection or invasion e!ists# and by reason thereo) the public sa)ety
re(uires the suspension o) the &rivileges o) habeas corpus# this declaration is held
conclusive upon the 0udicial department o) the government. And )hen the Chief
E1ecutive has decided that conditions e1ist +ustifying the suspension of the
privilege of the )rit of habeas corpus, courts will presume that such conditions
continue to e!ist until the same authority has decided that such conditions no
longer e!ist. These doctrines are rooted on pragatic considerations and sound
reasons of public policy. The Bdoctrine that )henever the Constitution or a statute
gives a discretionary po)er to any person, such person is to be considered the
sole and e1clusive +udge of the e1istence of those factsB has been recogni,ed by
all courts and Bhas never been disputed by any respectable authority.B Barcelon
v. Baker, supra.= The political departent, according to Chief 0ustice Taney in
Martin v. Mott 8"& /heat &';7"=, is the sole +udge of the e1istence of )ar or
insurrection, and )hen it declares either of these eergencies to e1ist, its action
is not sub+ect to revie) or liable to be controlled by the +udicial departent of the
%tate. 8Citing $ranklin v. "tate Board o) !aminers, &7 Cal. "(&, "($.=
The danger# and di))iculties which would grow out o) the adoption o) a contrary
rule are clearly and ably pointed out in the Barcelon case# thus?
the +udicial departent of the 9overnent, then every o))icer )hose duty it is to
aintain order and protect the lives and property of the people may re)use to
act# and apply to the 0udicial department o) the Government )or another
investigation and conclusion concerning the sae conditions, to the end that they
ay be protected against civil actions resulting fro illegal acts.
9eneral by telegraph o) this landing o) troops and that the people of the district
are in collusion )ith such invasion. Might not the Governor7General and the
Coission accept this telegram as su))icient and proof of the facts
counicated and at once take steps, even to the e1tent of suspending the
to repel such invasionE 2t sees that all en interested in the aintenance and
may the 0udicial o) the Government call the o) o))icers actually engaged in the
)ield be)ore it and away )rom their posts o) duty )or the purpose o) e!plaining and
)urnishing proo) to it concerning the e1istence or none1istence of the facts
2t is the duty of the legislative branch of the 9overnent to a4e stich la)s and
ta4e stich steps as he dees )ise and necessary for the purpose of enforcing
+eopardi,e public interest and the safety of the )hole people. +) the 0udicial
department o) the Government# or any o))icer in the Government# has a right to
contest the orders o) the &resident or o) the Governor7General under the
conditions above supposed# be)ore complying with such orders# then the hand o)
the &resident or the Governor7General may be tied until the very ob0ect o) the
rebels or insurrectos or invaders has been accomplished. But it is urged that the
their application for the )rit of that the levislative and e1ecutive branches of the
9overnent ight reach a )rong conclusion fro their investigations of the
actual conditions, or ight, through a desire to oppress and harass the people,
declare that a state of rebellion, insurrection, or invasion e1isted and that public
safety re*uired the suspension of the privilege of the )rit of habeas corpus )hen
actually and in fact no such conditions did e1ist. /e can not assue that the
legislative and e1ecutive branches )ill act or ta4e any action based upon such
otives.
Moreover, it cannot be assued that the legislative and e1ecutive branches of the
e1ecutive branch of the 9overnent to constantly infor the legislative ranch of
disorder. The e1ecutive branch of the 9overnent, through B2ts nuerous
branches of the civil and ilitary, raifies every;portion of the Archipelago, and is
for the purpose of investigating general conditions be any ore sure of
ascertaining the true conditions through out the Archipelago or in any particular
district, than the other branches of the 9overnentE /e thin4 not. 8< Phil., pp.
'7;'A.=
8b= The Constitutiondal Convention o) 45CD.
This )as the state of Philippine +urisprudence on the atter, )hen the
Constitutional Convention et on 0uly &#, "'7@. 2t ust be recalled that, under
the Philippine Bill of "'#&, the suspension of the privilege of the )rit of habeas
corpus by the 9overnor;9eneral )as sub+ect to the approval of the Philippine
8%ection <, Act of Congress of 0uly ", "'#&=, )hile, under %ection &" of the 0ones
:a) of "'"A, the suspension of the of privilege of the )rit of habeas corpus as
)ell as the proclaation of artial la) by the 9overnor;9eneral could be
odified or vacated by the President of the Gnited %tate. /hen the first 6raft )as
%ubitted conferring the po)er to suspend the privilege of the )rit of habeas
corpus e1clusively upon the President, 6elegate Araneta proposed an aendent
to the effect that the National Assebly should be the organ epo)ered to
suspend the privileges of the habeas corpus and, )hen not session, the sae
ay be done by the President )ith the consent of the a+ority of the %upree
Court. Gnder the provisions of the 6raft, 6elegate Araneta argued, Bthe Chief
E1ecutive )ould be the only authority to deterine the e1istence of the reasons
for the suspension of the )rit of habeas corpus. and, according to Philippine
+urisprudence, the %upree Court )ould refuse to revie) the findings of the
E1ecutive on the atter. Conse*uently, he added, arrests )ould be effected by
ilitary en )ho )ere generally arbitrary. They )ould be arresting persons
connected )ith the rebellion, insurrection, invasion. soe of the ight also be
arresting other person )ithout any cause )hatsoever. The result )ould be that
any persons ight find theselves detained )hen in fact they had no
connection )hatsoever )ith the disturbances.B
11
Not)ithstanding the brilliant
arguents of 6elegate Araneta, the Convention voted do)n the aendent.
Evident )as the clear intent of the fraers of the Charter of vesting on the
President the e1clusive po)er of suspending the privilege of the )rit of habeas
corpus and the conclusive po)er to deterine )hether the e1igency has arisen
re*uiring the suspension. There )as no opposition in the Convention to the grant
on the President of the e1clusive po)er to place the Philippines or any part
thereof under artial la).
Reali,ing the fragentation of the Philippines into thousands of islands and of the
)ar clouds that )ere then hovering over, Europe and Asia, the aforesaid fraers
of the Charter opted for a strong e1ecutive.
The provision of %ection "#, Paragraph &, of Article D22 of the "'7< Constitution
)as, therefore, adopted in the light of the Court!s interpretation in Barcelon v.
Baker.
8c= Montenegro v. Castaeda.
-n August 7#, "'<&, or "( years after the ratification of the "'7< Constitution,
this Court in Montenegro v. Castaeda 8'" Phil. $$&. $$(=, construing the po)er
of the President of the Philippines under Article D22, %ection "#, Paragraph &, of
the Constitution, re;affired the doctrine in Barcelon v. Baker, thus? B/e agree
)ith the %olicitor 9eneral that in the light of the vie) of the liited %tates
%upree Court through Marshall, Taney and %tory *uoted )ith approval in
Barcelon v. Baker 8< Phil. $(, '';"##=, the authority to decide )hether the
e1igency has arisen re*uiring suspension belongs to the President and Ihis
decision is )inal and conclusiveI upon the courts and upon all other persons.B
-n Montenegro!s contention that there is no state of invasion, insurrection,
rebellion or iinent danger thereof, as the Binterittent sorties and lightning
attac4s by organi,ed bands in different places are occasional, locali,ed and
transitory,B this Court e1plained that to the unpracticed eye the repeated
encounters bet)een dissident eleents and ilitary troops ay see sporadic,
isolated, or casual. But the officers charged )ith the Nation!s security, analy,ed
the e1tent and pattern of such violent clashes and arrived at the conclusion that
they are )arp and )oof of a general schee to overthro) this governent Bvi et
armis, by force of ars.B This Court then reiterated one of the reasons )hy the
finding of the Chief E1ecutive that there is Bactual danger of rebellionB )as
accorded conclusiveness, thus? B2ndeed, as 0ustice 0ohnson said in that decision,
)hereas the E1ecutive branch of the 9overnent is enabled thru its civil and
ilitary branches to obtain inforation about peace and order fro every *uarter
and corner of the nation, the +udicial departent, )ith its very liited achinery
can not be in better position to ascertain or evaluate the conditions prevailing in
the Archipelago.B 8Montenegro v. Castaeda and Balao, '" Phil., $$&, $$A;$$(.=
2t is true that the %upree Court of the <nited "tates in "terling v. Constantin,
13
asserted its authority to revie) the action ta4en by the %tate 9overnor of Te1as
under his proclaation of artial la). Co)ever, the Court chose not to overturn
the principle e1pressed in Moyer v. &eabody that the *uestion of necessity is Bone
strictly reserved for e1ecutive discretion.B 2t held that, )hile the declaration of is
conclusive, the easures eployed are revie)able?
2t does not follo) fro the fact that the e1ecutive has this range of discretion,
deeed to be a necessary incident of his po)er to suppress disorder that every
sort of action the 9overnor ay ta4e, no atter ho) un+ustified by the e1igency
or subversive or private right and the +urisdiction of the courts, other)ise
available, is conclusively supported by ere e1ecutive fiat. The contrary is )ell;
established /hat are the liits of ilitary discretion, and )hether or not they
have been overstepped in a particular case are +udicial *uestions. ...
This ruling in %terling should be vie)ed )ithin the conte1t of its factual
environent. At issue )as the validity of the attept of the 9overnor to enforce
by e1ecutive or ilitary order the restriction on the production of oil )ells )hich
the 6istrict 0udge had restrained pending proper +udicial in*uiry. The %tate
9overnor predicated his po)er under artial la), although it )as conceded that
Bat no tie has there been any actual uprising in the territory. at no tie has any
ilitary force been e1erted to put riots and obs do)n.B The Court disapproved
the order of the 9overnor as it had no relation to the suppression of disorder but
on the contrary it underined the restraining order of the 6istrict 0udge. The
Court declared that the 9overnor could not by pass the processes of constitutional
governent by siply declaring artial la) )hen no bona )ide eergency
e1isted. /hile this case sho)s that the +udiciary can interfere )hen no
circumstances e1isted )hich could reasonably be interpreted as constituting an
eergency, it did not necessarily resolve the *uestion )hether the Court could
interfere in the face of an actual emergency.
8d= Lansang v. Garcia.
-ur attention, is ho)ever, invited to Lansang v. Garcia 89.R. No. :;77'A@ etc.,
6eceber "", "'(", @& %CRA @@$= )here this Court declared, in connection )ith
the suspension of the of the )rit of habeas corpus by the President of the
Philippines on August &", "'(", that it has the authority to in*uire into the
e1istence of the factual basis of the proclaation in order to deterine the
constitutional sufficiency thereof. But this assertion of authority is *ualified by the
Court!s une*uivocal stateent that Bthe function of the Court is erely to chec4
5 not to supplant 5 the E1ecutive, or to ascertain merely whether he has gone
beyond they constitutional limits of his +urisdiction, not to e!ercise the power
vested in him or to deterine the )isdo of his act.B And that +udicial in*uiry into
the basis of the *uestioned than to satisfy the Court to not the President!s
decision is correct and that public safety )as endangered by the rebellion and
+ustified the suspension of the )rit, but that in suspending the )rit, the President
did not act arbitrarily.B
2n the ascertainent of the factual basis of the suspension, ho)ever, the Court
had to rely iplicitly on the findings of the Chief E1ecutive. 2t did not conduct any
independent factual in*uiry for, as this Court e1plained in Barcelon and
Montenegro, B... )hereas the E1ecutive branch of the 9overnent is enabled thru
its civil and ilitary branches to obtain inforation about peace and order fro
every *uarter and corner of the nation, the +udicial departent, )ith its very
liited achinery cannot be in a better position to ascertain or evaluate the
conditions prevailing in the Archipelago.B 2ndeed, such reliance on the E1ecutive!s
findings )ould be the ore copelling )hen the danger posed to the public
safety is one arising fro Counist rebellion and subversion.
/e can ta4e +udicial notice of the fact that the Counists have refined their
techni*ues of revolution, but the ultiate ob+ect is the sae 5 Bto underine
through civil disturbances and political crises the )ill of the ruling class to govern,
and, at a critical point, to ta4e over %tate po)er through )ell;planned and ably
directed insurrection.B
14
2nstead of insurrection, there )as to be the protracted
)ar. The plan )as to retreat and attac4 only at an opportune tie. BThe a+or
ob+ective is the annihilation of the eney!s fighting strength and in the holding or
ta4ing of cities and places. The holding or ta4ing of cities and places is the result
of the annihilation of the eney!s fighting strength.B
15
The Dietna /ar
contributed its o)n brand of terroris conceived by Co Chi Minh and Do Nguyen
9iap 5 the silent and siple assassination of village officials for the destruction of
the governent!s adinistrative net)or4. Modern rebellion no) is a )ar of
sabotage and harassent, of an aggression ore often concealed than open of
guerrillas stri4ing at night, of assassins and terrorists, and of professional
revolutionaries resorting to all sorts of stratages, crafts, ethods and
subterfuge, to underine and subvert the security of the %tate to facilitate its
violent overthro).
16
2n the ultiate analysis, even assuing that the atter is +usticiable )ill /e
apply the standards set in Lansang, by ascertaining )hether or not the President
acted arbitrarily in issuing Proclaation No. "#$", the result )ould be the sae.
3or the e1istence of an actual rebellion and insurrection in this country by a
si,able group of en )ho have publicly risen in ars to overthro) the
governent )as confired by this Court in :ansang.
Philippines, especially in Manila fro the late t)enties to the early thirties, then
oveent seeed to have )aned notably. but, the outbrea4 of /orld /ar 22 in
the Pacific and the iseries, the devastation and havoc and the proliferation of
several ties )ith the ared forces of the Republic. This propted then President
Luirino to issue Proclaation No. &"#, dated -ctober &&, "'<#, suspending the
privilege of the )rit of habeas, validity of )hich )as upheld in Montenegro v.
Castaeda. 6ays before the proulgation of said Proclaation, or on -ctober "$,
"'<#, ebers of the Counist Politburo in the Philippines )ere apprehended
in Manila. %ubse*uently accused and convicted of the crie of rebellion, they
served their respective sentences.
4no)n as the Anti;%ubversion Act, )as approved, upon the ground stated in the
regie sub+ect to alien doination and control.
Philippines constitutes a clear# present and grave danger to the security of the
Philippines. and
Philippines and its activities, there is urgent need for legislation to cope )ith this
continuing enace to the freedo and security of the country ....
filed in these by the petitioners herein 5
the Philippines= aong the )or4ers. the Malayang %aahan ng Mga Magsasa4a
8MA%AMA=, aong the pasantry. the Mabataang Ma4abayan 8MM= aong the
aong the intellectualsNprofessionals. The PMP has e1erted all;out effort to
of nationalis.
a People!s 6eocratic Revolution! states, inter alia9
The Communist &arty o) the &hilippines is determined to implement its general
programe for a people!s deocratic revolution. All 3ilipino counists are ready
to sacrifice their lives for the )orthy cause of achieving the ne) type of
independent, deocratic, united, +ust and prosperous.....
111 111 111
Communist &arty o) the &hilippines assumes this task at a tie that both the
international and national situations are favorable to ta4ing the road of revolution.
other violent incidents nubering over &7# in )hich it inflicted @#@ casualties,
violence are indipensable to the attainent of their ain and ultiate ob+ective,
and act in accordance )ith such belief, although they ay disagree on the eans
to be used at a given tie and in a particular place. and 8b= there is a Ne)
Peoples Ary, other, of course, than the ared forces of the Republic and
antagonistic thereto. %uch Ne) People!s Ary is per se proof of the e1istence of a
rebellion, especially considering that its establishent )as announced publicly by
the reorgani,ed CPP. %uch announceent is in the nature of a public challenge to
the duly constituted authorities and ay be li4ened to a declaration of )ar,
sufficient to establish a )ar status or a condition of belligerency, even before the
actual coenceent of hostilities.
=e entertain# there)ore# no doubts about the e!istence o) a si%able group o) men
who have publicly risen in arms to overthrow the government and have thus been
and still are engaged in rebellion against the Government o) the &hilippines.
!!! !!! !!!
The records before Gs sho) that, on or before August &", "'(", the E1ecutive
had inforation and reports 5 subse*uently confired, in any respects by the
aboveentioned Report of the %enate Ad;Coc Coittee of %even 5 to the
effect that the Counist Party of the Philippines does not erely adhere to
:enin!s idea of a s)ift ared uprising. that it has, also, adopted Co Chi Minh!s
terrorist tactics and resorted to the assassination of uncooperative local
officials. ...
Petitioner siilarly fail to ta4e into account that 5 as per said inforation and
reports 5 the reorgani,ed Counist Party of the Philippines has, oreover,
adopted Mao!s concept of protracted people!s )ar, aied at the paraly,ation of
the )ill to resist of the governent, of the political, econoic and intellectual
leadership, and of the people theselves. that conforably to such concept, the
Party has placed special ephasis upon a ost e1tensive and intensive progra
of subversion by the establishent of front organi,ations in urban centers, the
organi,ation or ared city partisans and, the infiltration in student groups, labor
unions, and farer and professional groups. that the CPP anaged to infiltrate or
establish and control nine 8'= a+or labor organi,ations. that it has e1ploited the
youth oveent and succeeded in a4ing Counist fronts of eleven 8""=
a+or student or youth organi,ations. that there are, accordingly, about thirty
87#= ass organi,ations actively advancing the CPP interest, .... that in "'(#, the
Party had recorded t)o hundred fifty;eight 8&<$= a+or deonstrations, of )hich
about thirty;three 877= ended in violence, resulting in fifteen 8"<= 4illed and over
five hundred 8<##= in+ured. that ost of these actions )ere organi,ed,
coordinated or led by the aforeentioned front organi,ations. that the violent
deonstrations )ere generally instigated by a sall, but )ell;trained group of
ared agitators. that the nuber of deonstrations heretofore staged in "'("
has already e1ceeded those of "'(#. and that t)enty;four 8&@= of these
deonstrations )ere violent, and resulted in the death of fifteen 8"<= persons
and the in+ury to any ore.
%ubse*uent events 5 as reported 5 have also proven that petitioners! counsel
have underestiated the threat to public sa)ety posed by the Ne) People!s Ary.
8&= 4illed and three 87= )ounded on the side of the 9overnent, one 8"= B%6G
4illed and three 87= NPA casualties. that in an encounter at Botolan, >abales,
one 8"= MM%6M leader, an unidentified dissident, and Coander Panchito, leader
of the dissident group )ere 4illed. that on August &A, "'(", there )as an
encounter in the barrio of %an Pedro, 2riga City Caarines %ur, bet)een PC and
the NPA, in )hich a PC and t)o 8&= MM ebers )ere 4illed. that the current
disturbances in Cotabato and the :anao provinces have been rendered ore
cople1 by the involveent of the CPPNNPA, for, in id;"'(", a MM group,
headed by 0ovencio Esparago,a, contacted the Cigaonan tribes, in their
settleent in Magsaysay, Misais -riental, and offered the boo4s, paphlets
and brochures of Mao Tse Tung, as )ell as conducted teach;ins in the reservation.
that Esparago,a )as reportedly 4illed on %epteber &&, "'(", in an operation of
the PC in said reservation. and that there are no) t)o 8&= NPA cadres in
Mindanao.
2t is true that the suspension of the privilege of the )rit )as lifted on 0anuary (,
"'(&, but it can not be denied that soon thereafter, la)lessness and terroris
had reached such a point that the nation )as already drifting to)ards anarchy. -n
%epteber &", "'(&, )hen the President of the Philippines, pursuant to Article
D22, section "#, paragraph & of the "'7< Constitution, placed the Philippines
under artial la), the nation )as in the throes of a crisis. The authority of the
constitutional governent )as resisted openly by a coalition of forces, of large
nubers of persons )ho )ere engaged in an ared conflict for its violent
overthro).
17
The oveent )ith the active aterial and foreign political and
econoic interests )as engaged in an open attept to establish by violence and
force a separate and independent political state.
3orceful ilitary action, atched )ith attractive benevolence and a socio;
econoic progra, has indeed bro4en the bac4 of the rebellion in soe areas.
There are to be sure significant gains in the econoy, the unprecedented increase
in e1ports, the billion;dollar international reserve, the ne) high in revenue
collections and other notable infrastructures of developent and progress. 2ndeed
there is a in the people!s sense of values, in their attitudes and otivations. But
/e personally ta4e notice of the fact that even as of this late date, there is still a
continuing rebellion that poses a danger to the public safety. Counist
insurgency and subversion, once it ta4es root in any nation, is a hardy plant. A
party )hose strength is in selected, dedicated, indoctrinated and rigidly
disciplined ebers, )hich ay even no) be secreted in strategic posts in
industry, schools, churches and in governent, can not easily be eradicated.
1*
The NPA 8Ne) People!s Ary= is pursuing a policy of strategic retreat but tactical
offensive. 2t continues to conduct its activities through si1 Regional -perational
Coands 8R-Cs= covering Northern, Central, and %outhern :u,on, /estern and
Eastern Disayas, and Mindanao. Cobat operations )ere conducted against the
Counist insurgents by the ared forces of the governent in Cagayan,
2fugao, Malinga, Apayao, Caarines %ur, and %orsogon. %ubversive activities
continue unabated in urban areas. :ast 0anuary, "'(@, the Maoist group 4no)n as
the Moro National :iberation 3ront 8MN:3= attac4ed and overran the ilitary
detachent at Bilaan %ulu, and the to)n of Parang. The to)n of 0olo )as
attac4ed by a rebel force of <## en last 3ebruary A, '(@, and to cover their
retreat ra,ed t)o;thirds of the to)n. -nly this August, there )as fighting bet)een
governent troops and usli rebels ared )ith odern and sophisticated
)eapons of )ar in soe parts of Cotabato and in the outs4irts of the a+or
southern port city of 6avao. 2t )ould be an incredible naivete to conclude in the
face of such a reality, that the peril to public safety had already abated.
Nor is the fact that the courts are open proof that there is no ground for artial
rule or its continuance. The Bopen courtB theory has been derived fro the dictu
in E1 Parte Milligan 8( /all. "&( H"$AAJ, vi%.? BMartial rule cannot arise fro a
threatened invasion. the necessity ust be actual and present. the invasion real
such as effectually closes the courts and deposes the civil adinistration.B This
has been disissed as unrealistic by authoritative )riters on the sub+ect as it
does not present an accurate definition of the allo)able liits of the of the
President of the Gnited %tates. As a atter of fact, the liiting force of the
Milligan case )as aterially odified a generation later in another decision of the
Court in of the 3ederal %upree Court in Moyer v. &eabody 8&"& G.%. ($ H"'#'J=.
%pea4ing for the Court in Moyer v. &eabody, 0ustice Coles brushed aside as
immaterial the fact, )hich the a+ority opinion in the Milligan case thought
absolutely crucial 5 vi%.? artial rule can never e1ist )here the Courts are open
and in the proper and unobstructed e1ercise of their +urisdiction. The opinion
admitted that the Courts were open but held Bthat the governor!s declaration that
a state of insurrection e1isted is conclusive of that fact.B Although 2t found that
the B9overnor, )ithout sufficient reason, but in good )aith, in the course of putting
the insurrection do)n, held the plaintiff until he thought that he could safely
release hi,B the Court held that plaintiff Moyer had no cause of action. %tating
that the 9overnor )as epo)ered by eploy the National 9uard to suppress
insurrection, the Court further declared that Bhe ay 4ill persons )ho resist, and
of course he ay use the ilder easure of sei,ing the bodies of those )ho he
considers to stand in the )ay of restoring peace. %uch arrests are not necessarily
for punishent, but are by way o) precaution# to prevent the e!ercise o) hostile
power.B %o long as such arrests are ade in good faith and in the honest belief
that they are needed in order to head insurrection off, the 9overnor is the )inal
0udge and cannot be sub0ected to an action a)ter he is out o) o))ice on the ground
that he had no reasonable ground )or his belie) ... /hen it coes to a decision by
the head of state upon a atter involving its life, the ordinary rights o) the
individuals must yield to what he deems the necessities o) the moment. Public
danger )arrants the substitution of e1ecutive process for +udicial process.B
B2t is siply not true,B )rote Clinton Rossiter in "'<#,
19
Bthat martial law cannot
arise )rom a threatened invasion or that martial law can never e!ist where the
Courts are open. These stateents do not present an accurate definition of the
allo)able liits of the artial po)ers of President and Congress in the face of
alien threats or internal disorder. Nor )as 6avis! dictu on the specific po)ers of
Congress in this atter any ore accurate. And, ho)ever elo*uent and *uotable
his )ords on the untouchability of the Constitution in ties of actual crisis, they
do not now# and did not then, e1press the realities of Aerican Constitutional
:a).B
2n any event, this Bopen courtB theory does not apply to the Philippine situation.
Both the "'7< and the "'(7 Constitutions e1pressly authori,e the declaration of
artial la), even )here the danger to the public safety arises erely fro the
iinence of an invasion or rebellion. The fact that the civil courts are open can
not be controlling, since they ight be open and undisturbed in their functions
and yet )holly incopetent to avert the threatened danger and to punish those
involved in the invasion or rebellion )ith certainty and proptitude. Certainly
such a theory )hen applied to the situation odern )ar and of the present day
Counist insurgency and subversion )ould prove to be unrealistic.
3/
Nor ay it be argued that the eployent of governent resources for the
building of a Ne) %ociety is inconsistent )ith the efforts of suppressing the
rebellion and creating a legitiate public order. BEveryone recogni,ed the legal
basis for the artial necessity,B )rote President Marcos, Bthis )as the siplest
theory of all. National decline and deorali,ation, social and econoic
deterioration, anarchy and rebellion )ere not +ust statistical reports. they )ere
docuented in the ind and body and ordinary e1perience of every 3ilipino. But,
as a study of revolutions and ideologies proves, martial rule could not in the long
run, secure the Philippine Republic unless the social ini(uities and old habits
which precipitated the military necessity were stamped out. Cence, the
%epteber &" Moveent for artial rule to be of any lasting benefit to the people
and the nation, to +ustify the national discipline, should incorporate a oveent
for great, perhaps even drastic, refors in all spheres of national life. %ave the
Republic, yes, but to 4eep it safe, )e have to start rea4ing the society.B
31

2ndeed, the creation of a Ne) %ociety )as a realistic response to the copelling
need or a revolutionary change.
3or centuries, ost of our people )ere iprisoned in a socio;cultural syste that
placed the in perpetual dependence. B2t ade of the any ere pa)ns in the
gae of partisan;po)er polities, legitii,ed !he)s of )ood and dra)ers of )ater!
for the landed elite, grist for the diploa ills and an alienated ass sporadically
erupting in violent resentent over ieorial )rongs. Rural bac4)ardness )as
built into the very social order )herein our asses could not ove for)ard or
even desire to get oving.B
31
The old political frae)or4, transplanted fro the
/est had proven indeed to be inade*uate. The aspirations of our people for social
+ustice had reained unfulfilled. The electoral process )as no odel of deocracy
in action. To a society that has been torn up by decades of bitter political strife
and social anarchy, the proble )as the rescue of the larger social order fro
factional interests. 2plicit then )as the tas4 of creating a legitiate public order,
the creation of political institutions capable of giving substance to public interests.
This iplied the building of coherent institutions, an effective bureaucracy and all
adinistration capable of enlisting the enthusias, support and loyalty of the
people. Evidently, the po)er to suppress or insurrections is riot Bliited to
victories in the field and the dispersion of the insurgent. 2t carries )ith it
inherently the po)er to guard against the iediate rene)al of the conflict and
to reedy the evilsB
33
)hich spa)ned and gave rise to the e1igency.
/e find confiration of this conteporaneous construction of presidential po)ers
in the ne) Constitution. 2t ust be noted that )hile Art, 2I, %ec. "& of the ne)
Constitution ebodies the coander;in;chief clause of the "'7< Constitution
8Art. D22, %ee. "#H&J=, it e1pressly declares in Art. ID22, %ec. 7H&J that the
proclaations, orders and decrees, instructions and acts issued or done by the
incubent President, are Bpart of the la) of the landB and are to Breain valid,
legal, binding, and effectiveB until Bodified revo4ed, or superseded by
subse*uent proclaations, orders, decrees, instruction, or other acts of the
incubent President, or unless e1pressly repealed by the regular National
Assebly.B Gndoubtedly, the proviso refers to the present artial la) regie and
the easures ta4en under it by the President. 2t ust be recalled that the
prudent e1ercise by the President of the po)ers under artial la) not only
steed the tide of violence and subversion but also buttressed the people!s
faith in public authority. 2t is in recognition of the ob+ective erit of the easures
ta4en under artial la) that the Constitution affirs their validity.
This is evident fro the deliberations of the "AA;Man %pecial Coittee of the
Constitutional Convention, fored to finally draft the Constitution, at its eeting
on -ctober &@, "'(&, on the provisions of %ection @ of the draft, no) %ection "&
of Article 2I of the Ne) Constitution, )hich are *uoted hereunder, to )it?
Mr. Chairan.
are not ready to accept, and President Marcos, a)are as he is, that the 3ilipino
Ne) %ociety, to create a ne) atosphere )hich )ill not be a natural habitat of
circustances )hich provo4ed the President in declaring artial la) ay not be
authority, )ill be liited to erely ta4ing a ilitary easures to *uell the
rebellion and eliinating la)lessness in the country and leave hi )ith no eans
or authority to effect the needed social and econoic refors to create an
enduring condition of peace and order, then )e shall have failed in providing in
iediately confront it. More than that, the treasure to preserve the %tate ust
go deeper into the root cause!s of the social disorder that endanger the general
safety.
convincing, rear4s of only good friend and colleague, 6elegate -rti,. And 2 ta4e
it, Mr. Chairan, that is also the position of this Coittee.
PRE%262N9 -332CER TGPA> 8A.=? Kes, also of this coittee.
sae provisions of the constitution are suspendedE
of soe of its provisions ust, of necessity, be restricted. 2f not suspended,
its )eapon for survival, and )hen the occasion arises, )hen such is at sta4e,
prudence re*uires that certain individual rights ust have to be scarified
and 2, for instance, a detained by the ilitary authorities , 2 cannot avail of the
detentionE
guaranty cannot definitely be bad unless the %tate is in a position to assert and
been issuing decrees )hich are in the nature of statutes, regulating as they do,
6E:E9ATE 6E 9G>MAN 8A.=? Certainly, and that is the position of this Coittee,
be hastrung or liited to his traditional po)ers as Chief E1ecutive. /hen
decree for that atter, has nothing to do )ith invasion, insurrection, rebellion or
iinent danger thereof. My point, Kour Conor, is that this easure basically has
nothing to do )ith the restoration of peace and order or the *uelling of rebellion
or insurrection. Co) could )e validly say that the President!s assuption of such
po)ers is +ustified by the proclaation of artial la)E
6E:E9ATE 6E 9G>MAN 8A.=? As 2 have repeatedly stated. Kour Conor, )e have
foreign te1tboo4s. /e have to at artial la) not as an iutable principle.
Kou cite as all e1aple the decree on land refor. Kour Conor )ill have to adit
that one of the a+or causes of social unrest aong the peasantry in our society
is the deplorable treatent society has given to our peasants. As early as the
analysis, the only 4no)n liitation to artial la) po)ers is the convenience of
the artial la) adinistrator and the +udgent and verdict of the and, of course,
the verdict of history itself.
6E:E9ATE :ED2%TE 8-.=? Kour Conor, +ust for purposes of discussion, ay 2 4no)
fro you )hether has been an occasion in this country )here any past President
had ade use of his artial la) po)erE
the "'7< Constitution, the, artial la) provision has never been availed of by any
President Kour Conor, that during the 0apanese occupation, President :aurel had
occasion to declare artial la), and 2 recall that )hen President :aurel declared
artial la), he also assued legislative and +udicial po)ers. /e ust, of course,
reali,e that during the tie of President :aurel the threats to national security
)hich precipitated the declaration cae fro the outside. The threats, therefore
)ere not internal in origin and character as those )hich propted President
Marcos to issue his historic proclaation. 2f, in case 5 as )hat happened during
the tie of President :aurel 5 the declaration of artial la) necessitated the
e1ercise of legislative po)ers by the artial la) adinistrator, 2 say that greater
necessity calls forth the e1ercise of that po)er )hen the threats to national
security are posed not by invaders but by the rebellious and seditious eleents,
both of the left and right, fro )ithin. 2 say that because every rebellion )hether
in this country or in other foreign countries, is usually the product of social unrest
and dissatisfaction )ith the established order. Rebellions or the acts of rebellion
are usually preceded by long suffering of those )ho ultiately choose to rise in
ars against the governent. A rebellion is not born overnight. 2t is the result of
an accuulation of social sufferings on the part of the rebels until they can no
longer stand those sufferings to the point that, li4e a volcano, it ust sooner
erupt. 2n this conte1t, the staping out of rebellion ust not be the ain and
only ob+ective of artial la). The Martial la) adinistrator should, nay, ust,
ta4e steps to reedy the crises that lie behind the rebellious oveent, even if
in the process, he should e1ercise legislative and +udicial po)ers. 3or )hat benefit
)ould it be after having put do)n a rebellion through the e1ercise of artial
po)er if another rebellion is again in the offing because the root causes )hich
propelled the oveent are ever presentE -ne ight succeed in capturing the
rebel leaders and their follo)ers, iprison the for life or, better still, 4ill the in
the field, but soeday ne) leaders )ill pic4 up the torch and the tattered banners
and lead another oveent. 9reat causes of every huan underta4ing do not
usually die )ith the en behind those causes. Gnless the root causes are
theselves eliinated, there )ill be a resurgence of another rebellion and,
logically, the endless and vicious e1ercise of artial la) authority. This reinds
out.
PRE%262N9 -332CER TGPA> 8A.=? /ith the indulgence of the 9entleen fro :a
Although there are authorities to the contrary, it is generally held that, in
construing constitutional provisions )hich are abiguous or of doubtful eaning,
the courts ay consider the debates in the constitutional convention as thro)ing
light on the intent of the fraers of the Constitution.
34
2t is true that the intent of
the convention is not controlling by itself, but as its proceeding )as preliinary to
the adoption by the people of the Constitution the understanding of the
convention as to )hat )as eant by the ters of the constitutional provision
)hich )as the sub+ect of the deliberation, goes a long )ay to)ard e1plaining the
understanding of the people )hen they ratified it.
35
More than this, the people
reali,ed that these provisions of the ne) Constitution )ere discussed in the light
of the treendous forces of change at )or4 in the nation, since the advent of
artial la). Evident in the hublest villages to the bustling etropolises at the
tie )ere the infrastructures and institutional changes ade by the governent
in a bold e1perient to create a +ust and copassionate society. 2t )as )ith an
a)areness of all of these revolutionary changes, and the confidence of the people
in the deterination and capability of the ne) dispensation to carry out its
historic pro+ect of eliinating the traditional sources of unrest in the Philippines,
that they over)helingly approved the ne) Constitution.
D
&-L+T+C'L 8<"T+-*
/e have adverted to the fact that our +urisprudence attest abundantly to the
e1istence of a continuing Counist rebellion and subversion, and on this point
then can hardly be any dispute. The narro) *uestion, therefore, presented for
resolution is )hether the deterination by the President of the Philippines of the
necessity for the e1ercise of his constitutional po)er to declare artial la) is
sub+ect to revie). 2n resolving the *uestion, /e re;affir the vie) that the
deterination of the for the e1ercise of the po)er to declare artial la) is )ithin
the e1clusive doain of the President, and his deterination is final and
conclusive upon the courts and upon all persons. This conclusion necessarily
results fro the fact that the very nature of the e1ecutive decision is political, not
+udicial. The decision as to )hether or not there is necessity )or the e!ercise o)
the power is wholly con)ided by our to the Chie) !ecutive. 3or such decision, he
is directly responsible to the people for )hose )elfare he is obliged to act. 2n vie)
of the of the responsibility reposed upon hi, it is essential that he be accorded
freedo of action deanded by the e1igency. The po)er is to be e1ercised upon
sudden eergencies and under circustances vital to the e1istence of the %tate.
The issue is coitted to hi for deterination by criteria of political and ilitary
e1pediency. 2t is not pretended to rest on evidence but on inforation )hich ay
not be acceptable in court. There are therefore, no standards ascertainable by
settled +udicial e1perience or process by reference to )hich his decision can be
+udicially revie)ed. 2n other )ords, his decision is of a 4ind for )hich the +udicial
has neither the aptitude, facilities nor responsibility to underta4e. /e are
un)illing to give our assent to e1pressions of opinion )hich, although not
intended, tends to cripple the constitutional po)ers of the governent in dealing
proptly and effectively )ith the danger to the public safety posed by the
rebellion and Counist subversion.
Moreover, the Court is )ithout po)er to shape easures for dealing )ith the
probles of society, uch less )ith the suppression of rebellion or Counist
subversion. The nature of +udicial po)er is largely negative, and it is essential
that the opportunity of the Chief E1ecutive for )ell;directed positive action in
dealing )ith the proble be preserved, if the 9overnent is to serve the best
interests of the people. 3inally, as a conse*uence of the general referendu of
0uly &(;&$, "'(7, )here "$,#<&,#"A citi,ens voted over)helingly for the
continuance of President Marcos in office beyond "'(7 to enable hi to finish the
refors he had instituted under artial la), the *uestion of the legality of the
proclaation of artial la), and its continuance, had undoubtedly been reoved
fro +udicial intervention.
/e conclude that the proclaation of artial la) by the President of the
Philippines on %epteber &", "'(& and its continuance until the present are valid
as they are in accordance )ith the Constitution.
D2
C-<,T &,CL<// $,-M +*8<+,+*G +*T- LG'L+T@ -$ ',,"T '*/
/T*T+-* -$ &T+T+-*,"
Caving concluded that the Proclaation of Martial :a) on %epteber &", "'(& by
the President of the Philippines and its continuance are valid and constitutional,
the arrest and detention of petitioners, pursuant to 9eneral -rder No. & dated
%epteber &&, "'(& of the President, as aended by 9eneral -rder No. &;A,
dated %epteber &A, "'(&, ay not no) be assailed as unconstitutional and
arbitrary. 9eneral -rder No. & directed the %ecretary of National 6efense to arrest
Bindividuals naed in the attached list, for being active participants in the
conspiracy to sei,e political and state po)er in the country and to ta4e over the
governent by force ... in order to prevent the fro further coitting acts
that are iniical or in+urious to our people, the governent and our national
interestB and Bto hold said individuals until other)ise ordered released by the
President or his duly authori,ed representative.B 2t is not disputed that petitioners
are all included in the list attached to 9eneral -rder No. &.
2t should be iportant to note that as a conse*uence of the proclaation of
artial la), the privilege of the )rit of habeas corpus has been ipliedly
suspended. Authoritative )riters on the sub+ect vie) the suspension of the )rit of
habeas corpus as an incident, but an iportant incident of a declaration of artial
la).
The suspension of the )rit of habeas corpus is not, in itself, a declaration of
artial la). it is siply an incident, though a very iportant incident, to such a
declaration. But practically, in England and the Gnited %tates, the essence of
artial la) is the suspension of the privilege of the )rit of habeas corpus, and a
declaration of artial la) )ould be utterly useless unless accopanied by the
suspension of the privilege of such )rit. Cence, in the Gnited %tates the t)o,
artial la) and the suspension of the )rit is regarded as one and the sae thing.
:uther v. Borden, ( Co). ". Martin v. Mott, "& /heat. "'. %tory, Co. on the
Constitution, see. "7@&. 0ohnson v. 6uncan, 7 Martin, N.%. <7#. 8"& :. ed. <$&;
$7=.
Evidently, according to 0udge %alley, there could not be any privilege of the )rit
of habeas corpus under artial la) 82n re 3ield, ' 3ed. Cas. " H"$A&J=. The
evident purpose of the suspension of the )rit is to enable the e1ecutive, as a
precautionary easure, to detain )ithout interference persons suspected of
harboring designs harful to public safety 8! &arte Jimmerman, 7& 3ed. &nd.
@@&, @@A=. 2n any event, the Proclaation of Martial :a), in effect, suspended the
privilege of the )rit )ith respect to those detained for the cries of insurrection
or rebellion, etc., thus?
others )ho ay hereafter be siilarly detained for the crimes o) insurrection or
against national security and the la) of the nations, cries against public order,
be kept under detention until otherwise ordered released by me or by my duly
designated representative. 8Ephasis supplied=.
9eneral -rder No. & )as issued to ipleent the aforecited provisions of the
Proclaation of Martial :a).
By the suspension of the privilege of the )rit of habeas corpus, the +udiciary is
precluded fro interfering )ith the orders of the E1ecutive by in*uiring into the
legality of the detention of persons involved in the rebellion.
The arrest and detention of persons reasonably believed to be engaged in, or
connected )ith, the insurgency is predicated upon the principle that in tie of
public disorder it is the right and duty of all citi,ens especially the officer
entrusted )ith the enforceent of the la) to eploy such force as ay be
necessary to preserve the peace and restrain those )ho ay be coitting
felonies. Encroachents upon personal liberty, as )ell as upon private property
on those occasions, are +ustified by the necessity of preserving order and the
greater interests of the political counity. The Chief E1ecutive, upon )ho is
reposed the duty to preserve the nation in those ties of national peril, has
correspondingly the right to e1ercise broad authority and discretion copatible
)ith the eergency in selecting the eans and adopting the easures )hich, in
his honest +udgent, are necessary for the preservation of the nation!s safety. 2n
case of rebellion or insurrection, the Chief E1ecutive ay Buse the ilder easure
of sei,ing the bodies of those )ho he considers to stand in the )ay of restoring
peace. %uch arrests are not necessarily for punishent but are by )ay of
precaution, to prevent the e1ercise of hostile po)er.B 8Moyer v. &eabody, &"& G.
%. ($, $@;$< H"'#'J <7 :. ed. @"".=
The +ustification for the preventive detention of individuals is that in a crisis such
as invasion or doestic insurrection Bthe danger to the security of the nation and
its institutions is so great that the governent ust ta4e easures that
teporarily deprive citi,ens of certain rights in order to ensure the survival of the
political structure that protects those and other rights during ordinary ties.B
8/evelopments *ational "ecurity, Dol. $<, Carvard :a) Revie), March "'(&, No.
<, p. "&$A=.
36
2n Moyer v. &eabody, supra, the %upree Court of the Gnited %tates upheld the
detention of a labor leader )hose ere presence in the area of a violent labor
dispute )as deeed li4ely to incite further disturbances. B%o long as such arrests
are ade in good faith,B said the erudite 0ustice Coles, Band in the honest belief
that they are ade in order to head the insurrection off, the governor is the final
+udge and can not be sub+ected to an action after he is out of office, on the
ground that he had no reasonable ground for his belief.B
6uring /orld /ar 22, persons of 0apanese ancestry )ere evacuated fro their
hoes in the /est Coast and interned in the interior until the loyalty of each
individual could be established. 2n .orematsu v. <nited "tates 87&7, G.%. &"@
H&@@J=, the %upree Court of the Gnited %tates upheld the e1clusion of these
persons on the ground that aong the a substantial nuber )ere li4ely to be
disloyal and that, therefore, the presence of the entire group created the ris4 of
sabotage and espionage. Although the Court avoided constitutionality of the
detention that follo)ed the evacuation, its separation of the issue of e1clusion
fro that detention )as artificial, since the separate orders part of a single over;
all policy. The reasoning behind its of persons of 0apanese ancestry )ould see
to apply )ith e*ual force to the detention despite the greater restrictions oil
oveent that the latter entailed. 2n the Middle East, ilitary authorities of
2srael have detained suspected Arab terrorists )ithout trial 86ersho)it,,
Terrorism and &reventive /etention9 The Case o) +srael# <# Coentaries, 6ec.
"'(# at ($=.
Aong the ost effective countereasures adopted by the governents in
%outheast Asia to prevent the gro)th of Counist po)er has been the arrest
and detention )ithout trial of 4ey united front leaders of suitable ties.
37
The preventive detention of persons reasonably believed to be involved in the
Counist rebellion and subversion has long been recogni,ed by all deocratic
governents as a necessary eergency easure for restoring order. BBecause of
the difficulty in piercing the secrecy of tightly 4nit subversive organi,ations in
order to deterine )hich individuals are responsible for the violence,
governents have occasionally responded to eergencies ar4ed by the threat
or reality of sabotage or terroris by detaining persons on the ground that they
are dangerous and )ill probably engage in such actions.B
3*
2n the case at bar, petitioner A*uino 8:;7<<@A= has already been charged )ith the
violation of the Anti;%ubversion Act 8:;7(7A@= and therefore his detention is
reasonably related to the dueling of the rebellion. Gpon the other hand, the other
petitioners have been released but their oveents are sub+ect to certain
restrictions. The restrictions on the freedo of oveent of these petitioners, as
a condition for their release, are, ho)ever, re*uired by considerations of national
security.
39
2n the absence of )ar or rebellion, the right to travel )ithin the
Philippines ay be considered constitutionally protected. But even under such
circustances that freedo is not absolute. Areas ravaged by floods, fire and
pestilence can be *uarantined, as unliited travel to those areas ay directly and
aterially interfere )ith the safety and )elfare of the inhabitants of the area
affected. 6uring a rebellion or insurrection the authority of the coander to
issue and enforce police regulations in the area of the rebellion or insurrection is
)ell recogni,ed. %uch regulations ay involve the liitation of the right of
assebly, the right to 4eep ars, and restrictions on freedo of oveent of
civilians.
4/
Gndoubtedly, easures conceived in good faith, in the face of the
eergency and directly related to the *uelling of the disorder fall )ithin the
discretion of the President in the e1ercise of his authority to suppress the
rebellion and restore public order.
/e find no basis, therefore, for concluding that petitioner A*uino!s continued
detention and the restrictions iposed on the oveents of the other petitioners
)ho )ere released, are arbitrary.
C-*CL<"+-*
/e reali,e the transcendental iportance of these cases. Beyond the *uestion of
deprivation of liberty of petitioners is the necessity of laying at rest any doubt on
the validity of the institutional changes ade to bring the country out of an era of
rebellion, near political anarchy and econoic stagnation and to establish the
foundation of a truly deocratic governent and a +ust and copassionate
society. 2ndeed, as a respected delegate of t)o Constitutional Conventions
observed? BThe introduction of artial la) has been a necessary recourse to
restore order and steer the country safely through a severe econoic and social
crisis.B
41
The e1ercise of these e1traordinary po)ers not only to restore civil
order thru ilitary force but also to effect urgently needed refors in order to
root out the causes of the rebellion and Counist subversion ay indeed be an
e1perient in the governent. But it )as necessary if the national deocratic
institution )as to survive in copetition )ith the ore revolutionary types of
governent. BNational deocratic constitutionalis, ancient though its origin ay
be,B observed 6r. C.3. %trong,
41
Bis still in an e1periental stage and if it is to
survive in copetition )ith ore revolutionary types of governent, )e ust be
prepared to adapt to ever;changing conditions of odern e1istence. The basic
purpose of a political institution is, after all, the sae )herever it appears? to
secure social peace and progress, safeguard individual rights, and proote
national )ell;being.B
These adaptations and innovations )ere resorted to in order to reali,e the social
values that constitute the professed goals of the deocratic polity. 2t )as an
attept to a4e the political institution serve as an effective instruent of
econoic and social developent. The need of the ties )as for a ore effective
ode of decision;a4ing and policy;forulation to enable the nation to 4eep
pace )ith the revolutionary changes that )ere ine1orably reshaping Philippine
%ociety. A governent, observed the then 6elegate Manuel Ro1as, a Meber of
the %ub;Coittee of %even of the %ponsorship Coittee of the "'7@
Constitutional Convention, Bis a practical science, not a theory, and a governent
can be successful only if in its structure due consideration is given to the habits,
the custos, the character and, as McMinley said to the idiosyncracies of the
people.B
43
/CERE3-RE, /e hereby conclude that 8a= the proclaation of artial la)
8Proclaation No. "#$"= on %epteber &", "'(& by the President of the
Philippines and its continuance, are valid as they have been done in accordance
)ith the Constitution, and 8b= as a conse*uence of the suspension of the privilege
of the )rit of habeas corpus upon the proclaation of artial la), the Court is
therefore fro in*uiring into the legality of the arrest and detention of these
petitioners or on the restrictions iposed upon their oveents after their
release ilitary custody.
Accordingly, /e vote to disiss all the petitions.
Makasiar# $ernande% and '(uino# JJ.# concur.

ESGUERR!, J.:
A. PRE:2M2NARK %TATEMENT
-n %epteber &", "'(&, the President issued Proclaation No. "#$" placing the
)hole Philippines, under artial la). This proclaation )as publicly announced
by the President over the and radio on the evening of %epteber &", "'(&. The
grounds for the proclaation are recited in detail in its preable, specifically
entioning various acts of insurrection and rebellion already perpetrated and
about to be coitted against the 9overnent by the la)lesseleents of the
country in order to gain political control of the state. After laying do)n the basis
for the establishent of artial la), the President ordered?
N-/, TCERE3-RE, 2, 3ER62NAN6 E. MARC-%, President of the Philippines. by
2ssued shortly after the proclaation )as 9eneral -rder No. &, follo)ed by No. &;
A, dated %epteber &A, "'(&, to )hich )as attached a list of the naes of
various persons )ho had ta4en part in the various acts of insurrection, rebellion
and subversion entioned in the proclaation, and given aid and cofort in the
conspiracy to sei,e political and state po)er in the country and ta4e over the
governent by force. They )ere ordered to be apprehended iediately and
ta4en into custody by the %ecretary of National 6efense )ho )as to act as
representative of the President in carrying out artial la).
The petitioners herein )ere on %epteber && and &7, "'(&, arrested and ta4en
into ilitary custody by the %ecretary of National 6efense pursuant to 9eneral
-rder No. &;A of the President for being included in said list as having
participated, directly or indirectly, or given aid and cofort to those engaged in
the conspiracy and plot to sei,e political and state po)er and to ta4e over the
9overnent by force. They as4 this Court to set the at liberty, claiing that
their arrest and detention is illegal and unconstitutional since the proclaation of
artial la) is arbitrary and )ithout basis and the alleged ground therefor do not
e1ist and the courts are open and norally functioning.
3or the respondents the %olicitor 9eneral in his ans)er aintains that
Proclaation No. "#$" is Constitutional and valid, having been issued in
accordance )ith the Constitution. that the orders and decrees issued thereunder
are valid. that the arrest and detention of petitioners pursuant thereto is li4e)ise
valid, legal and constitutional, and that this Court should refrain fro issuing the
desired )rits as these cases involve a political *uestion.
After +oinder of issues, these cases )ere heard on %epteber &A and &', "'(&,
and on -ctober A, "'(&, follo)ed by the filing of Meoranda and Notes on the
arguents of both parties.
After subission of these cases for decision, petitioner Raon /. 6io4no filed a
otion to be allo)ed to )ithdra) his petition. To the otion is attached a
hand)ritten letter of said petitioner to his counsel stating the reasons )hy he
)ished to )ithdra) his petition. The principal reasons advanced by hi for his
action are his doubts and isgivings on )hether he can still obtain +ustice fro
this Court as at present constituted since three of the 0ustices aong the four
)ho held in the ratification cases that there )as no valid ratification of the Ne)
Constitution signed on Noveber 7#, "'(& and proclaied ratified by the
President on 0anuary "(, "'(7 8the then Chief 0ustice having retired=, had ta4en
an oath to support and defend the said constitution. that in filing his petition he
e1pected it to be decided be the %upree Court under the "'7< constitution, and
that )ith the oath ta4ing of the three reaining ebers, he can no longer
e1pect to obtain +ustice.
After the otion to )ithdra) had been deliberated upon by the Court, seven
+ustices voted to grant and five voted to deny the otion. There being no
a+ority to grant the otion, it )as denied. Those )ho voted to deny the otion
are of the vie) that it is not siply a atter of right to )ithdra) because of the
great public interest involved in his case )hich should be decided for the peace
and tran*uility of the nation, and because of the conteptuous stateent of
petitioner 6io4no that this Court is no longer capable of adinistering +ustice to
hi. This *uestion should no longer stand on the )ay to the disposition of these
cases on the erits.
B. TCE 2%%GE%.
Prescinding fro the *uestion of +urisdiction )hich the %olicitor 9eneral raised by
reason of the President!s 9eneral -rder No. 7, dated %epteber &&, "'(&, as
aended by 9eneral -rder No. 7;A, dated %epteber &@, "'(&, )hich allo)ed
the +udicial courts to regularly function but inhibited the fro ta4ing cogni,ance
of cases involving the validity, legality or constitutionality of the Martial :a)
Proclaation, or any decree, order or acts issued, proulgated or perfored by
the President or his duly authori,ed representative pursuant thereto, fro )hich
position he relented and he has, accordingly, refrained fro pressing that issue
upon the Court, the ain issues for resolution are the validity of Proclaation No.
"#$" declaring and establishing artial la) and )hether this Court can in*uire
into to veracity and sufficiency of the facts constituting the grounds for its
issuance.
2 aintain that Proclaation No. "#$" is constitutional, valid and binding. that
the veracity or sufficiency of its factual bases cannot be in*uired into by the
Courts and that the *uestion presented by the petitions is political in nature and
not +usticiable.
Proclaation No. "#$" )as issued by the President pursuant to Article D22,
%ection "#, paragraph &, of the Constitution of "'7<, )hich reads as follo)s?
and, )hether it becoes necessary, he ay call violence, invasion, insurrection,
)rit of habeas corpus, or place the Philippines or any part thereof under artial
la).
This provision ay, for present purposes, be called the Coander;in;Chief
clause.
The above provision has no counterpart in the Constitution of the Gnited %tates or
in that of any state thereof e1cept that of Alas4a to a liited e1tent. To
coprehend the scope and e1tent of the President!s po)er to declare artial la),
let us trace the bac4ground and origin of this provision.
To suppress the great rebellion in the Gnited %tates, 4no)n as the Civil /ar )hich
)as aied to )rec4 the 3ederal union, President :incoln e1ercised po)ers not
granted to hi by the Constitution of the Gnited %tates but pertaining to the
congress. Ce had suspended the privilege of the )rit of habeas corpus.
proclaied artial la) in certain areas and Military Coissions )ere organi,ed
)here it )as deeed necessary to do so in order to subdue the rebels or prevent
their sypathi,ers fro prooting the rebellion. :incoln +ustified his acts by
saying?
2 did understand ... that y oath to preserve the Constitution to the best of y
ability iposed upon e the duty of preserving, by every indispensable eans
that governent 5 that nation 5 of )hich that constitution )as the organic la).
/as it possible to lose the nation and yet preserve the ConstitutionE By general
la), life and lib ust be protected, yet often a lib ust be aputated to save
a life. but a life is never )isely given to save a lib. 2 felt that easures,
other)ise unconstitutional, ight becoe la)ful by becoing indispensable to
the preservation of the Constitution through the preservation of the nation. Right
or )rong, 2 assued this ground, and no) avo) it ... 8& Nicholay and Cay,
Abraha :incoln Coplete /or4s, <#$ 8"'#&==.
%ydney 9. 3isher in his )or4 entitled B%uspension of 1abeas corpus 6uring the
/ar of the Rebellion,B 7 Pol. %cience Luarterly, e1pressed the sae idea )hen he
said?
... Every an thin4s he has a right to live and every governent thin4s it has a
right to live. Every an )hen driven to the )all by a urderous assailant )ill
override all la)s to protect hiself, and this is called the great right of self;
defense. %o every governent, )hen driven to the )all by a rebellion, )ill
traple do)n a constitution before it )ill allo) itself to be destroyed. This ay
not be constitutional la), but it is fact. 8Pp. @<@, @$@;@$<=
But the difficulty occasioned by the absence of a constitutional po)er to suspend
the privilege of the )rit of habeas corpus and to proclai artial la), )hich
greatly hastrung :incoln in coping effectively )ith the civil la), )as obviated
)hen our o)n Constitution e1pressly provided for the grant of that presidential
po)er 8Art. D22, %ection "#, par. &=. Gnli4e the legislative po)er under the Bill of
Rights of our Constitution 8Article 222, %ection ", paragraph "@, "'7<
Constitution=, the President can suspend the privilege of the )rit of habeas
corpus and ipose artial la) in cases of iinent danger of invasion,
insurrection or rebellion )hen the public safety re*uires it. The Congress could
not have been granted the po)er to suspend in case of iinent danger as it is
not by the nature of its office in a position to deterine proptly the e1istence of
such situation. 2t can only see or )itness the actual occurrence thereof and )hen
they happen, Congress is also epo)ered to suspend tile privilege of the )rit of
habeas corpus as an e1ercise of legislative po)er )hen the President falls to act.
but under no circustances can it declare artial la) as this po)er is e1clusively
lodged in the President as Coander;in;Chief.
/hen the Philippine Constitution of "'7< )as )ritten, the fraers decided to
adopt the provisions of %ection 7, paragraph (, of the 0ones :a), )hich becae
Article """, %ection ", paragraph "@, of the "'7< Constitution, and those of
%ection &" of the 0ones :a) )hich becae Article D22, %ection "#, paragraph &, of
the sae. The 0ones :a) provisions read as follo)s?
%ection 7, paragraph ( of the 0ones :a) provided?That the privilege of the )rit of
habeas corpus shall not be suspended, unless )hen in cases of rebellion,
insurrection, or invasion the public safety ay re*uire it, in either of )hich events
the sae ay be suspended by the President, or by the 9overnor;9eneral,
)herever during such period the necessity for such suspension shall e1ist.
And %ection &" of the sae la) in part provided that?
... 8C=e 8referring to the 9overnor;9eneral= ay, in case of rebellion or invasion,
or iinent danger thereof, )hen the public safety re*uires it, suspend the
privilege of the )rit of habeas corpus, or place the 2slands, or any part thereof,
under artial la)? &rovided That )henever the 9overnor;9eneral shall e1ercise
this authority, he shall at once notify the President of the Gnited %tates thereof,
together )ith the attending facts and circustances, and the President shall have
po)er to odify or vacate the action of the 9overnor;9eneral.
Before the 0ones :a), the Philippine Bill of "'#& provided as follo)s?
8%ection &, par. (=.
The Philippine Bill of "'#& had no provision pertaining to the declaration of
artial la).
The adoption of the 0ones :a) provisions )as propted by the prevailing
sentient aong the delegates to the "'7@;"'7< Constitutional Convention to
establish a strong e1ecutive, as sho)n by its proceedings reported by t)o of its
proinent delegates 8:aurel and Aruego= )ho recounted in their published )or4s
ho) the delegates bloc4ed the ove to sub+ect the po)er to suspend the
privilege of the )rit of habeas corpus, in case of invasion, insurrections or
rebellion, to the approval of the National Assebly, but did nothing to bloc4, and
allo)ed, the grant of the po)er, including that to declare artial la), to the
President as Coander;in;Chief of the Ared 3orces. /hat is evident fro this
incident is that )hen it coes to the suspension of the privilege of the )rit of
habeas corpus and establishent of artial la) in case of the occurrence or
iinent danger of the contingencies entioned therein, and the public safety
re*uires it, the clear intent )as to e1clusively vest in the President that po)er,
)hereas Congress can only suspend under the Bill of Rights provision )hen there
is actual occurrence of these events for reasons already adverted to above. And
)hen artial la) is proclaied, the suspension of the privilege of habeas corpus
necessarily follo)s for. the greater po)er includes the less. Nobody )ill ever
doubt that there are greater restrictions to individual liberty and freedo under
artial la) than under suspension of the privilege of the )rit of habeas corpus. 2n
the forer he can even close the courts if necessary and establish in their place
ilitary coissions. 2n the latter, the action proceeds fro the preise that the
courts are open but cannot grant the )rit.
/hen the Constitution of "'7< )as being fraed, the prevailing +urisprudence on
the atter )as that laid do)n in Barcelon vs. Baker, < Phil. $(. %epteber 7#,
"'#<. 2n that case the *uestion presented and decided is identical to )hat is
raised by the petitioners here. This 8"'#<= Court ruled that the +udiciary ay not
in*uire into the facts and circustance upon )hich the then 9overnor 9eneral
suspended the privilege of the )rit under %ection < of the Philippine Bill of "'#&,
)hich granted hi the sae po)er no) vested in the President, and that the
findings of the 9overnor 9eneral )ere Bfinal and conclusiveB upon the courts.
A)are of this rule, the fraers of the "'7< Constitution granted to the President
the po)ers no) found in Article D22, %ection "#, paragraph &, of the "'7<
Constitution.
-n -ctober &&, "'<#, Proclaation No. &"# suspending the privilege of the )rit
of habeas corpus )as issued by the late President Luirino. Assailed before this
Court in Montenegro vs. Castaeda and Balao '" Phil. $$&, as unconstitutional
and unfounded, this Court said?
Barcelon vs. Baker 8< Phil. $(, pp. '$ and "##= the authority to decide whether
the e!igency has arisen re(uiring suspension belongs to the &resident and Ihis
decision is )inal and conclusiveI upon the courts and upon all other persons.
But in Lansang vs. Garcia, :;77'A@, decided 6eceber "", "'(", @& %CRA, @@$,
this Court asserted the po)er to in*uire into the constitutional sufficiency of the
factual bases supporting the President!s action in suspending the privilege of the
)rit of habeas corpus under Proclaation No. $$', dated August &", "'(". 2n
departing fro the rule established in the Ba4er and CastaFeda cases, this Court
said?
The )eight of Barcelon v. Baker, as a precedent, is diluted by t)o 8&= factors,
naely? 8a= it relied heavily upon Martin v. Mott involving the G.%. President!s
po)er to call out the militia, )hich he being the coander;in;chief of all the
ared forces ay be e1ercised to suppress or prevent any la)less violence, even
)ithout invasion, insurrection or rebellion, or iinent danger thereof, and is,
accordingly, uch broader than his authority to suspend the privilege of the )rit
of habeas corpus, +eopardi,ing as the latter does individual liberty. and 8b= the
privilege had been suspended by the Aerican 9overnor;9eneral, )hose act, as
representative of the %overeign, affecting the freedo of its sub+ects, can hardly
be e*uated )ith that of the President of the Philippines dealing )ith the freedo
of the 3ilipino people, in whom sovereignty resides# and )rom whom all
government authority emanates. The pertinent ruling in the Montenegro case )as
based ainly upon the Barcelon case, and, hence, cannot have ore )eight than
the sae ...
2 aintain that )e should return to the rule in the Ba4er and CastaFeda cases
and +ettison the :ansang doctrine )hich denies the grant of full, plenary and
unrestricted po)er to the President to suspend the privilege of the )rit of habeas
corpus and declare artial la). This denial of unrestricted po)er is not in 4eeping
)ith the intent and purpose behind the constitutional provision involved.
The Act of Congress of "('< involved in Martin Q Mott 8"& /heat "' 8"$&(==
)hich is the ain prop of the Ba4er case, held inapplicable in :ansang cage,
provided?
necessary to repel such invasion ...
The distinction ade by this Court bet)een the po)er of the President to call out
the ilitia and his po)er to suspend the privilege of the )rit of habeas corpus and
declare artial la) does not )arrant a different treatent. The iportant and
decisive point to consider is that both po)ers are e1pressly conferred upon the
President by the sae %ection, e1ercisable only upon the e1istence of certain
facts and situations. Gnder the "'7< Constitution 8Article D22, %ection "#,
paragraph &,= both po)ers are ebraced in the President!s po)er as
Coander;in;Chief of the Ared 3orces.
The Ba4er decision should not have been easculated by coparing the position
then of the 9overnor 9eneral Bas the representative of the %overeignB in relation
to the 3ilipinos )ho )ere its Bsub+ectsB. Gnder prevailing conditions and
deocratic principles, there )ould be greater +ustification for relying on the
+udgent of the President of the Philippines )ho is the chosen representative of
the 3ilipino people and hence ore authoritative in spea4ing for the nation than
on that of an Aerican 9overnor 9eneral then )ho personified the burden of an
iposed sovereignty upon us. And as the E1ecutive of this 9overnent )ho is
charged )ith the responsibility of e1ecuting the la)s, he is as uch a guardian of
the rights and liberties of the people as any court of +ustice. To +udicially undercut
the force and efficacy of the Ba4er and Montenegro doctrine is to ride rough shod
over the intent of the fraers of the "'7< Constitution. Parenthetically it ay be
stated that the Coander;in;Chief clause )as retained in the "'(7 Constitution.
Although the :ansang case tried to cushion the blo) adinistered to the
constitutional provision involved by adopting the test of reasonablenessB in the
e1ercise of the President!s po)er, )ithout eaning to substitute its +udgent for
that of the President, yet the effect of the ruling is so far reaching that it ay
lead to a serious confrontation bet)een the Courts and the President. The po)er
to in*uire into the constitutional sufficiency of the factual bases of the habeas
corpus proclaation 8grounds for the issuance of )hich are the sae as those for
artial la)= presupposes the po)er to 4no) )hat are the facts to be tested by
the constitutional provision. This is the essence of an in*uiry. the deterination
of the constitutional sufficiency of those facts siply follo)s. %uppose this Court
says they are not sufficient to +ustify artial la) and the President says they are
because the evidence on )hich he acted sho)s the e1istence of invasion,
insurrection or rebellion, or the iinent danger thereof, )hat )ill happenE The
outcoe is too unpleasant to conteplate. :et us not try to repeat in our country
)hat transpired bet)een President :incoln and Chief 0ustice Taney )hen the latter
issued a )rit of habeas corpus to set free one held by the ilitary and President
:incoln practically said? Taney has issued his )rit. :et hi enforce itB. E1 parte
Merryan, "( 3ed. Cas. "@@ 8No. '@$(= 8C.C.6. Md. "$A"=.
President :incoln, in the face of the grave danger then to the nation, siply
ignored it and nothing could be done about it.
The test of reasonableness, or absence of arbitrariness in the e1ercise of the
presidential po)er, is all a play of )ords. The deterination of the reasonableness
of the act of the President calls for a consideration of the availability and choice of
less drastic alternatives for the President to ta4e, and )hen that is done the Court
)ill in effect be substituting its +udgent for that of the President. 2f the Court
)ere to liit its po)ers to ascertaining )hether there is evidence to support the
e1ercise of the President!s po)er, )ithout deterining )hether or not such
evidence is true, )e )ould have the curious spectacle of this Court having no
choice but to give its ipriatur to the validity of the presidential proclaation,
as it did in the :ansang case )here it erely accepted the reports of the ilitary
on the facts relied upon by the President in issuing Proclaation No. $$', )ithout
+udicially deterining )hether or not the contents of those reports )ere true, 2n
so doing, this Court siply displayed the iserable liits of its copetence for
having no eans for chec4ing )hether or not those facts are true. 2t )ould have
been ore in 4eeping )ith the dignity, prestige and proper role of this Court to
siply read and consider the bases for the suspension as stated in the various
B)hereasesB of the Proclaation, and then deterine )hether they are in
confority )ith the constitution. This to e is the e1tent of its po)er. To
transcend it is to usurp or interfere )ith the e1ercise of a presidential prerogative.
This Court should not spurn the reinder that it is not the source of the panacea
for all ills affecting the body politic 8Dera vs. Avelino, ((, Phil. "'&=. /hen a
particular cure can coe only fro the political departent, it should refrain fro
in+ecting itself into the clash of political forces contending for the settleent of a
public *uestion. The deterination of )hen and ho) a constitutionally granted
presidential po)er should be e1ercised calls for the strict observance of the tie;
honored principle of the separation of po)ers and respect for a co;e*ual,
coordinate and independent branch of the 9overnent. This is the basic
foundation of the rule governing the handling of a political *uestion that is beyond
+udicial copetence 8Ale+andrino vs. Lue,on, @A Phil. 7<. Cabili vs. 3rancisco, 9.
R. No. :;@A7$, May $, "'<". Ba4er vs. Carr, 7A# G.%. p. "$A. $& %. Ct. Rep. A'. (
:. Ed. &nd, AA7=. 2t is high tie to ree1aine and repudiate the :ansang doctrine
and give the President the sole authority to decide )hen and ho) to e1ercise his
o)n constitutional po)ers. A return to the sanity and )isdo of the Ba4er and
Montenegro doctrine and a reali,ation that +udicial po)er is un)elcoe )hen a
*uestion presents attributes that render it incapable of +udicial deterination,
because the po)er to decide it devolves on another entity, is urgently needed. 2t
is )orth)hile recalling )hat this Court in its sobriety and )isdo, unperturbed by
the foridable turoils, the fierce passions and eotions and the stresses of our
ties, said in the Ba4er case? 8The ter B9overnor 9eneralB should read
BPresidentB=.
-)ing to conditions at ties, a state of insurrection, rebellion or invasion ay
9eneral by telegraph of this landing of troops and that the people of the district
to repel such invasionE 2t see that all en interested in the aintenance and
stability of the 9overnent )ould ans)er this *uestion in the affirative ....
that his detention )ould assists in restoring order and in repelling the invasion,
applies for the )rit of habeas corpus alleging that no invasion actually e1ists. ay
the +udicial departent of the 9overnent call the officers actually engaged in
the field before it and a)ay fro their posts of duty for the purpose of e1plaining
and furnishing proof to it concerning the e1istence or none1istence of the facts
+eopardi,e public interests and safety of the )hole people. 2f the +udicial
rebels or insurrectos or invaders has been accoplished. But it is urged that the
their application for the )rit of habeas corpus that the legislative and e1ecutive
Moreover, it can not be assued that the legislative and e1ecutive branches of
the 9overnent, )ith all the achinery )hich those branches have at their
coand for e1aining into the conditions in any part of the Archipelago, )ill fail
to obtain all e1isting inforation concerning actual conditions. 2t is the duty of the
district, than the other branches of the 9overnentE /e thin4 not.
C. TCE C-NC:G%2-N
The resolution of the *uestion of validity of Proclaation No. "#$" and all acts
done under it, by delving into the sufficiency of the grounds on )hich the
declaration of artial la) is preised, involves a political *uestion. /hether or
not there is constitutional basis for the President!s action is for hi to decide
alone. 2 ta4e it for a fact that he is not an irresponsible an and )ill act
reasonably and )isely, and not arbitrarily. No President in his right ind )ill
proclai artial la) )ithout any basis at all but erely to fight the hobgoblins
and onsters of his o)n iagination. 2n the e1ercise of that po)er this Court
should not interfere or ta4e part in any anner, shape or for, as it did in the
:ansang case. /hen this Court re*uired the Ary officers, )ho furnished the
President )ith the facts on )hich he acted, to present proofs to establish the
basis of the habeas corpus suspension, this Court practically superiposed itself
on the e1ecutive by in*uiring into the e1istence of the facts to support his action.
This is indeed unfortunate. To in*uire is to 4no) the facts as basis of action. To
in*uire is to decide, and to decide includes the po)er to topple do)n or destroy
)hat has been done or erected. This is the ultiate effect of the :ansang
doctrine. .
/hen the security and e1istence of the state is +eopardi,ed by sophisticated
clandestine and overseas eans of destruction and subversion. )hen open
avo)als of attepts to diseber the Philippines are politically and financially
encouraged and supported by foreign po)ers. )hen the advocates of a sinister
political and social ideology are openly storing even the bastions of ilitary
po)er and strength )ith the use of suggled ars furnished by those )ho )ish
this nation ill, let us leave to the E1ecutive the unhapered deterination of the
occasion for the e1ercise of his po)er, as )ell as the choice of the )eapons for
safeguarding the nation. This Court should not, by a process of subtle reasoning
and rhetorical display of legal erudition stand on the )ay to effective action by
virtually crippling hi. 2nstead, it should be a roc4 of refuge and strength for
those )ho are called upon to do battle against the forces of devastating
iconoclas and ruthless vandalis that ruled our streets, our public s*uares and
our schools before the establishent of artial la). 2nstead of iposing craping
restrictions on the e1ecutive and thereby giving the eney aid and cofort, this
Court should allo) the political departent a full and )ide latitude of action.
2t follo)s that all orders, decrees or acts of the President under the Martial :a)
Proclaation, including those of the respondent %ecretary of National 6efense as
his authori,ed representative, are valid and binding. The people have ratified
those acts by the adoption and ratification of the Ne) Constitution as proclaied
by the President on 0anuary "(, "'(7, and by the Referendu held on 0uly &(;
&$,"'(7. 3or us to declare the valid in our decision no) has becoe erely an
anti;clia1 after )e have decided in the 0avellana case that the people have
ratified and accepted the Ne) Constitution and there reains no ore +udicial
obstacle to its enforceent.
Conse*uently, the arrest and detention of the petitioners, including their further
detention after the ratification and acceptance of the Ne) Constitution, and even
up to the present, are valid and constitutional. The duration of their detention,
especially as regards petitioner 0ose /. 6io4no, is a atter addressed to the
sound discretion of the President. As to petitioner Benigno %. A*uino, 0r., his
detention is no longer open to *uestion as foral, charges of subversion, urder
and illegal possession of firears have been filed against hi )ith the proper
Military Coission.
6. TCE 0G69MENT
By this separate opinion 2 ight incur the displeasure of y senior brethren )ho
conceived and labored in bringing forth the :ansang decision )hich 2 a openly
advocating to be discarded because this Court practically interfered )ith the
e1ercise of a purely e1ecutive po)er under the guise of in*uiring into the
constitutional sufficiency of the factual bases of the habeas corpus proclaation.
By re*uiring the representatives of the President to present evidence to sho) the
reasonable e1ercise of his po)er, 2 repeat that this Court trenched upon a
constitutionally granted po)er of the President. 2n e1pressing y honest thoughts
on a atter that 2 believe is of supree iportance to the safety and security of
the nation, 2 did so unindful of the possible condenation of y colleagues and
fearless of the +udgent of history.
3-R A:: TCE 3-RE9-2N9, 2 vote to disiss all petitions.

"ERN!N&E0, J.:
2
&,-L-G<
2 have decided to )rite this %eparate -pinion even before the ain opinion has
been )ritten, for no other cases in the history of the Republic have assued such
transcendental iportance as the cases )hich directly arose out of the
proclaation of artial la) on %epteber &", "'(&. No other cases presented
before this Court have aroused such )idespread attention, speculation,
controversy, and concern. And in the language of one of the petitioners, Bthe
decision in these case8s=, )hatever it ay be, )ill be cited in history boo4s any,
any years fro no). And it )ill be *uoted )herever lovers of freedo as4 the
*uestion 5 /hat did the Court do in that difficult hourE
-ur decision in the various petitions no) before this Tribunal li4e -ur decision in
the Ratification Cases 8:;7A"@&, 0avellana vs. The E1ecutive %ecretary, et al. :;
7A"A<, Ro1as, et al., vs. Melchor, etc. et al.,. :;7A&7&, Monteclaro, et al., vs. The
E1ecutive %ecretary, et al., and :;7A&$7, 6ilag, et al., vs. The Conorable
E1ecutive %ecretary, et al.=, ust uphold the validity of constitutionalis in our
country and our steadfast adherence to the Rule of :a). The decision should set
the pattern and the thrust or -ur continuous effort to locate that elusive
boundary bet)een individual liberty and public order. 2t should reconcile the
clais to individual or civil rights )ith the e*ually and, at ties, even ore
copelling needs of counity e1istence in a spirit of Constitutionalis and
adherence to the Rule of :a).
Through our Ne) Constitution, the 6elegates to the Constitutional Convention
and the voters in the ratification referendu ali4e have given our governent a
fresh andate and ne) guidelines in the charting of a truly independent e1istence
and the eergence of a dynaic and progressive order. 2t is no) the tas4 of this
Court to concreti,e and a4e clearly visible the connecting lin4s bet)een the
"'7< Constitution and the "'(7 Constitution, and to consider the constitutionality
of the artial la) proclaation 8No. "#$"= no) being veheently challenged in
these cases 5 its constitutionality as initially proclaied under the old
Constitution, and the constitutionality of its continuation )hich no) falls under
the present Charter.
2t is also the function of this Tribunal to help give flesh and substance to our
people!s aspirations for secure and self;sufficient if not abundant e1istence even
as +ustice, peace, liberty, and e*uality are guaranteed and assured. 2t ust stri4e
the correct balance, given specific ties and circustances, bet)een the
deands of public or social order and e*ually insistent clais of individual liberty.
The issues raised regarding the force and effectivity of the "'(7 Constitution have
been thoroughly discussed in other cases. They should no) be a settled atter
but have been raised ane). These )ere discuss at length in the earlier stages of
the instant petitions. The ass of pleadings and lengthy oral arguents d)elt not
only on the validity of Proclaation No. "#$" and the legality of the arrest and
detention of the petitioners but also on the effectivity of the ne) Constitution and
other related atters as right to counsel, +urisdiction of ilitary tribunals,
applications for anesty, visits of relatives, conditions inside the detention cap,
right to )ithdra) the petition, and the li4e. /hile it is necessary to sift the basic
issues fro all secondary and incidental atters, )e ust also touch on
iportant related issues. 2t is iperative to declare )hat the Constitution
coands is the la) on these issues.
The average citi%en# as a rule# is not very interested in the detailed intricacies
surrounding the resolution o) constitutional (uestions. 1e usually has strong
views on the )inal outcome o) constitutional litigation but rarely bothers to in(uire
into the labyrinthian )acets o) the case or the detailed reasoning which usually
supports the dispositive portion.
+t is not so with regard to these habeas corpus cases. The e!plosive potentialities
o) -ur ruling are known to everybody. The country awaits -ur decision with keen
e!pectations. The grounds supporting the decision are a matter o) public concern.
The implication o) these cases have been speculated upon# although sometimes
with limited comprehension and noticeable lack o) )airness# even in )oreign
countries.
+t# there)ore# behooves the members o) this Tribunal to render their opinions as
much as possible# in terms and in a presentation that can be understood by the
people.
2n J.M. Tuason and Co. +nc. vs. Land Tenure 'dministration, 87" %CRA @"7, @&7=
this Tribunal stated that Bas the Constitution is not priarily a la)yer!s docuent,
it being essential for the rule of la) to obtain that it should ever be present in the
people!s consciousness, its language as uch as possible should be understood in
the sense they have in coon use.B
+n this case# =e should go one step )urther. =e should not limit -urselves to
looking at the words o) the Constitution as ordinary and simple language but -ur
reasoning in the decision itsel) should be )rank and e!plicit. -ur task is not a
mere matter o) constitutional construction and interpretation. Through its
decision# this Court should also speak directly to the average layman# to the
common people.
22
T1 M',T+'L L'= &,-CL'M'T+-*
-n %epteber &7, "'(& the President announced that, on %epteber &", "'(& or
t)o days earlier, he had, pursuant to Proclaation No. "#$", declared a state of
artial la) in the Philippines. The President cited and detailed any acts of
insurrection and rebellion against the governent of the Republic of the
Philippines coitted by la)less eleents and various front organi,ations in
order to sei,e political and state po)er. Proclaation No. "#$" concludes 5
virtue of the po)ers vested upon e by Article D22, %ection "#, paragraph 8&= of
the Constitution, do hereby place the entire Philippines as defined in Article ",
others )ho ay hereafter be siilarly detained for the cries coitted in
furtherance or on the occasion thereof, or incident thereto, or in connection
there)ith, for cries against public order, cries involving usurpation of
authority, ran4, title and iproper use of naes, unifors, and insignia, cries
coitted by public officer, and for such other cries as )ill be enuerated in
-rders that 2 shall subse*uently proulgate, as )ell as cries as a conse*uence
or proulgated upon y direction shall be 4ept under detention until other)ise
ordered released by e or by y duly designated representative.
111 111 111
222
',,"T -$ T1 &T+T+-*,"
Gnder a state of artial la), petitioners or the persons in )hose behalf petitions
for )rits of habeas corpus have been filed )ere on various dates arrested and
detained. The orders of arrest )ere preised on 9eneral -rder No. & of the
President dated %epteber &&, "'(&
1
)hich )as aended by 9eneral -rder No.
&;A, on %epteber &A, "'(&. 9eneral -rder No. &;A reads?
the arrest and ta4e into your custody the individuals naed in the attached lists
for being participants or for having given aid and cofort in the conspiracy to
force, the e1tent of )hich has no) assued the proportion of an actual )ar
against our people and our legitiate governent and in order to prevent the
fro further coitting acts that are iniical or in+urious to our people, the
governent and our national interest, and to hold said individuals until other)ise
so ordered by e or by y duly designated representative.
:i4e)ise, 2 do hereby order you to arrest or cause the arrest and ta4e into
designated representative?
". %uch persons as ay have coitted cries and offenses in furtherance or on
rebellion as defined in Articles "7@ to "7$ of the Revised Penal Code, and other
cries against public order as defined in Articles "@A, "@(, "@$, "@', "<", "<7,
"<@, "<<, and "<A of the sae Code.
&. %uch persons )ho ay have coitted cries against national security and
the la)s of the nation, as enuerated and defined in Title 2 of the Revie) Penal
Code.
111 111 111
Arrests and detentions under a artial la) proclaation are not necessarily
liited to those )ho have actually coitted cries and offenses. More
specifically, those arrested and ta4en into custody under 9eneral -rder No. &;A
fall under three general groups?
". Those )ho appear to have actually coitted cries and offenses and )ho
should be charged and punished for such cries and offenses pursuant to our
penal la)s.
&. Those )ho have been arrested not to a4e the account for cries and
offenses but to prevent the fro coitting acts iniical or in+urious to the
ob+ectives of a artial la) proclaation. and
7. Those )ho appear to have actually coitted cries and offenses but )hose
prosecution and punishent is deferred because the preventive nature of their
detention is, for the oent, ore iportant than their punishent for violating
the la)s of the land.
Criinal charges have been filed against petitioner Benigno %. A*uino, 0r., and he,
therefore, ay fall under 9roup No. " and the BpreventiveB aspect of 9roup No.
7. 2t is true that he *uestions the validity of the charges, raises as an issue the
deprivation of fundaental rights of an accused, and challenges the +urisdiction of
a ilitary coission to try hi. Co)ever, deterination of these *uestions is
properly for another proceeding and another decision. 3or purposes of these
habeas corpus petitions, he and any others siilarly situated ay fall under
9roups " and 7.
Petitioner 0ose /. 6io4no can fall under 9roup No. & and 9roup No. 7, as far as
the record indicates. Thus, there ay be persons arrested pursuant to 9eneral
-rder No. & )ho ay fall under the second group but against )ho charges
could be filed as under the third group. They have not been charged for reasons
obviously related to national security. The adinistration ay have deterined
that, in the light of the artial la) situation, it is neither )ise nor e1pedient to file
such charges no).
The constitutionality of the arrest of those arrested under 9roup No. " cannot be
*uestioned. They have coitted a crie and therefore can be ordered arrested
and detained.
The constitutionality of the arrest of those arrested under 9roups Nos. & and 7,
under artial la) finds support in the boo4 of 0ustice 3ernando and %enator
TaFada. the pertinent part of said boo4 reads as follo)s?
-nce martial law has been declared# arrest may be necessary not so much )or
punishment but by way o) precaution to stop disorder. As long as such arrest are
the President. as Coander;in;Chief, cannot thereafter, after he is out of office,
belief. /hen it coes to a decision by the head of the %tate upon a atter
involving its life, the ordinary rights of individual, ust yield to )hat he dees
the necessities of the oent. Public danger )arrants the substitution of
e1ecutive process. This is aditted )ith regard to 4illing en in the actual clash
of ars and the sae is true of teporary detention to prevent apprehended
har. 9ood faith and honest belief in the necessity of the detention to aintain
order thus furnishes a good defense to any clai for liability. 8TaFada and
3ernando, Constitution o) the &hilippines, Dol. 22, pp. "#"7;"#"@, "'<7 ed.=
2D
T1 &T+T+-*" $-, =,+T" -$ 1'B'" C-,&<"
8a= The Grounds There)or9
Petitions for )rits of habeas corpus )ere accordingly filed in this Court by or in
behalf of the arrested and detained individuals. The petitions contain substantially
siilar grounds and prayers.
3or instance, in 9.R. No. :;7<<7', Caren 2. 6io4no pressed for the urgent and
iediate release of %enator 0ose /. 6io4no fro the custody of either the
respondents, their agents, instruents, au1iliaries or servants. 2t is alleged that
the respondents unla)fully or illegally and )ithout any valid authority )hatsoever,
in violation of the petitioner!s rights as a citi,en of the Republic, sei,ed his person
fro his residence and oved hi to a place of confineent and detention. The
petition also alleges that no charges have been filed against 0ose /. 6io4no for
coitting or having coitted insurrection or rebellion or subversion and that
the eorandu directing his arrest is neither an order of arrest nor a )arrant
of arrest.
The petition in 9.R. No. :;7<<@A alleges that petitioners Benigno %. A*uino, 0r.,
Raon D. Mitra, 0r., 3rancisco %. Rodrigo, and Napoleon Raa have been illegally
detained and unla)fully deprived of their personal liberty beyond the period
authori,ed by la) )ithout any foral coplaint for any specific offense having
been instituted against the before our courts of la) and )ithout any +udicial )rit
or order having been issued authori,ing their confineent. 2t is alleged that the
petitioners have not coitted any crie nor violated any la), rule or regulation
)hether individually or in collaboration )ith other person or persons for )hich
they ay be detained and deprived of their personal liberty )ithout any foral
charge or +udicial )arrant.
A coon allegation in the various petitions challenges the validity of Presidential
Proclaation No. "#$". 2t is asserted that Proclaation No. "#$" declaring
artial la) is illegal and unconstitutional and, therefore, null and void because
the conditions under )hich artial la) ay be declared by the President do not
e1ist. The petition in 9.R. No. :;7<<@A states that assuing argumenti gratis that
the conditions for the valid e1ercise of the e1traordinary po)er to declare artial
la) e1ist, Proclaation No. "#$" and Presidential 6ecrees and -rders issued
pursuant thereto are unconstitutional and illegal in e1tent and scope because they
deprive the %upree Court of its constitutional po)er and authority to deterine
the constitutionality, legality and validity of the decrees, orders, rules and
regulations issued pursuant to the proclaation. 2t is alleged that the
proclaation is unconstitutional and illegal because it divests and ousts the civil
courts throughout the Philippines of the +urisdiction to decide and punish certain
offenses under the e1isting la)s of the land. The petition ephasi,es that civil
courts continue to reain open and have in fact never ceased to function. The
petition challenges the validity of Proclaation No. "#$" because it grants to the
President po)ers )hich are other)ise vested by the Constitution in other
departents of the 9overnent.
Corollary to the above allegations in 9.R. No. :;7<<@A is the allegation of
petitioners Deronica :. Kuyitung and Tan Chin Cian in 9.R. No. :;7<<<A that
assuing )ithout aditting the validity of Proclaation No. "#$", the issuance of
such a proclaation is not a valid +ustification to arrest any person )hisically or
arbitrarily or )ithout the necessary basis or foundation inherent in the proper
arrest or detention.
The petition in 9.R. No. 7<<@( alleges that petitioner E. Doltaire 9arcia 22 has not
coitted the cries of insurrection, rebellion or subversion nor any crie
siilar thereto nor any crie at all. 2t states that his continued illegal detention
prevents hi fro perforing his function as eber of the Constitutional
Convention and, therefore, deprives his district of representation )hich is
obviously against public policy and public interest. The petition as4s the %upree
Court to ta4e +udicial notice of the fact that there )as no invasion, insurrection, or
rebellion or iinent danger thereof before andNor after the date of Proclaation
No. "#$" that ay re*uire for the public safety the placing of any part of the
country under artial la). Reiterating the allegations in the other petitions, it
outlines ho), throughout the length and breadth of the country especially in the
9reater Manila area, all e1ecutive offices are functioning in coplete noralcy.
ho) all courts fro the lo)est unicipal courts to the %upree Court are in full
operation. ho) the different legislative bodies fro barrio councils up to Congress
are li4e)ise functioning soothly according to la).
Petitioner Ernesto Rondon in 9.R. No. :;7<<(7 alleges that pursuant to
Proclaation No. "#$" the President issued 9eneral -rder No. 7 )hich creates
ilitary tribunals to ta4e +urisdiction over certain acts and cries to the e1clusion
of civil courts. The petition alleges that the creation of such ilitary tribunals and
the vesting thereof )ith +udicial functions are null and void because civil courts
are open and functioning. 2t *uestions the intent to try the petitioner before the
ilitary tribunals for any crie )hich the respondents ay ipute to hi. The
petitioner alleges that he has not engaged in any of the criinal activities defined
in Proclaation No. "#$", that, at best, he is only a critic of the policies of the
9overnent and, at )orst, a civilian citi,en aenable to the processes of civilian
la), if at all he has coitted any offense.
8b= &resent "tatus o) &etitioners9
As things no) stand, the different petitioners ay be divided into four 8@=
groups?
". %oe petitioners li4e Deronica :. Kuyitung, Tan Chin Cian, Bren 9uiao,
Cernando 0. Abaya, Ernesto 9ranada, :uis Beltran, Ruben Cusipag and /illie Baun
have already been released fro custody of the respondents and are no longer
under detention. These petitioners earlier filed otions to )ithdra) their cases
and the Court readily approved the )ithdra)al of the petitions.
&. %oe petitioners li4e 0oa*uin D. Roces, Teodoro M. :ocsin, %r., Rolando 3adul
Mauricio, 0uan :. Mercado, Roberto -rdoFe, and Manuel Alario have li4e)ise
been released fro respondents! custody and are also no longer detained.
Co)ever, after an initial period of silence follo)ing their release, the petitioners
have anifested that they have long been conditionally released sub+ect to
various conditions and continuing restrictions thus iplying they e1pect a decision
on their petitions. Petitioner 3rancisco %. Rodrigo has also filed a anifestation
stating that )hile he )as released fro detention at 3ort Bonifacio, Lue,on City
on 6eceber <, "'(&, his release )as conditional and sub+ect to certain
restrictions. Cis anifestation )as filed for the purpose of sho)ing that insofar as
he is concerned, his petition for habeas corpus is not oot and acadeic.
Petitioner 3rancisco %. Rodrigo is, therefore, as4ing this Court to render a decision
on his petition for a )rit of habeas corpus.
7. -n the other hand, petitioner 0ose /. 6io4no )as under detention until very
recently. 3or reasons )hich )ill be discussed later, he has, ho)ever, as4ed for and
insisted upon the )ithdra)al of his petition in spite of the fact that he is under
detention. Before this opinion could be proulgated, ho)ever, he has been
ordered released by the President on the occasion of his E1cellency!s birthday,
%epteber "", "'(@, together )ith soe other detainees under artial la).
@. Petitioner Benigno %. A*uino, 0r., is still under detention. Charges have been
filed before a ilitary coission for various cries and offenses but the
petitioner challenger. the +urisdiction of ilitary courts. Ce has not filed any
otion to )ithdra) his petition. Based on his pleadings and his challenge to the
+urisdiction of ilitary tribunals, the petitioner states that it is incubent upon
this Court to rule upon the erits of the petition. Ce )ants inforation filed
before civilian courts and invo4es constitutional rights to free hi fro ilitary
detention. Petitioner Benigno %. A*uino, 0r., is insistent that this Court render a
decision on his petition for a )rit of habeas corpus.
D
'*"=, -$ ,"&-*/*T"9
T1 +""<"
The ans)er of the respondents states that on %epteber &", "'(&, the President
of the Philippines, in the e1ercise of po)ers vested in hi by Article D22, %ection
"#, paragraph & of the Constitution, issued Proclaation No. "#$" placing the
entire Philippines under artial la). All the acts *uestioned by the petitioners are
+ustified by orders and instructions of the President issued pursuant to the
proclaation of artial la). The ail *uestion that confronts the Tribunal is,
therefore, the validity of Proclaation No. "#$". 2f it is tainted )ith
unconstitutionality, then all the acts ta4en pursuant to the proclaation are void.
2t )ill then follo) that the arrest and detentions of the petitioners are void.
-n the other hand, if the proclaation of artial la) is sustained, )e still have to
deterine its scope and effects. /e ust ans)er these *uestions? May )e in*uire
into the validity of its continuationE 2s a suspension of the privilege of the )rit of
habeas corpus autoatically included in a proclaation of artial la)E
-ther *uestions also arise )hich, ho)ever, need be decided by Gs only in a
general anner in the present cases. May the Coander;in;Chief issue orders
)ith the force and effect of legislationE May such legislation cover sub+ects )hich
are not directly related to the con*uest of the particular crisisE 2n other )ords,
does the proclaation of artial la) give the President authority to pass
legislation not directly related to invasion, insurrection, rebellion, or iinent
danger thereof.E 2f civilian courts are open and functioning, ay the President
issue decrees and orders )hich transfer soe of their +urisdiction to ilitary
tribunalsE
2ncidental issues have also been raised in the light of the ain issue of artial
la). -ne is no longer before this Court but ay be entioned in passing. The
"'(7 Constitution increased the coposition of the Court fro eleven 8""= to
fifteen 8"<=. At a tie )hen there )ere only nine 8'= ebers carried over fro
the old Court, ay these nine ebers the Acting Chief 0ustice and eight
ebers 5 validly hear a constitutional issueE 2s there a *uoru under Article I,
section & 8&= )hich reads?
8&= All cases involving the constitutionality of a treaty, e1ecutive agreeent, or
la) shall be heard and decided by the %upree Court en banc and no treaty,
e1ecutive agreeent, or la) ay be declared unconstitutional )ithout the
concurrence of at least ten Mebers. All other cases )hich under its rules are
re*uired to be heard en banc, shall be decided )ith the concurrence of at least
eight Mebers.
/e no) have a Chief 0ustice and eleven ebers so the proble of a *uoru is
solved.
Another incidental issue is the po)er of this Court to in*uire into the conditions of
detention of petitioners. And still another issue is )hether one of the petitioners
ay, at a tie )hen a decision is ready to be proulgated, )ithdra) his petition
and avoid a decision on the issues he has raised.
D2
-* &T+T+-*, /+-.*-I" M-T+-* T- =+T1/,'=
The first issue to resolve is an incidental but iportant one. 2t is also the ost
recent.
8a= 'rguments &ro and Con9
2n a Motion to /ithdra) dated 6eceber &', "'(7, petitioner 0ose /. 6io4no
as4ed leave of court to )ithdra) the petition for habeas corpus filed in his behalf.
Ce as4ed for the )ithdra)al of the ain petition and other pleadings filed in the
case. The reason given for the )ithdra)al )as B3irst, though 2 a convinced
beyond any nagging doubt that )e are on the side of right and reason, la) and
+ustice, 2 a e*ually convinced that )e cannot reasonably e1pect either right or
reason, la) or +ustice to prevail in y case ... 8and= %econd, in vie) of the ne)
functioning under a ne) Constitution, different fro the Court under )hich 2
applied for y release. 2 )as )illing to be +udged by the old Court under the old
Constitution but not by the ne) Court under the ne) Constitution because as
Albert Caus! +udge penitent said in the novel !The 3all!? !he )ho clings to a la)
does not fear the +udgent that puts hi in his place )ithin an order he believes
in. But the 4eenest of huan torents is to be +udged )ithout la).B
-n being re*uired to coent on the petitioner!s otion to )ithdra), the
%olicitor 9eneral stated that the petitioner . should not be allo)ed to reove his
case fro this Court. Three reasons )ere given? 8a= that the charge is unfair to
the %upree Court and its ebers. 8b= that it is untrue and 8c= that in the
ain, it is conteptuous. The %olicitor 9eneral disputed, as unfair, the charge
that +ustice cannot be e1pected fro the %upree Court. Ce pointed out that the
%upree Court did not in+ect itself into the controversy but it )as the petitioner
)ho invo4ed the Court!s +urisdiction not only in this case but the plebiscite cases
as )ell. The %olicitor 9eneral noted that the scorn )ith )hich the Court is treated
in the otion to )ithdra) stands in sharp contrast )ith the praise lavished on it
)hen petitioners began these proceedings.
2t ay be noted that the %upree Court )as then characteri,ed as having the
greatest credibility aong the three branches of governent. 2t )as described as
a dispenser of +ustice and as the last citadel of their liberties.
2n his Meorandu, petitioner anifested and stressed the iportance of a
decision 5 Bthe decision in this case, whatever it may be, )ill be cited in history
boo4s any years fro no). And it )ill be *uoted )herever lovers of freedo
as4 the *uestion ... /hat did the Court do in that difficult hourEB 8Ephasis
supplied=.
The petitioner further stated in the Meorandu that Bthe duty of this Court is
a)esoe indeed. 2ts responsibility to -ur people and to history is heavier and
ore enorous than )ords and phrases can possibly describe.B
2n contrast to this insistence on a decision, a portion of the otion to )ithdra)
cited by the respondents ay be repeated?
H2Jt sees to e that our people have the right to e1pect ebers of the highest
court of the land to display a conscience ore sensitive, a sense of ental
honesty ore consistent than those generally displayed in the ar4et place. And
it has pained e to note that, in s)earing to support the ne) !Constitution!, the
five ebers of the Court )ho had held that it had not been validly ratified, have
not fulfilled our e1pectations. 2 do not blae the 2 do not 4no) )hat 2 )ould
have done in their place. But, as the sae tie, 2 cannot continue to entrust y
case to the. and 2 have becoe thoroughly convinced that our *uest for +ustice
in y case is futile. 8p. A=.
2ssue )as also ta4en by the respondent )ith the petitioner!s charge that despite
the finding of a a+ority that the ne) Constitution had not been validly ratified,
the Court nonetheless disissed the petitions see4ing to stop the enforceent of
the Constitution. The allegation that the +ustices of this Court too4 an oath to
support the Constitution because they had been allo)ed to continue in office )as
challenged as false by the respondents.
The third ground for the respondents! opposition to the otion to )ithdra) is the
allegedly conteptuous nature of the otion. The Coent states that attac4s
on the Court are ost serious. none of those ade in the past has put the court!s
integrity and capacity for +ustice in serious *uestion as uch as the petitioner!s
otion to )ithdra). According to the %olicitor 9eneral, the charge in the case at
bar goes to the very foundation of our syste of +ustice and the respect that is
due to, it, that it is subversive of public confidence in the ipartiality and
independence of courts and tends to ebarrass the adinistration of +ustice. The
%olicitor 9eneral anifested that B)e cannot shape the )orld of the %upree
Court as )e )ant to see it and, later seeing the )orld of reality, lash at the
%upree Court for betraying our illusions.B
2n succeeding pleadings, petitioner 6io4no pressed his otion to )ithdra) )ith
even greater vigor. Counsel for petitioner stated that the so;called charge 5
Bunfair to the Court and its ebers, untrue, and conteptuousB 5 )as never
ade at all and that the %olicitor 9eneral )as putting up a stra)an and
proceeding to deolish it.
2n a forty;si1 8@A= page Reply, he pointed out that the factual bases for deciding
to )ithdra) the case have not been specifically denied, as indeed they are
undeniable. 2t should be noted, ho)ever, that the cited factual bases go into the
very erits of the petition for the )rit of habeas corpus?
8"= -n the *uestion of the validity of ratification, si1 8A= ebers of the Court
held that the proposed Constitution )as not validly ratified.
8&= -n the *uestion of ac*uiescence by the 3ilipino people, only a inority of four
8@= +ustices held there )as ac*uiescence, t)o 8&= holding that there )as no
ac*uiescence, and four 8@= holding they had no eans of 4no)ing to the point of
+udicial certainty, )hether the people have accepted the Constitution.
87= The Court did not rule that the Bne) ConstitutionB )as in effect.
8@= The ratification cases )ere nevertheless disissed.
The petitioner added Bundeniable factsB?
8"= The petition for habeas corpus )as filed %epteber &7, "'(& )hile the
ratification cases )ere riled 0anuary &# and &7, "'(7.
8&= 3ro the filing of the petition to the date Petitioner 6io4no as4ed his counsel
to )ithdra) the case, @A# days had elapsed.
87= -n the date the reply )as filed, <7" days had elapsed )ithout charges being
filed or trial and conviction for any offense being held.
8@= All the ebers of the old Court, )ho had ta4en an oath to Bpreserve and
defendB the "'7< Constitution, too4 an oath on -ctober &', "'(7 to defend the
Bne) ConstitutionB.
2n disputing the %olicitor 9eneral!s charge that the %upree Court is treated )ith
scorn in the Motion to /ithdra), the petitioner stated that the tone of the otion
ay be one of disay or frustration but certainly not of scorn. The petitioner
called the charge gratuitous and totally bare of foundation.
The petitioner also pointed out that there could be no contept of court in the
otion to )ithdra) because the factual bases of his letter are indisputable and
the otion coes under the protection of the constitutional right to a fair
hearing. Ce invo4ed his right to free e1pression as a litigant and stressed that a
citi,en of the Republic ay e1press hiself thoughtfully, sincerely and reputably
)ithout fear of reprisal. The petitioner also pointed out that both principle and
precedent +ustify grant of the otion to )ithdra).
8b= My original stand9 Motion should be denied9
,easons9
My present stand? 2n vie) of the release of 6io4no before this opinion could be
proulgated, 2 no) vote to grant his otion to )ithdra) his petition the sae
having becoe oot and acadeic.
But, 2 )ould li4e to discuss the erits of the otion if only to establish guidelines
for siilar cases that ay arise in the future.
As a general rule, the right of the plaintiff to disiss his action )ith the consent of
the Court is universally recogni,ed. 2f the plaintiff believes that the action he has
coenced in order to enforce a right or to rectify a )rong is no longer
necessary or he later discovers that the right no longer e1ists, he should be
allo)ed to )ithdra) his case. 2f in the course of litigation, he finds out that the
course of the action shall be different fro that he had intended, the general rule
is that he should be peritted to )ithdra) the sae, sub+ect to the approval of
the Court.
The plaintiff should not be re*uired to continue the action )hen it is not to his
advantage to do so. :itigation should be discouraged and not encouraged. Courts
should not allo) parties to litigate )hen they no longer desire to litigate.
2t should be noted, ho)ever, that the Rules of Court do not allo) autoatic
approval of the plaintiff!s otion to disiss after service of the ans)er or of a
otion for suary +udgent. Gnder Rule "(, .. once the issues are +oined, an
action can be disissed upon the plaintiffs instance only upon order of the Court
and upon such ters and conditions as the Court dees proper.
The re*uireent in the Rules that disissal is discretionary upon the Court is not
)ithout significance. 2n fact, the petitioner does not deny the authority of the
Court to re+ect his otion as long as there are reasons for such re+ection. Ce is
siply arguing that there is no valid reason to deny the otion thus iplying that
a denial )ould, in effect, be an abuse in the e1ercise of a discretionary po)er.
2n the Court!s deliberations, the vie) )as advanced that petitioner!s otion for
)ithdra)al ade his confineent voluntary. 2 disagreed, for said otion, in the
light of the other pleadings and eoranda subitted by hi, can still be
considered as a protest against his confineent. 2n other )ords, petitioner has
not ade any stateent upon )hich )e can base a conclusion that he is agreeing
voluntarily to his continued confineent and thereby a4ing his case oot and
acadeic.
2 subit there can be no debate over the principle that the right to )ithdra) a
petition at this stage is not an absolute right. /hat faces this Court is not its
po)er to grant or deny the otion but )hether there are sound reasons )hy the
otion to )ithdra) should be denied. 2f there are no sound reasons, the otion
should be granted.
According to the petitioner, there are only t)o instances )hen a Court ay validly
deny such a )ithdra)al 5
8"= /hen the )ithdra)al )ould irreparably in+ure other parties to the case such
as, for e1aple, in class suits, in probate proceeding or in ordinary civil actions
)hen the adverse party has pleaded a counterclai that cannot be decided
)ithout first deciding the ain case. and
8&= /hen the )ithdra)al )ould irreparably in+ure the public interest by depriving
the Court of the opportunity to prevent or to correct a serious violation of the
Constitution or of the la)s.
2 a not prepared to accept the proposition or to render an abstract opinion that
there are indeed only t)o such e1ceptions. The infinite nuber of factual
situations that can coe before this Court could conceivably add one or t)o or
even ore e1ceptions. 2t )ould be iprudent or precipitate to a4e such a
categorical assertion. /here it not for the release of 6io4no, 2 )ould have on y
fir belief that the iportance of this case and the issues raised by the petitioner
call for denial of the otion to )ithdra). The points ably raised by %olicitor
9eneral Estelito P. Mendo,a and Assistant %olicitor 9eneral Dicente D. Mendo,a,
)ho have sho)n rear4ably splendid perforance in shouldering alost entirely
the governent!s defense against soe of the country!s ost distinguished
la)yers, notably forer %enator :oren,o M. TaFada and a battery of other
la)yers )hose naes are a veritable list of B/ho is /hoB in the legal profession,
can be condensed into only one arguent 5 the petitioners have brought before
this Court a case of such transcendental iportance that it becoes a duty to our
legal institutions, to our people, and to posterity to decide it. /e ust not leave
the resolution of such grave issues to a future day.
3urtherore, aong the present habeas corpus cases no) before this Court, the
best foru for -ur decision )ould have been the 6io4no case for, before his
release, he )as the only petitioner )ho )as actually detained but )ithout
charges, )hile there are already charges filed against A*uino, and )ith respect to
the others )hose cases are still pending before Gs, they are only under detention
)ithin the 9reater Manila area or are under counity arrest.
The petitioner see4s to distinguish his case fro .rivenko vs. ,egister o) /eeds,
(' Phil. @A". 2n that case, this Court ruled 5
According to Rule <&, section @, of the Rules of Court, it is discretionary upon this
Court to grant a )ithdra)al of appeal after the briefs have been presented. At the
tie the otion for )ithdra)al )as filed in this case, not only had the briefs been
presented, but the case had already been voted and the a+ority decision )as
being prepared. The otion for )ithdra)al stated no reason )hatsoever, and the
%olicitor 9eneral )as agreeable to it. /hile the otion )as pending in this Court,
cae the ne) circular of the 6epartent of 0ustice, instructing all register of
deeds to accept for registration all transfers of residential lots to aliens. The
herein respondent;appellee )as naturally one of the registers of deeds to obey
the ne) circular, as against his o)n stand in this case )hich had been aintained
by the trial court and firly defended in this Court by the %olicitor 9eneral. 2f )e
grant the )ithdra)al, the result )ould be that petitioner;appellant Ale1ander A.
Mriven4o )ins his case, not by a decision of this Court, but by the decision or
circular of the 6epartent of 0ustice, issued )hile this case )as pending before
this Court. /hether or not this is the reason )hy appellant see4s the )ithdra)al
of his appeal )hy the %olicitor 9eneral readily agrees to that )ithdra)al, is no)
iaterial. /hat is aterial and indeed very iportant, is )hether or not )e
should allo) interference )ith the regular and coplete e1ercise by this Court of
its constitutional functions, and )hether or not after having held long
deliberations and after having reached a clear and positive conviction as to )hat
the constitutional andate is, )e ay still allo) our conviction to be silenced,
and the constitutional andate to be ignored or isconceived, )ith all the
harful conse*uences that ight be brought upon the national patriony. 3or it
is but natural that the ne) circular be ta4en full advantage of by any, )ith the
circustance that perhaps the constitutional *uestion ay never coe up again
before this court, because both vendors and the vendees )ill have no interest but
to uphold the validity of their transactions, and very unli4ely )ill the register of
deeds venture to disobey the orders of their superior. Thus the possibility for this
court to voice its conviction in a future case ay be reote, )ith the result that
our indifference of today ight signify a peranent offense to the Constitution.
8pp. @AA;@A(=
There are indeed certain differences bet)een the facts of the .rivenko case and
the facts of the current petitions. 2f the factual situations )ere copletely siilar,
forer %enator :oren,o M. TaFada )ould have been the last person to insist on
the 6io4no otion for )ithdra)al. Ce )as the %olicitor 9eneral in "'@(. Ce is
copletely failiar )ith the raifications of the .rivenko case.
2 cannot, ho)ever, agree )ith counsel TaFada that the deviations fro the
.rivenko facts call for a different ruling in the instant petitions. The %upree
Court has grappled at length and in depth )ith the validity of the proclaation of
artial la). 2t has closely e1ained the resultant curtailents of e liberties as
the right to a )rit of habeas corpus or to freedo of e1pression. /hen it is on the
verge of issuing a decision, it is suddenly as4ed to drop the case and the issues
raised siply because the petitioner is no longer interested in the decision. To y
ind, a granting of the otion )ould be recreancy and unfaithfulness to the
Courts s)orn duties and obligations.
As in the .rivenko case, the reasons for the )ithdra)al are no longer significant.
2t is the non;silencing of this Court on issues of utost public iportance )hich
really atters. 2t is true that petitioner 6io4no is alone in see4ing )ithdra)al at
this stage of the case. The fact that a decision could possibly still be rendered on
reaining cases is, ho)ever, no +ustification to grant the otion. The issue is
)hether one or t)o or all of the petitioners ay as4 for a )ithdra)al of his or
their petitions and hope to bring about a non;decision on the issues because of
the rendering oot and acadeic of the case. My ans)er is categorically in the
negative. 2n fact, even it the case is ooted at this stage by the release of the
petitioners, 2 )ould still vote for a decision on the *uestions raised.
This may be a simple motion )or withdrawal. @et# + see no di))erence in the need
to answer vital (uestions that have been presented. The public interest that is
a))ected is e(ually pressing and serious i) the petitions are compared to instances
in the past when the Court insisted on rendering a decision. +n )act# there is an
even stronger need to interpret the meaning o) the constitutional provision in
spite o) urgings that it should re)rain )rom doing so.
As early as "'7(, this Court, spea4ing through 0ustice :aurel in &eople o) the
&hilippine +slands v. 2era 8A< Phil, <A, '@= ephatically stated that )hen the
country a)aits a decision on an iportant constitutional *uestion, a rela1ation of
general rules is called for. A decision ust issue.
... All a)ait the decision of this Court on the constitutional *uestion. Considering,
therefore, the iportance )hich the instant case has assued and to prevent
ultiplicity of suits, strong reasons of public policy deand that the
constitutionality of Act No. @&&" be no) resolved. ... 2n @u Cong ng vs. Trinidad,
supra, an analogous situation confronted us. /e said? B2nasuch as the property
and personal rights of nearly t)elve thousand erchants are affected by these
proceedings and inasuch as Act No. &'(& is a ne) la) not yet interpreted by
the courts, in the interest of the public )elfare and for the advanceent of public
policy, )e have deterined to overrule the defense of )ant of +urisdiction in order
that )e ay decide the ain issue. /e have here an e1traordinary situation
)hich calls for a rela1ation of the general rule.B -ur ruling on this point )as
sustained by the %upree Court of the Gnited %tates. A ore binding authority in
support of the vie) )e have ta4en can not be found.
2n the case of 'velino vs. Cuenco 8'7 Phil. "(=, the %upree Court had very
sound reasons to resolve on March @, "'@' not to decide )hether or not %enator
Cuenco had validly been elected %enate President. The Court ruled that the
sub+ect atter of the (uo warranto proceeding to declare the petitioner the
rightful President of the Philippine %enate and to oust the respondent )as not a
atter for the %upree Court in vie) of the separation of po)ers doctrine, the
political nature of the controversy, and the constitutional grant to the %enate of
the po)er to elect its o)n President. The po)er to elect its President should not
be interfered )ith nor ta4en over by the +udiciary.
-n March "@, "'@' or only ten 8"#= days later, the Court, by a a+ority of seven,
decided to resolve the *uestions presented to it. The Court could very )ell have
insisted on its earlier stand that it should render no decision. Election of the
%enate President )as still a atter )hich only the %enate should decide. And yet,
in the light of subse*uent events )hich +ustified its intervention, partly for the
reasons stated in the March @, "'@' resolution of the Court, and partly because of
the grounds stated in the various individual opinions, the Court )as constrained
to declare positively that there )as a *uoru in the session )here Cuenco )as
elected Acting %enate President. The Court decided to reverse a categorical
position ta4en only ten 8"#= days earlier. 2t is clear fro the circustances of the
case that the Court )as ipelled by strong policy considerations to a4e a
definite pronounceent in the case in order to confor to substantial +ustice and
coply )ith the re*uireents of public interest. As pointed out by 0ustice
Perfecto in his concurring opinion, BThis case raises vital constitutional *uestions
)hich no one can settle or decide if this Court should refuse to decide the.B
2n Gon%ales vs. Commission on lections, 8&( %CRA $<7=, the )ords of 0ustice
:aurel )ere recalled in order to overcoe ob+ections to an e1tended decision on a
case )hich had becoe oot and acadeic.
2n the course of the deliberations, a serious procedural ob+ection )as raised by
five ebers of the Court 8Chief 0ustice Concepcion and 0ustices Reyes,
Ma4alintal, Teehan4ee and Barredo.= 2t is their vie) that respondent Coission
on Elections not being sought to be restrained fro perforing any specific act,
this suit cannot be characteri,ed as other than a ere re*uest for an advisory
opinion. %uch a vie), fro the reedial la) standpoint, has uch to recoend
it. Nonetheless, a a+ority )ould affir the original stand that under the
circustances, it could still rightfully be treated as a petition for prohibition.
The language of 0ustice :aurel fits the case? !All a)ait the decision of this Court on
the constitutional *uestion. Considering, therefore, the iportance )hich the
instant has assued and to prevent ultiplicity of suits, strong reasons of
public policy deand that HitsJ constitutionality ... be no) resolved.! 8A< Phil. <A,
'@ 8"'7(= C). @u Cong ng v. Trinidad, @( Phil. 7$< 8"'&A=, &(" G% <##. (# :a)
ed., "#<'=. 2t ay li4e)ise be added that the e1ceptional character of the
situation that confronts us, the paraount public interest, and the undeniable
necessity for a ruling, the national elections being barely si1 onths a)ay,
reinforce our stand.
2t )ould appear undeniable, therefore, that before us is an appropriate invocation
of our +urisdiction to prevent the enforceent of an alleged unconstitutional
statute. /e are left )ith no choice then. )e ust act on the atter.
2n /e la Camara v. nage 8@" %CRA "=, this Court )as siilarly ipelled to a4e
a decision because of strong policy considerations. A petition to reduce the
P","'<,&##.## bail iposed by the trial court had becoe oot and acadeic.
The petitioner had escaped fro the provincial +ail. The Court could no longer
grant any relief. 2t, ho)ever, decided the case Bto set forth ane) the controlling
and authoritative doctrines that should be observed in fi1ing the aount of the
bail sought in order that full respect be accorded to such a constitutional right.B
8at page @=. Education, especially of trial +udges, )as the reason for ans)ering
the issues s*uarely.
2 )ould li4e to reiterate, ho)ever, that in vie) of the fact that petitioner 6io4no
has been released on the occasion of President Marcos! birthday 8%epteber ""=,
2 no) vote to grant the 6io4no otion to )ithdra) his petition for a )rit of
habeas corpus, the sae having becoe oot and acadeic.
D22
C-<,T" /<T@ T- /C+/ 'LL +M&-,T'*T +""<" K -* T1 &T+T+-*" -$
T1 &T+T+-*,"
But as already stated under the topic 2D 8b= BPresent %tatus of the PetitionersB,
any of the, notably A*uino and Rodrigo, still insist on a decision. This )e ust
no) do, for the resolution of the controversy in favor of the petitioners or for the
respondents is not the copelling consideration. /hat is iportant and essential
is that the Court declare in a anner that cannot be isunderstood )hat the
Constitution coands and )hat the Constitution re*uires.
2t is true that the Court should not forulate a rule of constitutional la) broader
than is re*uired by the precise facts to )hich it is applied. 2t is true that a
decision on a *uestion of a constitutional nature should only be as broad and
detailed as is necessary to decide it.
There are, therefore, those )ho )ould liit a decision solely on the Transitory
Provisions of the "'(7 Constitution. The e1ercise of artial la) po)ers under
Article D22, %ection "#, paragraph & of the forer Constitution or Article D22,
%ection "& of the "'(7 Constitution have been sub+ected to intensive, searching,
and )ell;published challenges.
1
2f /e decide the case solely on the transitory
provision, uncertainty and confusion about artial la) )ould reain. The
provisions on artial la) )ould still be une1plained and unresolved by this Court.
2t is easy to see the patent undesirability of such a situation.
2n these petitions, our people a)ait the decision of this Court on the constitutional
*uestion. Considering, therefore, the iportance )hich the instant petitions have
assued, /e ust set forth the controlling and authoritative doctrines.
D22
T1 T1, &,+*C+&'L +""<"
The %olicitor 9eneral stated the respondents! position as a narro) one 5 )hether
the arrest and detention of the petitioners )ere legal.
2t is true that habeas corpus is intended for cases of illegal confineent or
detention by )hich a person is deprived of his liberty 8%ection ", Rule "#&, Rules
of Court=. 2ts essential ob+ect is to in*uire into all anner of involuntary restraint
and to relieve a person therefro, if such restraint is illegal 8Dillavicencio vs.
:u4ban, 7' Phil. (($. Culauag vs. 6irector of Prisons, "( %CRA @&'=. /hile the
issue ay be presented in seeingly narro) ters, its scope and iplications are
not that siple. The respondents argue that this Court is precluded by the
Constitution fro in*uiring into the legality of the detentions. They argue that
such an in*uiry is possible only )here the privilege of the )rit of habeas corpus is
available and inasuch as the privilege of the )rit has been suspended by the
President upon the proclaation of artial la), it follo)s that /e should inhibit
-urselves fro as4ing for the reasons )hy the petitioners )ere arrested and
detained. 2t is argued that the Constitution has vested the deterination of the
necessity for and legality of detentions under artial la) e1clusively in the
Presidency 5 a co;e*ual departent of governent.
The principal issues, therefore, revolve around first, the validity of Proclaation
No. "#$". %econd, assuing its original validity, ay /e in*uire into the validity
of its continuationE And third, has the privilege of the )rit of habeas corpus also
been suspended upon the proclaation of artial la)E The e1tent of -ur in*uiry
into the legality of the detentions and their effects is dependent on the ans)ers to
the foregoing issues.
2I
&,-CL'M'T+-* *-. 4AB4> ' /2+'T+-* $,-M T1 T,'/+T+-*'L C-*C&T -$
M',T+'L L'=> ',G<M*T" -* +T" 2'L+/+T@
2n Proclaation No. "#$", date %epteber &", "'(&, President 3erdinand E.
Marcos placed the entire Philippines as defined in Article ", %ection " of the
Constitution under artial la) by virtue of the po)er vested in the President of
the Republic of the Philippines by Article D22, %ection "#, par. 8&= of the
Constitution )hich reads 5
The President shall be the coander;in;chief of all ared forces of the
Philippines and, )henever it becoes necessary, be ay call out such ared
2n case of invasion, insurrection, rebellion or iinent danger thereof, )hen the
8a= =hat is martial lawL
As the %olicitor 9eneral pointed out )hen as4ed to subit definitions of artial
la), there are as any definitions as there are court rulings and )riters on the
sub+ect. The response of the petitioners gives the sae ipression.
As good de)initions as any that ay have been made in the past are the
follo)ing?
9enerally spea4ing, artial la) or, ore properly, artial rule, is the teporary
governent and control by ilitary force and authority of territory in )hich, by
reason of the e1istence of )ar or public cootion, the civil governent is
inade*uate to the preservation of order and the enforceent of la). 2n strictness
it is not la) at all, but rather a cessation of all unicipal la), as an incident of the
+us belli and because of paraount necessity, and depends, for its e1istence,
operation and e1tent, on the iinence of public peril and the obligation to
provide for the general safety. 2t is essentially a la) or rule of force, a purely
ilitary easure, and in the final analysis is erely the )ill of the officer
coanding the ilitary forces. As the off;spring of necessity, it transcends and
displaces the ordinary la)s of the land, and it applies ali4e to ilitary and non;
ilitary persons, and is e1ercisable ali4e over friends and eneies, citi,ens and
aliens. 8C.0.%., Dol. '7, pp. ""<;""A, citing cases=.
Martial la) is the e1ercise of the po)er )hich resides in the e1ecutive branch of
the governent to preserve order and insure the public safety in ties of
eergency )hen other branches of the governent are unable to function, or
their functioning )ould itself threaten the public safetyB. 8:uther vs. Borden, (
Cos. 8G%= ", @<, "& : ed <$", A##=. B2t is a la) of necessity to be prescribed and
adinistered by the e1ecutive po)er. 2ts ob+ect, the preservation of the public
safety and good order, defines its scope, )hich )ill vary )ith the circustances
and necessities of the case. The e1ercise of the po)er ay not e1tend beyond
)hat is re*uired by the e1igency )hich calls it forth.B 8Mitchell vs. Carony, "7
Co) 8G%= ""<, "77, "@ : ed (<, $7. Gnited %tates vs. Russell, "7 /all. 8G%= A&7,
A&$, &# : ed @(@, @(<. Rayond vs. Thoas, '" G% ("&, ("A, &7 : ed @7@, @7<.
%terling vs. Constantin, "'#.= 8Concurring opinion, 6uncan vs. Mahanao4u 7&(
G.%. 77@, 77<, '# : ed (#A 8"'@<;"'@A==.
2t has been held, therefore, that artial la) is a Bla) of actual ilitary necessity
in actual presence of )ar, and is adinistered by the general of the ary, )hose
)ill it is, sub+ect to slight liitations.B 8Constantino vs. %ith, 6.C. Te1t, <( 3. &d
&7'=. Gnder this sae ruling, artial la) is strictly no la) at all. 2t is a cessation
of all unicipal la).
2n another decision, it has been held that 5
All respectable )riters and publicists agree in the definition of artial la) 5 that
it is neither ore nor less than the )ill of the general )ho coands the ary. 2t
overrides and suppresses all e1isting la)s, civil officers and civil authorities, by
the arbitrary e1ercise of ilitar po)er and every citi,en or sub+ect, in other
)ords, the entire population of the country, )ithin the confines of its po)er, is
sub+ected to the ere )ill or caprice of the coander. Ce holds the lives, liberty
and property of all in the pal of his hands. Martial la) is regulated by no 4no)n
or established syste or code of la)s, as it is over and above all of the. The
coander is the legislator, +udge and e1ecutioner. 82n re? Egan $ 3ed. Cas. p.
7A(=.
-ther definitions ay be cited?
Martial la) ... is not statutory in character and al)ays arises out of strict ilitary
necessity. 2ts proclaation or establishent is not e1pressly authori,ed any of
the provisions of the Constitution. it coes into being only in the territory of an
eney or in a part of the territory of the Gnited %tates in tie of )ar or in tie of
peace in )hich the proper civil authority is, for soe controlling reason, unable to
e1ercise its proper function. 8Charles /arren, B%pies, and the Po)er of Congress
to %ub+ect Certain Classes of Civilian to Trial by Military TribunalB, The Aerican
:a) Revie) :222 8March;April, "'"'=, &#";&'&=.
The ter artial la) refers to the e1ceptional easures adopted )hether by the
ilitary or the civil authorities, in ties of )ar of doestic disturbance, for the
preservation of order and the aintenance of the public authority. To the
operation of artial la) all the inhabitants of the country or of the disturbed
district, aliens as )ell as citi,ens, are sub+ect. 8Moore, 2nt. :a) 6igest 22, "$A. As
to the sub+ection of aliens to Martial :a), %ee Moore, 22, "'A=.
invasion, )hen the Constitution and its civil authorities, state or federal as the
case ay be, have been rendered inoperative or po)erless by the insurrectionary
or invading forces. 2t is part of our doestic or unicipal la). 8Arnold 3., BThe
Rationale of Martial :a)B, "< ABA0 <<"=.
A Philippine author has tried to reconcile the any definitions.
/hatever the previous obscurity )hich has enveloped artial la) in both the
British Epire and the Gnited %tates, it is settled today that artial la) is 8"= the
e1ercise of ilitary +urisdiction. 8&= by the ilitary over the civilian population.
87= in a doestic territory. 8@= on occasion of serious public eergencies such as
insurrection, rebellion, invasion or iinent danger thereof. 8<= according to an
un)ritten la). and 8A= as necessity re*uires. 8%antos, Martial :a), p. $"=.
The e1isting definitions are all based on the traditional concepts. They )ere ade
at a tie )hen invasions )ere preceded by @$;hour ultiatus follo)ed by a
foral declaration of )ar, and )hen insurrections and rebellions involved frontal
clashes bet)een opposing and )ell;defined forces. 2f one group )as overcoe by
the other, the losers )ould surrender their s)ords and guns. The )inners, in turn,
ight agnaniously offer to return the s)ords and allo) the losers to retain
their sidears, rifles, and horses for hoe use. 2n short, there )ere clear and
sporting rules of the gae )hich )ere generally follo)s.
8b= Modern Martial Law.
Martial la) pursuant to Proclaation No. "#$", ho)ever, does not copletely
follo) the traditional fors and features )hich artial la) has assued in the
past. 2t is odern in concept, in the light of relevant ne) conditions, particularly
present day rapid eans of transportation, sophisticated eans of
counications, unconventional )eaponry, and such advanced concepts as
subversion, fifth coluns, the un)itting use of innocent persons, and the
)eapons of ideological )arfare.
The contingencies )hich re*uire a state of artial la) are tie;honored. They are
invasion, insurrection and rebellion. -ur Constitution also allo)s a proclaation of
artial la) in the face of iinent danger fro any of these three contingencies.
The Constitution vests the po)er to declare artial la) in the President under the
"'7< Constitution or the Prie Minister under the "'(7 Constitution. As to the
for, e1tent, and appearance of artial la), the Constitution and our
+urisprudence are silent.
Martial la) pursuant to Proclaation No. "#$" has, ho)ever, deviated fro the
traditional picture of rigid ilitary rule super;iposed as a result of actual and
total or near total brea4do)n of governent.
Martial la) )as proclaied before the noral adinistration of la) and order
could brea4 do)n. Courts of +ustice )ere still open and have reained open
throughout the state of artial la). The nation)ide anarchy, overthro) of
governent, and convulsive disorders )hich classical authors ention as
essential factors for the proclaation and continuation of artial la) )ere not
present.
More iportant, artial la) under Proclaation No. "#$" has not resulted in the
rule of the ilitary. The )ill of the generals )ho coand the ared forces has
definitely not replaced the la)s of the land. 2t has not superseded civilian
authority. 2nstead of the rule by ilitary officials, )e have the rule of the highest
civilian and elective official of the land, assisted by civilian heads of e1ecutive
departents, civilian elective local officials and other civilian officials. Martial la)
under Proclaation No. "#$" has ade e1tensive use of ilitary forces, not to
ta4e over Civilian authority but to insure that civilian authority is effective
throughout the country. This Court can very )ell note that it has suoned and
continues to suon ilitary officers to coe before it, soeties personally
and at other ties through counsel. These ilitary coanders have been
re*uired to +ustify their acts according to our Constitution and the la)s of the
land. These ilitary officers are a)are that it is not their )ill uch less their
caprice but the sovereign )ill of the people under a rule of la), )hich governs
under artial la) pursuant to Proclaation No. "#$".
+t is this parado!ical nature o) martial law in the &hilippines that leads to the
various (uestions raised in the instant petitions. +t is also this apparently variant
)orm and its occasionally divergent scope and e))ects which re(uire this Court to
e!plain 0ust what the martial law provision o) the Constitution means.
/e ust, perforce, e1aine the arguents of the parties on this atter.
8c= ,espondentsI 'rguments
The respondents contend that )hen artial la) )as proclaied on %epteber
&", "'(&, the rebellion and ared action underta4en by the la)less eleents of
the counist and other ared aggrupations organi,ed to overthro) the
Republic of the Philippines by ared violence and force had assued the
Philippines. This declaration is found in the last B)hereasB of Proclaation No.
"#$". The follo)ing assertions of the factual situation on %epteber &", "'(& are
also found in Proclaation No. "#$".
". There is a group of la)less eleents )ho are oved by a coon or siilar
ideological conviction, design, strategy, and goal. Their prie purpose is to stage,
underta4e, and )age an ared insurrection and rebellion against the governent
of the Republic of the Philippines in order to forcibly sei,e political and state
po)er in this country. They have in fact actually staged, underta4en, and )aged
this insurrection and rebellion. They )ant to overthro) the duly constituted
governent and supplant our e1isting political, social, econoic, and legal order
)ith an entirely ne) one. This ne) for of governent, its syste of la)s, its
conception of 9od and religion, its notion of individual rights and faily relations,
and its political, social, econoic, legal and oral precepts are based on the
Mar1ist, :eninist, Maoist teachings and beliefs.
&. These la)less eleents have entered into a conspiracy and have +oined and
banded their resources and forces. They use seeingly innocent and harless
although actually destructive front organi,ation. These organi,ations have been
infiltrated or deliberately fored by the through sustained and careful
recruitent aong the peasantry, laborers, professionals, intellectuals, students,
and ass edia personnel. Their ebership has been strengthened and
broadened. Their control and influence has spread over alost every segent
and level of our society throughout the land.
7. The foregoing group of la)less eleents en+oy the active, oral, and aterial
support of a foreign po)er. 2n the onths of May, 0une and 0uly, "'(&, they
brought into the country at 6igoyo Point, Palanan, 2sabela and other points along
the Pacific coast of :u,on, substantial *uantities of )ar aterials consisting of
around 7,<## M;"@ rifles, several do,ens of @# roc4et launchers, large
*uantities of $# roc4ets and aunitions and other cobat paraphernalia.
@. The la)less eleents have an over;all revolutionary plan. They have
distributed their regional progra of action for "'(& to their various field
coanders and party )or4ers. The ipleentation of the progra of action
fro the intensification of recruitent to the assassination of high governent
officials and the establishent of a provisional revolutionary governent in
various to)ns and cities has actually coenced. Darious incidents of bobings,
stri4es, robberies, sabotage, and deonstrations are actually in ipleentation
of the progra of action. :i*uidation issions aied at ran4ing governent
officials )ere about to be ipleented by the fielding of so;called %parro) Gnits.
<. There is an e*ually serious disorder in Mindanao and %ulu resulting in actual
)ar aong Christians, Muslis, 2lagas, Barracudas, the Mindanao 2ndependence
Moveent and governent troops. Diolent disorder in Mindanao and %ulu
resulted in over 7,### casualties and ore than <##,### in+ured, displaced and
hoeless persons. The econoy of Mindanao and %ulu is paraly,ed.
A. There is throughout the land a state of anarchy, la)less chaos, disorder,
turoil and destruction of a agnitude e*uivalent to an actual )ar bet)een
governent forces on the one hand and the Ne) People!s Ary and the satellite
organi,ations on the other.
(. The %upree Court in the "'(" habeas corpus cases has found that in truth
and in fact there e1ists an actual insurrection and rebellion in the country.
Portions of the %upree Court decision are cited. 2t )as concluded by the
%upree Court that the unla)ful activities of the aforesaid eleents pose a clear,
present, and grave danger to public safety and the security of the nation is also
cited.
8d= &etitionersI 'rguments9
-n the other hand, the petitioners state that in the Philippines Bthere has been no
disruption at all. all governent offices )ere perforing their usual functions. all
courts )ere open and in the unobstructed e1ercise of their +urisdiction at the tie
artial la) )as declared.B The petitioners state that )e have no Civil /ar in the
Philippines and that no province, no city, no to)n throughout the Philippines has
seceded fro the Republic. They state that there is no status of belligerency.
There is no ared struggle carried on bet)een t)o political bodies, each of )hich
e1ercises de facto sovereignty over persons )ithin a deterinate territory, and
coands an ary )hich is prepared to observe the ordinary la)s of )ar.
-n rebellion, the petitioners point out that the rebels have not established an
organi,ed civil governent nor occupied a substantial portion of the national
territory and, in fact, are described as ere Bla)less eleents.B
The petitioners state that Bthe thrust of artial la) cases is this 5 that for the
re*uireent of public safety to be satisfied, civil authority ust have either fallen
a)ay or proved inade*uate for the eergency, the courts are actually closed, and
it is ipossible to adinister criinal +ustice according to la), and that )here
rebellion really e1ists, there is a necessity to furnish a substitute for the civil
authority, thus overthro)n, and as no po)er is left but the ilitary, it is allo)ed
to govern until the la)s can have their free course. 3or artial rule can never
e1ist )here the courts are open and in the unobstructed e1ercise of their
+urisdiction.B The petitioners cite Arnold, in his article, BThe Rationale of Martial
:a)B 8"< ABA0 <<"=.
invasion, )hen the Constitution and its civil authorities ... CADE BEEN REN6ERE6
2N-PERAT2DE -R P-/ER:E%% by the insurrectionary or invading forces.
After citing the foregoing, petitioners as4ed this Court to ta4e +udicial notice of
the follo)ing?
". Congress )as in session and )as in the unobstructed e1ercise of its functions
)hen artial )as proclaied.
&. The %upree Court, the Court of Appeals, the Courts of 3irst 2nstance in the
9reater Manila Area 5 )here petitioners had been arrested 5 indeed, even the
unicipal and city courts )ere, at the tie artial la) )as publicly announced,
open and are still open and functioning throughout the length and breadth of the
land. no proof has been sho)n that any court has been rendered Bunable to
adinister +ustice,B due to the activities of the rebels. 2ronically, it is 9eneral
-rder No. 7, as aended by, 9eneral -rder No. 7;A, issued pursuant to
Proclaation No. "#$", that see4s to render the po)erless, in any cases, to
adinister +ustice, according to the Constitution and the la)s of the land.
7. The Constitutional Convention the so;called Bfourth branchB 5 had been
holding its sessions )hen artial la) )as proclaied. 6espite artial la), or
probably because of it, it decided to )or4 )ith greater efficiency, it has +ust
finished its )or4. A BplebisciteB under artial la) is being called on 0anuary "<,
"'(7, so the people can BratifyB the proposed Constitution.
@. 2n the 9reater Manila Area, contrary to the speech of %epteber &7, "'(&, no
university, college, or school )as closed due to the activities of the rebels.
<. All instruents of ass counications )ere in operation up to %epteber
&&, "'(&. The ne1t day, free speech and free press 5 the very heart of free
in*uiry and the search for truth 5 becae nothing but epty eories. -nly the
Bsafe ne)spapers and radio;tv stationsB )ere allo)ed to open. Political dissent
)as suppressed.
A. All agencies and instruentalities of governent, national as )ell as local,
)ere functioning )hen artial la) )as proclaied. By 9eneral -rder No. 7, they
)ere ordered Bto continue to function under their present officers and eployees
and in accordance )ith e1isting la)s ...B
The petitioners state )hy Proclaation No. "#$" is unconstitutional?
These indisputable facts )hich re*uire no introduction of proof because they all
fall )ithin the scope of +udicial notice, under Rule "&' of the Rules of Court 5
sho) that at the tie artial la) )as declared there )as absolutely no
+ustification for it, in fact and in la). Cence, Proclaation No. "#$" is
unconstitutional and void, because?
". 2t is predicated on the e1istence of Bthe agnitude of an actual )arB or an
Bactual status of )arB that does not e1ist.
&. 2t is allegedly based on the Bstatus of belligerencyB )hich no %tate in the )orld,
not even the Philippines, has e1tended to the rebels or the la)less eleents
described in the Proclaation.
7. Although there ay be rebellion in soe reote places, as in 2sabela, there is
no +ustification for the declaration of artial la) throughout the Philippines, since
a= no large scale, nation)ide rebellion or insurrection e1ists in the Philippines.
b= public safety does not re*uire it, inasuch as no departent of governent,
no governent agency or instruentality, and even ore iportant, no civil court
of appellate or original +urisdiction )as, at the tie artial la) )as proclaied,
unable to open or function, or has been, at any tie since the incubent
President cae into po)er Brendered po)erless or inoperativeB due to the
activities of the rebels or the la)less eleents described in the Proclaation.
c= The President hiself declared that the ared forces can handle the situation
)ithout Butili,ing the e1traordinary po)ers of the PresidentB 80anuary ", "'(&=,
that long before artial la) )as proclaied, the 9overnent had the said
rebellionB and the Brebels and their supportersB under control, as the Ary 4ne)
the step;by;step plot of the Counists and had an hour;by;hour onitoring of
the oveents of the subversive leaders.
d= The proble in the 9reater Manila Area 5 )here petitioners )ere sei,ed and
arrested 5 )as, at the tie artial la) )as proclaied, plain la)lessness and
criinality.
As the President described the situation in his speech of %epteber &7, "'(&?
:a)lessness and criinality li4e 4idnapping, suggling, e1tortion, blac4ail, gun;
running, hoarding and anipulation of prices, corruption in governent, ta1
evasion perpetrated by syndicated criinals, have increasingly escalated ...
The petitioners pointed out that neither any of these or a cobination of all,
constitute either the occasion or the +ustification for the iposition of artial rule.
-ther)ise, since these cries have al)ays been )ith us for any years, )e
)ould never see the end of artial la) in this country.
2t is argued that since Proclaation No. "#$" is unconstitutional and void, the
9eneral -rders, issued in pursuance thereto and by )ay of its ipleentation,
ust inevitably suffer fro the sae congenital infirity.
8e= 'uthorities cited by the &arties K
Petitioners and respondents ali4e preise their arguents on the artial la)
provision of the Constitution. Both cite decisions of foreign courts and treatises of
foreign )riters e1pounding on artial la). And yet, copletely divergent opinions
on the eaning of the provision is the result.
Martial la) is based on a la) of necessity and is utili,ed as a easure of
governental self;defense. 2t is, therefore, an inherent po)er. 2t needs no
constitutional or statutory grant before it ay be )ielded. As the petitioners state
8Addendu, pages $#;$"=, it is a recogni,ed institution in the constitutional
systes of both England and Aerica, not)ithstanding lac4 of e1press provisions
on artial la) in )ritten constitutions.
/e accept +udicial decisions of these countries as highly persuasive, if not as
precedents. The absence of e1press recognition in the constitutions or statute of
these countries helps e1plain )hy there is disagreeent on a precise definition.
More iportant, it e1plains )hy the necessity, scope, and e1tent of artial la)
proclaations have to be deterined by the regular courts and )hy the decisions
are, theselves, conflicting. The Constitutions and statutes are silent or different
fro each other. The Courts have been forced to go to the coon la) and to
general principles of Constitutional :a) to loo4 for bases of po)er and to resolve
probles arising out of states of artial la). The various authorities cited by both
petitioners and respondents in their pleadings and oral arguents undoubtedly
have valuable )orth and applicability. They are very helpful in resolving the
oentous issues raised by the petitions. The fact reains, ho)ever, that they
deal )ith an e1ercise of po)er )hich is undefined. 3or the Gnited %tates %upree
Court, the po)er is not specifically prescribed in the federal Constitution. This has
led foreign courts to naturally and logically loo4 for the confining liits and
restrictions of abiguous, cryptic, and perple1ing boundaries. %ince the po)er is
not defined, the natural tendency is not to describe it but to loo4 for its liits.
Anglo;Aerican authorities ay assist but should not control because, here, the
liits are present and deterined by no less than the fundaental la).
2n the Philippines, there is an ubi*uitous and andatory guide. The Constitution
spea4s in clear and positive ters. 9iven certain conditions, the Philippines or any
part thereof ay be placed under artial la). To resolve the instant petitions, it
is necessary to find out )hat the Constitution coands and )hat the e1press
)ords of its positive provision ean. 2t is the Constitution that should spea4 on
the circustances and *ualifications of the initiation and use of an a)esoe
eergency po)er.
8b= More arguments o) the ,espondents?
According to the respondents, the Constitution plainly provides that the
circustances )hen artial la) ay be declared, its scope and its effects are
beyond +udicial e1aination. The respondents contend that this Court lac4s
+urisdiction to ta4e cogni,ance of the instant petitions for habeas corpus. The
%olicitor 9eneral has consistently pleaded throughout these proceedings that the
*uestions involved are political and non;+usticiable. Ce states that the President,
s)orn to defend the Constitution and the Republic, proclaied artial la)
pursuant to authority e1pressly conferred by the Constitution. 2t is argued that his
decision is beyond controversion because the Constitution has ade it so and that
only history and the 3ilipino people ay pass +udgent on )hether the President
has correctly acted in a tie of supree crisis.
8a= More arguments o) the petitioners9
Petitioners, on the other hand, contend that this Tribunal is the ultiate
interpreter of the Constitution. As such, it has the po)er and duty to declare
Proclaation No. "#$" unconstitutional and void because the President has
e1ceeded his po)ers. 2t is argued that )here basic individual rights are involved,
+udicial in*uiry is not precluded. -n the arguent that artial la) is te1tually and
e1clusively coitted to the President, the petitioners ans)er that under the
sae Constitution, the President ay not disable the Courts and oust the,
particularly the %upree Court, of their +urisdiction to hear cases assigned to
the by the Constitution and the la)s. Petitioners stress that the Court should
act no) or the tie )ill coe )hen it can no longer act, ho)ever, uch it ay
)ish to, for it shall have copletely lost then the oral force and authority it still
possesses and the valid clai it ay still have of being independent, fearless, and
+ust.
I
&-L+T+C'L 8<"T+-*" '*/ C-<,T" J<,+"/+CT+-* -2, T1M
The respondents! assertion that the *uestions raised in these petitions are
political and non;+usticiable raises a point )hich is easily isunderstood.
/hat is a political *uestionE
2n Mabanag vs. Lope% 8($ Phil. ", @=, this Court recogni,ed the probles in trying
to a4e a definition?
2t is a doctrine too )ell established to need citation of authorities, that political
*uestions are not )ithin the province of the +udiciary, e1cept to the e1tent that
po)er to deal )ith such *uestions has been conferred upon the courts by e1press
constitutional or statutory provision. 8"A C.0.%., @7"=. This doctrine is predicated
on the principle of the separation of po)ers, a principle also too )ell 4no)n to
re*uire elucidation or citation of authorities. The difficulty lies in deterining )hat
atters tall )ithin the eaning of political *uestion. The ter is not susceptible
of e1act definition, and precedents and authorities are not al)ays in full harony
as to the scope of the restrictions, on this ground, on the courts to eddle )ith
the actions of the political departents of the governent.
2 thin4 it is tie for this Court to distinguish bet)een +urisdiction over a case and
+urisdiction over the issue raised in that case. 2t is erroneous to state that )hen a
petition raises an issue )hich is political in nature, this Court is )ithout
+urisdiction over the case. +t has 0urisdiction.
The %upree Court has +urisdiction to receive the petition and to find out )hether
the issues are indeed political or not. A finding of political *uestion is the province
of the Court in all cases. A ere allegation of political *uestion does not
autoatically divest the Court of its +urisdiction. The Court ay, therefore,
re*uire the parties to the case to prove or refute the e1istence of a political
*uestion. The Court has +urisdiction to receive the pleadings, to listen to the
arguents and to a4e up its ind.
-nce the Court, ho)ever, finds that the issue is political in nature, it should rule
that it has no +urisdiction to decide the issue one )ay or another. 2t still renders a
decision. 2t ust still state that, according to the Constitution, this atter is not
for the +udiciary but for the political departents to decide. This is the tas4 /e
ust perfor in these petitions. /hen )e decide )hether or not the issues are
political in nature, /e e1ercise +urisdiction. 2f /e find a political *uestion, /e still
have +urisdiction over the case but not over the specific issue.
A lot of eotionalis is directed against the Court )hen it rules that a *uestion is
political. 2t is alleged that the Court has surrendered its po)ers. The political
*uestion, it is said, Bapplies to all those *uestions of )hich the Court, at a given
tie, )ill be of the opinion that it is ipolitic or ine1pedient to ta4e +urisdiction.
%oeties this idea of ine1pediency )ill result fro the fear of the vastness of
the conse*uences that a decision on the erits ight entail. %oeties, it )ill
result fro the feeling that the Court is incopetent to deal )ith the type of
*uestion involved. %oeties, it )ill be induced by the feeling that the atter is
too high for the CourtsB 83in4elstein, B0udicial %elf :iitationB, 7$ Carvard :a)
Revie) 7&$, 7@@= The political *uestion doctrine is, therefore, described as a
doctrine of +udicial opportunis. :i4e Pontius Pilate, the Court is accused of
tossing the hot issue for others to deterine. 2t is charged )ith )ashing its hands
off a difficult or e1plosive situation. A political *uestion, it is alleged, is nothing
ore than any *uestion )hich the Court does not )ant to decide. 2t is
understandable )hy courts should have a seeingly natural or spontaneous
tendency to re+ect a political *uestion arguent. The charge that the Court is
abdicating a function or running a)ay fro responsibility can stri4e to the very
arro) of any +udge!s feelings.
2 do not share these isgivings. 2 positively re+ect the as )rong ipressions.
This Court is discharging a constitutional duty )hen it deterines that an issue is
a political *uestion. Because of its iplications, ho)ever, this is a fact )hich the
Court ust also e1plain in the siplest ters possible.
The Constitution defines and liits the po)ers entrusted by the sovereign people
to their governent. 3irst, it declares the boundaries )here the po)ers of
governent cannot go further because individual rights )ould be ipaired.
%econd, it divides the po)ers given to the entire governent aong the various
departents and constitutional bodies. 2ts provisions are, therefore, both a grant
and a liitation of po)er.
2n other )ords, the Constitution ay be li4ened to a ap. This ap sho)s ho)
the po)ers of sovereignty have been distributed aong the departents of
governent. 2t sho)s )here there is a sharing of po)ers or )here chec4s and
balances ay be found. 2t also sho)s )here there is a dividing line bet)een
governent po)er and individual liberty. 2n plainer language, the constitutional
ap, li4e any other ap, carries different boundaries. The boundaries are the
deliitation!s of po)er.
The function of the Court is to fi1 those boundaries )henever encroachents are
alleged. 2n doing so, the Court interprets the constitutional ap. 2t declares that
this po)er is e1ecutive, that po)er is legislative, and that other po)er is +udicial.
2t ay soeties state that a certain po)er, li4e ipeachent, is +udicial in
nature. Nonetheless, the constitutional ap has included ipeachent )ithin the
boundaries of legislative functions. The Court has to declare that the +udicial
po)er of ipeachent is e1clusively for the legislature to e1ercise.
This tas4 of allocating constitutional boundaries, 2 ust repeat, is given to this
Court. 2t cannot be divested of this +urisdiction. 2t cannot yield this po)er.
Co)ever, )hen the Court finds that a certain po)er is given by the Constitution to
a co;e*ual departent, it ust defer to the decision of that departent even if it
appears to be seeingly +udicial. 2t should declare that the Constitution has
vested this deterination in the e1ecutive or the legislature. The Court ust,
therefore, state that it cannot go any further. The sovereign people through the
Constitution have dra)n a boundary )hich this Court has ascertained and )hich it
ust respect. /hen the Court finds a political *uestion, it is not, therefore,
shir4ing or avoiding a duty. 2t is, in fact, coplying )ith its duty. Much as it )ants
to go into the issues and decide the *uestions, it has to decline. The Constitution
has given the po)er of deterination to another departent. As interpreter of
the Constitution, the Court has to lead in respecting its boundaries.
2f )e e1aine this Court!s definition of a political *uestion in Taada vs. Cuenco
89.R. No. :;"#<&#, 3ebruary &$, "'<(=, /e find that it confors to the foregoing
e1planation.
2n short, the ter Bpolitical *uestionB connotes, in legal parlance, )hat it eans
in ordinary parlance, naely, a *uestion of policy. 2n other )ords, in the language
of Corpus 0uris %ecundu 8supra=, it refers to Bthose *uestions )hich, under the
Constitution, are to be decided by the people in their sovereign capacity, or in
regard to )hich full discretionary authority has been delegated to the legislature
or e!ecutive branch of the 9overnent.B 2t is concerned )ith issues dependent
upon the wisdom, not legality, of a particular easure. 8Ephasis supplied=
This is a deterination of constitutional boundaries. The Court has found that the
Constitution has assigned a political *uestion to the people through a referendu
or either one or both of the political departents.
A ore coplete definition is found in Baker vs. Carr 87A' G.%. "$A, (: Ed. &d
AA7, "'A&=, to )it?
2t is apparent that several forulations )hich vary slightly according to the
settings in )hich the *uestions arise ay describe a political *uestion, )hich
identifies it as essentially a function of the separation of po)ers. Proinent on the
surface of any case held to involve a political *uestion is found a te1tually
deonstrable constitutional coitent of the issue to a coordinate political
departent. or a lac4 of +udicially discoverable and anageable standards for
resolving it. or the ipossibility of deciding )ithout an initial policy deterination
of a 4ind clearly for non;+udicial discretion. or the ipossibility of a court!s
underta4ing independent resolution )ithout e1pressing lac4 of the respect due
coordinate branches of governent or an unusual need for un*uestioning
adherence to a political decision already ade. or the potentiality of
ebarrassent fro ultifarious pronounceents by various departents on
one *uestion.
Again, the Court a4es a deterination that the Constitution has vested the
a4ing of a final decision in a body other than the Court.
I2
&,-CL'M'T+-* *-. 4AB4 +" 2'L+/ K +T +" &-L+T+C'L +* *'T<, '*/
T1,$-, *-T J<"T+C+'BL
Co) does the Court deterine )hether a artial la) proclaation is a political
*uestion or notE The respondents argue that only the President is authori,ed to
deterine )hen artial la) ay be proclaied. The petitioners insist that this
Court ay e1aine and nullify the Presidential deterination as beyond his
constitutional po)ers.
Cas the Constitution vested the po)er e1clusively in the PresidentE Are the
petitioners correct or is it the clai of respondents )hich is validE
The rule in constitutional construction is to give effect to the intent of the authors.
The authors are, first, the fraers )ho )ere ordered by the sovereign people to
represent the in the specific assignent of drafting the fundaental la) and
second, the people, theselves, )ho by their ratification confir )hat their
delegates have )rought and anifested as e1pressions of the sovereign )ill.
Co), then, do )e ascertain the intent of the authors on the grant of artial la)
po)ersE
A search for intent ust necessarily start )ithin the four corners of the docuent
itself.
... The *uestion is one then of constitutional construction. 2t is )ell to recall
fundaentals. The priary tas4 is one of ascertaining and thereafter assuring the
reali,ation of the purpose of the fraers and of the people in the adoption of the
Constitution.
/e loo4 to the language of the docuent itself in our search for its eaning. /e
do not of course stop there, but that is )here )e begin. ... 8Tua,on Q Co. vs.
:and Tenure Adinistration, 7" %CRA @"7, @&&=
The Constitution is sufficiently e1plicit in locating the po)er to proclai artial
la). 2t is siilarly e1plicit in specifying the occasions for its e1ercise. B2n case of
invasion, insurrection, or rebellion, or iinent danger thereof, )hen the public
safety re*uires it, he 8the President as Coander;in;Chief of all ared forces of
the Philippines= ay suspend the privileges of the )rit of habeas corpus or place
This provision on artial la) is found in Article D22 of the "'7< Constitution. This
Article refers to the Presidency. %ection "#, )here the provision appears as the
second paragraph, is e1clusively devoted to po)ers conferred by the Constitution
on the President. This is in sharp contrast to the Constitution of the Gnited %tates
)here the suspension of the privilege of the )rit of habeas corpus appears, not as
a grant of po)er under Article 22 on the E1ecutive nor in the first ten aendents
constituting their Bill of Rights, but in Article 2 on the :egislature. 2t is given not
as a grant of po)er but as a liitation on the po)ers of the 3ederal Congress.
2t is significant that, as regards the suspension of the privilege of the )rit of
habeas corpus, the Philippine Constitution treats it both as a grant of po)er in the
article on the Presidency and as a liitation to governent action in the article on
the Bill of Rights. -n the other hand, there is no dual treatent of artial la).
There is only a grant of po)er in Article D22 to eet certain grave dangers to the
Republic. No)here in the Constitution is it treated in ters of liitation.
2n J. M. Tua%on F Co.# +nc. vs. Land Tenure 'dministration, 7" %CRA p. @"7,@&7,
this Court ruled?
Reference to the historical basis of this provision as reflected in the proceedings
of the Constitutional Convention, t)o of the e1trinsic aids to construction along
)ith conteporaneous understanding and the consideration of the conse*uences
that flo) fro the interpretation under consideration, yields additional light on
the atter.
:et us, therefore, loo4 at the history of the provision. 2t is iportant to be guided
by the authors of the Constitution ore than by citations fro foreign court
decisions and *uotations fro constitutional la) )riters )hich petitioners and
respondents can see to unendingly cull to sustain their diaetrically opposed
positions.
The Philippine Bill of "'#& has no provision on artial la), although it provided?
%ECT2-N <. ...
the 9overnor, )ith the approval of the Philippine Coission, )henever during
such period the necessity for such suspension shall e1ist.
Both e1ecutive and legislative shared in deciding )hen the privilege of the )rit
ay be suspended.
The 0ones :a) or Philippine Autonoy Act of "'"A re*uired a siilar sharing of
po)er as the Philippine Bill of "'#&. 2nstead of approval of the Philippine
Coission, ho)ever. it provided that the President of the Gnited %tates ust be
notified )henever the privilege of the )rit of habeas corpus has been suspended
or artial la) has been proclaied.
%ECT2-N &" ... Ce shall be responsible for the faithful e1ecution of the la)s of the
Philippine 2slands and of the Gnited %tates operative )ithin the Philippine 2slands,
and )henever it becoes necessary he ay call upon coanders of the ilitary
and naval forces of the Gnited %tates in the 2slands, or suon the posse
comitatus, or call out the Militia, or other locally created ared forces, to prevent
or suppress la)less violence, invasion, insurrection, or rebellion. and he may# in
case o) rebellion or in or invasion or imminent danger thereo)# when the public
sa)ety re(uires it# suspend the privileges o) the writ o) habeas corpus# or place
the islands# or any part thereo)# under martial law> &rovided# That whenever the
Governor7General shall e!ercise this authority# he shall at once noti)y the
&resident o) the <nited "tates thereo)# together )ith the attending facts, and
circustances, the President shall have po)er to odify or vacate the action of
the 9overnor;9eneral. 8Ephasis supplied=
The treatent of both artial la) and habeas corpus as part of the liitations in
the Bill of Rights and as part of the grant of po)ers of the Chief E1ecutive started
)ith the 0ones :a). This organic act also added Biinent dangerB as a ground
for suspension.
This )as the status of our constitutional la) on habeas corpus and on artial la)
)hen the "'7< Philippine Constitution )as drafted. The ost learned Philippine
la)yers )ere aong the delegates to the "'7@ Constitutional Convention. The
delegates had before the the Philippine Bill of "'#& re*uiring approval of the
legislature before the Chief E1ecutive ay e1ercise his po)er. They had before
the the provision of the 0ones :a) *ualifying the 9overnor;9eneral!s po)er )ith
supervision and control by the President of the Gnited %tates )ho ay odify or
vacate the forer!s action. They chose to vest the po)er e1clusively in the
President of the Philippines. They e1panded the )ide scope of his authority by
including Biinent dangerB as an occasion for its e1ercise, thus deliberately
adopting the 0ones :a) provision inus the liitation. Their proposal on artial
la) )as over)helingly ratified by the people.
The choice )as no perfunctory or casual one. 2t )as the product of thorough
study and deliberation. /hile the debates in the "'7< Constitutional Convention
centered on habeas corpus, they necessarily apply to artial la) because the t)o
are ine1tricably lin4ed in one and the sae provision. The %olicitor;9eneral has
suari,ed these deliberations on habeas corpus and artial la).
As a atter of fact, in the Constitutional Convention, 6elegate Araneta proposed
the follo)ing provisions?
2n case of rebellion, insurrection, or invasion, )hen the public safety re*uires it,
the National Assebly ay suspend the privilege of the )rit of habeas corpus. 2n
case the National Assebly is not in session the President ay suspend the
privilege of the )rit of habeas corpus )ith the consent of the a+ority of the
%upree Court, but this suspension of the privilege of the )rit of habeas corpus
)ill be revo4ed if the President does not call a special session of the National
Assebly )ithin fifteen days fro the decree suspending the )rit of habeas
corpus or if the National Assebly fails to confir the action of the President
)ithin 7# days. 8< 0. :aurel, Proceedings of the Philippine Constitutional
Convention, &<', 8%. :aurel ed. "'AA=
2n support of his proposal, Araneta argued, first, that the po)er to suspend the
privilege of the )rit of habeas corpus should be vested in the National Assebly
because that po)er )as BessentiallyB legislative. 8+d. &@';<#= and second, that in
case the National Assebly )as not in session, thus a4ing it necessary to vest
the po)er in the President, that the e1ercise of the po)er be sub+ect to the
concurrence of the %upree Court and even )hen the Court has concurred in the
decision of the President that the suspension )ould be effective only for a certain
period unless the National Assebly )as convened and its ratification )as
secured. 8+d., at &<<=
Ce )as interpellated by various delegates. 6elegate Pere, and 9rageda,
especially, )ere concerned, lest the re*uireent of securing the concurrence of
other branches of governent in the decision of the President deprives hi of
effective eans of eeting an eergency. 8+d., at &<<;<A=. The Coittee on
%ponsorship headed by 6elegate %otto opposed the aendent. /hen finally put
to vote, the aendent )as re+ected. 8+d., at &<'=.
There are a nuber of points )e should note regarding the proposal. 3irst, the
proposal refers only to the suspension of the privilege of the )rit of habeas
corpus. 2t did not apparently conteplate the proclaation of artial la).
"econd, the proposal )ould vest the po)er of suspension in the National
Assebly and in the President only )hen the National Assebly is not in session.
Third, e1ercise of the po)er by the President, is sub+ect to the concurrence of the
%upree Court and the confiration of the National Assebly.
The Constitutional Convention ust have been a)are of the e1perience of
President :incoln during the Aerican Civil /ar. They ust have been a)are of
the vie)s e1press then that it )as the legislature and not the President )ho ay
suspend the privilege of the )rit of habeas corpus or proclai artial la). %urely,
they )ere cogni,ant of the vast iplications incident to a suspension of the
privilege of the )rit of habeas corpus and ore so to the proclaation of artial
la). This is reflected in the follo)ing records of the proceedings?
6uring the debates on the first draft, 6elegate 3rancisco proposed an aendent
inserting, as a fourth cause for the suspension of the )rit of habeas corpus,
iinent danger of the three causes included herein. /hen subitted to a vote
for the first tie, the aendent )as carried.
After his Motion for a reconsideration of the aendent )as approved, 6elegate
-rense spo4e against the aendent alleging that it )ould be dangerous to
a4e iinent danger a ground for the suspension of the )rit of habeas corpus.
2n part, he said?
9entleen, this phrase is too abiguous, and in the hands of a President, )ho
believes hiself ore or less a dictator, it is e1treely dangerous. it )ould be a
s)ord )ith )hich he )ould behead us.
2n defense of the aendent, 6elegate 3rancisco pointed out that it )as
intended to a4e this part of the bill of rights confor to that part of the draft
giving the President the po)er to suspend the )rit of habeas corpus also in the
case of an iinent danger of invasion or rebellion. /hen as4ed by 6elegate
Rafols if the phrase, iinent danger, ight not be struc4 out fro the
corresponding provision under the e1ecutive po)er instead, 6elegate 3rancisco
ans)ered?
-utright, it is possible to eliinate the phrase, iinent danger thereof, in the
page 2 have entioned. But 2 say, going to the essence and referring e1clusively
to the necessity of including the )ords, of iinent danger or one or the other, 2
)ish to say the follo)ing? that it should not be necessary that there e1ist a
rebellion, insurrection, or invasion in order that habeas corpus ay be
suspended. 2t should be sufficient that there e1ists not a danger but an iinent
danger, and the )ord, iinent should be aintained. /hen there e1ists an
iinent danger, the %tate re*uires for its protection, and for that of all the
citi,ens the suspension of the habeas corpus.
/hen put to a vote for the second tie, the aendent )as defeated )ith (&
votes against and <A votes in favor of the sae. 82 Aruego!s 3raing of the
Philippine Constitution, "$#;"$"=
But the Convention voted for a strong e1ecutive, and )rote Article D22, %ection "#
8&= into the Constitution.
The conferent of the po)er in the President is clear and definite. That the
authority to suspend the privilege of the )rit of habeas corpus and to proclai
artial la) )as, intended to be e1clusively vested in the President, there can be
no doubt. 8Meorandu for Respondents dated Noveber "(, "'(&, pp. "";"@=
The only conclusion 2 can a4e after ascertaining the intent of the authors of the
Constitution is that the po)er to proclai artial la) is e1clusively vested in the
President. The proclaation and its attendant circustances therefore for a
political *uestion.
Gnless this Court decides that every act of the e1ecutive and of the legislature is
+usticiable there can be no clearer e1aple of a political *uestion than
Proclaation No. "#$". 2t is the e1ercise by the highest elective official of the
land of a supree political duty e1clusively entrusted to hi by the Constitution.
-ur people have entrusted to the President through a specific provision of the
fundaental la) the a)esoe responsibility to )ield a po)erful )eapon. The
people have entrusted to hi the estiation that the perils are so oinous and
threatening that this ultiate )eapon of our duly constituted governent ust
be used.
The %upree Court )as not given the +urisdiction to share the deterination of
the occasions for its e1ercise. 2t is not given the authority by the Constitution to
e1pand or liit the scope of its use depending on the allegations of litigants. 2t is
not authori,ed by the Constitution to say that artial la) ay be proclaied in
2sabela and %ulu but not in 9reater Manila. Much less does it have the po)er nor
should it even e1ercise the po)er, assuing its e1istence, to nullify a
proclaation of the President on a atter e1clusively vested in hi by the
Constitution and on issues so politically and eotionally charged. The Court!s
function in such cases is to assue +urisdiction for the purpose of finding out
)hether the issues constitute a political *uestion or not. 2ts function is to
deterine )hether or not a *uestion is indeed +usticiable.
Petitioners )ant this Court to e1aine the bases given by the President in issuing
Proclaation No. "#$". They )ant the Court to find or to ta4e +udicial notice of
the absence of an insurrection or rebellion 5 of the absence of an iinent
danger thereof. Petitioners )ould have this Court dispute and nullify the findings
of facts of the President hiself in a atter that is peculiarly e1ecutive in nature.
/hy should /e honor the President!s findingsE
2n cases )here the issues are indisputably +udicial in nature, the findings of the
President are still given utost respect and deference. 2n the atter of the
declaration of artial la), a po)er that is e1clusively vested in the President, ay
the Court differ )ith the findingsE No, because as /e have already stated, the
valid reason )or this e!clusive grant o) power is that the &resident possesses all
the )acilities to gather the re(uired data and in)ormation and has a broader
perspective to properly evaluate them# better than any )acility and perspective
that the Court can have.
't what state in an insurrection or how serious and mani)est should subversive
activities become be)ore the Court decides the particular point when martial law
may be proclaimedL The petitioners# relying on the classic stages o)
governmental overthrow as e!perienced by pre7=orld =ar ++ e!amples# would
wait until all civil courts are closed and the country is in complete chaos.
&etitioners do not reali%e that long be)ore the courts are closed# the &resident
would have been killed or captured and the enemy irrevocably entrenched in
power. The authors o) the Constitution never envisioned that the martial law
power so care)ully and deliberately included among the powers o) the &resident
would be withheld until such time as it may not be used at all.
+t is my )irm view# that the decision to proclaim martial law is an e!clusive
)unction o) the &resident. +) he )inds that invasion# insurrection# or rebellion or
imminent danger o) any o) the three is present# such )inding is conclusive on the
Court. +) he )inds that public sa)ety re(uires the entire country should be placed
under martial law# that )inding is conclusive on the Court. +n the e!ercise o) such
an emergency power intended )or the supreme and inherent right o) sel)7de)ense
and sel)7preservation# the Constitution cannot be read to mean otherwise.
2n Lansang vs. Garcia 8@& %CRA @@$, @$#= this Court stated that Bin the e1ercise
of such authority 8to suspend the privilege of the )rit of habeas corpus=, the
function of the Court is erely to check 5 not to supplant 5 the !ecutive# or to
ascertain merely whether he has gone beyond the constitutional liits of his
+urisdiction, not to e!ercise the power vested in hi or to deterine the )isdo
of his act.B
2 do not see ho), both fro the legal and practical points of vie), the Court can
chec4 the President!s decision to proclai artial la). The sae ay, perhaps,
be done as regards a suspension of the privilege of the )rit of habeas corpus
although 2 reserve a ore definitive stateent on that issue )hen a case
s*uarely in point on the atter is raised before Gs. Co)ever, artial la) poses
entirely different probles. A proclaation of artial la) goes beyond the
suspension of the privilege of the )rit of habeas corpus, )hose effects are largely
reedied )ith the release of detainees.
Gpon proclaiing artial la), the President did not liit hiself to ordering the
arrest and detention of the participants and others having a hand in the
conspiracy to sei,e political and state po)er. Gnder artial la), the President
ordered the ta4eover or control of counications edia, public utilities, and
privately o)ned aircraft and )ater craft. 3oreign travel )as restricted. Curfe) )as
iposed all over the country. A purge of undesirable governent officials,
through resignations or suary investigations, )as effected. The entire
e1ecutive branch of governent )as reorgani,ed. A cleanliness and beautification
capaign, )ith artial la) sanctions to enforce it, )as ordered. This )as only the
beginning.
Conse*uences of Proclaation No. "#$" are any and far;reaching. They
pereate every aspect and every activity in the life of the people. A court
decision is not needed nor is it the proper place to enuerate the. Most
obvious, of course, are the President!s acts of legislation on the very broad range
of sub+ects that Congress used to cover. As early as Noveber $, "'(&, the
petitioners prepared a Meorandu stressing this point.
2t ay be pointed out that since artial la) )as declared, the President has been
e1ercising legislative po)er that is lodged by the Constitution in Congress. A good
nuber of the decrees proulgated have no direct relation to the *uelling of the
disorders caused by the la)less eleents. They are aied at building a Ne)
%ociety, but they cannot be +ustified as a valid e1ercise of artial rule. 8at page
'@=
These implications and conse(uences o) martial law serve to bolster my view that
the Constitution never intended that this Court could e!amine and declare invalid
the &residentIs initial determination. The Constitution did not intend that the
Court could# in the detached and peace)ul a)termath o) success)ul martial law#
reach back and invalidate everything done )rom the start. That would result in
chaos.
2 a, of course, a)are of the Chicot County /rainage /istrict vs. Ba!ter "tate
Bank 87#$ G.%. 7(", 7(@= doctrine )hich this Court adopted in Municipality o)
Malabang vs. &angandapun Benito# et al. 8&( %CRA <77, <@#=?
The Courts belo) have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, )as not a la). that it )as inoperative,
conferring no rights and iposing no duties, and hence affording no basis for the
challenged decree. 8Norton vs. %helby County, ""$ G.%. @&<, @@&. Chicago, 2 Q :.
Ry. Co. vs. Cac4ett, &&$ G.%. <<', <AA=. 2t is *uite clear, ho)ever, that such
broad stateents as to the effect of a deterination of unconstitutionality ust
be ta4en )ith *ualifications. The actual e1istence of a statute, prior to such a
deterination, is an operative fact and ay have conse*uences )hich cannot
+ustly be ignored. The past cannot al)ays be erased by a ne) +udicial declaration.
The effect of the subse*uent ruling as to invalidity ay have to be considered in
various aspects )ith respect to particular relations, individual and corporate, and
particular conduct, private and official. Luestions of rights claied to have
becoe vested, of status, of prior deterinations deeed to have finality and
acted upon accordingly, of public policy in the light of the nature both of the
statute and of its previous application, deand e1aination. These *uestions are
aong the ost difficult of those )hich have engaged the attention of courts,
state and federal, and it is anifest fro nuerous decisions that an all;inclusive
stateent of a principle of absolute retroactive invalidity cannot be +ustified.
2t ay be argued that the actual e1istence of Proclaation No. "#$" is an
operative fact and that its conse*uences should not be ignored.
The operative fact doctrine, ho)ever, has no application in this situation )here,
faced )ith insurrection and rebellion, the President proclais artial la). Even
assuing that every single eber of this Court doubts the President!s findings,
/e have to consider that the Constitution vests the deterination in hi. The
sta4es involved are supree and the deterination ust be ade iediately
and decisively.
There is the possibility that the &resident has an e!aggerated appreciation o) the
dangers and has over7acted with the use o) the awesome measure o) martial law.
The )act remains# however# that the authors o) the Constitution were aware o)
this possibility and still provided that the power e!clusively belongs to him. +t
would be stretching the plain words o) the Constitution i) we weigh our personal
)indings against the o))icial )indings o) the &resident. 1e possesses all the )acilities
to gather data and in)ormation and has a much broader perspective to properly
evaluate them. 1e is per)orming a )unction which is# o) course# re(uired by the
Constitution to be discharged by the &resident.
'nd )or us to venture into a 0udicial in(uiry on the )actual basis o) the
constitutionality o) the martial law proclamation would be to ignore the well7
established principle o) presidential privilege which e!empts the &resident )rom
divulging even to the highest court o) the land )acts which i) divulged would
endanger national security. As a atter of fact, in the latest case on this atter
)hich )as that filed against President Richard M. Ni1on, although the %upree
Court of the Gnited %tates ordered the President to produce the tapes of his
conversation )ith soe of his aides pursuant to a subpoena for use in a criinal
prosecution against one of his aides, because the clai that Bdisclosures of
confidential conversation bet)een the President and his close advisors ... )ould
be inconsistent )ith the public interest ... cannot out)eigh ... the legitiate
needs of the +udicial processB in a criinal prosecution, the Court, ho)ever, ade
the stateent fro )hich )e can infer that if President Ni1on had only claied
that the tapes contain Bilitary, diploatic or sensitive national security secretsB,
it )ould have sustained the refusal of Ni1on to produce the.
... Co)ever, )hen the privilege depends solely on the broad, undifferentiated
clai of public interest in the confidentiality of such conversations, a
confrontation )ith other values arises. 'bsent a claim o) need to protect military#
diplomatic# or sensitive national security secrets# we )ind it di))icult to accept the
argument that even the very iportant interest in confidentiality of presidential
counications is significantly diinished by production of such aterial for in
caera inspection )ith all the protection that a district court )ill be obliged to
provide.
2n this case the President challenges a subpoena served on hi as a third party
re*uiring the production of aterials for use in a criinal prosecution on the
clai that he has a privilege against disclosure of confidential counications.
Ce does not place his clai of privilege on the ground they are. ilitary or
diploatic secrets. As to these areas of Art. 22 duties the courts have traditionally
sho)n the utost deference to presidential responsibilities. 2n C. F ". 'ir Lines
vs. =aterman "teamship Corp., 777 G. %. "#7,""" 8"'@$=, dealing )ith
presidential authority involving foreign policy considerations, the Court said?
The President, both as Coander;in;chief and as the Nation!s organ for foreign
affairs, has available intelligence services )hose reports are not and ought not to
be published to the )orld. 2t )ould be intolerable that courts, )ithout relevant
inforation, should revie) and perhaps nullify actions of the E1ecutive ta4en on
inforation properly held secret. +d. at """.
2n the <nited "tates vs. ,eynolds, 7@< G. %. " 8"'<&=, dealing )ith a claiant!s
deand for evidence in a daage case, against the 9overnent, the Court said?
2t ay be possible to satisfy the court, fro all the circustances of the case,
that there is a reasonable danger that copulsion of the evidence )ill e1pose
ilitary atters )hich, in the interest of national security, should not be divulged.
/hen this is the case, the occasion for the privilege is appropriate, and the court
should not +eopardi,e the security )hich the privilege is eant to protect by
insisting upon an e1aination of the evidence, even by the +udge alone, in
chabers.
No case of the Court, ho)ever, has e1tended this high degree of deference to a
President!s generali,ed interest in confidentiality. No)here in the Constitution, as
)e have noted earlier, is there any e1plicit reference to a privilege of
confidentiality, yet to the e1tent this interest relates to the effective discharge of
a President!s po)ers, it is constitutionally based.8Gnited %tates, Petitioner, vs.
Richard M. Ni1on, President of the united %tate et al.. Richard M. Ni1on, President
of the Gnited %tates, Petitioner, vs. Gnited %tates. 0uly &@, "'(@. Nos. (7;"(AA
and (7;"$7@. %upree Court of the Gnited %tates=
2t is for the above reasons that, as far as the proclaation is concerned, the
Court should revert to the rule in Barcelon vs. Baker 8< Phil. $(= and Montenegro
vs. Castaeda 8'" Phil. $$A=. The only *uestions )hich the +udiciary should loo4
into are 8"= 6id the Constitution confer the authority to suspend the privilege of
the )rit of habeas corpus and proclai artial la) on the PresidentE and 8&= 6id
the President declare that he is acting under such authority and in conforance
)ith itE The authority being e1clusively vested in the President, his decision is
final and conclusive upon the Court.
2nsofar as the President!s decision to proclai artial la) is concerned, it is,
therefore, y vie) that under the Constitution, the %upree Court has no
authority to in*uire into the e1istence of a factual basis for its proclaation. The
constitutional sufficiency for the proclaation is properly for the President alone
to deterine.
H++
G,'*T+*G T1'T &,-CL'M'T+-* *-. 4AB4 +" *-T &-L+T+C'L B<T J<"T+C+'BL#
+T +" "T+LL 2'L+/ BC'<" T1 &,"+/*T 1'" *-T 'CT/ ',B+T,',+L@ +*
+""<+*G +T
2t should be noted that Proclaation No. "#$" is not a ere conclusion that there
is insurrection and rebellion in the country. The President did not liit hiself to a
curt and laconic declaration that on the basis of his findings, there is insurrection
or a rebellion and that he has proclaied artial la). .
Proclaation No. "#$" specifies in t)enty;si1 8&A= printed pages the various
findings )hich led to its proulgation. The conspiracy to overthro) the
governent, the rapidly e1panding ran4s of the conspirators, the raising of funds
and aterials under centrali,ed direction, the aintenance of a rebel ary the
assive propaganda capaign, the acts of sabotage and ared insurrection or
rebellion, the previous decision of this Court, the la)lessness and disorder in the
country, the violent deonstrations led by Counist fronts, the ared clashes
bet)een rebels and governent troops, the active oral and aterial support of
a foreign po)er, the iportation of firears and )ar aterial by rebels, the
presence of a )ell;scheduled progra of revolutionary action, the organi,ation of
li*uidation s*uads, the serious disorder in Mindanao and %ulu, the activities of the
Mindanao 2ndependence Moveent, the thousands 4illed and hundreds of
thousands of in+ured or displaced persons, the inade*uacy of siply calling out
the aied forces or suspending the privilege of the )rit of habeas corpus, the
alaringly rapid escalation of rebel or subversive activities, and other evidence of
insurrection or rebellion are specified in detailed anner.
The findings of the President are given in a positive, detailed, and categorical
for. As a atter of fact, subse*uent events, related to the Court in a series of
classified briefings ade to it by the Ary the last one being on August "<, "'(@,
confir the over;all validity of the President!s basis. There is constitutional
sufficiency for his conclusion that artial la) be proclaied. Proclaation No.
"#$" does not, therefore, suffer any constitutional infirity of arbitrariness,
granting that this test can be applied to it.
2t appears proper, at this point, to elucidate further on the test of arbitrariness.
The Court!s decision in Lansang vs. Garcia 8@& %CRA @@$= has been interpreted
and, to y ind, isunderstood by any people to ean that the Court had
copletely reversed Barcelon vs. Baker and Montenegro vs. Castaeda. There
are, of course, certain stateents in the decision that give rise to this conclusion.
3or instance, the Court stated that the )eight of Barcelon vs. Baker, as
precedent, is diluted by t)o factors, naely, 8a= it relied heavily upon Martin vs.
Mott 8A :. ed. <7(= involving the G.%. President!s po)er to call out the ilitia and
8b= the fact that suspension of the privilege of the )rit of habeas corpus )as by
the Aerican 9overnor;9eneral, the representative of the foreign sovereign. The
Court stated that in the Barcelon case it )ent into the *uestion 5 6id the
9overnor;9eneral act in conforance )ith the authority vested in hi by the
Congress of the Gnited %tatesE 2n other )ords, the Court stated that it ade an
actual deterination )hether or not the Chief E1ecutive had acted in accordance
)ith la). The Court also added that in the Montenegro case, it considered the
*uestion )hether or not there really )as a rebellion. The Court revie)ed
Aerican +urisprudence on suspension of the privilege. 2t stated that the tenor of
the opinions, considered as a )hole, strongly suggests the Court!s conviction that
the conditions essential for the validity of proclaations or orders )ere in fact
present. 2t stated that )henever the Aerican courts too4 the opposite vie) it
had a bac4drop pereated or characteri,ed by the belief that said conditions
)ere absent.
2n truth, ho)ever, the decision in Lansang vs. Garcia does not state that the
Court ay conduct a full e1aination into the facts )hich led the President to
issue the proclaation. The Court!s decision categorically asserts that the
e1aination of presidential acts by the Court is liited to arbitrariness. The Court
accepted the vie) 5
... that +udicial in*uiry into the basis of the *uestioned proclaation can go no
further than to satisfy the Court not that tile President!s decision is correct and
that public safety )as endangered by the rebellion and +ustified the suspension of
the )rit, but that in suspending the )rit, the President did not act arbitrarily.
The Court adopted, as the test of validity, the doctrine in *ebbia vs. *ew @ork,
&'" G. %. <#& 5
... 2f the la)s passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriinatory, the re*uireents
of due process are satisfied, and +udicial deterination to that effect renders a
court )unctus o)icio ... /ith the )isdo of the policy adopted, )ith the ade*uacy
or practicality of the la) enacted to for)ard it, the courts are both incopetent
and unauthori,ed to deal ....
3or purposes of coparison and ephasis, the Court, in Lansang vs. Garcia, )ent
into the +udicial authority to revie) decisions of adinistrative bodies or agencies.
2t stated that the revie)ing court deterines only )hether there is soe
evidentiary basis for the contested adinistrative findings and does not underta4e
*uantitative e1aination of supporting evidence. Therefore, the Court stated that
it interferes )ith an adinistrative finding only if there is no evidence )hatsoever
in support thereof and said finding is actually arbitrary, capricious, and obviously
unauthori,ed. The Court ruled that this approach of deferring to the findings of
adinistrative bodies cannot even be applied in its aforesaid for to test the
validity of an act of Congress or of the E1ecutive. The presuption of validity is of
a uch higher category. The Court ephasi,ed that the co;e*uality of coordinate
branches of the governent under our constitutional syste deands that the
test of validity of acts of Congress and of those of the E1ecutive should be
fundaentally the sae. And this test is not correctness but arbitrariness.
2t follo)s, therefore, that even if 2 )ere to subscribe to the vie) that Lansang vs.
Garcia should not be categorically reversed as erroneous doctrine, y decision
)ould be the sae. Even under Lansang vs. Garcia, artial la) is valid.
There is nothing arbitrary in the decision to proulgate Proclaation No. "#$". 2t
is not unconstitutional.
I222
T1 C-*T+*<'T+-* M'*/ 2*T<'L L+$T+*GN -$ T1 "T'T -$ M',T+'L L'=
+" ' &-L+T+C'L 8<"T+-*
The continuation of the state of artial la) and the resulting continued
restrictions on individual liberties are, of course, serious aspects of the ain issue
)ith )hich this Court is concerned.
2n fact, this is the ore difficult *uestion 5 The President having acted upon an
initial and positive finding that artial la) is necessary, ay the Court in*uire
into the bases for its duration or the need for its continued ipositionE
To)ards the end of this separate opinion, 2 ans)er the arguents of the
petitioners *uestioning the effectivity and legality of the ne) Constitution. 2t is
y un*ualified vie), as e1plained later, that this Court in the Ratification Cases
declared the ne) Constitution to be legally in force and effect.
2 have to ention this vie), at this +uncture, because artial la) )as proclaied
under the old Constitution. Co)ever, its continuation and eventual lifting are no)
governed by the ne) Constitution.
The e1ercise of artial la) po)er ay be li4ened to the +urisdiction of a court. A
court ay have +urisdiction under an old la) but the +urisdiction ay be reoved
or odified by a ne) statute. 2n other )ords, is the continuing state of artial
la) valid under the ne) ConstitutionE 2s it also a political *uestion under the
present CharterE
Article 2I of the ne) Constitution on the Prie Minister and the Cabinet provides?
%EC. "&. The Prie Minister shall be coander;in;chief of all ared forces of
the Philippines and, )henever it becoes necessary, he ay call out such ared
2t should be noted that the above provision is a verbati reiteration of Article D22,
%ection "#, Paragraph 8&= of the old Constitution.
/hat )as the intent of the fraers in adopting verbati the provision found in
the old ConstitutionE
At this point, odesty and prudence should inhibit e fro advancing y o)n
vie)s as the only eber of this Tribunal )ho )as a delegate to the "'("
Constitutional Convention. 2n 2era vs. 'velino 8(( Phil. "'&=, this Court stated 5
BThe theory has been proposed 5 odesty aside 5 that the dissenting ebers
of this Court )ho )ere delegates to the Constitutional Convention and )ere Bco;
authors of the ConstitutionB Bare in a better position to interpretB that sae
Constitution in this particular litigation.
There is no doubt that their properly recorded utterances during the debates and
proceedings of the Convention deserve )eight, li4e those of any other delegate
therein. Note, ho)ever, that the proceedings of the Convention Bare less
conclusive of the proper construction of the instruent than are legislative
proceedings of the proper construction of a statute. since in the latter case it is
the intent of the legislature )e see4, )hile in the forer )e are endeavoring to
arrive at the intent of the people through the discussions and deliberations of
their representatives.B 8/illoughby on the Constitution, Dol. 2, pp. <@, <<.=
Their )ritings 8of the delegates= coenting or e1plaining that instruent,
published shortly thereafter, ay, li4e those of Cailton, Madison and 0ay in The
3ederalist 5 here in the Philippines, the boo4 of 6elegate Aruego, supra, and of
others 5 have persuasive force. 8-p. cit., p. <<.=
But their personal opinion on the atter at issue e1pressed during our
deliberations stand on a different footing? 2f based on a BfactB 4no)n to the, but
not duly established or +udicially cogni,able, it is iaterial, and their brethren
are not e1pected to ta4e their )ord for it, to the pre+udice of the party adversely
affected, )ho had no chance of rebuttal. 2f on a atter of legal hereneutics,
their conclusions ay not, siply on account of ebership in the Convention,
be a shade better, in the eyes of the la). There is the )ord BdeferenceB to be
sure. But deference is a coplient spontaneously to be paid 5 never a tribute
to be deanded.
And if )e should 8)ithout intending any desparageent= copare the
Constitution!s enactent to a draa on the stage or in actual life, )e )ould
reali,e that the intelligent spectators or readers often 4no) as uch, if not ore,
about the real eaning, effects or tendencies of the event, or incidents thereof,
as soe of the actors theselves, )ho soeties becoe so absorbed in
fulfilling their eotional roles that the fail to )atch the other scenes or to
editate on the larger aspects of the )hole perforance, or )hat is )orse,
becoe so infatuated )ith their lines as to construe the entire story according to
their pre+udices or frustrations. Perspective and disinterestedness help certainly a
lot in e1aining actions and occurrences. BCoe to thin4 of it, under the theory
thus proposed, Marshall and Coles 8naes venerated by those )ho have
devoted a si,eable portion of their professional lives to analy,ing or solving
constitutional probles and developents= )ere not so authoritative after all in
e1pounding the Gnited %tates Constitution 5 because they )ere not ebers of
the 3ederal Convention that fraed itS 8pp. &"<;&"A=B
2 )ish to follo) the e1aple, ho)ever, of y distinguished colleague, Mr. Justice
Cali!to -. Jaldivar in &hilippine Constitution 'ssociation vs. Mathay 8"$ %CRA
7##= )here, )ith characteristic huility, he stated in a concurring opinion 5
My opinion in this regard is based upon a personal 4no)ledge of ho) the
constitutional proviso, Article D2, %ection "@ of the Constitution, )hich is no) in
*uestion, becae a part of our present Constitution. 2t )as the %econd National
Assebly )hich aended our original Constitution. 2 )as a huble Meber of
the %econd National Assebly, representing the province of Anti*ue.
111 111 111
2 still have vivid recollections of the iportant points brought up during the
deliberations in caucus over proposed aendents and of the agreeents arrived
at. 2 reeber too the influences that )or4ed, and the pressures that )ere
brought to bear upon the Asseblyen, in the efforts to bring about agreeents
on very controversial atters and thus secure the insertion of the desired
aendents to the Constitution. The discussions on the proposed aendents
affecting the legislative branch of the governent )ere specially of interest to us
then because )e )ere in soe )ay personally affected, as ost of us )ere
interested in running for re;election.
2t is not y purpose here to ipose on anyone y recollections of atters that
)ere brought up during our caucuses then, but 2 only )ish to ephasi,e the fact
that y concurring opinion in the decision of the case no) before Gs has for its
basis y honest and best recollections of )hat had transpired or )hat had been
e1pressed, during the caucuses held by the Mebers of the %econd National
Assebly in the deliberations )hich later brought about the "'@# aendents.
111 111 111
2 have endeavored to a4e a discourse of facts as 2 4no) the, because 2
sincerely believe that the interpretation, ebodied in the opinion penned by y
esteeed colleague, Mr. 0ustice 0.B.:. Reyes, of the pertinent provision of Article
D2, %ection "@ of our Constitution is in consonance )ith the facts and
circustances as 2 reeber the, and as 2 4no) the. As 2 have stated at the
early part of this concurring opinion, it is not y purpose to ipose on anyone
y recollection of )hat transpired, or of )hat had been discussed about, or of
)hat had been agreed upon, by the Mebers of the %econd National Assebly
during the deliberations )hich brought about the "'@# aendents to our
Constitution. My perception and y eory are as frail as those of any other
huan being, and 2 ay have incurred yself in error. 2t +ust happened that the
facts and the circustances that 2 have herein narrated, as 2 reeber the,
have engendered in y ind an opinion, nay a conviction, )hich dovetails )ith
the opinion of y illustrious colleague that has penned the opinion for the
a+ority of the Court in this case. 8at pp. 7"A, 7"( and 7&(;7&$=
0ustice >aldivar!s recollections on the intent of the %econd National Assebly
eeting as a constituent body in "'@# are ost helpful. There are no e1isting
records of the deliberations on the Article D2, %ection "@ aendent to the "'7<
Constitution. The aendent discussions and debates )hich too4 place during
legislative caucuses are unrecorded and this Court has 0ustice >aldivar to than4
for his recollections.
2t is in this spirit that 2 venture y o)n recollections. 2 a also fairly certain that
)hen the proceedings of the "'(" Constitutional Convention are published, y
observations )ill be sustained. /hen the last Constitutional Convention approved
the Ne) Constitution on Noveber &', "'(&, the delegates )ere a)are of pre;
convention proposals to sub+ect the e1ercise of the po)er by the E1ecutive to
+udicial in*uiry. %tudies on the )isdo of having a +oint e1ercise of the po)er by
the E1ecutive and the :egislature )ere before the delegates. 8GP :a) Center
Constitution Revision Pro+ect, "'(#, pp. "#@;"#$= There )ere ever constitutional
la) scholars )ho *uestioned the po)er altogether and )anted it reoved. They
claied that )hether or not artial la) is in the Constitution, it )ill be declared
)hen absolutely necessary and therefore, anticipating its use through a
constitutional provision serves no useful purpose.
The delegates )ere fully a)are of the 9overnent stand on the habeas corpus
and artial la) provision. The Lansang vs. Garcia decision )as fairly recent. The
po)ers of the Chief E1ecutive )ere e1tensively debated. The delegation 4ne)
that in the Lansang vs. Garcia, proceedings, the %olicitor 9eneral had consistently
and forcefully argued that Barcelon vs. Baker and Montenegro vs. Castaeda
)ere correct interpretations of the President!s po)er to suspend the privilege of
the )rit of habeas corpus or place the Philippines or any part thereof under
artial la).
More significant is the fact that )hen the ne) Constitution )as finali,ed and the
draft corrected and approved prior to subission to the people, )e )ere already
under a state of artial la). The petitioners had been arrested and various
petitions filed. 2n fact, petitioner E. Doltaire 9arcia 22 included in his petition the
arguent that his detention pursuant to Proclaation No. "#$" deprived his
constituency of their representation in the Constitutional Convention. The
delegates )ere a)are that Proclaation No. "#$" )as challenged before this
Court and that the %olicitor 9enerals ans)er to all the petitions )as invariably the
doctrine of political *uestion.
2f it )as the intent of the Constitutional Convention to sub+ect the Prie Minister!s
e1ercise of the po)er to +udicial in*uiry andNor control, the provision on artial
la) )ould have been accordingly aended. 2n fact, during the deliberations of the
Coittees on Civil and Political Rights and E1ecutive Po)er, there )ere
proposals that the po)er to proclai artial la) be sub+ected to control,
confiration, or reversal by Congress or the %upree Court, but the Convention
did not accept any of these proposals and decided to siply reiterate the earlier
provision.
2t )ould be enlightening for us to peruse the pertinent portions of the
proceedings of the Coittee on Civil and Political Rights and E1ecutive Po)er,
and 2 *uote?
Republic of the Philippines "'(" C-N%T2TGT2-NA: C-NDENT2-N Manila
C-MM2TTEE% -N C2D2: AN6 P-:2T2CA: R29CT% AN6 EIECGT2DE P-/ER
M2NGTE% -3 TCE MEET2N9 80oint Public Cearing=
/E6NE%6AK, %EPTEMBER $, "'(" %ession Call, Manila Cotel
C-MM2TTEE -N C2D2: AN6 P-:2T2CA: R29CT%
&,"*T
Chairman 2ice Chairman?
Members9
". 6elegate Abad '. 6elegate Pepito
&. 6elegate Badelles "#. 6elegate Reyes C.
7. 6elegate 9arcia :. P. "". 6elegate %antillan
@. 6elegate 9unigundo "&. 6elegate %evilia
<. 6elegate 9u,an D. "7. 6elegate %uulong
A. 6elegate :aggui "@. 6elegate Deloso 2.
(. 6elegate Mendiola "<. 6elegate >afra
$. 6elegate -pinion

C-MM+TT A* HC<T+2 &-=,
&,"*T
6elegate Espina 6elegdate E1undo
Members9
". 6elegate Corpus 7. 6elegate %antillan
&. 6elegate 9arcia :. M. @. 6elegate >afra
*on7Members9
". 6elegate Ben,on <. 6elegate Mastura
&. 6elegate Calderon C. A. 6elegate Rosales
7. 6elegate Cali)ara (. 6elegate Kancha
@. 6elegate Castillo
Guest9
0ustice Enri*ue 3ernando
-PEN2N9 -3 TCE MEET2N9
". At '?<# a.. Chairan Dictor 6e la %erna called the eeting to order.
&. Gpon certification of the %ecretary, the, Chair announced the e1istence of a
(uorum.
7. The Chair then announced that the Coittee has furnished the body
resolutions regarding the suspension of the privilege of the of habeas corpus. The
Chair entioned si1 Resolutions Nubered "(A, &A#, <7", "@"<, &7' and &7'@.
@. The Chair further said that the resolutions can be grouped into three schools of
thought 5 the first, refers to the absolute prohibition against suspension of the
privilege of the )rit of habeas corpus by any authority in any and all events. the
second supports the theory that it ay be suspended by the President )ith the
concurrence of Congress or the %upree Court. and the third, refers to the
reoval of the po)er to suspend fro the President and transfer the sae to the
%upree Court.
<. The Chair then introduced to the ebers the guest spea4er, 0ustice Enri*ue
3ernando of the %upree Court of the Philippines. Ce e1pressed fe) )ords of
)elcoe to the 0ustice in behalf of the t)o Coittees conducting the public
hearing.
A. 0ustice 3ernando started his rear4s by clarifying that he )ould only ans)er
*uestions that )ill not conflict )ith his role as 0ustice of the %upree Court, since
there )as a pending case before the said Court )here the Po)er of the President
to suspend the )rit of habeas corpus is placed at issue. Ce said that he
considered the privilege of the )rit of habeas corpus as the ost iportant
huan right. Ce is of the vie) that it ight be preferrable if the Bill of Rights
a4e it clear and e1plicit that at no tie and under no circustances should the
privilege of the )rit be suspended. Ce clarified that even if this po)er to suspend
the privilege of the )rit )ere reoved fro the President, he still has enough
po)ers to prevent rebellion, sedition, insurrection or iinent danger thereof
because of his po)er to call the ared forces in case the need for it arises.
(. The Chair as4ed the first *uestion to 0ustice 3ernando. Because the 0ustice
send that it )as not necessary to grant the President the po)er to suspend the
)rit since Congress can al)ays pass a la) that )ould lengthen the period of
detention of prisoners, the Chair as4ed if it )ould not be very cubersoe for
Congress to enact such a la) in ties of national eergency.
$. 0ustice 3ernando, in ans)er to the Chair!s *uery, said that Congress can pass a
la) to that effect )ithout a national eergency.
'. 2n ans)er to *uestion propounded by 6elegate Ceni,a, 0ustice 3ernando said in
"'<" in the Cernande, case he e1pressed the opinion that even if the privilege of
the )rit )ere suspended, the right to bail could still be availed of. Ce aditted,
ho)ever, that up to no) there is no clear;cut ruling on the atter. Ce also said
that the President, should not have the sole po)er to declare Martial :a).
"#. 6elegate Mendiola also as4ed 0ustice 3ernando )ho )ould deterine the
circustances that )ould )arrant the detention of prisoners for a longer period
than )hat is no) provided under the Revised Penal Code. The 0ustice ans)ered
that if the prisoner is held for cries against public order, then the ordinary rules
of criinal la) )ill govern. The arresting authorities, in collaboration )ith the
3iscal, )ill deterine said circustances.
"". 6elegate :aggui as4ed 0ustice 3ernando )hether he )ould still deny the
po)er to suspend the )rit to the President if the Convention )rites into the
Constitution safeguards against abuse of said po)er. The 0ustice said he )ould
still say that the po)er be denied the President because he considers the privilege
of the )rit of habeas corpus as the ost iportant huan right.
"&. 6elegate 9unigundo interpellated the 0ustice and as4ed )hether the latter
)ould favor preventive detention of political prisoners or political offenders. The
0ustice said )e should follo) the Constitutional Provisions regarding probable
cause, and the rights of the accused should al)ays be respected.
"7. 6elegate %antillan as4ed 0ustice 3ernando )hether he )ould favor the
proposal to delete the phrase Biinent danger thereofB and to liit the
suspension of the )rit fro "# to "< days unless Congress or the %upree Court
)ould e1tend the sae. 0ustice 3ernando said, since he )as for the denial of the
po)er to suspend the )rit, anything less than that )ould not be in consonance
)ith his stand.
"@. 6elegate >afra as4ed 0ustice 3ernando if it )ould not be dangerous for a
President to declare Martial :a) because if he did, the ilitary ight ta4e over
the governent and topple do)n the President and even Congress, thereby
establishing ilitary dictatorship. 0ustice 3ernando said that the danger e1ists.
"<. 6elegate E1undo interpellated 0ustice 3ernando and as4ed the latter )hat
the President of the Philippines should have done instead of suspending the
privilege of the )rit of habeas corpus, considering the chaos and turoil that
prevailed prior to the suspension. The 0ustice said that since it is the duty of the
President to faithfully e1ecute the la)s, he should and he could have called out
the ared forces to suppress insurrection, invasion, and rebellion.
"A. -thers li4e 6elegates Mastura, Adil, 9u,an, Pepito, Deloso, Beng,on, :eviste
8-.=, and Ceni,a interpellated 0ustice 3ernando. The Chair then than4ed the
0ustice for his enlightening speech. Ce e1pressed the hope that at soe future
tie the 0ustice )ould again favor the Coittee )ith his appearance so that the
ebers could propound ore *uestions.
"(. The eeting )as ad+ourned at "& noon.
PREPARE6 BK? C-N-RAB:E MACAR2- CAME::-
Typed by ? Cynthia B. Arra,olaProofread by ? E. de -capoND. M. Gil
Republic of the Philippines "'(" C-N%T2TGT2-NA: C-NDENT2-N M a n i l a
C-MM+TT" -* C+2+L '*/ &-L+T+C'L ,+G1T" '*/ HC<T+2 &-=,
M2NGTE% -3 TCE 0-2NT MEET2N9 No. ;;; /E6NE%6AK, %EPTEMBER "<, "'("
C+2+L '*/ &-L+T+C'L ,+G1T"
&,"*T
Members9
". 6elegate Abalos E. '. 6elgate -pinion
&. 6elegate Abad "#. 6elegate Padua
7. 6elegate, Aruego "". 6elegate Pepito
@. 6elegate Calderon 0. "&. 6elegate Reyes C.
<. 6elegate 9unigundo "7. 6elegate %antos -.
A. 6elegate 9u,an "@. 6elegate %iguion Reyna
(. 6elegate :aggui "<. 6elegate >afra
$. 6elegate Mendiola
*on7Members9
". 6elegate Adil A. 6elegate 9arcia :.
&. 6elegate A,cuFa (. 6elegate Molina
7. 6elegate Claver $. 6elegate Raa.
@. 6elegate 6e Pio '. 6elegate %eares.
<. 6elegate 9arcia E. "#. 6elegate Tupa, 6.
Guest9
%enator 0ose /. 6io4no
'B"*T
Members9
". 6elegate Aldeguer $. 6elegate 9uiao
&. 6elegate Badelles '. 6elegate Mastura
7. 6elegate Catubig "#. 6elegate Purisia
@. 6elegate Ceni,a "". 6elegate %antillan
<. 6elegate 6e la Pa, "&. 6elegate %evilia
A. 6elegate 3algui "7. 6elegate %uulong
(. 6elegate 3ernande, "@. 6elegate Deloso 2.

HC<T+2 &-=,
&,"*T
Chairman9
6elegate Espina
Members9
". 6elegate Alano "&. 6elegate Nuguid
&. 6elegate Astilla "7. 6elegate -ledo
7. 6elegate Barrera "@. 6elegate Piit
@. 6elegate Britanico "<. 6elegate Raos
<. 6elegate Cabal "A. 6elegate %agadal
A. 6elegate Corpus "(. 6elegate %aguin
(. 6elegate 3lores A. "$. 6elegate %abola)an
$. 6elegate 9arcia :.M. "'. 6elegate %anche,
'. 6elegate 9on,ales &#. 6elegate Tocao
"#. 6elegate 0uaban &". 6elegate Dele,
"". 6elegate Mutuc &&. 6elegate KFigue,

'B"*T
2ice Chairman9
6elegate E1undo
Members9
". 6elegate Araneta %. $. 6elegate Nepouceno
&. 6elegate 6avide '. 6elegate %antillan
7. 6elegate 6uavit "#. 6elegate %errano
@. 6elegate 9audiel "". 6elegate %inco
<. 6elegate :i)ag "&. 6elegate Trillana
A. 6elegate :una "7. 6elegate Kap
(. 6elegate Marino "@. 6elegate >osa
-PEN2N9 -3 MEET2N9
". At '?7# a.., Chairan Dictor 6e la %erna called the eeting to order and
declared the e1istence of a )or4ing *uoru.
&. Chairan 9erardo %. Espina stated that it )as a +oint hearing of the
Coittee on Civil and Political Rights and the Coittee on E1ecutive Po)ers.
7. The Chair confired the stateent of Chairan Espina and further stated that
it )as the second +oint hearing of the t)o Coittees, and introduced %enator
0ose /. 6io4no, guest spea4er for the hearing.
@. %enator 6io4no than4ed the +oint Body for giving hi an opportunity to discuss
)ith the the po)er to suspend the privilege of the )rit of habeas corpus and the
po)er to declare artial la). To be able to resolve the proble, he propounded
the *uestions? 8"= should the President have the po)er to suspend the privilege
of the )rit of habeas corpus, 8&= assuing he )as given the po)er, under )hat
circustances should he be allo)ed to e1ercise it, and 87= )hat safeguards
should be placed upon the e1ercise of that po)er. Ce surised that in his opinion,
if the only legal basis for the grant of the po)er is to bide tie to be able to bring
persons to court for it to decide on the atter, as such tie is al)ays available to
the governent, he sa) no reason in suspending the privilege of the )rit of
habeas corpus, since the sae ob+ective can be attained by the iposition of
artial la), )hich is not a graver step and is not gravely abused in the practical
point of vie) that no President )ill declare artial la) unless he can have the
ared forces agree )ith hi that there is actual invasion, rebellion or
insurrection. Ce stated that the present Constitution only allo)ed the suspension
of the privilege in cases of e1tree eergency affecting the very sovereignty of
the %tate, )hich in his belief, is only in cages of invasion, rebellion or insurrection.
Ce did not agree that there should be a safeguard provided prior to the issuance
of the proclaation suspending the privilege of the )rit, but rather after the )rit
has been suspended, by re*uiring either the courts or Congress to pass upon the
necessity of the suspension of the )rit. Ce dissented )ith the idea that )here
should be a definite tie period for its validity, because it is difficult to deterine
)hat should be an ade*uate period, ho)ever, the %upree court or Congress
could al)ays be re*uired to act )ithin a definite period on the validity of the
suspension )hich he considered, already a proper safeguard.
Ce added further that the po)er to place any part of the national territory under
artial la) should be, liited to cases only of actual invasion, rebellion or
insurrection. Co)ever, he strongly favored the deletion of the provision Bon
iinent dangerB, )hich he stressed, is an e1cuse for a dictatorial President to
declare artial la) on the that there is iinent danger )hen there is none.
There is a possibility, he said, that the ared forces )ill be bro4en up, in the
sense that one group ay favor the President and the other ay refuse to allo)
theselves to be used )hen there is actually no Biinent dangerB, so that
instead of their helping preserve peace and order, it )ould provide an occasion for
bringing about revolutions.
<. The Chair as4ed the %enator if the President should declare artial la) )here
iinent danger actually e1ists and the civil authorities are still functioning. Ce
further *ualified that is it not the of the Constitution in the phrase Bartial la)B
that the civil authorities call upon the ilitary authorities to help the or is it a
coplete and arbitrary substitution of authority by the ilitary.
<." %enator 6io4no replied that the President!s action in his personal opinion, is
arbitrary and illegal, but )ho could stop hi fro doing that. Even the %upree
Court is reluctant to act because it has the ary to rec4on )ith. Ce construed
that artial la) could be legally e1ercised only in places )here actual fighting
e1ists and the civil authorities are no longer e1ercising authority, in )hich case
the ilitary can supplant the civil authorities. Ce added that it is also possible to
declare a liited artial la) in certain areas )here the ilitary ay ipose
curfe) and teporary detention of persons charged of causing and participating
in chaotic situations.
A. Chairan Espina recogni,ed 6elegate Britanico )ho had the first option to
interpellate the %enator.
A." 6elegate Britanico )anted to 4no) fro the %enator )hether, in his opinion,
the po)er to suspend the )rit be altogether reoved fro the President, and
that in the event this po)er is retained, ho) should it be e1ercised by the
PresidentE .
A.& %enator 6io4no replied that if this po)er is retained it should he e1ercised by
the President alone but sub+ect to revie) by either Congress or the Parliaentary
Body that ay eventually be adopted.
A.7 6elegate Britanico )anted the vie) of the %enator if he )as agreeable to
have the President share the po)er )ith the Dice President, %enate a+ority and
inority floor leaders, %enate President, 0ustices of the %upree Court, the
Coelec Chairan and other heads of the constitutional organi,ations 5
A.@ %enator 6io4no replied that he is averse to sharing po)ers because it could
not be done e1pediently. The %enator reinded the group that as a general rule,
the President and the President of the %enate belong to the sae party and even
the +ustices of the %upree Court fall under the sae situation, and it )ould then
still be the President )ho )ill decide.
(. The Chair called on 6elegate -ledo on his reservation to as4 the ne1t
*uestion.
(." 6elegate -ledo )anted to clarify if there is any technical distinction bet)een
suspension of the privilege of the )rit of habeas corpus and the )rit itself.
(.& %enator 6io4no replied that the )rit itself is the order of the court to the
person having custody of the sub+ect to produce hi in court, and that the
sub+ect has the privilege to post bail pending the filing of the case against hi, if
he is to be heard for an offense. Ce cited the decision of the Confederate
Authority )hich says that the privilege of the )rit refers to criinal arrests in
)hich the persons arrested have the privilege to be released on bail, )hich is the
privilege that is suspended.
(.7 6elegate -ledo as4ed )hether the %enator!s stand on the abolition of the
po)er to suspend the privilege of the )rit or as an alternative, the suspension be
e1ercised )ith the participation of other agencies, is because of the anti;
adinistration group claoring for its abolition fro the constitutional provisionsE
.
(.@ %enator 6io4no reiterated his stateent that it is his personal belief that
artial la) is a better easure than the suspension of the privilege of the )rit,
)hich the President clais to have e1ercised to disantle the counist
apparatus in the country. /hether this is +ustified or not reains an issue.
Assuing that the Counists are arrested no), ne) leaders )ill coe up and
ta4e over coand, and these ne) ones are not yet 4no)n to the ilitary
authorities and so the sae counistic situation continues to e1ist and the
cycle goes on unresolved.
(.< As a last *uestion, 6elegate -ledo sought to be clarified on the alternative
vie) of the %enator that of retaining the po)er but its e1ercise be )ith the
concurrence of Congress and the %upree Court.
(.A The %enator reiterated that he is for the abolition of the po)er, but if the
Constitutional Convention believes it necessary to retain it, then its e1ercise by
the e1ecutive ust be sub+ect to revie) and reversal, if need be, by Congress
and the %upree Court. Ce aintained that the e1ercise of the po)er to suspend
the privilege of the )rit is deterined by t)o factors? 8"= legality and, 8&=
)isdo. The %upree Court shall deterine the legality and Congress
deterines the )isdo of the President!s e1ercise of the po)er, and it is the
Convention that can resolve this proble.
$. Chairan Espina called on 6elegate Barrera, ho)ever, re*uested the Mebers
to liit their *uestions to only t)o to allo) everybody the opportunity to *uestion
the guest.
$." 6elegate Barrera stated that the %enator is for the discarding of the
constitutional provision on the po)er to suspend the privilege of the )rit of
habeas corpus but is for the right of an organ of governent to declare artial
la) but liited to an actual e1istence of invasion, rebellion or insurrection, This
)as confired by the %enator. 6elegate Barrera in*uired )hether the %enator
agrees or not to the fact that in places )here actual fighting or actual invasion,
rebellion or insurrection e1ists, declaration of artial la) is unnecessary since the
coander;in;chief has the full responsibility of e1ercising every step necessary
to protect and preserve the )elfare of the nation.
$.& %enator 6io4no replied that )hile it is true that the po)er to ta4e all the n
steps to preserve peace and order and protect the people, is inherent po)er of
sovereignty, yet it )ould certainly be safer to provide this po)er of foral
declaration to prevent individual arbitrary e1ercise of po)er by ilitary
coanders in the field. Ce stressed the need for a specific constitutional
provision )hich ust be clearly stated and defined as to the e1tent of the
e1ercise of such po)ers.
'. 6elegate Padua 8C.= disclosed that he is an author of a resolution reoving
po)ers of the President to suspend the privilege of the )rit of habeas corpus as
)ell as to declare artial la), and his point of concern lies in the subse*uent
grant of eergency po)ers that are coplientary to e1ercise of artial la) by
the President no) given in the present Constitution. Ce as4ed the %enator
)hether the criterion in the e1ercise of artial la) to actual invasion only 5 that
is, reove the ters Brebellion and insurrectionB as part of the criteria, )ould
diinish the presidential po)er e1cesses and abuses. 6elegate Padua cited the
vie) of 0ustice 3ernando that people have the right to rebel, and this )ould tend
to +ustify e1clusion of rebellion and insurrection as prere*uisites to ipose artial
la).
'." %enator 6io4no opined that the coplientary eergency po)ers of the
President )as intended by the Constitution to allo) the President to legislate in
the absence of Congress but *ualified this stateent by revealing that he has not
ade deeper studies along this particular point. Ce also stated that the state has
to have po)er to protect itself fro any for of change other than through
constitutional processes and this concept is shared not only by deocratic but by
any for of governent in e1istence. 2n ans)er to 6elegate Padua, he suggested
to define )hat the )ord rebellion in the provision ean, and the ter
BinsurrectionB should be reoved since insurrection is a sall rebellion, )hich
does not erit declaration of artial la). This provision could )ell fit in the Bill of
Rights instead as Bthe %tate or any portion thereof, ay be placed under artial
la) only in case of actual invasion or rebellion, )hen the public safety so
re*uires.B Then eliinate the provision granting po)er to suspend the privilege of
the )rit of habeas corpus and place the po)er to declare artial la) aong the
po)ers of the President in %ection "#, Article D22, perhaps.
"#. 6elegate Pat sought clarification as to the stand of the %enator on the
President being already Coander;2n;Chief of the Ared 3orces, and is then
capable of *uelling rebellion, therefore the po)er of artial la) need not be
specified in the Constitution or that if it has to be, then it has to be in aid to
civilian authorities only. Ce further sought the %enator!s opinion upon )ho to
lodge the po)er to suspend the privilege of the )rit of habeas corpus as )ell as
po)er to declare artial la), since he is a proponent of a for of governent
that )ould have both a President as head of state and prie inister as head of
governent.
"#." The %enator clarified his stateent to 6elegate Barrera that to declare
artial la) is a recogni,ed po)er inherent to the sovereignty of the state and so,
need not be entioned in the Constitution, a case in point is the Gnited %tates
Constitution. 2n reply to the second *uery, he stressed that, to hi, there should
not be such po)ers lodged on anyone any)here. But if there has to be, the Prie
Minister, since the President is generally a cereonial officer, and )ould not be
4ept abreast officially on every circustance and happening of the day in the
country.
"". 6elegate %iguion Reyna pointed out that fro the discussions, it )ould be
safe to assue that the only thing that atters to an e1ecutive )hen he is
allo)ed to suspend the privilege of the )rit or not, in his e*uivalent right to arrest
and detain people beyond the statutory re*uireent. Ce in*uired )hether the
%enator entertains the sae thin4ing that the provision has outlived its
usefulness since this provision )as established during the days )hen third degree
)as accepted as a eans of getting at the truth and confessions fro people. 2n
the absence of third degree ethods, there is nothing to be gained in detaining
people unless by the psychological idea that a detainee )ould soften to
confession, )hich is unli4ely.
""." The %enator e1plained that the ob+ective of suspending the privilege of the
)rit is to hold people incounicado citing as an e1aple, the Philippines, if it is
threatened by a Red Chinese invasion and the authorities suspected Mr. Chan, Mr.
Tan, etc. to be spies, then suspension of the privilege of the )rit )ould enable the
governent to ta4e iediate hold of Mr. Chan, Mr. Tan and copany and 4eep
the under detention )ithout right to bail. This )ould put the out of circulation
and disable their operations. The +ustifying reason therefore, lies in the need of
the Ared 3orces for essential tie to devote on the fight against the invaders or
rebels instead of consuing tie to forulate charges against these detainees
and the filing of charges against these detainees can be put aside until such tie
)hen the invasion or rebellion is under control. 2n short, it is to enable the Ared
3orces to buy essential tie. Ce reiterated that po)er to suspend the privilege of
the )rit of habeas corpus and po)er to declare artial la) are +ustified only on
actual invasion or rebellion, and he still aintained that the forer case is
unnecessary.
"".& 6elegate %iguion Reyna further *ueried the %enator ho) the %tate can eet
the security proble in a case of iinent invasion and the po)er to suspend the
privilege of the )rit is no longer provided for, ta4ing as a case in point, the
Philippine situation during the period prior to the 0apanese )ar )hen 0apanese
spies )ere all over the country preparing the grounds for its invasion in 0apan.
Co) can the President or the Prie Minister eet the proble if he has no Po)er
to suspend the privilege of the )rit.
"".7 The %enator replied that in situations li4e this, the %enate should underta4e
surveillance )or4 as is done in the G.%. The suspects are 4ept under surveillance
and )hen enough evidence is ac*uired the authorities spring the trap on the
and bring the to court or in case the suspect is found operating )ithin an area
)here an actual fighting is on, then the coander of the Ared 3orces in the
area, by virtue of his inherent ilitary po)er to restrict oveent of civilians in
the area can apprehend and ta4e the to custody until the fight is over )ithout
the need for suspending the privilege of the )rit. 2t is part of ilitary po)er. Ce
suggested as an alternative that a degree of fle1ibility in the anner of legislation
can be resorted to. Citing as an e1aple the legislation on atters of cries
against the security of the state, detention period prior to filing the case in court
can be enlarged. There are la)s at present failing under this category. /ire
tapping is unla)ful under noral conditions but it is allo)ed in cases involving
security and rebellion.
"&. 2n the follo);up clarification by Chairan 6e la %erna, the attention of the
%enator )as directed bac4 to his forer stateent that pending the privilege of
the )rit only allo)s the governent to hold the detainee incounicado but the
detainee has other rights as the right to counicate )ith relatives.
"&." %enator 6io4no agreed that the detainee is still entitled to other rights as
the right to be represented by counsel, but once detained, he is sub+ect to
restrictions and control by the +ailer.
"&.& 6elegate 6e la %erna as4ed if there is a difference in the treatent of
detainees )hen the privilege of the )rit is suspended and detainees arrested
)hen the privilege is not suspended? /hether to hold a person incounicado, a
+ailer is under instruction to ipose certain degree of restrictions to this person
)hich is not true )ith the ordinary prisoners.
"&.7 %enator 6io4no replied that there )as really no distinction or difference
)ritten in the la) but the +ailer, in the e1ercise of his duty, has a certain degree of
un)ritten po)er over his detainees. The %enator ho)ever disclosed )hat
happened recently to people detained )hich he e1perienced as their counsel. The
la)yers )ere allo)ed to tal4 to the detainees after a nuber of days had lapsed,
and in fact after their stateents )ere already ta4en, after the process of
interrogations )ere terinated. Ce revealed that he )as infored that the
detainees )ere never hared nor sub+ect to physical pressure but the process of
interrogation continued for hours and hours, and even at an unholy hour of
idnight they )ere a)a4ened for further interrogation. Methods designed to
inflict ental and physical torture to tire out the detainees.
"7. The Chair recogni,ed 6elegates Molina and Mendiola )ho +ointly engaged the
%enator into a series of interpellations regarding the %enator!s personal opinions
and vie)s on the incubent Presidential e1ercise of his po)ers 8Proclaation $$'
and $$';A= suspending the privilege of the )rit of habeas corpus.
"@. 6elegate Mutuc as4ed the %enator if there is no difference bet)een the
Barcelon vs. the Baker and the Montenegro vs. Castaeda cases.
"@." The %enator replied that there )as a difference and e1plained? 8"= 2n the
forer case, the suspension of the privilege of the )rit should not have been
done but it )as done only upon +oint hearing by the Philippine Coission and
the 9overnor 9eneral to grant action. /hile in the latter case, the suspension )as
the e1clusive action of the President of the Philippines. 8&= The situation in the
forer case )ere such that at the very beginning our courts )ere anned by
Aerican 0urists intended to be later on anned by 3ilipino 0urists. This being so,
the courts found it hard to rule and a4e a doctrine. %uch action could be
interpreted as tantaount to allo)ing 3ilipino 0urists to overrule an Aerican
9overnor 9eneral and by iplication, overrule the President of the G.%. since
under the 0ones :a), the privilege of the )rit can be suspended by the President
of the G.%. This can be held later on 8today= that the 3ilipino %upree Court could
revie) the findings of the President of the G.%., )hich is ipossible under the
relation bet)een a colony and its coloni,er, and 87= that the standard of orality
and truth )ere observed )ith greater fidelity at that tie than they are today.
"@.& 6elegate Mutuc sought clarification in the event that the %upree Court
rules that the anti;subversion la) is not a Bill of Attainder the %enator begged off.
Ce stated that he preferred not to discuss the details and erits of his position in
this case, but strongly urged the Convention to consider re)riting the provisions
on the freedo of association.
"<. The Chair )anted to 4no) )hether suspension of the )rit and the right to bail
is not suspended.
"<." The %enator stated that in his opinion the right to bail prior to filing the case
in court is suspended. /hen the case is filed in court, the custody of the person
accused goes fro the e1ecutive to the +udiciary. -n a follo);up *uestion by the
Chairan see4ing clarification for the distinction pointed out by the %enator that
right to bail prior to filing the case in court is suspended, the %enator e1plained
that the provision of the privileged of the )rit consists of the right of a person to
be released if the arrest is found illegal by court, or the detention is arbitrary or in
absence of a pria facie evidence against the person, so if the privilege of the
)rit is suspended, it follo)s that all the other rights are also suspended.
"<.& The Chair sought the vie) of the %enator on the opinion of both %ecretary
Abad %antos and %olicitor Antonio that during suspension of the privilege of the
)rit, an order of )arrant of arrest is necessary. %enator 6io4no agreed )ith this
opinion. The Chair pointed out that if, as the %enator said, the purpose of the
privilege of the )rit is to *uestion the legality of arrest and detention, it could be
so, even if there is a valid )arrant of arrest. This )ould see to point out that the
issuance of the )arrant of arrest is unnecessary. The %enator replied, N-, and
pointed out that if no case can be produced against a person detained, the arrest
is unla)ful and the arresting officer is sub+ect to prosecution. The suspension of
the privilege of the )rit erely a4es it ipossible for the courts to order the
release of the detainee. The %enator agreed substantially )ith the observation of
the Chair that this long legal process re*uired to be follo)ed defeats the very
purpose of the suspension of the privilege of the )rit, and stated that this is the
reason the e1ecutive and the ilitary authorities resort to illegal shortcuts in
ta4ing people into custody. Many of the detainees today )ere not issued legal
)arrants, but )ere +ust invited to the ilitary head*uarters. Because of these
observations cited, the %enator urged the +oint Body to revie) and re)rite the
provisions on the issuance of )arrants of arrest.
"A. 6elegate Tupa, 86.= engaged the %enator in a series of clarificatory *uestions
)hich delved on points already discussed by the %enator in previous
interpellations by 6elegates Mutuc, Barrera, Reyes, :aggui and %iguion Reyna.
The %enator ho)ever reiterated his stateent that he is for the retention of the
e1ercise of artial la), not that it is less harful, but that it is less sub+ect to
abuse than the suspension of the privilege of the )rit.
"(. 6elegate 9unigundo!s interpellations )ere on the sub+ect of effectivity and
validity of Presidential Proclaations as Proclaation No. $$' and $$';A. The
%enator ephasi,ed that the effectivity of proclaations hinges on the tie it
)as ade public, not necessarily though, that it be published in the -fficial
9a,ette, nor copies of the contents be furnished the etropolitan ne)spapers for
publication.
"$. %enator 6io4no categorically ans)ered 6elegate %anche, that he )as
suggesting a proposal to totally reove the po)er to suspend the )rit of habeas
corpus in the proposed Constitution, since being silent about it )ill allo) Congress
or the President to e1ercise its po)er of such procedure. 2n ans)er to 6elegate
Calderon 80.=, he reiterated that the suspension of the )rit of habeas corpus can
be e1ercised )ith or )ithout being provided for in the Constitution.
"'. 6elegate Aruego )as infored by %enator 6io4no that those detained can
only apply for bail if a case is filed against a detainee in court, so )hat is done is
to file a petition for habeas corpus, )hich includes the right to bail, it the case is
bailable.
&#. 6elegate Dele, e1plained that he )as recoending t)o alternative
proposals to the E1ecutive Po)er Coittee? "= to prevent forever the
suspension of the privilege, or &= to put safeguards, eaning the President ay
suspend it but only in actual cases of invasion or rebellion for a specific period of
tie in specific areas )here public safety re*uires it, )ith the concurrence of t)o;
thirds vote of the ebers of Congress, if in session, and if not, it )ill be sub+ect
to the autoatic revie) by the %upree Court.
&#." %enator 6io4no )as in favor of 6elegate Dele,! first proposal, ho)ever, in
the event the thin4ing of the Convention does not agree, the %enator did not
)ant to liit the President, or )hoever e1ercises the po)er to suspend, for a
specific period, because it )ill be infle1ible and eaningless. Ce )as not
agreeable to a concurrence by Congress because he does not )ant to tie the
hands of the President in of eergency, since it is very hard to uster a *uoru
in both houses of Congress. Co)ever, he )as for its revie) by the %upree
Court. Ce )as for the iediate proclaation, but a liit of tie should be set
)ithin )hich, the revie) should be ade.
&#.& 6elegate Barrera insisted that the right to protect itself is an inherent
sovereign right of any %tate, so that for any organi,ation of governent to
e1ercise those eans of protection 8declaration of artial la) and suspension of
the privilege of the )rit= should be so stated in the Constitution, and the
necessary safeguards provided for.
&". 6elegates Barrera and %iguion Reyna engaged the %enator in a discussion
critici,ing the actuations of the incubent President in connection )ith the
suspension of the )rit of habeas corpus.
&&. The Chair than4ed %enator 6io4no for his elucidation and participation in the
discussions of the topics for the day, and ad+ourned the +oint public hearing at
"&?"# p..
PREPARE6 AN6 E62TE6 BK? 8%gd.= C-N. CE:%- P. TABGENA
ATTE%TE6 BK?
8%gd.= D2CT-R 6E :A %ERNA Chairan Coittee on Civil and Political Rights
Typed by? Alice 9. A*uino
Proofread by? %aloe -rti,NDivencio 9opole
.nowing the GovernmentIs stand and the &residentIs action# the Constitutional
Convention decided to retain the martial law power verbatim in the new
Constitution. The )ramers not only rati)ied the validity o) the e!isting state o)
martial law but rea))irmed the &residentIs interpretation as the correct meaning o)
the constitutional provision )or )uture occasion re(uiring its e!ercise. The political
character o) a martial law proclamation with its continuation was then con)irmed
by the Constitution Convention.
The political character of continued artial la) is also sustained by the
parliaentary syste under the ne) Charter. The po)er to declare artial la) is
vested e1clusively in the Prie Minister by Article 2I, %ection "&. 3ollo)ing
established precedents, such a vesting of po)er is supposed to ean that its
e1ercise is to the e1clusion of all others )ho ay )ant to share in the po)er. 2n
practice, ho)ever, this )ill no longer be true.
The "'(7 Constitution +oined together the E1ecutive and the :egislative
departents of the governent, )hich )ere distinctly separate fro each other
under the "'7< Constitution. The Ne) Charter provides? BThe legislative po)er
shall be vested in a National Assebly.B 8Article D222, %ec. "=. BThe E1ecutive
po)er shall be e1ercised by the Prie Minister )ith the assistance of the
Cabinet.B 8Article 2I, %ec. "=. BThe Prie Minister shall be elected by a a+ority
fro aong theselves.B B8Article 2I, %ec. 7=. BThe Prie Minister shall appoint
the Mebers of the Cabinet )ho shall be the heads of inistries at least a
a+ority of )ho shall coe fro the National Assebly. Mebers of the Cabinet
ay be reoved at the discretion of the Prie Minister.B 8Article 2I, %ec. @=.
Thus, )e no) have a Parliaentary syste of governent under the Ne)
Charter. An essential feature thereof is the direct responsibility of the Prie
Minister and the ebers of his Cabinet to the National Assebly, for they hold
their positions only for as long as they en+oy the confidence of the Assebly.
More accurately, Article D222, %ec. "7 8"= provides for the )ithdra)al of confidence
through the election of a successor or a ne) Prie Minister by a a+ority vote of
all ebers of the National Assebly.
A Prie Minister under the ne) Charter ust al)ays ta4e into account the desires
of the National Assebly )hen he a4es iportant decisions. As a atter of fact,
he and the a+ority of his cabinet are also ebers of the National Assebly. 2n
fact, they are the leaders of the predoinant party in the legislature. They control
legislative policy. The Prie Minister is responsible to the National Assebly and
ust e1ecute its )ill on the one hand and he is its political leader and helps shape
that )ill on the other. 9rave public issues )ill be handled by the E1ecutive and
the :egislature acting together. <nder the new Constitution# martial law will be a
0oint responsibility o) the two political departments Me!ecutive and legislativeN
even i) its )ormal proclamation is vested solely in the &rime Minister.
Before 2 could release this opinion, 2 )as able to get the BTranscript of the
Proceedings of the "AA;an %pecial Coittee " Meeting No. ", -ctober &@,
"'(&B )hich fully sustains y vie), and 2 *uote?
TRAN%CR2PT -3 TCE PR-CEE62N9% -3 TCE "AA;MAN %PEC2A: C-MM2TTEE 5
MEET2N9 N-. " -CT-BER &@, "'(& U U U U U U U U U U U U U U U U U U U U U U U
U U U U U U U U U U U U U U U U U
&'G BB O 2-L. H2+ U *-. B 6E:E9ATE TGPA> 8A.=? %ection @ 5
TCE PR2ME M2N2%TER %CA:: BE TCE C-MMAN6ER;2N;CC2E3 -3 A:: ARME6
3-RCE% -3 TCE PC2:2PP2NE% AN6, /CENEDER 2T BEC-ME% NECE%%ARK, CE MAK
CA:: -GT %GCC ARME6 3-RCE% T- PREDENT -R %GPPRE%% :A/:E%%
D2-:ENCE, 2NDA%2-N, 2N%GRRECT2-N, -R REBE::2-N. 2N CA%E -3 2NDA%2-N,
2N%GRRECT2-N, -R REBE::2-N, -R 2MM2NENT 6AN9ER TCERE-3, /CEN TCE
PGB:2C %A3E:K RELG2RE% 2T, CE MAK %G%PEN6 TCE PR2D2:E9E -3 TCE /R2T -3
1'B'" C-,&<", -R P:ACE TCE PC2:2PP2NE% -R ANK PART TCERE-3 GN6ER
MART2A: :A/.
This provision is an e1act copy of a provision in the present Constitution. This
provision copleents %ection "<, Article 2D on the Bill of Rights of this draft.
May 2, therefore, ove for its approval, Mr. ChairanE
CCA2RMAN 6E 9G>MAN 8A=? Any observation or coentE Kes, 9entlean fro
BatangasE
6E:E9ATE :ED2%TE 8-.=? Than4 you, Mr. Chairan. /e notice, Kour Conor, that in
these t)o sections, %ection "< of the Bill of Rights and %ection "& of Article 2I,
)e are, in a )ay of spea4ing, reedying the seeing discrepancy bet)een
siilar provisions in the present Constitution. Both provisions )ill no) contain the
phrase Bor in case of iinent danger thereofB. /ith such a change, 2 believe
that no conflict as to the true intent )ill arise in the future. But allo) e, Kour
Conor, to recall, briefly, our recent +urisprudence on the atter of the declaration
of artial la) and of the suspension of the privilege of the )rit of habeas corpus.
Kour Conor )ill recall that under the 0ones Act, the 9overnor;9eneral of the
Philippines )as given the po)er to suspend the privilege of the )rit of habeas
corpus and to declare artial la). /hen such po)er )as *uestioned in court, the
%upree Court cae out )ith the decision, in the case of Barcelon vs. Baker, that
the findings of the Chief E1ecutive on the e1istence of the grounds for the
declaration of artial la) or the suspension of the privilege of the )rit of habeas
corpus are conclusive and ay not be in*uired into by the courts. /hen the
Philippine Coon)ealth )as established under the "'7< Constitution, the
President thereof )as li4e)ise given the po)er to suspend the privilege of the
)rit of habeas corpus and to proclai or declare artial la) for any of the causes
enuerated in the pertinent provisions. %oetie in the "'<#!s, then President
Luirino suspended the privilege of the )rit of habeas corpus. /hen a case arose,
that of Montenegro vs. Castaeda# the %upree Court affired its stand in
Barcelon vs. Baker, that the assessent by the Chief E1ecutive of the e1istence
of the cause or causes giving rise to the proclaation of artial la) or the
suspension of the )rit of habeas corpus is conclusive and ay not be contested in
the courts. Recently, ho)ever, only a little less than a year ago, )hen President
Marcos suspended the privilege of the )rit of habeas corpus, the %upree Court
ruled, in the case of Lansang vs. Garcia and other copanion cases, that the
e1istence of insurrection, rebellion, invasion, or iinent danger thereof, ay be
properly in*uired into by the courts. No), 2 )ould li4e to pose before this body,
)hether this Convention should no) affir the latest doctrine or )hether )e
should revert to the old theory and doctrine in the t)o cases of Barcelon vs.
Baker and Montenegro vs. Castaeda.
6E:E9ATE TGPA> 8A.=? 2n vie) of the fact that Chairan de 9u,an is also the
Chairan of %ub;council 22 on Citi,ens! Rights )hich conducted an e1haustive
study on this atter of artial la), ay 2 re*uest that he be the one to ans)er
*ueries on this pointE
CCA2RMAN 6E 9G>MAN 8A.=? 2n that case, ay 2 re*uest 6elegate Tupa, to act
as Chairan in the eantieE 8At this point, Chairan 6e 9u,an yielded the
Chair to 6elegate Antonio Tupa,=
6E:E9ATE 6E 9G>MAN 8A.=? 2 a personally in favor of abandoning the doctrine
laid do)n in the case of Lansang vs. Garcia, and 2 )ould recoend such a vie)
to this Coittee, and to the Convention as a )hole. At this very oent, the
%olicitor 9eneral, in representation of President Marcos is urging the %upree
Court that such a doctrine be abandoned and that )e revert to the old theory laid
do)n in the cases entioned by Kour Conor. 2ndeed, our courts, especially the
%upree Court, )here these cases are invariably ta4en up, are ill;e*uipped to
a4e findings on the e1istence of rebellion, insurrection, or la)lessness.
6E:E9ATE :ED2%TE 8-.=? But is not Kour Conor a)are that there are a nuber of
resolutions filed in the Convention that the Chief E1ecutive ay suspend the
privilege of the )rit of habeas corpus or proclai and declare artial la) only for
a liited period andNor )ith the concurrence of the :egislatureE
6E:E9ATE 6E 9G>MAN 8A.=? Kes, Kour Conor, but )e are not bound. This
Coittee is not bound by those resolutions. As already agreed upon )hen the
"AA;Man %pecial Coittee )as created, that Coittee of )hich )e are a part
)as erely advised to ta4e into consideration such resolutions. /e should bear in
ind also that )e are adopting the parliaentary syste )here there is ore,
rather than less, fusion of legislative and e1ecutive po)ers. /e are adopting, Kour
Conor, the concept and principle of an e1ecutive ore directly and iediately
responsible to the :egislature so that the e1ercise by the Chief E1ecutive of any of
his po)ers )ill be sub+ect to the ever present scrutiny of the :egislature.
6E:E9ATE :ED2%TE 8-.=? But y point, Kour Conor, is to ephasi,e the fact that
the filing of those resolutions re*uiring even the concurrence of the National
Assebly for the valid e1ercise by the Prie Minister of these e1traordinary
constitutional prerogative indicates that there is a sentient aong the 6elegates
to further restrict, rather than e1pand, the po)ers. And 2 )ould say that the
decision of the %upree Court in Lansang vs. Garcia )hich repudiated the
doctrine earlier laid do)n in Ba4er and CastaFeda lends support to that
sentient.. 2f )e are to interpret the provision under consideration in the )ay
Kour Conor )ould )ant it interpreted, in the sense that the factual findings of the
Chief E1ecutive for the suspension of the privilege of the )rit of habeas corpus or
the declaration of artial la) )ould be conclusive insofar as the 0udicial
6epartent is concerned, then )e are retrogressing and, in effect, going against
the sentient to further restrict the e1ercise of these great constitutional po)ers.
6E:E9ATE 6E 9G>MAN 8A.=? 2 can go along )ith Kour Conor!s arguents if, as 2
have already stated, this Convention opted for the presidential for of
governent. But as )e have already opted and chosen the parliaentary syste,
2 thin4 further restrictions on the po)ers of the Chief E1ecutive )ill no longer be
+ustified. 2t ay be trite to repeat here, but 2 repeat the nevertheless, the
arguents in favor of a parliaentary for of governent? that this syste is for
a strong e1ecutive, but one )ho is iediately and instantly ans)erable to his
peers at all ties. Thus, should a Prie Minister suspend the privilege of the )rit
of habeas corpus or declare artial la) arbitrarily or, even perhaps, irrationally, 2
don!t thin4 that there can be any better or ore iediate chec4 on such
arbitrary and irrational e1ercise of po)er than the Parliaent itself. The courts
cannot pretend to be in a better position than the Parliaent in this regard. 3or
the Parliaent on the very day, or perhaps even on the very hour, that the Prie
Minister proclais artial la) or suspends the privilege of the )rit of habeas
corpus ay file a otion to depose hi and should this otion be successful,
then the prevailing party )ith its Prie Minister )ill +ust issue another
proclaation restoring noralcy and order.
6E:E9ATE :ED2%TE 8-.=? Than4 you, Kour Conor. 3or the oent, Mr. Chairan,
2 have no ore *uestions to as4.
PRE%262N9 -332CER TGPA> 8A.=? Are there any further coents or
interpellationsE
6E:E9ATE LG2R2N-? 0ust one *uestion, Mr. Chairan, in connection )ith the
point raised by 6elegate :eviste.
PRE%262N9 -332CER TGPA> 8A.=? Kou ay proceed.
6E:E9ATE LG2R2N-? Before 2 as4 y *uestion, Kour Conor, let e state y
position clearly lest 2 be isunderstood. 2 a as4ing this *uestion not because 2
disagree )ith Kour Conor!s position but only for the purpose of enriching this
debate )ith e1changes of vie)s for future researchers and scholars. No), if, as
Kour Conor puts it, the decision of the Prie Minister on the e1istence of grounds
+ustifying the declaration of artial la) or the suspension of the privilege of the
)rit of habeas corpus )ould no longer be opened to +udicial scrutiny, )ould that
not enable the Prie Minister to abuse his po)ersE
6E:E9ATE 6E 9G>MAN 8A.=? Kour Conor )as not listening. 2 +ust stated that
there is a ore iediate chec4 on the part of the Parliaent, and aside fro
this practical chec4, it ust be understood that an act of the Chief E1ecutive
suspending the privilege of the )rit of habeas corpus or proclaiing artial la) is
political act, the reedy ust also be political, in a political foru, be in
Parliaent or directly before our people. And it ust be stated that there is no
po)er )hich ay not be abused. 2 thin4, Kour Conor, )e should once and for all
agree as to the nature of this po)er )e are investing in the Chief E1ecutive. -nce
and for all, )e should agree that this po)er is einently political and e1ecutive in
nature. The 0udiciary, 2 subit, is not the best, uch less is it the ost practical
agency, to possess, to e1ercise, or to liit this po)er, the need for )hich cannot
be denied.
6E:E9ATE LG2R2N-? /ell, Kour Conor, 2 a not a la)yer, so 2 hope you )ill
pardon e if cannot fully appreciate )hat you are tal4ing about. Because, to e,
an act is political if it is done by a politician. That!s all, Mr. Chairan.
PRE%262N9 -332CER TGPA> 8A.=? :et!s be serious, please. All right, are there
further interpretations or coentsE Kes, 6elegate -rti,, )hat is it that you )ant
to as4E
6E:E9ATE -RT2> 8R.=? /ell, Mr. Chairan, this is not a *uestion but +ust
additional observations. 2t is unfortunate really that the doctrine first laid do)n in
Barcelon vs. Baker and affired ore than half a century later in Montenegro vs.
Castaeda )as reversed by the %upree Court in Lansang vs. Garcia. 2 say it is
unfortunate because ore than anyone else, only the President is in the best
position to evaluate and the e1istence of the causes )hich )ould )arrant the
e1ercise of this constitutional po)er. As it )ere, the Prie Minister is the head of
the E1ecutive 6epartent. More than that, he is the Coander;in;Chief of all
the ared forces of the Philippines. Ce has, therefore, all the resources and
facilities not available to any other official of the governent, uch less to the
%upree Court, to a4e authoritative findings and assessents of the threats to
national security. But even in the :ansang case, 2 )ould say that the Court had to
decision of the %upree Court in that case, and 2 )ould say that the Court had to
decision of the %upree Court in that case, and 2 )ould li4e to *uote a portion
thereof. 2n this decision, the %upree Court stated, and 2 *uote?
other violent incidents, suing over &7#, in )hich it inflicted @#@ casualties
about the sae but the NPA casualties ore than doubled.
2 )ish to call the attention of the Mebers of this Coittee to the phrase
appearing in this portion of court!s decision, naely, Baccording to the records of
the 6epartent of National 6efenseB. This phrase is, to e, significant in the
sense that even the %upree Court itself had to rely on the records of an agency
of the E1ecutive 6epartent, )hich only proves or, at least indicates an
adission on the part of the Court that by itself, it is not in a position to a4e its
o)n factual findings on the grounds +ustifying the suspension of the privilege of
the )rit of habeas corpus in the :ansang case. 2n short, even in the :ansang case
)here the %upree Court repudiated the conclusiveness of e1ecutive findings on
facts to +ustify the e1ercise of the po)er, the sae court, nonetheless, had to
resort to such findings ade by an ar of the E1ecutive 6epartent. 2f 2 ay
further add, 2 )ould li4e to say that, to y recollection, during that hearing )hen
the %upree court received this evidence, or perhaps )e ay call the pieces of
inforation, fro the ilitary, )hich inforation )as classified, there )ere
ob+ections on the part of soe counsel )ho )ere e1cluded fro the hearing, to
the effect that they should also be afforded the opportunity of hearing such
inforation. All of these, of course, erely sho) the ipracticability on the part
of any court, be it the %upree Court or a lo)er court, to receive evidence )hich
is, perhaps, not even acceptable under the Rules of Court and, thereafter, to
deterine for itself )hether such evidence or inforation is legally sufficient for
the President or the Prie Minister to act upon. /e are therefore here
abandoning the :ansang doctrine.
%-ME 6E:E9ATE%? No ob+ectionS No ob+ectionS
6E:E9ATE A62:? %o, it is then the understanding of this Coittee, and 2 ta4e it
to be its position, that )hen the Prie Minister suspends the privilege of the )rit
of habeas corpus or declares artial la), the findings by the Prie Minister on
the causes that +ustify such suspension or proclaation are conclusive and ay
not, therefore, be in*uired into by the courts.
6E:E9ATE 6E 9G>MAN 8A.=? May not be in*uired into by the courts or by anyone,
and the Chief E1ecutive is fully responsible for his acts. The courts, of course, are
po)erless to ta4e reedies against any arbitrary acts of the Chief E1ecutive, but
such arbitrary act, if there be any, ay he chec4ed by the political branch or
departent of the governent and, ultiately, by the people theselves.
6E:E9ATE :ED2%TE 8-.=? 2f that is our understanding, Kour Conor, )hy don!t )e
put it here, in blac4 and )hite, that the findings of the Prie Minister on the
e1istence of the grounds for the suspension of the privilege of the )rit of habeas
corpus or the proclaation of artial la) are conclusive upon the courtsE
PRE%262N9 -332CER TGPA> 8A.=? Kour Conor, 2 suppose you are a)are that )e
are here drafting a Constitution and not annotating an e1isting one. 2f )e are to
include in this docuent every intent and interpretation )e have on each
provision, 2 cannot iagine the 4ind of bul4 of such Constitution )hich )e shall
subit to our people.
6E:E9ATE :ED2%TE 8-.=? 2 ade that suggestion, Kour Conor, because 2 )ant to
leave no doubt on our position regarding this point.
PRE%262N9 -332CER TGPA> 8A.=? /ell, 2 thin4 the records of our deliberations
here suffice to erase that doubt.
6E:E9ATE :ED2%TE 8-.=? No), Mr. Chairan, if 2 ay go to another point, 2
)ould li4e to in*uire )hether this provision on the po)ers of the Chief E1ecutive
or the Prie Minister concerning the declaration of artial la) is liited to the
*uelling of the suppression of rebellion, insurrection, invasion or la)lessness, or
)hether such a po)er includes in it the establishent of a ne) order of things, a
ne) society. 2 say this, Kour Conor, because on the evening President Marcos
announced the proclaation of artial la), he underscored his action by saying
that he proclaied artial la) in order according to hi, Bto save the Republic
and for a Ne) %ocietyB.
PRE%262N9 -332CER TGPA> 8A.=? 6elegate 6e 9u,an )ill please ans)er that.
Mr. Chairan.
are not ready to accept, and President Marcos, a)are, as he is, that the 3ilipino
Ne) %ociety, to create a ne) atosphere, )hich )ill not be a natural habitat of
circustances )hich provo4ed the President in declaring artial la) ay be
authority, )ill be liited to erely ta4ing a ilitary easure to *uell the rebellion
and eliinating la)lessness in the country and leave hi )ith no eans to create
an enduring condition of peace and order, then )e shall have failed in providing in
iediately confront it. More than that, the easure to preserve the %tate ust
go deeper into the root causes of the social disorder that endanger the general
safety.
convincing rear4s of y good friend and colleague, Relegate -rti,. And 2 ta4e it,
Mr. Chairan, that is also the position of this Coittee.
PRE%262N9 -332CER TGPA> 8A.=? Kes, also of this Coittee.
soe provisions of the Constitution are suspendedE
of sae of its provisions ust, of necessity, be restricted, if not suspended,
its )eapon for survival, and )hen the occasion arises )hen such is at sta4e,
prudence re*uires that certain individual rights ust have to be sacrificed
and 2, for instance, a detained by the ilitary authorities, 2 cannot avail of the
detentionE
guaranty cannot definitely be had unless the %tate is in a position to assert and
been issuing decrees )hich are in the nature of statutes, regulating, as they do,
6E:E9ATE 6E 9G>MAN 8A.=? Certainly, and that is the position of this Coittee.
be harstrung or liited to his traditional po)ers as Chief E1ecutive. /hen
decree for that atter, has nothing to do )ith the invasion, insurrection, rebellion
or iinent danger thereof. My point, Kour Conor, is that this easure basically
has nothing to do )ith the restoration of peace and order or the *uelling of
rebellion or insurrection. Co) could )e validly say that the President!s assuption
of such po)ers is +ustified by the proclaation of artial la)E
6E:E9ATE 6E 9G>MAN 8A.=? As 2 have repeatedly stated, Kour Conor, )e have
foreign te1tboo4s. /e have to loo4 at artial la) not as an iutable principle,
Kou cite as an e1aple the decree on land refor. Kour Conor )ill have to adit
that one of the a+or causes of social unrest aong peasantry in our society is
the deplorable treatent society has given to our peasants. As early as the
ob+ective of artial la). And 2 ay add that in the ultiate analysis, the only
4no)n liitation to artial la) po)ers is the convenience of the artial la)
adinistrator and the +udgent and verdict of the people and, of course, the
verdict of history itself.
6E:E9ATE :ED2%TE 8-.=? Kour Conor, +ust for purpose of discussion, ay 2 4no)
fro you )hether there has been an occasion in this country )here any past
President had ade use of his artial la) po)erE
the "'7< Constitution, the artial la) provision has never been availed of by the
President. 2 recall, Kour Conor, that during the 0apanese occupation, President
:aurel had occasion to declare artial la), and 2 recall that )hen President :aurel
declared artial la), he also assued legislative and +udicial po)ers. /e ust, of
course, reali,e that during the tie of President :aurel, the threats to national
security )hich precipitated the declaration cae fro the outside. The threats
therefore, )ere not internal in origin and character as those )hich propted
President Marcos to issue his historic proclaation. 2f, in case 5 as )hat
happened during the tie of President :aurel 5 the declaration of artial la)
necessitated the e1ercise of legislative po)ers by the artial la) adinistrator, 2
say that greater necessity calls forth the e1ercise of that po)er )hen the threats
to national security are posed not by invaders but by the rebellious and seditious
eleents, both of the left and right, fro )ithin. 2 say that because every
rebellion, )hether in this country or in other foreign countries, is usually the
product of social unrest and dissatisfaction )ith the established order. Rebellions
or the acts of rebellion are usually preceded by long suffering of those )ho
ultiately choose to rise in ars against the governent. A rebellion is not born
overnight. 2t is the result of an accuulation of social sufferings on the part of the
rebels until they can no longer stand those sufferings to the point that, li4e a
volcano, it ust sooner erupt. 2n this conte1t, the staping out of rebellion ust
not be the ain and only ob+ective of artial la). The Martial la) adinistrator
should, nay, ust, ta4e steps to reedy the crises that lie behind the rebellious
oveent, even if in the process, he should e1ercise legislative and +udicial
po)ers. 3or )hat benefit )ould it be after having put do)n a rebellion through
the e1ercise of artial po)er if another rebellion is again in the offing because
the root causes )hich propelled the oveent are ever presentE -ne ight
succeed in capturing the rebel leaders and their follo)ers, iprison the for life
or, better still, 4ill in the field, but soeday ne) leaders )ill pic4 up the torch and
the tattered banners and lead another oveent. 9reat causes of every huan
underta4ing do not usually die )ith the en behind those causes. Gnless the root
causes are theselves eliinated, there )ill be a resurgence of another rebellion
and, logical the endless and vicious e1ercise of artial la) authority. This reinds
out.
PRE%262N9 -332CER TGPA> 8A.=? /ith the indulgence of the 9entlean fro :a
2t is for the foregoing reasons that 2 find continued artial la) to be a political
*uestion under the ne) Charter. The present Constitution does not give the
%upree Court any po)er to !chee4 the e1ercise of a supreely political
prerogative. 2f there is any chec4ing or revie) of artial la), the Constitution
gives it, not to the %upree Court, but to the National Assebly. Gltiately, the
chec4ing function is vested in the people. /hether the National Assebly
e1presses displeasure and )ithdra)s its confidence fro the Prie Minister
through election of a successor or the Prie Minister as4s the President to
dissolve the National Assebly under Article D222, %ection "7, the issue of artial
la) ultiately rests )ith the people. Anything dependent upon the popular )ill is,
of course, political. Although the interi National Assebly has not yet been
convened, the intent of the Constitutional Convention to a4e the *uestion
political is clear.
E1clusive of the Transitory Provisions, other provisions of the present Charter ay
be cited. The Bill of Rights, Article 2D, %ection "< had added Bor iinent danger
thereofB to the "'7< provision. 2t no) reads 5
%EC. "<. The privilege of the )rit of habeas corpus shall not be suspended e1cept
in cases of invasion, insurrection, rebellion, or imminent danger thereo), )hen the
public safety re*uires it.
Article 2I, %ection "A, another ne) provision reads 5
%EC. "A. All po)ers vested in the President of the Philippines under the nineteen
hundred and thirty;five Constitution and the la)s of the land )hich are not herein
provided for or conferred upon any official shall be deeed, and are hereby,
vested in the Prie Minister, unless the National Assebly provides other)ise.
All the foregoing features of the ne) Constitution strengthen and do not decrease
the e1clusivity and political nature of the po)er to proclai artial la) and to lift
it.
I2D
G,'*T+*G T1'T T1 C-*T+*<'T+-* -$ M',T+'L L'= +" *-T &-L+T+C'L B<T
J<"T+C+'BL# +T +" "T+LL 2'L+/ <*/, T1 T"T -$ ',B+T,',+*""
Even if )e grant that the continuation of artial la) and the deterination )hen
to lift it are +usticiable in character, -ur decision is still the sae. Correctness of
the President!s acts, 2 ust repeat, is not the test. Assuing that the Court has
+urisdiction to deterine )hen artial la) should he lifted, the test is still
arbitrariness.
Aside fro asserting that there )as no basis for the initial proclaation of artial
la), the petitioners insist there is no real eergency in the country today.
Petitioner 6io4no cites various ne)spaper ites reporting stateents of the
President and defense officials. Aong the are assurances of the President that
reservists )on!t undergo cobat duty, stateents of 6efense %ecretary Ponce
Enrile citing gains in peace and order, disclosures of coanding generals that
the Mindanao rebellion is crushed and Tarlac is no) peaceful, and reports fro
Nueva Eci+a that the rebel bac4bone is bro4en. 8%uppleental Petition and Motion
for 2ediate Release dated 0une &', "'(7.=
The petitioners assert that the Bactual state of )ar aspect )as dropped fro
general orders as early as %epteber 7#, "'(& and that the transforation of a
Ne) %ociety has becoe the ne) thee.
2t is the second purpose 5 the building of a Ne) %ociety 5 that is no) being
ephasi,ed every)here. The instruents of ass counication that have been
allo)ed to often dru this thee )ithout ceasing. Dery little space and tie is
devoted no) to the idea of saving the Republic. -ne can, of course, handle this
difficulty by a seantic anipulation, naely, that the building of a Ne) %ociety
is the only )ay of saving the Republic.
2n a Manifestation dated 0uly A, "'(@, petitioner 6io4no cites other circustances
sho)ing that peace and order conditions in the country are noral.
". The President left the country a fe) )ee4s ago for a eeting at Menado )ith
President %uharto of 2ndonesia, soething he obviously )ould not have done if
there really )as an eergency.
&. Tourists and foreign investors are coing to our shores in hordes, not +ust to
Manila but also its environs and outlaying provinces, )hich they )ould certainly
not do if they )ere not assured of security and stability.
7. Bas4etball, chess, s)iing and even 4arate international tournaents are
being held in the Philippines. The President even attended the latter event.
@. The "'(@ Miss Gniverse contest is scheduled to be held in Manila this onth
)ith e1penses in preparation therefor aounting to illions of pesos. The
9overnent )ould not have been so thoughtless as to spend so uch oney for
such an unnecessary affair, if there is really an Bactual and iinent danger of
insurrection and rebellion.B
<. %ince the proclaation of artial la), the Philippines has hosted several
international conferences, the latest being the Gnited Nations 6evelopent
Progra sessions )hich )ere attended by delegates and observers fro si1ty;si1
8AA= countries, t)enty;si1 8&A= Gnited Nations Agencies, and the G.N.6.P.
%ecretariat. The event last entioned brought in so any visitors that facilities of
no less than fourteen 8"@= hotels had to be utili,ed. This can only happen in a
country )here peace and tran*uility prevail.
These circustances, 5 soe bordering on the frivolous, coupled with the
&resident clear and repeated assurances that there is Eno real emergency todayE
M/aily !press# June 33# 456CN and that Eactually =e have removedE martial law
8Tie Maga,ine, April "<, "'(@= 5 all confir that the conditions under )hich
Bpersons ay be detained )ithout )arrant but )ith due processB 8to use the
*uotation fro petitioner!s cited by respondents=, no longer e1ist, if indeed they
ever e1isted, and that, therefore, the po)er of indefinite detention claied by the
%olicitor 9eneral and the respondents for the President in their last t)o pleadings,
is actually and patently Bbeyond the pale of the la) because it is violative of the
huan rights guaranteed by the Constitution.B
/hile 2 believe that the continuation of a state of artial la) is a political
*uestion under the ne) Constitution, these arguents deserve ans)er for the
sa4e of our people )ho )ill read the Court!s decision.
2 a not convinced, at this stage of artial la) that the President is acting
arbitrarily in not lifting the proclaation.
A Manifestation dated May "7, "'(@ fro the respondents states?
The President believes that the continued threat to peace and order, the dangers
to stable governent and deocratic institutions and the actual and iinent
danger of insurrection and rebellion re*uire continuation of artial la). This
finding is based on a continuing assessent of the factual situation )hich resulted
in Proclaation No. "#$". -n the other hand, petitioners believe other)ise.
2n the e1ercise of +udicial revie), one reasonable ind assessing the factual
situation no) obtaining could probably agree )ith the petitioners. Another
reasonable ind, ho)ever, vie)ing the sae factual situation could very
understandably arrive at an opposite conclusion. Assuing /e have the Po)er,
/e should not try to )eigh evidence on either side and deterine )ho is correct
and )ho is )rong. As stated earlier, the test of validity is arbitrariness and not
correctness 2 do not doubt the President!s sincerity and good faith in a4ing the
deterination outlined in the respondent!s Manifestation. There can, therefore, be
no finding that he is acting arbitrarily in not lifting artial la).
The BevidenceB present by petitioner 6io4no )ea4ens his arguents. 2f, as he
clais, the ass edia are controlled, the ne)s ites on rebellion that he cites
should not be accorded strong probative value. 2t is possible that the ne)s about
rebels and insurrectionist activities is deliberately played do)n as part of the
peace and order capaign under artial la). The ne)s could be intended to
convince those )ho ay )aver bet)een see4ing anesty or prolonging the
rebellion to ta4e the first course of action.
2n fact, there is over)helingly a greater nuber of reasonable en and )oen
)ho agree , )ith the President!s findings than )ith the petitioners! convictions. -n
0uly &(, "'(7 and 0uly &$, "'(7, voters in a national referendu )ere as4ed 5
has initiated under artial la)E The Coission on Elections has reported that
"$,<#<,&"A voters ans)ered BKesB and ",$<A,(@@ voted BNoB. The vote of the
"$,<#<,&"A people fro all parts of the country )ho ans)ered BKesB can clearly
be interpreted as sustaining the finding that the President is not acting arbitrarily.
2n fact, it can be read in no other )ay but to confir even the correctness of the
President!s deterination on the continuing need for artial la). And since other
referenda are forthcoing, a ore reliable gauge of arbitrariness and correctness
than press clippings is available to our people as they +udge the President.
The petitioners, in urging this Court to decide the petitions and to decide the in
their favor, raise the alar that unless /e do so, /e ay never he able to decide
at all. /e are )arned that Bin the face of an assault on the 0udiciary, it )ould be
ridiculous, if it )ere not tragic, if this Court did not even so uch as defend itself.
... 2n the face of a disantling of the entire constitutional order of )hich the
0udiciary is a vital, indispensable part, ho) can it even afford the lu1ury of
ac*uiescence in its o)n ruinE And ho) can it continue to inspire the high respect
of the people, if it erely indulges in sculptured rhetoric and fails to protect their
civil liberties in live, concrete petitions such as thisEB 8Reply Meorandu for
Petitioners dated Noveber 7#, "'(&, page @#=. The petitioners spea4 of
Bconstitutional suicideB 8+bid, p. A#= and allege that Bthe gloo deepens and is
encircling, and only a fe) lights reain. -ne reaining light is that provided by
this %upree Tribunal. The entire nation no) loo4s in its direction and prayerfully
hopes it )ill continue burningB 8ibid, p. $"=.
2 do not share the sae doosday ipressions about artial la). My decision is
based not alone on y sincere conviction about )hat the Constitution coands
and )hat the relevant constitutional provisions ean. Cappily, y reading of the
Constitution as a legal docuent coincides )ith )hat 2 feel is right, orally and
conscience;)ise, for our country and people. 2t confirs y life;long conviction
that there is indeed )isdo, profundity and even genius in the seeingly short
and uncoplicated provisions of our fundaental la).
ID
M',T+'L L'= '*/ T1 "<"&*"+-* -$ T1 =,+T -$ 1'B'" C-,&<"
Another issue in the instant petitions is )hether the privilege of the )rit of
habeas corpus is suspended upon a proclaation of artial la). The ans)er is
obviously in the affirative.
The proclaation of artial la) is conditioned on the occurrence of the gravest
contingencies. The e1ercise of a ore absolute po)er necessarily includes the
lesser po)er especially )here it is needed to a4e the first po)er effective. BThe
suspension enables the e1ecutive, )ithout interference fro the courts or the la)
to arrest and iprison persons against )ho no legal crie can be proved but
)ho ay, nevertheless, be effectively engaged in orning the rebellion or inviting
the invasion, to the iinent danger of the public safety.B 8Barcelon v. Ba4er, <
Phil. $(, ""&=. 2t )ould negate the effectivity of artial la) if detainees could go
to the courts and as4 for release under the sae grounds and follo)ing the sae
procedures obtaining in noral ties. The President in the dispositive paragraph
of Proclaation No. "#$" ordered that all persons presently detained or others
)ho ay thereafter be siilarly detained for the cries of insurrection and
rebellion and all other cries and offenses coitted in furtherance or on the
occasion or in connection there)ith shall be 4ept under detention until other)ise
ordered released by hi or his duly designated representative. Gnder 9eneral
-rder No. &;A, the President ordered the arrest and ta4ing into custody of certain
individuals. 9eneral -rder No. &;A directs that these arrested individuals )ill be
held in custody until other)ise ordered by the President or his duly designated
representative. These general orders clearly sho) that the President )as
precluding court e1aination into these specified arrests and court orders
directing release of detained individuals.
Martial la) is intended to overcoe the dangers fro rebellion or insurrection.
The purpose )ould be subverted if artial la) is declared and yet individuals
coitting acts of direct rebellion and insurrection or acts )hich further the goals
of the rebels cannot be detained )ithout filing charges. 2f the President decides to
proclai artial la) and to use all the ilitary forces of the Philippines to
preserve the Republic and safeguard the interests of the people, it is sophistry to
state that the lesser po)er of suspending the privilege of the )rit of habeas
corpus is not included. This is especially true )here, as in these cases, the
President has specifically ordered the detention )ithout filing of charges of
individuals )ho further or ight further the rebellion. This appears clear fro
Proclaation No. "#$" itself and fro pertinent general orders issued pursuant to
it.
ID2
T1 $$CT -$ ',T+CL H2++# "C C M3N -$ T1 *= C-*"T+T<T+-*
There is another reason for denying the instant petitions.
Article I22 %ection 7, %ubsection 8&= of the present Constitution 8ratified on
0anuary "(, "'(7= has a transitory provision )hich reads?
subse*uent proclaations, or other acts of the incubent President, or unless
e1pressly and e1plicitly odified or repealed by the regular National Assebly.
2t is noted fro the foregoing that all proclaations and orders of the President,
specifically Proclaation No. "#$" and the relevant orders and decrees affecting
the herein petitioners and others siilarly situated, are by the e1press )ords of
the Constitution, part of the la) of the land. 2n fact, the transitory provision
considers the valid, legal, binding and effective even after lifting of artial la)
or the ratification of this Constitution. They are valid not only at the inception of
but also during artial la). -nly an e1press and e1plicit odification or repeal by
the regular National Assebly ay odify, revo4e, and supersede the
proclaations, orders, decrees, instructions or other acts of the incubent
President under artial la). This transitory provision does not, as any people
believe, erely validate Proclaation No. "#$". This section confirs the validity
of the proclaation under the old Constitution and its continuing validity under
the Ne) Constitution. The Constitutional Convention concurred )ith the President
and declared that the proclaation )as validly issued under the old Charter and
continues to be constitutional under the ne) Constitution. -n the basis of the
constitutional provision alone, the declaration of artial la) under Proclaation
No. "#$" ay, therefore, be +ustified and validated. %iilarly, the orders of the
President on the continued detention of the petitioners and, in effect, the
suspension of the privilege of the )rit of habeas corpus have been definitely
declared valid and constitutional.
2 )ish to add that )ith the above;cited portion of the Transitory Provision, the
Constitutional Convention )anted to foreclose any constitutional attac4 on the
validity of Ball proclaations, orders, decrees, instructions, and acts proulgated,
issued, or done by the incubent PresidentB entioned therein. As a atter of
fact, during the discussions of this portion of the Transitory Provision before the
"AA;an special coittee, fored to finally draft the Constitution of )hich 2
)as a eber, 8being the Dice;Chairan of the panel of floor leaders=, ans)ering
a *uery fro 6elegate :eviste, 6elegate Pacificador said?
T,'*"C,+&T -$ T1 &,-C/+*G" -$ T1 4PP7M'* "&C+'L C-MM+TT 5
MT+*G *o. CC *-2MB, 3P# 4563
By the provisions of %ubsection &, )e are rendering the decrees of the incubent
President as ore than ere statutes. /e are constituting the as highly political
acts, the validity of )hich cannot be in*uired into even by our courts, but are
appealable only to the people theselves. There )ill be no other )ay of revo4ing
or repealing such decrees e1cept by the t)o )ays entioned in %ubsection & of
%ection 7.
0ustifying artial la) and the suspension of the privilege of the )rit of habeas
corpus by citing the transitory provisions of the present Constitution leads to
another arguent in the petitions. According to petitioner 6io4no, the stateents
in the dispositive portion of the decision in the ratification cases that Bthere is no
further +udicial obstacle to the ne) Constitution being considered in force and
effectB is clearly not a ruling that the Ne) Constitution is legally in force and
effect. Petitioner 6io4no stresses ho) carefully the Court has chosen its language.
According to hi, the Court does not say that there is no further legal obstacle
and that it says erely that there is no further 0udicial obstacle. Petitioner finds a
)orld of difference bet)een a legal and a +udicial obstacle. Every illegal act,
according to hi, is per se barred by a legal obstacle but not necessarily by a
+udicial obstacle. The petitioner points out that the Court does not state that the
ne) Constitution is in force and effect. 2t erely spea4s of the ne) Constitution
being considered in force and in effect. Ce alleges that bet)een BbeingB and
Bbeing consideredB, there is again a )orld of difference. 3ro the decision of the
%upree Court in the ratification cases, the petitioner believes that the Court )as
trying to a4e it as plain as circustances peritted that it had not decided that
the ne) Constitution is legally and factually in force.
-ther pleadings subitted in these cases have raised basically the sae a+or
issues that )ere raised in the ratification cases already decided by the Court.
To y ind, the dispositive portion of the %upree Court!s decision is best
interpreted by the %upree Court itself. No aount of arguentation, subission
of pleadings, play of )ords, and seantic niceties can overcoe or ignore the fact
that the %upree Court is interpreting and applying the ne) Constitution. The
ebers have ta4en an oath to defend this ne) Constitution. By both action and
)ords, all the ebers of this Court have ade it plain beyond any shado) of
doubt that the ne) Constitution is legally and factually in force. The +ustices of
this Court )ould be the last persons to interpret and enforce soething they do
not consider valid, legitiate, and effective. 2t is not alone the ta4ing of an oath
to support and defend the ne) Constitution that indicates clearly )hat the Court
eant )hen it rendered the Javellana vs. !ecutive "ecretary 8:;7A"@&= decision.
The eaning of the decision is *uite clear fro the fact that the Court has been
enlarged beyond its earlier coposition. 2t has reorgani,ed itself into t)o
divisions. Each division is no) trying cases pursuant to the Ne) Constitution. All
courts are under the adinistrative supervision of the %upree Court. An
e1aination of decisions rendered by the Court since the Javellana vs. !ecutive
"ecretary decision )ill sho) that there is constant reference to the "'(7
Constitution. 2ts provisions for the basis for its authority to interpret and
e1pound on the la)s. /henever a provision of the Constitution is invo4ed, the
Court turns to the "'(7 Constitution as the present Constitution. 2 can see no
clearer interpretation of a decision of this Court than these various acts of the
Court itself.
ID22
' $= -T1, &-+*T"
There are a fe) other points )hich 2 )ould li4e to ans)er briefly. Petitioner
3rancisco !%oc! Rodrigo states that )hile he )as released fro detention on
6eceber <, "'(&, his release is conditional and sub+ect to soe restrictions. Ce
is not allo)ed to leave the confines of the 9reater Manila area unless specifically
authori,ed by the ilitary. Ce states that his petition for habeas corpus is not
oot and acadeic cause of his release.
Considering y opinion on the constitutionality of Proclaation No. "#$", it
follo)s that the release of petitioners 0ose /. 6io4no and Benigno %. A*uino ay
not be ordered. The petitions for their release, as in the case of detainees already
released, ust be directed to the President. . 2f such is the case )ith petitioners
)ho are actually detained and confined, )ith ore reason should the principles
herein enunciated apply to those no longer confined or detained.
2n the case of forer %enator Benigno %. A*uino, criinal charges have been filed
against hi. As a rule, a petition for the )rit of habeas corpus is satisfactorily
ans)ered by a sho)ing that a prisoner is detained on the basis of valid criinal
charges. Co)ever, petitioner A*uino challenges the +urisdiction of the ilitary
tribunal and the validity of the charges filed against hi.
Therefore, insofar as all issues in the case of Benigno ". '(uino vs. Military
Commission No. &, :;7(7A@, )hich are coon to the issues in these instant
petitions are concerned, this decision applies. -n any other issue not coon to
the issues in these Petitions, 2 a reserving y opinion for :;7(7A@.
ID222
T1 ,M/+" 'G'+*"T CL', 'B<" -$ &-=,
The general reedy against an arbitrary, )hisical, or capricious e1ercise of the
artial la) po)er of the President, as it is the reedy on all political *uestions, is
the voice of the people in an election )hen one is held, or through the Barangays
)hich the President hiself has consulted in the 0uly &( and &$, "'(7 referendu
on )hether the people )anted President Marcos to continue beyond "'(7 and
finish the refors he has initiated under artial la). The President has officially
announced a nuber of ties that he )ould consult )ith the Barangays
periodically. Gnder this reedy, the people, in the e1ercise of their sovereign
po)er, can base their decision, not only on )hether the acts of the President has
been arbitrary, )hisical, or capricious. they can base their decision on a broader
basis and 5 that is )hether, in their o)n opinion, the President acted correctly or
not.
-r if and )hen the interi assebly is convened, a a+ority of the ebers
thereof, as representatives of the people, can also reedy an arbitrary,
)hisical, capricious, or even an un)ise e1ercise of the po)er, by so advising the
Prie Minister to lift artial la) under pain of being deposed as Prie Minister.
As )e declare the proclaation and the continuation of artial la) political and
therefore non;+usticiable in nature, /e are only ac4no)ledging the constitutional
liitation of that po)er to +usticiable *uestions only, +ust as )e had defined the
constitutional liitations of the po)ers of Congress and of the E1ecutive. As the
interpreter of the Constitution, the Court has to lead in respecting its boundaries.
-ur +urisprudence is replete )ith e1aples )here this Court e1ercised its +udicial
po)er in appropriate cases 8Avelino vs. Cuenco, $7 Phil. "(. Araneta vs.
6inglasan, $@ Phil. 7A$. Nationalists Party vs. Bautista, $< Phil. "#". Rodrigue,
vs. 9ella, '& Phil. A#7. Rutter vs. Esteban, '7 Phil. A$. Aytona vs. Castillo, @
%CRA <77, to nae only the fe)=, )hich should ore than prove that no atter
ho) grave or urgent, delicate or foridable and novel or uncoon a legal
proble is, the Court )ill 4no) )hen and ho) to resolve it. %pecifically, it )ill
4no) )hat to do if, as petitioners fear, a President ay soeday )a4e up and out
of the blue proclai artial la). -f course, this is already alost an ipossibility
under the parliaentary syste established by the Ne) Constitution.
I2I
C - * C L < " + - *
The voluinous pleadings and the lengthy arguents supporting the petitions are
generally couched in erudite and elo*uent language. 2t is regrettable that they
have been tainted in a nuber of instances )ith fren,ied and biting stateents
indicative of a sense of e1asperation. 2 a certain, ho)ever, that these
stateents cannot affect the high sense of ipartiality of the ebers of the
Court as they give their opinion in these cases.
The President is the highest elective official in the country. 2t )as no casual or
perfunctory choice )hich elevated hi to the position. 2t is his duty, no less than
that of this Court, to save the Republic fro the perils of rebellion and
insurrection. 2n order to preserve public safety and good order, he has been
forced to proclai a state of artial la). To insure the continuation of civilian
authority and deocratic institutions, he has utili,ed the ared forces to *uell the
ared challenge and to reedy the ancient evils upon )hich rebellion and
insurrection flourish.
The petitioners dispute the President!s deterination and *uestion his otives. To
the the e1ercise of his constitutional po)ers is an abuse of e1ecutive po)ers
and assuption of a dictatorship. 2nasuch as the real reason for the iposition
of artial la), according to petitioner 6io4no, is not to preserve the nation but to
4eep the President in po)er, there is only one decision the Court should a4e. 2t
should invalidate Proclaation No. "#$". The dire conse*uences are given by the
petitioner 5 eventual resort to ars, shedding of blood. destruction of property
and irreparable loss of invaluable lives 5 )hich, of course, are the sae
conse*uence sought to be avoided )hen artial la) )as proclaied.
The %upree Court ay be the highest court of the land. 2t is not, ho)ever, a
super Being over and above the E1ecutive, the :egislature and the Constitution,
deciding cases on an infallible sense of Truth and a faculty of divination. Principles
of liberty, right, and +ustice are not interpreted in an abstract and dogatic for.
They are applied in the anner the sovereign people adopted our institutions of
governent and forulated our )ritten Constitution.
The %upree Court can rule on the proclaation of artial la) only insofar as its
validity under the Constitution is raised as an issue. 2f the Constitution, as the
e1pression of sovereign )ill, vests the deterination of the necessity for artial
la) in the President, the Court shall so declare and respect it.
Co)ever, the deterination of the )isdo or the propriety of the proclaation
ust rest )ith the people. /isdo and propriety in the a4ing of supreely
political decisions and in the e1ercise of political functions are for the people to
assess and deterine. Gnder our constitutional for of governent, no official or
departent can effectively e1ercise a po)er unless the people support it. Revie)
by the people ay not be as clearcut and fre*uent as +udicial revie) but it is
actual, present, and ost affective.
The constitutional process and the rule of la) are interpreted and enforced by the
%upree Court but their viability and strength depend on the support and faith of
the people. Conse*uently, if our people allo) the syste of governent to be
changed, no pronounceents of this Court can reverse the change or topple an
alleged dictator fro po)er. -nly the people can do it.
3ortunately, the trend of present events clearly sho)s that artial la), instead of
destroying constitutional governent as advanced by the petitioners, is, in fact,
saving and strengthening it.
/CERE3-RE, 2 vote to render +udgent? 8"= To grant the 6io4no otion to
)ithdra) his petition for habeas corpus.
8&= 6eclaring that the decision to proclai artial la) is a political *uestion and
the Court ay not e1aine the grounds upon )hich Proclaation No. "#$" is
based. granting that the Court ay do so, there is sufficient constitutional factual
basis for the sae and certainly the President has not acted arbitrarily,
)hisically or capriciously in issuing the Proclaation. that on both grounds, said
Proclaation No. "#$" is constitutional.
87= 6eclaring that the privilege of the )rit of habeas corpus is ipso facto
suspended upon a proclaation of artial la). and in effect, 9eneral -rder No.
&;A suspended said privilege.
8@= 6eclaring that the continuation of the state of artial la) is siilarly a
political *uestion and that it is for the President or the Prie Minister, under the
Ne) Constitution, to deterine )hen it ay be lifted. and granting that this
Court ay e1aine the factual basis for the continuation of artial la), /e find
sufficient basis for the sae. and
8<= 6isissing the various petitions for the )rit of habeas corpus of petitioners
still detained, or under Bcounity arrest,B )ithin the 9reater Manila area,
)ithout costs.

MU2O0 P!LM!, J.:
&. 2n 9.R. :;7<<7', Caren 2. 6io4no, in behalf of her husband, 0ose /. 6io4no,
petitioner?
,e EMotion to =ithdraw &etitionE dated /ecember 35# 456C9
2 shall e1plain )hy 2 voted to grant the motion. 2 believe that a petition for
habeas corpus basically involves the life and liberty of the petitioner, and, if for
reasons of his o)n 5 the )isdo andNor correctness of )hich are best left to hi
to deterine 5 he desires to )ithdra) the sae and leave his present condition
of indefinite detention as it is, such is his right )hich 2 as a fello);huan being
and as a agistrate of the la) should not deny hi. My distinguished colleagues
)ho opted to deny said BMotion to /ithdra)B argue ainly that to grant the
otion of petitioner 6io4no is for the Court to accept the truth of his allegations
and deny itself the opportunity to act on and resolve the basic issues raised in the
Petition for habeas corpus )hich issues are of Butost public iportanceB and
involve Bthe very life and e1istence of the present 9overnent under the ne)
Constitution.B /hat 2 can say is that the other Petitions for habeas corpus no)
being decided +ointly in this 6ecision afford a foru )here the legal and
constitutional *uestions presented in 6io4no!s petition can very )ell he discussed,
dissected to their inutes details, and decided by the Court. /hat concerns this
)riter ost is that the thrust of 6io4no!s otion to )ithdra) is his belief that he
Bcannot reasonably e1pect either right or reason, la) or +usticeB fro this Court it
being a ne) Court under the ne) Constitution, a different Court fro the
%upree Court to )hich he originally applied for his release.
1
2n plain and siple
language, petitioner 6io4no is bereft of faith in this Court and prefers that his fate
be left undecided. )ho are )e then to ipose our )ill on hi and force hi to
litigate under a cloud of distrust )here his life and liberty are ine1tricably
involvedE 0ust as love is an eotion )hich springs spontaneously fro the heart
and never coerced into e1istence, so also is faith, trust, born and nurtured in
freedo and never under copulsion. Thus, to deny petitioner 6io4no!s otion is
to copel hi to have faith in this Court. can )e do so )hen faith has to be
earned, and cannot be forced into beingE Cence, y vote.
-n the Merits o) the &etition
Because petitioner 6io4no!s BMotion to /ithdra) PetitionB )as considered denied
as only seven 0ustices voted to grant it,
1
and his Petition for habeas corpus )as
to be decided on its erits, and at the tie of the )riting of this -pinion 6io4no
)as in custody for alost t)o years )ithout charges having been filed against
hi, 2 resolved to treat his Petition differently fro that of the other petitioners
)ho, during the pendency of these cases, )ere conditionally released fro the
prison caps of respondents. Co)ever, after copletion of y -pinion but before
the 6ecision in these cases could be proulgated on %epteber "&, "'(@, as
scheduled, President 3erdinand E. Marcos ordered the release of petitioner, 0ose
/. 6io4no, on %epteber "", "'(@. . This developent led the Court to disiss
the Petition of 0ose /. 6io4no for having becoe oot and acadeic, and forced
e to revise y -pinion as it becae unnecessary to discuss the issue of
6io4no!s continued detention.
T1 $'CT"
-n %epteber &", "'(&, President 3erdinand E. Marcos signed )hat is no)
4no)n as Proclaation No. "#$" proclaiing a state of artial la) in the
Philippines, based inter alia on the follo)ing consideration?
... the rebellion and ared action underta4en by these la)less eleents of the
counist and other ared aggrupations organi,ed to overthro) the Republic of
the Philippines by ared violence and force have assued the agnitude of an
actual state of )ar against our people and the Republic of the Philippines.
The Proclaation thus concluded?
the Constitution, do hereby place the entire &hilippines as de)ined in 'rticle +#
"ection 4 o) the Constitution under martial law and, in y capacity as their
2n addition, + do hereby order that all person presently detained, as )ell as all
others who may herea)ter be similarly detained )or the cries of insurrection or
occasion thereof, or incident thereto, or in, connection there)ith, for cries
be kept under detention until other)ise ordered released by e or by y duly
designated representative. 8ephasis supplied=
-n %epteber &&, 9eneral -rder No. " )as issued fro )hich )e *uote?
/CEREA%, artial la) has been declared under Proclaation No. "#$" dated
%ept. &", "'(& and is no) in effect throughout the land.
111 111 111
N-/, TCERE3-RE, 2, 3erdinand E. Marcos, President of the Philippines, by virtue
of the po)ers vested in e by the Constitution as Coander;in;Chief of the
Ared 3orces of the Philippines, do hereby proclai that 2 shall govern the nation
and direct the operation of the entire 9overnent, including all its agencies and
instruentalities, in y capacity and shall e1ercise all the po)ers and
prerogatives appurtenant and incident to y position as such Coander;in;
Chief of all the ared forces of the Philippines.
Also on %epteber &&, 9eneral -rder No. & )as signed by the President )hich
provided?
3
hereby order you as %ecretary of National 6efense to )orthwith arrest and take
into your custody the individuals naed in the attached lists for being
participants or having given aid and com)ort in the conspiracy to sei,e political
and state po)er in the country and to ta4e over the governent by force, the
e1tent of )hich has no) assued the proportion of an actual )ar against our
people and our legitiate governent and in order to prevent the fro further
coitting acts that are iniical or in+urious to our people, the governent and
our national interest, and to hold said individuals until other)ise so ordered by
e or by y duly designated representative. 8ephasis supplied= .
2pleenting 9eneral -rder No. &, respondent %ecretary of National 6efense,
Con. 0uan Ponce Enrile, iediately effected the arrest of a good nuber of
individuals aong )ho )ere the herein petitioners )ho, by reason of their
arrest )ithout charges having been filed against the, cae to this Court to see4
relief through their respective Petitions for habeas corpus, the earliest of )hich, :;
7<<7$, )as filed in the orning of %epteber &7, "'(&.
4
The Court in the
respective Petitions proptly issued the /rit returnable to it, and re*uired
respondents to ans)er. /ith e*ual dispatch respondents filed their BReturn to /rit
and Ans)er to the PetitionB in all the cases )hich contained a coon B%pecial
and Affirative 6efensesB reading as follo)s?
<. Pursuant to said proclaation, the President issued 9eneral -rders Nos. ", &,
7, 7;A, @, <, A, and ( and :etters of 2nstructions Nos. ", & and 7. True copies of
&, 7, @, <, A, (, $, ', "#, and "". A copy of the President!s stateent to the
A. 3inally, the petition states no cause of action. 8p. &", rollo :;7<<@A=
The Ans)er prayed that the petition be disissed.
Pending resolution of these Petitions, petitioners, e1cept for t)o, )ere released
fro custody on different dates under a BConditional ReleaseB -rder of the sae
tenor as the follo)ing? .
< 6eceber "'(&
and the ensuing :-2s. Any violation of these provisions )ould sub+ect you to
iediate8ly= arrest and confineent.
e1pected duration of stay thereat. Contact this office through telephone No. '(;
radioNTD broadcast.
&L/G
release.
to y 4no)ledge.
8%96.= 3. R-6R29-
Address? A# 0uana Rodrigue, Lue,on City
Tel. No. (#;&<;AA. (#;@';&# (#;&(;<<
8p. A&", rollo :;7<<@A=
Not)ithstanding their release fro detention, petitioners concerned did not
)ithdra) their respective Petitions for habeas corpus, )hile petitioner 3rancisco
Rodrigo filed a Manifestation dated Noveber &(, "'(7 stating that his release
did not render his Petition oot and acadeic. 8p. A&#, rollo :;7<<@A= The t)o
petitioners )ho have not been released up to the present are %enator Benigno %.
A*uino, 0r. against )ho in the eantie certain criinal charges have been
filed )ith Military Coission No. & and %enator 0ose /. 6io4no )ho has not
been charged neither before a civil court nor a ilitary tribunal or coission. .
T1 +""<"
These petitions being essentially for the issuance of the )rit of habeas corpus the
)undamental issue is the legality of the detention of petitioners, and )hen )e say
detention, that includes the state of those petitioners )ho have been conditionally
released fro the prison caps of respondent for it is claied that their
conditional release still constitutes a restraint on their personal liberty.
The purpose of the )rit of habeas corpus is to in*uire into the cause or reason
)hy a person is being restrained of his liberty against his )ill, and if there is no
legal andNor valid +ustification sho)n for such restraint the )rit )ill forth)ith issue
to restore to that person his liberty or freedo. 2t Be1ists as a speedy and
effectual reedy to relieve persons fro unla)ful restraint, and as the best and
only sufficient defense of personal freedo ... )hose principal purpose is to set
the individual at liberty.B
5
Noted authors have elo*uently described the )rit as
Bthe )rit of libertyB,
6
as Bthe ost iportant and ost iediately available
safeguard of that libertyB,
7
as Bthe greatest of the safeguards erected by the civil
la) against arbitrary and illegal iprisonent by )hosoever detention ay be
e1ercised or orderedB,
*
and as Bthe great bul)ar4 of personal liberty.B
9
These
concepts of the )rit of habeas corpus bring out the blessed sacred truth that
personal liberty is one of the basic freedos of an +ealously protected by any
civili,ed society by a fundaental la), )ritten or un)ritten, and any deprivation
or curtailent of that personal liberty ust find a basis in la), substantive or
procedural.
1/
2n the petitions under consideration respondents +ustify the arrest
and detention of petitioners by virtue of the proclaation of artial la) in the
country. Respondents aver 8"= that the e1ercise of the po)er granted to the
President of the Republic by %ee. "# 8&=, Art. D22 of the "'7< Philippine
Constitution, to place the country or any part thereof under artial la), is not
sub+ect to +udicial revie). 8&= that even if said e1ecutive po)er ay be in*uired
into, there is factual bases for the President!s action. and 87= that the
proclaation of artial la) carries )ith it the autoatic suspension of the )rit of
habeas corpus and conse*uently these petitions should be disissed.
11
/ith the
ne) Constitution having been adopted in the eantie, respondents pose in
subse*uent pleadings additional grounds for disissal, and these are? 8"= that
Art. 2I, %ec. "&, of the "'(7 Constitution adopted in toto the Coander;in;
Chief clause of the "'7< Constitution, and 8&= that Art. ID22, section 7 8&=
e1pressly and categorically declares that Bthe proclamations# orders# and decrees#
+nstructions and acts issued or done by the incumbent &resident are to )orm Epart
o) the law o) the landE and are to Eremain valid legal# binding# and e))ective even
a)ter the li)ting o) martial law or the rati)ication o) this ConstitutionB, and that
eans the present artial la) regie and all the easures ta4en under it,
particularly Proclaation No. "#$" and 9eneral -rders " and &, as aended.
11
-n the other hand, petitioners vigorously assert 8"= a artial la) proclaation is
+usticiable. 8&= conditions in the country as of %epteber &", "'(&, did not +ustify
a proclaation of artial la). 87= assuing that Proclaation No. "#$" is valid,
9eneral -rders Nos. ", &, 7, and 7;A are violative of the Constitution and are
void. and 8@= the return is palpably insufficient to +ustify continued detention of
petitioners.
13
3or petitioner 6io4no, additional arguents )ere subitted, vi%?
8a= e1isting conditions today do not )arrant the continuance of artial la),
assuing that the proclaation )as initially +ustified. and 8b= the uncertainty of
petitioner!s fate renders his e1ecutive iprisonent oppressive and la)less.
14
2
/e shall first dispose of the issue of the alleged insufficiency of the Return. .
Petitioners contend that respondents! BReturn to /ritB )hich is *uoted in page A
of this -pinion is fatally insufficient because a return ust assert facts and not
conclusions as to the basis of the detention, and ust be suppleented by
affidavits or )ith evidence at the habeas corpus hearing, citing Carlson vs.
Landon, "$A 3. &d. "$7.
The pertinent provision of %ec. "#, Rule "#&, Rules of Court, on the contents of
the return re*uires that it ust state plainly and une*uivocably )hether the
officer to )ho the )rit is addressed has or has not the party in his custody or
po)er or under restraint, and if he has the party in his custody or po)er or under
restraint, the authority and the true and )hole cause thereof, set forth at large,
)ith a copy of the )rit, order, e1ecution, or other process, if any, upon )hich the
party is held. 8pars. a and b= All that this provision of the Rules of Court re*uires
therefore is that the return ust state if the sub+ect of the )rit is in custody or
under restraint and if so, the authority for such restraint and the cause thereof. 2t
is not necessary for or indispensable to the validity of the return that the
evidentiary facts supporting the cause for the restraint be given or enuerated
therein. 2n the petitions at bar the return sufficiently coplies )ith the
re*uireents of the aforeentioned provision of the Rules of Court because it
states the authority and the cause for the detention of petitioners )hich after all
is the purpose or ob+ect of a return. The authority for the detention lies in the
stateent in the return that the President e1ercising his po)ers under Art. D22,
%ec. "# 8&= of the Philippine Constitution
15
proclaied artial la) in the country
and pursuant to such proclaation issued 9eneral -rders 2 to ( inclusive and
:etters of 2nstruction " to 7, copies of )hich are all attached to the return as
anne1es " to "", )hile the cause for the arrest of petitioners is given in 9eneral
-rder No. & 8Anne1 7= )herein it is stated that said petitioners are participants or
have given aid and cofort in the conspiracy to sei,e political and state po)er in
the country, etc. At any rate, any deficiency in the aforesaid return constitutes a
ere technical violation )hich is to be disregarded in vie) of the substantial
issues involved in the cases under consideration. 2perfections of for and
technicalities of procedure are to be disregarded unless substantial rights )ould
other)ise be pre+udiced,
16
and in the instant cases there is no such pre+udice as
petitioners are sufficiently infored of the authority and cause of their detention.
22
The ne1t issue is 5 is this Court )ith +urisdiction to in*uire into the constitutional
sufficiency of the proclaation of artial la)E
Petitioners assert the authority of this Court to in*uire into the necessity of
placing the country under artial la) in the sae anner that it in*uired into the
constitutional sufficiency of the suspension of the privilege of the )rit of habeas
corpus in Lansang vs. Garcia.
16
. Respondents affir, ho)ever, that the
deterination of the e1istence of invasion, insurrection, rebellion, or iinent
danger thereof, )hen the public safety re*uires it is lodged )ith the President
under Art. D22, %ec. "# 8&=, "'7< Constitution, and the President!s deterination
is conclusive on all persons, including the courts. hence, this Court is )ithout
+urisdiction to resolve on the constitutional sufficiency, of the basis for the
e1ercise of that presidential po)er, it being a purely political *uestion.
The Constitutional provision referred to reads?
The President shall be the Coander;in;Chief of all ared forces of the
forces to prevent or suppress la)less violence, invasion, insurrection or rebellion.
17
Respondents cite a host of Aerican authorities and principally fall bac4 on the
rulings of this Court in Barcelon vs. Baker, < Phil. $(, 8"'#<= and Montenegro vs.
Castaeda, '" Phil. $$&, 8"'<&=
1*
)hich held that the authority to decide
)hether the e1igency has arisen re*uiring the suspension of the )rit of habeas
corpus belongs to the President and his declaration is final and conclusive upon
the courts and upon all other persons.
The opinions of y colleagues lengthily discuss this issue of +usticiability or non;
+usticiability of the e1ercise of e1ecutive po)er to proclai artial la) and 2 )ill
not repeat the arguents for one or the other. 2 adopt by reference their
dissertation on the leading Aerican +urisprudence and Constitutional :a)
authorities on the atter, but 2 conclude for y part that the decision of this
Court in Lansang vs. Garcia is the better rule to adopt. 2n :ansang, the Court held
that it has the authority under the Constitution to in*uire into the e1istence of a
factual basis for the issuance of a presidential proclaation suspending the
privilege of the )rit of habeas corpus for the purpose of deterining the
constitutional sufficiency thereof.
19
2f this Court can a4e that in*uiry in the
event of suspension of the privilege of the )rit of habeas corpus, a )ortiori, the
Court can in*uire into the factual basis for the proclaation of artial la)
considering the ore e1tensive effects of the latter on the individual rights of the
citi,enry, for it cannot be denied that artial la) carries )ith it curtailent and
infringeent not only of one!s liberty but also of property rights, rights of free
e1pression and assebly, protection against unreasonable searches and sei,ures,
privacy of counication and correspondence, liberty of abode and of travel,
etc., )hich +ustify +udicial intervention to protect and uphold these liberties
guaranteed under the Constitution.
19
.
2n Lansang, the Court said in the )ords of Chief 0ustice Roberto Concepcion?
2ndeed, the grant of po)er to suspend the privilege is neither absolute nor
un*ualified. The authority conferred by the Constitution, both under the Bill of
Rights and under the E1ecutive 6epartent, is liited and conditional. The
precept in the Bill of Rights establishes a general rule, as )ell as an e1ception
thereto. /hat is ore, it postulates the forer in the negative, evidently to stress
its iportance, by providing that !8t=he privilege of the )rit of habeas corpus shall
not be suspended ....! 2t is only by )ay of e!ception that it perits the
suspension of the privilege in cases of invasion, insurrection, or rebellion! 5 or,
under Art. D22 of the Constitution, !iinent danger thereof! 5 !)hen the public
during such period the necessity for such suspension shall e1ist.! 813 3or fro
being full and plenary, the authority to suspend the privilege of the )rit is thus
circuscribed, confined and restricted, not only by the prescribed setting or the
conditions essential to its e1istence, but, also, as regards the tie )hen and the
place )here it ay be e1ercised. These factors and the aforeentioned setting or
conditions ar4, establish and define the e1tent, the confines and the liits of
said po)er, beyond )hich it does not e1ist. And, li4e the liitations and
restrictions iposed by the 3undaental :a) upon the legislative departent,
adherence thereto and compliance therewith may# within proper bounds# be
in(uired into by courts o) 0ustice. -ther)ise, the e1plicit constitutional provisions
thereon )ould be eaningless. %urely, the fraers of our Constitution could not
have intended to engage in such a )asteful e1ercise in futility. ....
111 111 111
Article D22 of the Constitution vests in the E1ecutive the po)er to suspend the
privilege of the )rit of habeas corpus under specified conditions. Pursuant to the
principle of separation of po)ers underlying the syste of governent, the
E1ecutive!s supree )ithin his o)n sphere. C-/EDER, TCE %EPARAT2-N -3
P-/ER%, GN6ER TCE C-N%T2TGT2-N, 2% N-T AB%-:GTE, /CAT 2% M-RE, 2T
9-E% CAN6 2N CAN6 /2TC TCE %K%TEM -3 CCECM% AN6 BA:ANCE%, GN6ER
/C2CC TCE EIECGT2DE 2% %GPREME, A% RE9AR6% TCE %G%PEN%2-N -3 TCE
PR2D2:E9E, BGT -N:K +$ AN6 =1* CE ACT% =+T1+* TCE %PCERE A::-TTE6 T-
C2M BK TCE BA%2C :A/, AN6 TCE AGTC-R2TK T- 6ETERM2NE /CETCER -R N-T
CE CA% %- ACTE6 2% DE%TE6 2N TCE 0G62C2A: 6EPARTMENT, /C2CC, +* T1+"
,"&CT, 2%, 2N TGRN, C-N%T2TGT2-NA::K "<&,M. 8@& %CRA, pp. @(7;
@(@,@(';@$#, capitali,ation -urs=
/e are no) called upon by respondents to re;e1aine the above;*uoted ruling,
abandon it, and return to the principle laid do)n in Baker and Montenegro.
1/
To
do that, ho)ever, )ould be to retrogress, to surrender a oentous gain
achieved in +udicial history in this country. /ith :ansang, the highest Court of the
land ta4es upon itself the grave responsibility of chec4ing e1ecutive action and
saving the nation fro an arbitrary and despotic e1ercise of the presidential
po)er granted under the Constitution to suspend the privilege of the )rit of
habeas corpus andNor proclai artial la). that responsibility and duty of the
Court ust be preserved and fulfilled at all costs if /e )ant to aintain its role as
the last bul)ar4 of deocracy in this country. To soe, the Court could have gone
further in delineating its function in the deterination of the constitutional
sufficiency of a proclaation suspending the privilege of the )rit of habeas
corpus. )hile that ay be true, as it is, the :ansang decision is a Bgiant leapB in
the interest of +udicial supreacy in upholding fundaental rights guaranteed by
the Constitution, and for that reason 2 cannot agree that /e discard said decision
or easculate it so as to render its ruling a farce. The test of arbitrariness of
e1ecutive action adopted in the decision is a sufficient safeguard. )hat is vital to
the people is the anner by )hich the test is applied by the Court in both
instances, i.e., suspension of the privilege of the )rit of habeas corpus andNor
proclaation of artial la).
222
/e coe to the third issue 5 the validity of Proclaation "#$". Respondents
contend that there is factual basis for the President to proclai artial la) in the
country, )hile petitioners assert other)ise.
-n this point, 2 agree )ith respondents that the e1tree easure ta4en by the
President to place the entire country under artial la) )as necessary. The
President!s action )as neither capricious nor arbitrary. An arbitrary act is one that
arises fro an unrestrained e1ercise of the )ill, caprice, or personal preference of
the actor 8/ebster!s 7rd Ne) 2nternational 6ictionary, p. ""#=, one )hich is not
founded on a fair or substantial reason 8Bedford 2nv. Co. vs. 3olb, "$# P. &d 7A",
7A&, cited in /ords Q Phrases, Peranent Ed., Dol. 7;A, p. <(7=, is )ithout
ade*uate deterining principle, non;rational, and solely dependent on the actor!s
)ill. 8%)eig vs. G.%., 6.C. Te1., A# 3. %upp. ($<, /ords Q Phrases, supra, p. <A&=
%uch is not the case )ith the act of the President, because the proclaation of
artial la) )as the result of conditions and events, not of his o)n a4ing, )hich
undoubtedly endangered the public safety and led hi to conclude that the
situation )as critical enough to )arrant the e1ercise of his po)er under the
Constitution to proclai artial la).
As found by this Court in Lansang vs. Garcia? the counist activities in the
country aied principally at inciteent to sedition or rebellion becae *uite
evident in the late t)enties to the early thirties )ith the first convictions dating
-ctober &A, "'7&, in &eople vs. vangelista# et al. <( Phil. 7(<, and &eople vs.
Guillermo Capadocia# et al. <( Phil. 7A@. )hile there )as a lull in such counist
activities upon the establishent of the Coon)ealth of the Philippines there
)as a resurgence of the counist threat in the late forties and on 0une &#,
"'<(, Congress approved Republic Act "(## other)ise 4no)n as the Anti;
%ubversion Act )hich in effect outla)ed the so;called Counist Party of the
Philippines 8CPP=. in "'A', the Counist Party )as reorgani,ed and split into
t)o groups, one of )hich, coposed ainly of young radicals constituting the
Maoist faction, established a Ne) People!s Ary. the CPP anaged to infiltrate or
control nine a+or labor organi,ations, e1ploited the youth oveent and
succeeded in a4ing counist fronts of eleven a+or student or youth
organi,ations, so that there are about thirty ass organi,ations actively
advancing the CPP interests, aong )hich are the Malayang %aahan ng
Magsasa4a 8MA%AMA=, the Mabataang Ma4abayan 8MM=, the Moveent for the
Advanceent of Nationalis 8MAN=, the %aahang 6eo4rati4o ng Mabataan
8%6M=, the %aahang Molave 8%M=, and the Malayang Pag4a4aisa ng Mabataang
Pilipino 8MPMP=.
11
A recital of conteporary events fro "'A' to "'(& ta4en fro reports of leading
ne)spapers in the country )ill give the factual bac4ground of the proclaation of
artial la) and, )ith the indulgence of the reader, 2 a giving it hereunder?
45P5
January C# vening *ews? Cu4s abushed five persons including a forer ayor
of Bagac, Bataan, along the national road in the province and investigation of the
Philippine Constabulary revealed that the abushers )ere ebers of a Cu4
li*uidation s*uad.
11
January D# ibid? Ary 2ntelligence sources disclosed that the
Cu4s )ere regrouping and steadily building up strength through a vigorous
recruitent and training progra. January 4A# ibid? An encounter occurred in
%itio Bilaong, %ibul, -rani Bataan, )hich )as considered the biggest encounter
bet)een the Ared 3orces and Cu4s in recent years resulting in the 4illing of a
nuber of dissidents. January 3D# 3G# 35# and C4# ibid? 2n the City of Manila
school capuses )ere not spared fro clashes during riotous deonstrations
held by ore than ",<## students of the 3ar Eastern Gniversity, the nuber
increasing to about "#,### of the, and at the :yceu of the Philippines classes
)ere suspended because of a bloody students! deonstration resulting in the
)ounding of at least one student. $ebruary 4# ibid? The night before, scores of
students )ere in+ured during a deonstration at the Mapua 2nstitute of
Technology initiated by radical eleents. $ebruary 3D and 3B# ibid? Cu4s
continued to stri4e at governent forces in %an 3ernando, Papanga, and Tarlac,
Tarlac. 'pril 45# Manila Chronicle? A deonstration of about <,### farers fro
Tarlac reinforced by Mabataang Ma4abayan ebers clashed )ith riot policeen
after they had stoned the G% Ebassy on Ro1as Boulevard, Manila, shattered
glass )indo)s of the building, and put to torch an Aerican flag. May 45#
&hilippines 1erald? The church )as not spared fro the onslaught of student
activis )hen a arch of activists )as held to Manila!s proinent Catholic
churches. June 43# and 4D, Manila Chronicle? Assaults )ere intensified by
governent troops on Cu4 liars in the provinces of Papanga and Tarlac. July D,
Philippines Cerald? The Cu4s practically )ere in control of si1 to)ns in the
province of Tarlac. July 36# ibid? The Mabataang Ma4abayan )hich according to
the Ared 3orces 2ntelligence sources had a tie;up )ith the Cu4s staged a
tuultuous deonstration during a state dinner at MalacaFang in honor of G%
President Richard Ni1on )hich resulted in a free;for;all fight and in+uries to
several deonstrators. "eptember 3# 5# and 4A# Manila# /aily Bulletin? Diolent
student deonstrations )ere staged including a one;day noisy siege of
MalacaFang Palace. -ctober 6# and 44# Manila Chronicle? Bloody deonstrations
continued near the gates of the G% Ebassy on Ro1as Boulevard during )hich at
least &# persons including A policeen, 7 ne)sen and several bystanders )ere
in+ured. *ovember 4B# Manila /aily Bulletin? 7 +eeploads of Cu4s raided the
poblacion of Porac, Papanga, 4illing seven and )ounding si1teen. *ovember 3A#
ibid? More persons )ere 4illed in the continuing carnage in Papanga. *ovember
3G# ibid? Cu4s 4illed t)o ore persons in Papanga and Tarlac even after
constabulary soldiers saturated the provinces on orders of President Marcos.
/ecember G# ibid? 3ive persons )ere assacred by Cu4s in Papanga.
456A
January 45# &hilippines 1erald? @## students deonstrated at MalacaFang Palace
against po)er groups in the country. January 33# ibid? A bob e1ploded at the
0oint G% Military Advisory 9roup Cead*uarters in Lue,on City in+uring a Philippine
Ary enlisted an. January 3C# ibid? %tudent deonstrators auled a palace
guard. January 3D# ibid? %oe 7,### students deonstrated at MalacaFang for
the second day and the National %tudents :eague announced a nation)ide
boycott of classes. January 36# ibid? -pening session of the %eventh Congress
)as arred by riotous deonstrations by thousands of students and )or4ers in
front of the :egislative building during )hich President and Mrs. Marcos )ere the
target of stones and issiles as they )al4ed to their car and (& persons )ere
in+ured in that deonstration. January C4# ibid? Mob attac4ed MalacaFang Palace
)ith ignited bottles and fought )ith ilitary and police troops until early orning.
June 43 and 4D# Manila Times? Nilo Tayag, Chairan of the Mabataang Ma4abayan
)as arrested for subversion and a subachinegun and docuents concerning
Counis )ere confiscated fro hi. July G# P# 6# 4C# 45# 34# 3C# 3G# 3P# 36#
and C4# ibid? Continued deonstrations )ere held in front of the G% ebassy
building, in the capus of the 3ar Eastern Gniversity and the Gniversity of the
East, )hile violent bet)een the ary and the Cu4s in Central :u,on c continued
unabated. "eptember 4G# 4B# 3A# 3G# 3P# 36 and 35# ibid? Diolent stri4es and
student deonstrations )ere reported. -ctober 4# C# D# P# B# 4C# 3C and 3D# ibid?
6eonstrations continued )ith e1plosions of pillbo1es in at least t)o schools. The
Gniversity of the Philippines )as not spared )hen its "$,### students boycotted
their classes to deand acadeic and non;acadeic refors in the %tate
Gniversity resulting in the BoccupationB of the office of the President of the
Gniversity by student leaders. -ther schools )hich )ere scenes of violent
deonstrations )ere %an %ebastian College, Gniversity of the East, :etran
College, Mapua 2nstitute of Technology, Gniversity of %to. Toas, and 3eati
Gniversity. %tudent deonstrators even succeeded in Boccupying the office of the
%ecretary of 0ustice Dicente Abad %antos for at least seven hoursB. *ovember P#
6# B and 4B# ibid. The Ared 3orces continued its encounters )ith the Cu4s in
Central :u,on and )ith the leaders of the Ne) People!s Ary. /ecember G# 5 and
4A# ibid? More instances of violent student deonstrations in the City )ere,
reported, the ost violent of )hich occurred after an indignation rally at Pla,a
:a)ton )here pillbo1es and other e1plosives )ere thro)n resulting in the
)ounding of several students, policeen and bystanders. T)o Catholic schools
and t)o governent buildings in Calbayog City )ere blasted )ith dynaite.
/ecember 4D# 4G# 4B# 3C and 3B# ibid? 3ighting )as reported in the province of
Cotabato bet)een )ell;ared tribesen and the local police forces, as )ell as in
2locos %ur, )hile in Cavite the Police Chief and t)o of his en )ere shot to death
in front of the Call of 0ustice building. /ecember C4# ibid? 2n Baguio City, :t.
Dictor N. Corpus +oined the Ne) People!s Ary and effected a raid on the
Philippine Military Acadey and fled )ith 7< high;po)ered guns )ith aunition.
4564
January 4D# Manila Times? 3our students died during a rally at Pla,a Miranda of
this city. January 34# ibid? %tudents pic4eted the Philippine Constabulary Cap at
Cap Crae to e1press their protest on the use of the ilitary forces against
students, and to deand the ipeachent of President Marcos. January 3C# ibid?
-il firs in the city )ere the ob+ect of bobings resulting in death to at least t)o
persons and in+uries to others. January 36# +bid? A hand grenade )as hurled at
the to)er of the AB%;CBN Broadcasting Corporation in Lue,on City. $ebruary 3#
ibid? A freshan student of the Gniversity of the Philippines )as shot and
critically )ounded, 7< in+ured, &A )ere arrested in violent incidents at the capus
)hich at that tie )as in barricades, )hile in do)nto)n Manila ore than &.###
students occupied and barricaded Claro M. Recto Avenue and "A persons )ere
in+ured in separate clashes bet)een the police and students. $ebruary C# ibid? A
senior engineering student )as shot )hen governent forces drove into the heart
of the Gniversity of the Philippines capus to disperse students )ho had set up
barricades in the area, and at least 7# )oen students )ere )ounded in the
clia1 of the day;long pitch battle in the Gniversity bet)een students and the
local police and soldiers. $ebruary D# G# P and 6# ibid? 2n do)nto)n Manila,
fighting continued bet)een the police and student deonstrators resulting in the
death of at least t)o students and )ounding of scores of deonstrators and
policeen. $ebruary 44# ibid? The G.P. :os BaFos Arory )as blasted by an
e1plosion. $ebruary 4C# ibid? The Gnited %tates Ebassy )as again bobed.
$ebruary 46# ibid? 2n the province of 6avao student riots erupted in the Gniversity
of Mindanao 4illing at least one student. $ebruary 36# ibid? At least "$ persons
)ere 4illed in Cotabato during encounters bet)een governent forces and the so;
called rebels. March 46# 4B# 45 and 3G# ibid? Diolent deonstrations and
indignation rallies )ere held in Manila as )ell as in the province of Tarlac. 'pril
3C# vening *ews? T)o Constabulary troopers )ere abushed by Cu4s under
Coander 6ante in the poblacion of Capas, Tarlac. 'pril CA# ibid? A bob
e1ploded in Lue,on City destroying the statue syboli,ing friendship bet)een the
3ilipinos and the Aericans. May 3 and C# &hilippines 1erald? The onth of May
)as a bloody one. :abor 6ay, May ", )as celebrated by the )or4ers and student
activists )ith a deonstration before Congress, and a clash bet)een the
deonstrators and the Police and Metroco forces resulted in death to several
deonstrators and in+uries to any. May 6# ibid? T)o ary troopers and at least
$ Cu4s including a Coander )ere 4illed during ilitary operations against the
counist Ne) People!s Ary in 2sabela. June 3D# 3G and 3P# Manila times?
Peace and order situation in Mindanao )orsened. Continued clashes bet)een
governent forces and rebels resulted in the evacuation of thousands of Muslis
and Christians ali4e fro several to)ns in Cotabato and a band of <# gunen
attac4ed a party of top governent officials led by 6efense %ecretary 0uan Enrile
)hile inspecting a Mos*ue )here <A Muslis )ere reportedly assacred in Barrio
Manalili, Caren, Cotabato. June 33# vening *ews? Diolence continued to be
unabated in Manila )ith a Lue,on City activist shot dead and 7 drivers involved in
the +eepney stri4e bobed and in+ured. 'ugust 34# ibid? A public eeting being
held at Pla,a Miranda, Manila, by the :iberal Party for the presentation of its
candidates in the general elections scheduled for Noveber $, "'(" )as arred
by )hat is no) 4no)n as the brutal Pla,a Miranda incident )here $ persons )ere
4illed and scores )ere in+ured including the candidates of the party, caused by the
thro)ing of t)o hand grenades at the platfor. 'ugust 3C# ibid? President Marcos
issued a proclaation suspending the privilege of the )rit of habeas corpus.
4563
January 43# Manila Times? President Marcos restored the privilege of the )rit of
habeas corpus in the entire country. January 35# +bid? 2n the eantie, in
Congress a bill )as introduced to repeal the anti;subversion la). $ebruary 3# C# G
and 4A# +bid? Diolent deonstrations in the school belt resued. $ebruary D# ibid?
2n the province of >abales an encounter bet)een PC troopers and the Ne)
People!s Ary )as reported. March ", ibid? The province of Cavite )as placed
under Philippine Constabulary control because of the rash of 4illings in )hich local
officials )ere the victis, one of )ho )as Cavite City Mayor Ro1as. March 3#
ibid? A raid )as conducted by the Philippine Constabulary in a house in Lue,on
City resulting in the sei,ure of 7A high;po)ered firears, & hand grenades and a
disantled achinegun )hile in the province of 2sabela A persons including a
non;coissioned officer of the "#th 2nfantry Battalion )ere 4illed in a gun battle
bet)een governent soldiers and the Ne) People!s Ary. March G# ibid? The Ne)
People!s Ary raided Capas, Tarlac, destroying a portion of the to)n hall. March
5# ibid? More person died in Cotabato and :anao due to continued violence. March
4D# 4P# 4B# 34 and 36# ibid? The student deonstration on its )ay to Congress to
agitate for the repeal of the anti;subversion la) resulted in in+uries to a good
nuber of student deonstrators )hen they clashed )ith security guards in front
of the Gniversity of %to. Toas. 2n another violent deonstration in front of
Arellano Gniversity at least one student )as 4illed and others )ere )ounded in an
encounter bet)een the deonstrators and security guards. Pillbo1 e1plosives
)ere hurled at the gate of MalacaFang Palace and a ysterious e1plosion spar4ed
a fire that gutted the northern )ind of the 9reater Manila Terinal 3ood Mar4et in
Taguig, Ri,al, )hich had been preceded by other ysterious e1plosions )hich
shattered portions of the Arca building on Taft Avenue, Pasay, during )hich
propaganda leaflets )ere found sho)ing that radical eleents )ere behind the
bobings, )hile ' stic4s of dynaite )ere found duped in front of the %ecurity
Ban4 and Trust Copany branch office in EspaFa %treet. March 3C# ibid? Another
public official, Mayor Rodolfo 9an,on of 2loilo City )as )ounded in an abush and
@ of his copanions )ere 4illed. March 3P# ibid? %i1 ore persons )ere 4illed as
governent troopers clashed )ith the Ne) People!s Ary in the province of
2sabela. 'pril 4P and 46# ibid? Clashes continued bet)een the Ary troops and
the Ne) People!s Ary in 2sabela )hich led the governent to send ore troops
to that province. 'pril 3A and 3G# ibid? The G% Ebassy )as again bobed )hile
stri4es in factories )ere +oined by so;called activists. 'pril 3P# ibid? Cand
grenades in the to)n of Cabugao, 2locos %ur )ere thro)n resulting in the death of
"7. 'pril 36# ibid? Clashes continued bet)een governent troopers and the Ne)
People!s Ary in the 2locos provinces as )ell as in the provinces of :anao and
>abales. 'pril CA# ibid? The Ne) People!s Ary invaded the provinces of %aar
and :eyte. May D# ibid? T)o big shipents of dynaite stic4s estiated at "#,###
pieces had already been shipped to 2locos %ur before a third shipent )as
intercepted on a bus bound for Cabugao. May 43 and 4P# ibid? More pillbo1
e1plosions occurred in the G% Ebassy during )hich at least < persons )ere hurt
)hile the pic4ets at the ebassy led by the Mabataang Ma4abayan continued.
May 34# ibid? At least 7# persons )ere )ounded )hen radical vanguards of about
<,### deonstrators clashed )ith about &## Metroco troopers in the vicinity of
the G% Ebassy. June 4C# ibid? The Philippine 2ndependence 6ay )as arred by
rallies of youth and )or4er groups )hich denounced G% iperialis, )ith
deonstrators nubering about "#,### fro %outhern :u,on, Central :u,on and
the 9reater Manila area converging at Pla,a Miranda and during the
deonstration e1plosions of pillbo1 bobs occurred. June 4B# ibid? The situation
in Mindanao )as critical and had )orsened. June 3D# ibid? A tie bob e1ploded
in one of the roos in the second floor of the Court of 2ndustrial Relations
building in Manila. July D# ibid? An e1plosion shattered the )estern section of the
Philalife building in Erita, Manila. July G# ibid? Thirty;five persons )ere
)ounded in pillbo1 e1plosions )hen & groups of deonstrators clashed )ith each
other at :i)asang Bonifacio, then )ith policeen near the G% Ebassy, as the
protest rallies against G% iperialis held in con+unction )ith the 0uly @th
celebration cae to a bloody end. 6eputy Police Chief Col. 0aes Barbers )ho
suffered @# pellet )ounds on the left side of the body )as aong the victis.
July P# ibid? Raiders 4illed <7 in >aboanga. fighting )as also going on in :anao
del Norte. 6efense %ecretary 0uan Ponce Enrile yesterday described the Mindanao
developents as BgraveB. July 6# ibid? President Marcos ordered >aboanga
drive. Ared 3orces of the Philippines land;sea;air operations )ere launched
)hile Mayor 6iogracias Carona of 6iataling, >aboanga del %ur, )as 4illed in
a ne) clash. July B# ibid? A panel of la)yers have advised President Marcos that it
)ould be perfectly legal for hi to declare artial la), suspend elections, and
continue in office beyond "'(7, if the BproperB situation develops ne1t year. July
5# ibid? President Marcos said that the Counist infiltration of feuding Musli
and Christian groups in Mindanao could be +ust a ploy to dra) a)ay governent
troops fro Central :u,on and thus leave Manila open to a Red attac4. President
Marcos ordered the PC and the ary to counter;attac4 and recapture 6igoyo
Point, Palanan, 2sabela. upon receipt of reports that outnubered governent
troopers battling Ne) People!s Ary guerrillas in Palanan )ere forced to
)ithdra). Ce said that the priary target should be the suspected aunition
dup and supply depot of the Ne) People!s Ary on 6igoyo Point. %i1teen PC
officers and enlisted en )ere rescued fro "## Ne) People!s Ary guerrillas
)ho had pinned the do)n on board a ship during a sea and air operations. The
occupied the ship naed BMuya Maru MaragatanB reported to be of North Morean
origin. /hile inspecting the ship, soe "## Ne) People!s Ary guerrillas assed
on the beach and fired at the. July 4A# ibid? President Marcos said that the
vessel )hich landed off Palanan, 2sabela, allegedly )ith ilitary supplies and
e*uipent for the Ne) People!s Ary is o)ned by 3ilipinos and is registered
under Philippine la)s. The President also sa) in the landing incident evidence of a
tie;up bet)een local Counists and foreign suppliers of )eapons. July 4G# ibid?
Cap Crae, National PC head*uarters, announced a report fro Tas4 3orce
%aranay that governent troopers had found hundreds of )eapons of Aerican
a4e, including @A( M;"@ rifles, in & abandoned caps in 6igoyo Point, Palanan,
2sabela. August "', ibid? Rallies )ere held to ar4 the first year of the Pla,a
Miranda bobing and suspension of the )rit of habeas corpus by the Moveent
of Concerned Citi,ens for Civil :iberties )hich declared August &" as a national
day of protest against ilitari,ation. 'ugust C4# ibid? The 6epartent of National
6efense at a conference of defense and ilitary officials e1posed a plan of the
Ne) People!s Ary to so) terror and disorder in the a+or cities of the country
before the end of the year "'(&, and because of several bobing incidents at the
6epartent of 3oreign Affairs, Philalife building, BThe 6aily %tar -fficeB a
ne)spaper publication, the 2P2 building and an arored car of the Philippine
Ban4ing Corporation, the Philippine Constabulary declared a red alert in the
etropolitan area. "eptember C# ibid? %i1 ary soldiers )ere 4illed )hen they
)ere abushed by the Ne) People!s Ary in Ca)ayan, 2sabela. %epteber A,
ibid? -ne )oan )as 4illed and A# others )ere in+ured )hen a tie bob
e1ploded in a departent store in Cariedo %treet, Luiapo, Manila, at about $?7#
in the evening of %epteber < )hich incident )as the ost serious in the series
of bobings )hich too4 place in greater Manila and )hich according to Ary
2ntelligence sources )as the )or4 of Bsubversive eleents out to so) fear,
confusion and disorder in the heart of the population.B "eptember 4A# ibid?
Terrorist bobers struc4 again the night before destroying three vital offices in
the ground floor of the City hall of Manila and )ounding & telephone operators.
"eptember 43# ibid? A gun battle ensued bet)een the Ne) People!s Ary and
Metroco soldiers at Pandacan, Manila, near the -il refineries )hich led to the
sending of Ary troops to guard oil depots. "eptember 4C# ibid? President Marcos
)arned that he has under consideration the necessity for e1ercising his
eergency po)ers under the Constitution in dealing )ith intensified activities of
local Maoists. "eptember 45# ibid? As if in ans)er to this )arning of the President,
t)o tie bobs e1ploded in the Lue,on City Call )hich disrupted the plenary
session of the constitutional Convention and a subversion case Court of 3irst
2nstance 0udge 0ulian :ustre.
The foregoing events together )ith other data in the possession of the President
as Coander;in;Chief of the Ared 3orces led hi to conclude that Bthere is
throughout the land a state of anarchy and la)lessness, chaos and disorder,
turoil and destruction of a agnitude e*uivalent to an actual )ar bet)een the
force of our duly constituted governent and the Ne) People!s Ary and their
satellite organi,ations ... in addition to the above;described social disorder, there
is also the e*ually serious disorder in Mindanao and %ulu resulting fro the
unsettled conflict bet)een certain eleents of the Christian and Musli
population of Mindanao and %ulu, bet)een the Christian !2laga! and the Musli
!Barracudas!, and bet)een our governent troops, and certain la)less
organi,ations such as the Mindanao 2ndependence Moveent ...B, that this state
of Brebellion and ared actionB caused Bserious deorali,ation aong our people
and have ade the public apprehensive and fearfulB and that Bpublic order and
safety and the security of the nation deand that iediate, s)ift, decisive and
effective action be ta4en to protect and insure the peace, order and security of
the country and its population and to aintain the authority of the governent.B
8see Proclaation "#$"=
Petitioners vigorously dispute all the above conclusions of the President and
aintain that the situation in the country as of %epteber &", "'(&, did not
)arrant a proclaation of artial la). thus, Congress )as in session, the courts
)ere open, the Constitutional Convention of "'(" )as in progress, etc. Petitioners
invo4e in their favor the Bopen court ruleB espoused in the Aerican cases of !
&arte Milligan, @ /allace &, "$AA, and /uncan vs. .ahanamoku, 7&( G.%. 7#@,
"'@<, '# :. Ed. A$$. 2n Milligan the a+ority of five 0ustices of the %upree Court
held aong others that B8M=artial rule can never e1ist )here the courts are open
and in the proper and unobstructed e1ercise of their +urisdictionB, )hich ruling
)as re;affired in /uncan.
Much has been said and )ritten by y Colleagues on the erits and deerits of
the Milligan and /uncan +urisprudence. 3or y part 2 shall siply state that 2 do
not vie) these t)o cases as controlling authority on )hat is the test of an Bactual
and real necessityB for artial la) to e1ist because these t)o cases )ere ainly
concerned )ith the +urisdiction of a ilitary coission 8Milligan case= and a
ilitary tribunal 86uncan case= to try civilians for offenses generally cogni,able by
civil courts, and the decision in these t)o cases siply upholds the principle that
)here courts are open to e1ercise their +urisdiction, these civilians ust not be
denied their rights guaranteed under the Bill of Rights one of )hich is trial by +ury
in a civil court. B2n other )ords, the civil courts ust be utterly incapable of trying
criinals or dispensing +ustice in their usual anner before the Bill of Rights ay
be teporarily suspended.B 86uncan vs. Mahanao4u supra, p. (#7=
3urtherore, 2 )ould ans)er the arguents of petitioners )ith the follo)ing
critical observation of Professor /illoughby on the Milligan ruling based on the
dissent of four 0ustices in the case, and 2 *uote?
... The stateent is too absolutely ade that !artial la) cannot arise fro a
threatened invasion. The necessity ust be actual and present. the invasion real,
such as effectually closes the courts and deposes the civil adinistration.! 2t is
correct to say that !the necessity ust be actual and present,! but it is not correct
to say that this necessity cannot be present e!cept when the courts are closed
and deposed )rom civil administration, )or, as the inority +ustices correctly
pointed out, there may be urgent necessity )or martial rule even when the courts
are open. The better doctrine, then, is, not for the court to attept to deterine
in advance )ith respect to any one eleent, )hat does, and )hat does not create
a necessity for artial la), but, as in all other cases of the e1ercise of official
authority, to test the legality of an act by its special circustances. Certainly the
fact that the courts are open and undisturbed )ill in all cases furnish a po)erful
presuption that there is no necessity for a resort to artial la), but it should
not furnish an irrebuttable presuption. 8/illoughby, Constitution of the Gnited
%tates, Dol. 7, &Ed., p. "A#&, ephasis supplied=
To stress his point, Professor /illoughby gave the follo)ing e1aple?
The English doctrine of artial la) is substantially siilar to this, and an e1cellent
illustration of the point under discussion is given by certain events gro)ing out of
the late British;Boer )ar.
6uring that struggle artial la) )as proclaied by the British 9overnent
throughout the entire e1tent of Cape Colony, that is, in districts )here no active
ilitary operations )ere being conducted and )here the courts )ere open and
undisturbed, but )here considerable sypathy )ith the Boers and disaffection
)ith the English rule e1isted. %ir 3rederic4 Polloc4, discussing the proper la) of
the sub+ect )ith reference to the arrest of one Marais, upholds the +udgent of
the 0udicial Coittee of the Privy Council 8A.C. "#', "'#&= in )hich that court
declined to hold that the absence of open disorder, and the undisturbed operation
of the courts furnished conclusive evidence that artial la) )as un+ustified. 8ibid,
pp. "A#&;"A#7=
Coing bac4 to our present situation, it can be said, that the fact that our courts
)ere open on %epteber &", "'(&, did not preclude the e1istence of an Bactual
and present necessityB for the proclaation of artial la). As indicated earlier,
the state of counist activities as )ell as of other dissident oveents in this
country suari,ed by this Court in Lansang vs. Garcia and anifested in the
recital of events given in this -pinion constituted the Bactual and present
necessityB )hich led the President to place the entire country under artial la).
2D
Contrary to respondent!s clai, the proclaation of artial la) in the country did
not carry )ith it the autoatic suspension of the privilege of the )rit of habeas
corpus for these reasons? $irst, fro the very nature of the )rit of habeas corpus
)hich as stressed in the early portion of this -pinion is a B)rit of libertyB and the
Bost iportant and ost iediately available safeguard of that libertyB, the
privilege of the )rit cannot be suspended by mere implication. The Bill of Rights
8Art. """, %ec. "8"@=, "'7< Constitution, Art. 2D, %ec. "<, "'(7 Constitution=
categorically states that the privilege of the )rit of habeas corpus shall not be
suspended e!cept for causes therein specified, and the proclaation of artial
la) is not one of those enuerated.
13
"econd, the so;called Coander;in;Chief
clause, either under Art. D22, %ec. "#8&=, "'7< Constitution, or Art. 2I, %ec. "&,
"'(7 Constitution, provides specifically for three different odes of e1ecutive
action in ties of eergency, and one ode does not necessarily encopass the
other, vi%, 8a= calling out the ared forces to prevent or suppress la)lessness,
etc., 8b= suspension of the privilege of the )rit of habeas corpus, and 8e= placing
the country or a part thereof under artial la). 2n the latter t)o instances even if
the causes for the e1ecutive action are the sae, still the e1igencies of the
situation ay )arrant the suspension of the privilege of the )rit but not a
proclaation of artial la) and vice versa. Third, there can be an autoatic
suspension of the privilege of the )rit )hen, )ith the declaration of artial la),
there is a total collapse of the civil authorities, the civil courts are closed, and a
ilitary governent ta4es over, in )hich event the privilege of the )rit is
necessarily suspended for the siple reason that there is no court to issue the
)rit. that, ho)ever, is not the case )ith us at present because the artial la)
proclaied by the President upholds the supreacy of the civil over the ilitary
authority,
14
and the courts are open to issue the )rit.
D
Respondents argue that )ith a valid proclaation of artial la), all orders,
decrees, and other acts of the President pursuant to said proclaation are
li4e)ise valid? that these acts )ere e1pressly declared legal and binding in Art.
ID22, %ec. 78&=, of the "'(7 Constitution )hich is no) in full force and effect, and
conse*uently the arrest of petitioners is legal, it having been ade in accordance
)ith 9eneral -rder No. & of the President.
2 cannot give y un*ualified assent to respondents! s)eeping stateent )hich in
effect upholds the vie) that )hatever defects, substantive or procedural, ay
have tainted the orders, decrees, or other acts of the President have been cured
by the confiratory vote of the sovereign people anifested through their
ratification of the "'(7 Constitution. 2 cannot do so, because 2 refuse to believe
that a people that have ebraced the principles of deocracy in Bblood, s)eat,
and tearsB )ould thus thro) a)ay all their precious liberties, the sacred
institutions enshrined in their Constitution, for that )ould be the result if )e say
that the people have staped their approval on all the acts of the President
e1ecuted after the proclaation of artial la) irrespective of any taint of
in+ustice, arbitrariness, oppression, or culpable violation of the Constitution that
ay characteri,e such acts. %urely the people acting through their constitutional
delegates could not have )ritten a fundaental la) )hich guarantees their rights
to life, liberty, and property, and at the sae tie in the sae instruent
provided for a )eapon that could spell death to these rights. No less than the
an concerned, President 3erdinand E. Marcos, has tie and again ephasi,ed
the fact that not)ithstanding the e1istence of artial la) ours is a governent
run under the Constitution and that the proclaation of artial la) is under the
,ule o) Law.
15
2f that is so, and that is ho) it should be, then all the acts of the
President ust bo) to the andates of the Constitution.
That this vie) that )e ta4e is the correct one can be seen fro the very te1t of
%ee. 78&=, Art. ID22 of the "'(7 Constitution )hich provides?
done by the incubent President shall be part o) the law o) the land, and shall
the regular National Assebly. 8ephasis supplied=
As stated in the above;*uoted provision, all the proclaations, orders, decrees,
instructions, and acts proulgated, issued, or done by the incubent President
shall be part o) the law o) the land. the te1t did not say that they shall be part of
the fundaental or basic la) 5 the Constitution. 2ndeed, the fraers of the ne)
Constitution )ere careful in their choice of phraseology for iplicit therein is the
Court!s po)er of +udicial revie) over the acts of the incubent President in the
e1ercise of his artial la) po)ers during the period of transition fro the
Presidential to the Parliaentary regie. 3or the effect of the aforeentioned
transitory provision is to invest upon said proclaations, orders, decrees, and
acts of the President the ipriatur of a la) but not a constitutional andate.
:i4e any other la) or statute enacted by the legislative branch of the governent,
such orders, decrees, etc. are sub+ect to +udicial revie) )hen proper under the
Constitution. to clai the contrary )ould be incongruous to say the least for )hile
the acts of the regular National Assebly )hich is the peranent repository of
legislative po)er under the ne) Constitution are sub+ect to +udicial revie), the
acts of its teporary substitute, that is, the incubent President, perfored
during the transitory period are not.
2t is contended ho)ever that the true intention of the Constitutional 6elegates in
providing for %ection 78&=, Article ID22, in the "'(7 Constitution )as to foreclose
any +udicial in*uiry on the validity not only of Proclaation "#$" but also of all
subse*uent orders, decrees issued and acts perfored by the incubent
President. 2f that )as the intent, then )hy did that particular provision not state
so in clear and une*uivocal ters, especially since the effect )ould be to restrict
if not to deprive the +udicial branch of the governent of its po)er of +udicial
revie) in these instancesE As it is, that is, as presently )orded, this particular
provision )as ratified by the people believing that although the acts of the
incubent President )ere being made part o) the law o) the land they still had a
recourse to the +udicial branch of their governent for protection or redress
should such acts turn out to be arbitrary, un+ust, or oppressive.
9oing bac4 to 9eneral -rder No. &, its validity is assailed by petitioners on the
ground that it ordered their arrest and detention )ithout charges having been
filed against the before the copetent court nor )arrants for their arrest issued
by the latter, all in violation of their constitutional right to due process of la).
A state of artial la) vests upon the President not only the po)er to call the
ilitary or ared forces to repel an invasion, prevent or suppress an insurrection
or rebellion, )henever public safety re*uires it, but also the authority to ta4e such
easures as ay be necessary to accoplish the purposes of the proclaation of
artial la). -ne such easure is the arrest and detention of persons )ho are
claied to be participants or suspected on reasonable grounds to be such, in the
coission of insurrection or rebellion, or in the case of an invasion, )ho give aid
and cofort to the eney, the arrest being necessary to insure public safety. 2t is
this eleent of necessity present in the case )hich +ustifies a curtailent of the
rights of petitioners and so long as there is no sho)ing of arbitrariness or
oppression in the act coplained of, the Court is duty bound to sustain it as a
valid e1ercise of the artial la) po)ers of the President. /ith the foregoing
*ualification, 2 agree )ith the follo)ing stateent?
/hen it coes to a decision by the head of the %tate upon a atter involving its
life, the ordinary rights of individuals ust yield to )hat he dees the necessities
of the oent. Public danger )arrants the substitution of e1ecutive process for
+udicial process. 8Moyer vs. Peabody, &"& G.%. ($, <7 :. Ed., pp. @"", @"(=
The issuance of 9eneral -rder No. & therefore )as a valid initial step ta4en by the
President to render effective the suppression of ared resistance to our duly
constituted governent.
Thus, 2 vote for the disissal of the petitions for habeas corpus of those )ho
have been conditionally released, because? 8"= The arrest of said petitioners )as
effected by respondents under a valid -rder of the President. 8&= The petitioners
concerned have been ordered released fro detention. The prie ob+ect of a )rit
of habeas corpus is to relieve a person fro physical restraint and this has been
accoplished on respondent %ecretary!s initiative, 87= /hile it is true that the
release of petitioners is sub+ect to certain conditions such as restrictions on
petitioners! freedo of oveent, such restrictions are reasonable precautionary
easures in the face of public danger, and 2 do not see any arbitrariness in the
iposition of said restrictions.
/ith respect to the case of petitioner A*uino, 2 concur in the disissal of his
petition for reasons that? 8"= criinal charges have been filed against hi before
a ilitary coission and 8&= the legal issues posed by hi )hich are gerane
to this habeas corpus proceeding are disposed of and resolved in the anner
indicated in this -pinion. As regards the other issues subitted by A*uino, 2
agree )ith y Colleagues that the sae are to be resolved in the prohibition and
certiorari case filed by hi )hich is no) pending before the Court.
C-*CL<"+-*
2n closing, ay 2 state that it )as necessary for e to )rite this separate -pinion
because 2 found yself at variance )ith y Colleagues on certain issues posed by
these Petitions for habeas corpus. To recapitulate? 8"= 2s the constitutional
sufficiency of a proclaation of artial la) by the President a political *uestionE
5 2 hold that it is not a political, but is a +usticiable one. 8&= 6id the proclaation
of artial autoatically suspend the privilege of the )rit of habeas corpusE No, is
y ans)er. 87= 6id %ec. 78&=, Art. ID22 of the Transitory Provisions of the "'(7
Constitution foreclose +udicial in*uiry into the validity of all decrees, orders and
acts of the incubent President e1ecuted after the proclaation of artial la)
and during the Transitory PeriodE 2 say? N-, because those acts are still sub+ect
to the po)er of +udicial revie) if and )hen they are sho)n to be arbitrary,
oppressive, or un+ust, in violation of the Constitution andNor the generally
accepted principles of 2nternational :a), usage!s and custos.
My conclusions ay not be supported by e1isting +urisprudence or ay even be
contrary to the ultiple authorities cited by y senior Colleagues in the Court.
nonetheless, 2 hubly offer and subit the as the spontaneous reactions of y
conscience to the issues )hich in the )ords of y distinguished Colleague, Mr.
0ustice Antonio P. Barredo, affect not the petitioners alone but the )hole country
and all our people.
"oot6ote7
O" %he is the )ife of the detainee 0ose /. 6io4no )ho, in later pleadings, already
considered hiself directly as the Petitioner.
O& EN BANC. The petitions in this cases )ere )ithdra)n )ith leave of Court, as
stated in the body of the opinion, e1cept that in 9.R. No. :;7<<@( )hich is
deeed abated by the death of the petitioner.
O7 EN BANC. The petitions in these cases )ere )ithdra)n )ith leave of Court, as
stated in the body of the opinion, e1cept that in 9.R. No. :;7<<@( )hich is
deeed abated by the death of the petitioner.
" >aldivar, 3ernando, Teehan4ee, Barredo, MuFo, Pala and A*uino, 00., Castro,
Ma4asiar, Antonio, Esguerra, and 3ernande,, 00., voted for denial of the otion to
)ithdra).
& 0ustice >aldivar turned (# on %epteber "7.
7 The follo)ing individuals, on their o)n otions, )ere allo)ed to )ithdra) their
petitions? Deronica :. Kuyitung 8%upree Court Res. -ct. A,"'(&= and Tan Chin
Cian 8Res. -ct. "", "'(&= in :;7<<<A. Aando 6oronila, Cernando 0. Abaya,
Ernesto 9ranada, :uis 6. Beltran, Bren 9uiao, Ruben Cusipag and /illie Baun
8Res. -ct. 7, "'(&. Res. -ct. "", "'(&= in :;7<<A(. Teresita M. 9uiao, in behalf of
Bren 9uiao 8)ho )as also a petitioner in :;7<<A(= 8Res. -ct. ', "'(&= in :;7<<(".
The follo)ing individuals have since been released fro custody? 0oa*uin P.
Roces, Teodoro M. :ocsin, %r., Rolando 3adul, Rosalind 9alang, 9o Eng 9uan,
Renato Constantino and :uis R. Mauricio, all of )ho )ere petitioners in :;7<<7$.
Ma1io D. %oliven, Napoleon 9. Raa and 0ose Mari Dele, in
:;7<<@#. Raon Mitra, 0r., 3rancisco Rodrigo and Napoleon Raa in :;7<<@A.
Enri*ue Doltaire 9arcia 22 8deceased= in :;7<<@(. Tan Chin Cian and Deronica
Kuyitung in :;7<<<A. Aando 6oronila, 0uan :. Mercado, Cernando 0. Abaya,
Ernesto 9ranada, :uis 6. Beltran, Ruben Cusipag, Roberto -rdoFe,, Manuel
Alario and /illie Baun in :;7<<A(. Ernesto Rondon in :;7<<(7. and Bren 9uiao
in :;7<<(".
@ Ma4alintal, C.0., Castro, Barredo, Ma4asiar, Antonio, Esguerra, 3ernande, and
A*uino, 00., >aldivar, 3ernando, Teehan4ee and MuFo, Pala, 00. voted for
disissal.
< 3rancisco B%ocB Rodrigo, 0oa*uin P. Roces, Teodoro M. :ocsin, Rolando 3adul,
Mauricio, Napoleon 9. Raa, 0ose Mari Dele,, Raon D. Mitra, 0uan :. Mercado,
Roberto -rdoFe,, Manuel Alario and Ernesto Rondon.
CA%TR-, 0.?
" The follo)ing individuals, on their o)n otions, )ere allo)ed to )ithdra) their
petitions? Deronica :. Kuyitung 8%upree Court Res. -ct. A, "'(&= and Tan Chin
Cian 8Res. -ct. "", "'(&= in :;7<<<A. Aando 6oronila, Cernando 0. Abaya,
Ernesto 9ranada, :uis 6. Beltran, Bren 9uiao, Ruben Cusipag and /illie Baun
8Res. -ct. 7, "'(&. Res. -ct. "", "'(&= in :;7<<A(. Teresita M. 9uiao in behalf of
Bren 9uiao 8)ho )as also a petitioner in :;7<<A(= 8Res. -ct. ', "'(&= in :;7<<(".
& The follo)ing individuals have since been released fro custody? 0oa*uin P.
Roces, Teodoro M. :ocsin, %r., Rolando 3adul, Rosalind 9alang, 9o Eng 9uan,
Renato Constantino and :uis R. Mauricio, all of )ho )ere petitioners in :;7<<7$.
Ma1io D. %oliven, Napoleon 9. Raa and 0ose Mari Dele, in :;7<<@#. Raon
Mitra, 0r., 3rancisco Rodrigo and Napoleon Raa in :;7<<@A. Enri*ue Doltaire
9arcia 22 8deceased= in :;7<<@(. Tan Chin Cian and Deronica Kuyitung in :;7<<<A.
Aando 6oronila, 0uan :. Mercado, Cernando 0. Abaya, Ernesto 9ranada, :uis 6.
Beltran, Ruben Cusipag, Roberto -rdoFe,, Manuel Alario and /illie Baun in :;
7<<A(. Ernesto Rondon in :;7<<(7? and Bren >. 9uiao in :;7<<(".
7 0avellana vs. E1ecutive %ecretary, :;7A"@&, March 7", "'(7, <# %CRA 7#.
@ Chief 0ustice Ma4alintal and Associate 0ustices >aldivar Castro, 3ernando,
Teehan4ee, Barredo, Ma4asiar, Antonio and Esguerra.
< %ee Anno., Public 2nterest as 9round for Refusal to 6isiss an Appeal )here
Luestion has Becoe Moot or 6isissal is %ought by -ne or Both Parties. "7&
A.:.R. ""$< to "&##. /illis vs. Buchan, "7& A.:.R. ""('. %tate e1 rel. Traub vs.
Bro)n 8"'7$=, "'( A @($. Melson vs. %hetterley 8"'77=, '< 2nd. App. <7$, "$7
NE $#&.
A :;&($77, April "$, "'A', &( %CRA $7<.
( (' Phil. @A" 8"'@(=.
$ Cranch "7(, & :. ed. A# 8"$#7=.
' Personally, 2 vie) this otion as a heretofore unheard;of curiosity. 2 cannot
coprehend 6io4no!s real otivation, since granting his otion could conceivably
result in his indefinite detention.
"# "( 3ed. Cas. "@@, Case No. '@$($ 8C.C.6. Md. "$A"=.
"" @ /all. &, "$ :. ed. &$" 8"$AA=.
"& 7< Colo. "<', $< Pac. l'# 8"'#@=.
"7 Moyer vs. Peabody, &"& G.%. ($, <7 :. ed. @"# 8"'#'=.
"@ 7&( G.%. 7#@, '# :. ed. A$$ 8"'@A=.
"< "@A 3. &d <(A 8C.C.A. 'th, "'@@=.
"A 7&@ G.%. $77, $' :. ed. "7'$ 8"'@<=.
"( "upra, note "#.
"$ %chubert, The Presidency in the courts, n.<@, p. "$< 8"'<(=.
"' "upra, note 7.
&# %ee "@ Encyclopedia Britannica, pp. '$@;'$< 8"'@<=.
&" England has an un)ritten constitution, there is not even a bareention of
artial la) in the 3ederal and in ost of the %tate constitutions of the Gnited
%tates 8see Appendi1 to this separate opinion=, and there is a paucity or coplete
absence of statutes or codes governing it in the various coon;la) +urisdictions
)here it has been instituted.
&& 3airan, The :a) of Martial Rule 8&nd ed., "'@7=, pp. &, <& and "@<.
&7 3airan, +d., pp. '@, "#7, "#$;"#'. /al4er, Military :a), 8"'<@ ed.=, p. @(<.
&@ Mental, Military -ccupation and the Rule of :a) 8"'@@ ed.=, pp. ', &@, &(, 7",
@&;@@.
&< /inthrop, Military :a) Q Precedents 8&nd ed., "'&#=, p. (''.
&A @ /allace &, "$ :. ed. &$" 8"$AA=.
&( /inthrop, id., p. $"(.
&$ Coon)ealth Act No. @#$ recogni,es the eventuality of the declaration of
artial la) in its Articles of /ar &, 7(, $& and $7. The A3P Manual for Courts;
Martial defines artial la) as Bthe e1ercise of ilitary +urisdiction by a
governent teporarily governing the civil population of a locality through its
ilitary forces, )ithout authority of )ritten la), as necessity ay re*uire.B
Martial la), as thus e1ercisable, is in any respects coparable to the state of
siege of the continental nations of Europe.
&' %ee Manual for Courts;Martial 8A3P=, p. ". /illoughby observes that B/here
artial la) is invo4ed in the face of invasion, it is )ar pure and siple, and it is in
this sense that 3ield defines artial la) as !siply ilitary authority, e1ercised in
accordance )ith the la)s and usages of )ar,! and that the G.%. %upree Court
defines it as !the la) of necessity in the actual presence of )ar! Gpon the actual
scene of )ar, artial la) becoes indistinguishable fro ilitary governent.B
8/illoughby, The Constitutional :a) of the Gnited %tates, &nd ed., "'7', vol. 7,
pp. "<'<;"<'(=.
7# %ee @< Mich. :a) Revie) $(.
7" /inthrop, id., p. $&#.
7& :uther vs. Borden, ( Co). ", "& :. ed. <$", A## 8"$@'=.
77 President Marcos )rites? BThe copelling necessity Hof the iposition of
artial la) in the PhilippinesJ arises out of the seven grave threats to the
e1istence of the Republic? the counist rebellion, the rightist conspiracy, the
Musli secessionist oveent, the rapant corruption on all levels of society the
criinal and criinal;political syndicates 5 including the private aries
deteriorating econoy and the increasing social +ustice.B 83erdinand E. Marcos,
Notes on the Ne) %ociety of the Philippines, '$ 8"'(7==.
7@ :;77'A@, 6ec. "", "'(". @& %CRA @@$.
7< People vs. 3errer :;7&A"7;"@, 6ec. &(, "'(&, @$ %CRA 7$&, @#<?
2n the Philippines the character of the Counist Party has been the ob+ect of
continuing scrutiny by this Court. 2n "'7& )e found the Counist Party of the
Philippines to be an illegal association. 2n "'A' )e again found that the ob+ective
of the Party )as the !overthro) of the Philippines 9overnent ared struggle and
to establish in the Philippines a counist for of governent siilar to that of
%oviet Russia and Red China.! More recently, in Lansang vs. Garcia, )e noted the
gro)th of the Counist Party of the Philippines and the organi,ation of
Counist fronts aong organi,ations such as the Mabataang Ma4abayan 8MM=
and the eergence of the Ne) People!s Ary. After eticulously revie)ing the
evidence, )e said? !/e entertain, therefore, no doubts about the e1istence of a
si,eable group of en )ho have publicly risen in ars to overthro) the
governent and have thus been and still are engaged in rebellion against the
9overnent of the Philippines.!
7A People vs. Evangelista, <( Phil. 7(< 8"'7&= 8illegal association=. People vs,
Evangelista, <( Phil. 7<@ 8"'7&= 8rebellion and sedition=? People vs. Capadocia <(
Phil. 7A@ 8"'7&= 8rebellion and sedition=. People vs. Evangelista, <( Phil. 7(&
8"'7&= 8rebellion and sedition=. People vs. 3eleo, <( Phil. @<" 8"'7&= 8inciting to
sedition=. People vs. Nabong, <( Phil. @<< 8"'7&= 8inciting to sedition=.
7( People vs. :ava, :;@'(@, May "A, "'A', &$ %CRA (& 8rebellion=? People vs.
Cernande,, :;A#&<, May 7#, "'A@, "" %CRA &&7 8rebellion=. :ava vs. 9on,ales,
:;&7#@$, 0uly 7", "'A@, "" %CRA A<# 8rebellion=. People vs. Capadocia :;@'#(,
0une &', "'A7, $ %CRA 7#" 8rebellion=.
7$ Montenegro vs. CastaFeda, '" Phil. $$& 8"'<&=.
7' :;7"A$(, 3eb. &A, "'(#, 7" %CRA (7# 8)ith Castro and 3ernando, 00.
dissenting=.
@# "upra. note "'.
@" +d. at @$<;@$A.
@& +d., at @$;@$(.
@7 The Ties 0ournal, Bulletin Today and 6aily E1press, on /ednesday, August
&$, "'(@, carried ne)s of a nation)ide ars;suggling net)or4 being operated
by the Counist Party of the Philippines in collaboration )ith a foreign;based
source. The 6epartent of National 6efense reported that several ars;
suggling vessels had been sei,ed, that the net)or4 had ac*uired several
truc4ing services for its illegal purposes, and that about P& illion had not so far
been e1pended for this operation by a foreign source. The 6epartent stressed
that Bthe clandestine net)or4 is still operating )ith strong indications that several
ars landings have already been ade.B The 6epartent also revealed that the
ilitary has launched necessary counter;easures in order to disantle in due
tie this e1tensive anti;governent operation.B The 6epartent finally confired
the arrest of 7$ subversives, including the follo)ing "7 persons )ho occupy
iportant positions in the hierarchy of the Counist oveent in the
Philippines? Manuel Chiongson 3idel D. Agcaoili, 6anilo Di,anos, 6ante
%ibulan, Andy Pere,, Noran Luipo, 3ernando Tayag, Bonifacio P. 2lagan, 0ose
3. :acaba, 6oingo M. :uneta, Mila 9arcia, Ricardo 3errer and 6olores 3eria.
The Ties 0ournal, Bulletin Today and 6aily E1press, on Thursday, August &',
"'(@, carried the ne)s that a secret ar of the Counist Party of the
Philippines engaged e1clusively in the anufacture of e1plosives for sabotage and
other anti;governent operations have been uncovered by the ilitary, follo)ing
a series of raids by governent security agents on underground houses, t)o of
)hich are business establishents providing funds for the purchase of cheicals
and other ra) aterials for the anufacture of e1plosives. The docuents sei,ed
in the raids indicated that the Be1plosives oveentB )as a separate subversive
group organi,ed in early "'(& under the direct supervision of the CPP ilitary
ar and )as coposed of elite ebers 4no)ledgeable in e1plosives and
cheical research.
The Ties 0ournal, Bulletin Today and 6aily E1press, on %unday, %epteber ",
"'(@, carried ne)s of a nation)ide Bcounist insurgent conspiracyB to Bunite all
groups opposing the Ne) %ociety, ar the and urge the to fight and
overthro) the governent, and establish a coalition governent under the
leadership of the Counist Party of the Philippines.B According to docuents
sei,ed by the ilitary, Blocal counists and other insurgents stepped up efforts
in id;"'(7 to set up a so;called National 6eocratic 3ront.B The 6epartent of
National 6efense revealed that the ared forces are continuing ilitary
operations in Cotabato, :anao, %ulu and >aboanga.
@@ 7< Colo. "<@, '" Pac. (7$, (@# 8"'#<=.
@< /C- vs. A*uino, :;7<"7", Nov. &', "'(&, @$ %CRA &@&.
@A /illoughby calls this situation Bartial la) in sensu strictiore.B 8/illoughby,
The Constitutional :a) of the Gnited %tates, &nd ed., "'7', Dol. 7, pp. "<$A and
"<'<=.
@( The corresponding provision in the "'(7 Constitution is art. 2I, sec. "&.
@$ %ee < :aurel Proceedings of the Philippine Constitutional Convention, &@';&<'
8"'AA=.@' President 0ose P. :aurel, in a speech on the draft of the "'7<
constitution, gave as reasons for the adoption of the Coander;in;Chief Clause
8a= the desire of the ebers of the "'7@ Constitutional Convention to afford the
state )ith an effective eans for self;defense 8the e1perience of the :atin;
Aerican countries )as an ob+ect lesson for the Convention=, and 8b= the sense
of the Convention that the e1ecutive po)er should be ade stronger 8Malcol
and :aurel, Philippine constitutional :a), p. &##, footnote no. @=.
<# Barcelon vs. Ba4er, < Phil. $( 8"'#<=.
<" '" Phil. '$& 8"'<&=.
<& :; 77'A@, 6ec. "", "'(", @& %CRA @@$.
<7 %terling vs. Constantin &$( G.%. 7($, (( :. ed. 7(< 8"'7&=. Martin vs. Mott,
"& /heat, "', A :. ed. <7( 8"$&(=. :uther vs, Borden, ( Co). ", "& :. ed. <$"
8"$@'=. Moyer vs. Peabody, &"& G.%. (.$, <7 :. ed. @"# 8"$#'=.
<@ @ /all. &, "$ :. ed. &$" 8"$AA=.
<< 7&( G.%. 7#@, '# :. ed. A$$ 8"'@A=.
<A /hite )as convicted of ebe,,leent, )hile 6uncan )as convicted of
bra)ling.
<( Ming, The :egality of Martial :a) in Ca)aii, 7# California :. Rev. <'', A&(
8"'@&=.
<$ Montenegro vs. CastaFeda, '" Phil. $$& 8"'<&=.
<' 3airan, The :a) of Martial Rule and the National Eergency, << Carv. :. Rev.
"&<7;"&<@ 8"'@&=.
A# Rossiter, The supree Court and Coander;in;Chief, 7A 8"'<"=.
A" /inthrop, id., p. $"(. see also Elphinstone vs. Bedreechund, 2 Mnap. P.C. 7"A.
6.3. Marais vs. The 9eneral -fficer Coanding the :ines of Counication of
the Colony 8i.e., the Cape of 9ood Cope=, "'#& Appeal Cases "#'. "@
Encyclopedia Britannica, p. '(( 8"'A'=? "@ Encyclopedia Britannica, p. '$<
8"'<<=.
A& "( %up. Ct. Rep., Cape of 9ood Cope, 7@# 8"'##=, cited by Charles 3airan in
The :a) of Martial Rule, Chapter "#.
A7 :uther vs. Borden, ( Co). ", "& :. ed. <$", A## 8"$@'=.
A@ &"& G.%. ($, <7 :. ed. @"# 8"'#'=.
A< &$( G.%. 7($, (( :. ed. 7(< 8"'7&=.
AA 7< Colo. "<', $< Pac. "'# 8"'#@=.
A( BThe proclaation Hof artial la)J is a declaration of an e1istent fact and a
)arning by the authorities that they have been forced against their )ill to have
recourse to strong eans to suppress disorder and restore peace. 2t has, as
Thuran Arnold has )ritten, erely !eotional effect! and cannot itself a4e up
for the absence of the conditions necessary for the initiation of artial la).B
8Clinton :. Rossiter, Constitutional 6ictatorship 8Crisis 9overnent in the Modern
6eocracies=, p. "@A 8"'@$=.
A$ "'(7 Const. Art. 2D, sec. "<.
A' +d., Art. ID22, sec. 78&=.
(# 0avellana vs. E1ecutive %ecretary, :;7A"@&, March 7", "'(7, <# %CRA 7#.
(" Clinton :. Rossiter, Constitutional 6ictatorship 8Crisi 9overnent in the Modern
6eocracies=, pp. "@<;"@A 8"'@$=.
(& 3rederic4 B. /iener A Practical Manual of Martial :a), p. $.8"'@#=. 8%ee also
The %uspension of the privilege of the /rit of Cabeas Corpus? 2ts 0ustification and
6uration by 3lerida Ruth Pineda and Augusto Ceasar Espiritu, && Philippine :a)
0ournal, No. ", 3ebruary "'<&, pp. "', 7(=.
(7 By 9eneral -rder No. 7 dated %epteber &&, "'(&, as aended by 9eneral
-rder No. 7;A of the sae date, the President ordered, inter alia, that Bthe
0udiciary shall continue to function in accordance )ith its present organi,ation
and personnel, and shall try and decide in accordance )ith e1isting la)s all
criinal and civil cases, e1cept the follo)ing cases? ". Those involving the
validity, legality, or constitutionality of Proclaation No. "#$", dated %epteber
&", "'(&, or of any decree, order or acts issued, proulgated or perfored by
e or by y duly designated representative pursuant thereto.B
(@ 3erdinand E. Marcos, Notes on the Ne) %ociety of the Philippines, '', "##
8"'(7=.
3ERNAN6-, 0., concurring and dissenting?
" Chin Ko) v. Gnited %tates, &#$ G% $, "7 8"'#$=.
& %ecretary of %tate of Coe Affairs v. -!Brien, A.C. A#7, A#' 8"'&7=. As the )rit
originated in England, it ay be of soe interest to note that as early as "&&#
the )ords habeat corpora appeared in an order directing an English sheriff to
produce parties to a trespass action before the Court of Coon Pleas. 2n
succeeding centuries, the )rit )as ade use of by )ay of procedural orders to
ensure that parties be present at court proceedings.
7 Cf. 3innic4 v. Peterson, A Phil. "(& 8"'#A=. 0ones v. Carding, ' Phil. &(' 8"'#(=.
Dillaflor v. %uers, @" Phil. A& 8"'&#=. Carag v. /arden, <7 Phil. $< 8"'&'=.
:ope, v. 6e los Reyes, << Phil. "(# 8"'7#=. Estacio v. Provincial /arden, A' Phil.
"<# 8"'7'=. Arnault v. Na,areno, $( Phil, &' 8"'<#=. Arnault v. Balagtas, '( Phil.
7<$ 8"'<<=.
@ Cf. Rubi v. Provincial Board, 7' Phil. AA# 8"'"'=.
< Cf. :oren,o v. 6irector of Cealth, <# Phil. <'< 8"'&(=.
A Cf. 2n re Carr, 2 Phil. <"7 8"'#&=. Me4in v. /olfe, & Phil. (@ 8"'#7=. Cabantag v.
/olfe, A Phil. &(7 8"'#A=. 2n re %ith, "@ Phil. ""& 8"'#'=. Cabiling v. Prison
-fficer, (< Phil. " 8"'@<=. Ra*ui,a v. Bradford, (< Phil. <# 8"'@<=. Reyes v.
Crisologo, (< Phil. &&< 8"'@<=. Kaashita v. %tyer, (< Phil. <A7 8"'@<=. Cantos v.
%tyer, (A Phil. (@$ 8"'@A=. Tubb and Tedro) v. 9riess ($ Phil. &@' 8"'@(=.
Mi*uiabas v. Phil. Ryu4yus Coand, $# Phil. &A& 8"'@$=. 6i,on v. Phil. Ryu4yus
Coand, $" Phil. &$A 8"'@$=.
( Cf. :o Po v. McCoy, $ Phil, 7@7 8"'#(=. :oren,o v. McCoy, "< Phil. <<' 8"'"#=.
Ed)ards v. McCoy, && Phil. <'$ 8"'"&=. Lue Luay v. Collector of Custos, 77
Phil. "&$ 8"'"A=. Tan Me Nio v. Collector of Custos, 7@ Phil. '@@ 8"'"A=. Bayani
v. Collector of Custos, 7( Phil. @A$ 8"'"$=. 2n re McCulloch 6ic4, 7$ Phil. @"
8"'"$=. Mateo v. Collector of Custos, A7 Phil. @(# 8"'7A=. Chua v. %ecretary of
:abor, A$ Phil. A@' 8"'7'=. Dillaherosa v. Coissioner of 2igration, $# Phil.
<@" 8"'@$=. Me+off v. 6irector of Prisons, '# Phil. (# 8"'<"=. Borovs4y v.
Coissioner of 2igration, '# Phil. "#( 8"'<"=.
$ Cf. Reyes v. Alvare,, $ Phil. (&7 8"'#(=. :o,ano v. Martine,, 7A Phil, '(A
8"'"(=. Pelayo v. :avin Aedo, @# Phil. <#" 8"'"'=. Bancosta v. 6oe, @A Phil. $@7
8"'&7=. %anche, de %trong v. Beishir <7 Phil. 77" 8"'&'=. Ma4apagal v.
%antaaria, << Phil. @"$ 8"'7#=. %alvana v. 9aela, << Phil. A$# 8"'7"=. -rti, v.
6el Dillar, <( Phil. "' 8"'7&=. 3lores v. Cru,, '' Phil. (&# 8"'<A=. Murdoc4 v.
Chuidian '' Phil. $&" 8"'<A=.
' As )as so aptly put in an article )ritten by the then Professor, no) %olicitor
9eneral, Estelito Mendo,a? B2t is a )ell;4no)n fact that the privilege of the )rit of
the habeas corpus is an indispensable reedy for the effective protection of
individual liberty. This is ore so )hen the infringeent arises fro governent
action. /hen liberty is threatened or curtailed by private individuals, only a loud
cry 8in fact, it need not even be loud= need be ade, and the governent steps
in to prevent the threatened infringeent or to vindicate the consuated
curtailent. The action is often s)ift and effective. the results generally
satisfactory and gratifying. But )hen the governent itself is the !culprit!, the cry
need be louder, for the action is invariable ade under color of la) or cloa4ed
)ith the antle of authority. The privilege of the )rit, ho)ever, because it ay be
ade to bear upon governental officers, assures that the individual!s cry shall
not, at least, be futile and vain.B Mendo,a, The %uspension of the /rit of 1abeas
corpus? %uggested Aendents, 77 Philippine :a) 0ournal, A7#, A7< 8"'<$=.
"# :ansang v. 9arcia, :;77'A@. 6eceber "", "'(", @& %CRA @@$.
"" People v. Cernande,, '' Phil. <"<, <<";<<& 8"'<A=. The reference )as to the
"'7< Constitution. 2t applies as )ell to the present Constitution.
"& Nava v. 9ataitan, '# Phil. "(&, "'@;"'< 8"'<"=.
"7 The five affirative votes cae fro the then Chief 0ustice Paras and 0ustices
Beng,on, Tuason, Reyes and 0ugo. The negative votes )ere cast by 0ustices 3eria,
Pablo, Padilla, and Bautista Angelo.
"@ :aurel, %., ed., 2ll Proceedings of the Philippine Constitutional Convention 77@
8"'AA=.
"< Marcos, Today!s Revolution? 6eocracy &' 8"'("=.
"A Al,ona, ed., Luotations fro Ri,al!s /ritings (& 8"'A&=.
"( Mabini, The Philippine Revolution "# 8"'A'=.
"$ Cf. Preable of the present Constitution as )ell as that of the "'7<
Constitution.
"' Cf. :as4i, :iberty in the Modern %tate 7@ 8"'@'=.
&# Proclaation No. "#$", %epteber &", "'(&.
&" Cf. TaFada v. Cuenco, "#7 Phil. "#<" 8"'<(=.
&& Cf. Ale+andrino v. Lue,on, @A Phil. $7 8"'&@=. Dera v. Avelino, (( Phil. "'&
8"'@A=. Avelino v. Cuenco, $7 Phil. "(, Resolution of March "'@'.
&7 Cf. Morrero v. Bocar, AA Phil. @&' 8"'7$=. Aytona v. Castillo, :;"'7"7, 0anuary
"', "'A&, @ %CRA ". Rodrigue, v. Luirino, :;"'$##, -ctober &$, "'A7, ' %CRA
&$@.
&@ Cf. :ansang v. 9arcia, :;77'A@, 6eceber "", "'(", @& %CRA @@$.
&< Cf. According to Article D22, %ection "#, par. 8&= of the "'7< Constitution? BThe
President shall be coander;in;chief of all ared forces of the Philippines and,
insurrection, or rebellion or iinent danger thereof, )hen the public safety
re*uires it, he ay suspend the privileges of the )rit of habeas corpus, or place
the Philippines or any part thereof under artial la).B The relevant provision of
the present Constitution is found in Article 2I, %ection "&. 2t reads thus? BThe
Prie Minister shall be coander;in;chief of all ared forces of the Philippines
public safety re*uires it, he ay suspend the privilege of the )rit of habeas
corpus, or place the Philippines or any part thereof under artial la).B
&A Proclaation No. "#$", %epteber &", "'(&.
&( :ansang v. 9arcia, :;77'A@, 6eceber "", "'(", @& %CRA @@$, @(7;@(@.
&$ +bid, @(@;@(<.
&' +bid, <#<;<#A.
7# +bid, @(';@$#.
7" +bid, <#(;<#$.
7& Article ID22, %ection 7, par. 8&= of the Constitution.
77 +bid.
7@ '7 Phil. A$ 8"'<7=.
7< Republic Act No. 7@& 8"'@$=.
7A '7 Phil. A$, $&.
7( Bridges v. California, 7"@ G% &<&, 7#@;7#<.
7$ Dillavicencio v. :u4ban, 7' Phil. (($, ('# 8"'"'=.
7' 7 /illoughby on the Constitution of the Gnited %tates, "<'" 8"'&'=.
@# %tory, Coentaries on the Constitution of the Gnited %tates, 7rd ed. 8"$<$=.
@" E1 parte Milligan, @ /all. &.
@& %terling v. Constantin, &$( G% 7($.
@7 6uncan v. Mahanao4u 7&( G% 7#@.
@@ Cf. 6odd, Cases on Constitutional :a), <&#;<&$ 8"'@'=. 6o)ling, Cases on
Constitutional :a)s, @@A;@<A 8"'<#=. %holley Cases on Constitutional :a), &$<;
&'< 8"'<"=. 3ran4, Cases on Constitutional :a), &<(;&A", &(# 8"'<&=. 3reund
%utherland, Co)e Bro)n, Constitutional :a), "A@A;"A<", "A(';"A'7 8"'<@=.
Barrett, Bruton Connold Constitutional :a), "7#&;"7#$ 8"'A7=. Mauper
Constitutional :a) &(A;&$@ 8"'AA=. :oc4hart Maisar Choper Constitutional :a),
"@"";"@"$ 8"'(#=.
@< " Cooley Constitutional :iitations, $th ed., A7(, (<$ 8"'&A=.
@A /atson on the Constitution of the Gnited %tates 8"'"#=.
@( Burdic4, The :a) of the Aerican Constitution, &A" 8"'&&=.
@$ /illoughby on the Constitution of the Gnited %tates, &nd ed., "<'"8"'&'=.
@' /illis on Constitutional :a), @@' 8"'7A=.
<# %ch)art,, 22 The Po)ers of 9overnent, &@@ 8"'A7=.
<" +bid, &@A.
<& &$( G% 7($, @#&;@#7 8"'7&=.
<7 7&( G% 7#@, 7&& 8"'@A=. The concurring opinion of 0ustice Murphy )as
siilarly generous in its reference to Milligan. 2t is not to be lost sight of that the
statutory provision in *uestion )as %ection A( of the -rganic Act of Ca)aii )hen
it )as still a territory. Nonetheless, since according to 0ustice Blac4, its language
as )ell as its legislative history failed to indicate the scope of artial la), its
interpretation )as in accordance )ith the Aerican constitutional tradition as
ebodied in Milligan.
<@ 6icey, The :a) of the Constitution, &$(;&$$ 8"'A&=.
<< +bid, &$$.
<A Rossiter, Constitutional dictatorship, ' 8"'@$=.
<( &"& G% ($ 8"'#'=.
<$ +bid, $<.
<' +bid.
A# &A@ G% <@7 8"'&@=.
A" +bid, <@(;<@$.
A& Rosto), The %overeign Prerogative, &7< 8"'A7=. The )or4 of 3airan *uoted
is the :a) of Martial Rule, &"(;&"$ 8"'@7=.
A7 :ass)ell, National %ecurity and 2ndividual 3reedo, "<" 8"'<#=.
A@ @ /all. "&7 8"$AA=.
TEECANMEE, 0.?
" Petitioner!s Reply to %olicitor;9eneral!s Coent dated March (,"'(@, pp. @#;
@".
& +dem, pp. 7';@#? see :;7<<<A, :;7<<A( and :;7<<(" )here petitions )ere
)ithdra)n )ith leave of the Court.
7 Ma4alintal, C.0. and >aldivar, 3ernando, Teehan4ee, Barredo, MuFo, Pala and
A*uino, 00. voted for granting the )ithdra)al otion. Castro, Ma4asiar, Antonio,
Esguerra and 3ernande,, voted for denial of the otion.
@ Article I, section &, )hich further re*uires the concurrence of it least ten 8"#=
ebers to declare unconstitutional a treaty, e1ecutive agreeent or la).
< Respondents! coent of 0an. "(, "'(@ on otion to )ithdra) petition, p. A.
A +dem, p. <.
( Respondents! eorandu of Nov. "(, "'(&, pp. @";@(.
$ Respondents! coent of 0an. "(, "'(@, pp. 7, < and "A. The %olicitor;
9eneral!s line of +udgent? B8T=he charge in the case at bar goes to the very
foundations of our syste of +ustice and the respect that is due to it. 2t is
subversive of public confidence in the ipartiality and independence of courts and
tends to ebarrass the adinistration of +ustice. As has been aptly said, !The
Court!s authority 5 possessed of neither the purse nor the s)ord 5 untiately
rests on sustained public confidence in its oral sanction. %uch feeling ust be
nourished by the Court!s coplete detachent, in fact and in appearance, fro
political entangleents and by abstention fro in+ecting itself into the clash of
political forces in political settleents.! 8Ba4er v. Carr, 7A' G.%. "$A, &AA, &A(,
3ran4furter, 0. dissenting H"'A&J.=
BGnless, therefore, the charge is rectified anything this Court )ill do in the case at
bar is li4ely to be isconstrued in the public ind. 2f this Court decides this case
and renders +udgent against petitioner, its decision is li4ely to be isinterpreted
either as a vindictive action ta4en against the petitioner or as proving his charge.
2f it grants the Motion to /ithdra) it )ill be confessing the very +udgent
e1pressed by the petitioner 5 that this Court cannot do +ustice in this case.
Perhaps the only )ay open for it )ould be to render +udgent for the petitioner,
although then others )ill li4ely thin4 that the Court is reacting to the charge. !2t is
this harful obstruction and hindrance that the +udiciary strives to avoid, under
penalty of contept,! as this Court e1plained in another case. 8Cerras Teehan4ee
vs. 6irector of Prisons, re Antonio Luirino, (A Phil. A7# H"'@AJ.=B
' %olicitor;9eneral!s Reply to petitioner!s coent 8re Manifestation= dated 0une
"#, "'(@, pp. &;@.
"# Respondents! Reply to Petitioner!s %ur;Re+oinder 8re otion to )ithdra)= dated
0une "#, "'(@, pp. <;A, citing 0aes, /hat Pragatis Means in Cuan
E1perience and its Probles? 2ntroductory Readings in Philosophy, &7, &< 8A
Tsabassis ed. "'A(=.
"" 3iled on August &7, "'(7.
"& Respondents! coent of 0an. "(, "';"@, p. "(. ephasis supplied.
"7 %olicitor;9eneral!s Reply to petitioner!s coent, dated 0une "#, "'(@, p. "7.
"@ 0avellana vs. E1ecutive %ecretary, :;7A"@&, et al., March 7", "'(7.
"< Petitioner!s )ithdra)al otion on 6ec. &', "'(7, pp. 7,@ and (.
"A Thus, on April (, "'(7, after its decision of March 7", "'(7 disissing the
ratification cases, acting upon the urgent petition of the )ives of petitioners
6io4no and A*uino that their visitation privileges had been suspended and that
they had lost all contact for over a onth )ith the detainees )hose personal
effects )ere returned to their hoes, the Court in Case :;7A7"< Bupon
huanitarian considerations .... resolved unaniously to grant pending further
action by this court, that portion of the prayer in petitioner!s action by this Court,
that portion of the prayer in petitioner!s B%uppleent andNor aendent to
petitionB filed on April A, "'(7 that the )ives and inor children of petitioners
6io4no and A*uino be allo)ed to visit the, sub+ect to such precautions as
respondents ay dee necessary.B
"( Petitioner!s )ithdra)al otion, pp. A;(.
"$ %ub+ect to the transistor provisions of Article I22.
"' Congress no longer convened on 0anuary &&, "'(7 as ordained by the "'7<
Constitution? see Ro1as vs. E1ecutive %ecretary :;7A"A<, March 7", "'(7, )ith a
a+ority of its ebers opting to serve in the abortive 2nteri National Assebly
under Art. ID22, see. & of the "'(7 Constitution.
&# 0avellana vs. E1ec. %ecretary, <# %CRA 7#, "@".
&" 0ustices >aldivar, 3ernando and the )riter, )ith Chief 0ustice Concepcion,
retired, and no) Chief 0ustice Ma4alintal and 0ustice Castro.
&& Article I22, sec. $, "'(7 Constitution.
&7 %EC. '. All officials and eployees in the e1isting 9overnent of the Republic
of the Philippines shall continue in office until other)ise provided by la) or
decreed by the incubent President of the Philippines, but all officials )hose
appointents are by this Constitution vested in the Prie Minister shall vacate
their respective offices upon the appointent and *ualification of their
successors. B
&@ Bna pinapagpatuloy sa panunung4ulanB as stated in the original oath in
Pilipino.
&< 3ernande,, MuFo, Pala and A*uino, 00.
&A %EC @. All public officers and eployees and ebers of the ared forces
shall ta4e an oath to support and defend the Constitution.B
&( %ee Phil. E1press, Ties 0ournal and Bulletin Today issues of -ct. 7#, "'(7.
The Court and the 2ntegrated Bar have since then petitioned the President to
e1tend li4e)ise the sae security of tenure to all other +udges of inferior courts
fro the Court of Appeals do)n by setting a tie liit to the e1ercise of his
po)er of suary replaceent.
&$ @& %CRA @@$, @A&, @'&.
&' E1cept 0ustice 3ernando )ho opined that B8B=y the sae to4en, if and )hen
foral coplaint is presented, the court steps in and the e1ecutive steps out. The
detention ceases to be an e1ecutive and becoes a +udicial concern. Thereupon
the corresponding court assues its role and the +udicial process ta4es its course
to the e1clusion of the e1ecutive or the legislative departents. Cencefor)ard,
the accused is entitled to deand all the constitutional safeguards and privileges
essential to due process.B citing 0ustice Tuason!s opinion in Nava vs. 9ataitan,
'# Phil. "(& 8"'<"=.
7# %ince %epteber &7, "'(&.
7" &$( G.%. 7(<, 7$<. ephasis copied fro :ansang, @& %CRA at p. @(7.
7& Referring to the re*uireents of Art. 222, sec. ", par. "@ and Art. D22, see. "",
par. & of the "'7< Constitution, no) Art. 2D, sec. "< reads?
%EC. "&. The Prie Minister HPresidentJ shall be coander;in;chief of all ared
forces of the Philippines and, )henever it becoes necessary, he ay call out
la). 8Art. 2I, sec. "&, "'(7 Constitution and Art. D22, sec. "" 8&= "'7<
Constitution=.
77 @& %CRA at pp. @(7;@(@. ephasis copied.
7@ %EC. 7. 8&= All proclaations, orders, decrees, instructions, and acts
superseded by subse*uent proclaations, orders, decrees, instructions or other
repealed by regular National Assebly.
7< Art. 2D, sec. 2 and "', Bill of Rights, "'(7 Constitution.
7A %alvador P. :ope,, G.P. president!s 4eynote address, 6ec. 7, "'(7 at the G.P.
:a) Center %eries on the "'(7 Constitution.
7( President Marcos? B6eocracy? a living ideology delivered May &<, "'(7
before the G.P. :a) Aluni Association. Ties 0ournal issue of May &$,"'(7.
7$ President Marcos? 3ore)ord, Notes on the Ne) %ociety p. vi.
7' G.%. Ne)s and /orld Report, intervie) )ith President Marcos, reported in Phil.
%unday E1press issue of August "$, "'(@.
@# 9on,ales vs. Diola, A" Phil. $&@. %ee also >agala vs. 2lustre @$ Phil. &$&. and
Tan vs. Collector of Custos. 7@ Phil. '@@.
BARRE6-, 0., concurring?
O <# %CRA 7#.
" The court too4 no action on the prohibition aspect of 9.R. No. :;7<<@# and later
of 9.R. No. :;7<<(7. Any)ay, )ith the outcoe of the habeas corpus petitions
and in the light of the grounds of his decision, it )ould be acadeic to prosecute
the sae further.
& Petitioner died at ABM %ison Cospital on March &, "'(7 of causes unrelated to
his detention.
7 Actually there are only &$ petitioners, as @ of the appear to have filed double
petitions.
@ E1cluding Enri*ue Doltaire 9arcia 22 )ho, as entioned earlier, had died.
< The )riter!s reasons in favor of granting the otion to )ithdra) are discussed
in the addendu of this decision. %ince the Court as a body has denied said
otion, petitioner 6io4no!s case has to be resolved on its erits. Accordingly, a
discussion of soe of the grounds alleged in the said otion )hich ay have a
bearing in one )ay or another )ith the fundaental issues herein involved is in
order. 2n vie), ho)ever, of the release of %enator 6io4no on %epteber "", "'(@,
the court has decided to disiss his petition for being oot and acadeic. But
this developent does not necessarily render the discussion of his contentions
irrelevant because they can also support the cases of the other petitioners, hence
it sees better to retain said discussion in this opinion.
A At best, such a pose could be true only as regards his arrest and detention up
to 0anuary "(, "'(7, but not )ith respect to his continued detention after the
Ne) Constitution becae effective.
AO Dillavicencio v. :u4ban, 7' Phil. (($, at p. ('#.
( 2t is a atter of conteporary that in a unanious decision proulgated on
0anuary $, "'(7, in the case of %ergio -seFa, 0r. vs. 3erdinand Marcos, the
Presidential Electoral Tribunal upheld the election of President Marcos in
Noveber, "'A' and disissed the protest of -seFa, ruling as follo)s?.
2n the light of the foregoing, /e are of the opinion and so hold that the result of
the revision and appreciation of the ballots in the pilot provinces, congressional
districts and cities designated by the Protestant as best e1eplifying the rapant
terroris and assive vote;buying, as )ell as the fraud and other irregularities
allegedly coitted by the Protestee, has sho)n, beyond doubt, that the latter
had obtained a very substancial plurality andNor a+ority of votes over the forer,
regardless of )hether /e consider that the Protest is liited to the elections in
the provinces, congressional districts and cities specified in paragraph D222 of the
Protestor includes, also, the result of the elections in the provinces and
unicipalities entioned in paragraph D22 of the Protest, or even if the average
reductions suffered by both parties in said pilot provinces, congressional districts
and cities )ere applied to the entire Philippines. that it is necessary, therefore, to
continue the present proceedings and revise the ballots cast in the provinces and
cities specified in paragraph D222 of the Protest 5 uch less those naed in
paragraph D22 thereof 5 other than the pilot provinces and congressional districts
designated by the Protestant, as above;stated. that neither )ould it serve any
useful purpose to revise the ballots cast in the provinces and cities counter;
protested by the Protestee herein. that, in filing his certificate of candidacy for
Mayor of Cebu City, in the general elections held in "'(", and, particularly, in
assuing said office on 0anuary ", "'(&, 8as attested to by his oath of office,
copy of )hich is appended to this decision as Anne1 C= after his proclaation as
the candidate elected to said office, the Protestant had abandoned his Protest
herein. that the Protestant has failed to a4e out his case, that the Protestee has
obtained the plurality and a+ority of the votes cast for the office of the President
of the Philippines, in the general elections held in "'A'. and that, accordingly, he
)as duly elected to said office in the aforeentioned elections and properly
proclaied as such.
$ E1cluding )ee4;end suspension of sessions.
' Gnless e1pressly stated other)ise, all references to the Constitution in this
discussion are to both the "'7< and "'(7 charters, since, after all, the pertinent
provisions are practically identical in both.
"# %ee provisions of both the -ld and the Ne) Constitution infra, *uoted on page
7$A.
The ter E1ecutive is used to have a coon reference to the President under
the -ld Constitution and to the Prie Minister under the ne) one.
"" Art. 222, sec. ", -ld 8"'7<= Constitution. Art. 2D, sec. ", Ne)
8"'(7=Constitution.
"& Art. 222, sec. "@. 2n the Ne) Constitution, the corresponding provision reads as
follo)s? BThe privilege of the )rit of habeas corpus shall not be suspended e1cept
in cases of invasion, insurrection, rebellion, or iinent danger thereof, )hen the
public safety re*uires it.B 8Art. 2D, sec. "<.=
"7 Barcelon vs. Ba4er, < Phil. $(. %everino vs. 9overnor;9eneral, "A Phil. 7AA.
Abueva vs. /ood, @< Phil. A"&. Ale+andrino vs. Lue,on, @A Phil. $<. Dera vs.
Avelino, (( Phil. "'&. Mabanag vs. :ope, Dito, ($ Phil. ". Cabili vs. 3rancisco, $$
Phil. A<@. Montenegro vs. CastaFeda, '" Phil. $$&. %antos vs. Katco, << -. 9.
$A@" 8Minute Resolution of Nov. A, "'<'=. -seFa vs. Pendatun, -ct. &$, "'A#.
"@ 6uncan v. Mahanao4u and /hite vs. %teer, 7&( G.%. 7#@;7<$.
"< Aytona vs. Castillo, @ %CRA ".
"A 2n the referendu of 0anuary "#;"<, "'(7, the people e1pressed theselves
against the holding of elections and the iediate convening of the legislature.
This )as virtually reaffired in the referendu of 0uly &(;&$, "'(7.
"( 2t is interesting to note that the other petitioners have not discussed this issue
and do not seeingly +oin hi in his pose.
"$ /hich ay not be surprising, considering that Counsel TaFada of petitioner
6io4no )ho signed the otion to )ithdra) )as one of the leading counsels of the
petitioners in the Ratification Cases.
"' 2n 9. R. No. :;7A"@&, 0avellana vs. E1ecutive %ecretary and the other
Ratification Cases, the )riter, +oined by 0ustices Antonio and Esguerra, )as of the
vie) that before allo)ing the entry of final +udgent and despite the absence of
any prayer for relief in the Constancia and Manifestation entioned above, it )as
best for the Court to correct the representations of counsel regarding the true
+uridical iport of the decision, but the a+ority )ere of the opinion that
isconstructions by the interested parties of the +udgent of the Court cannot
alter the effect thereof intended by the Court and evident in its dispositive
portion. The )riter )as afraid that future occasions ight arise, as it has
happened no), )hen -ur silence ay be ta4en advantage of, even for the sa4e of
propaganda alone. -n the other hand, 0ustice >aldivar stated that B2 find erit in
the Constancia! and anifestation of counsel for the petitioners )here they assert
that the sentence, !This being the vote of the a+ority, there is no further +udicial
obstacle to the Ne) Constitution being considered in force and effect! in the
dispositive portion of the resolution is not )arranted ...B and that BThis last
sentence of the dispositive portion of the resolution should have been deleted.B
&# The above e1position of the +oint opinion is ade in order to e1plain )hy the
rest of the ebers of the Court 8e1cept 0ustice >aldivar= evidently felt that the
vie) thus e1pressed by Chief 0ustice Ma4alintal and 0ustice Castro +ustified not
only the +udgent of disissal but also the stateent that Bthere is no ore
+udicial obstacle to the Ne) Constitution being considered in force and effect.B
&" %ection "A of Article ID22 of the "'(7 Constitution provides? BThis Constitution
shall ta4e effect iediately upon its ratification by a a+ority of the votes cast
in a plebiscite called for the purpose and, e1cept as herein provided, shall
supersede the Constitution of nineteen hundred and thirty;five and all
aendents thereto.B Even this e1pressed desire of the Convention )as
disregarded by the people, and it is difficult to see )hat valid principle there is
that can curtail the fro e1ercising their ultiate sovereign authority in the
anner then, dee best under the circustances.
ANT-N2-, 0.?
" %oe of those )ho argued for the petitioners )ere Attys. :oren,o TaFada,
0ovito %alonga, Raon A. 9on,ales, 0o4er 6. Arroyo, %edfrey -rdoFe,, Pedro Kap,
and 3rancis 9architorena, )hile %olicitor 9eneral Estelito Mendo,a argued for the
respondents.
& :;7<<<A 5 Deronica :. Kuyitung and Tan Chin Cian. :;7<<A' 5 Aando
6oronila, Cernando 0. Abaya, Ernesto 9ranada, :uis 6. Beltran, Bren 9uiao,
Ruben Cusipag and /illie Baun. :;7<<(" 5 Teresita M. 9uiao in behalf of Bren
9uiao, also petitioner in :7<<A'...
7 0oa*uin P. Roces, Teodoro M. :ocsin, %r., Rolando 3adul, Rosalind 9alang, 9o
Eng 9uan, Renato Constantino, and :uis R. Mauricio in :;7<<7$. Ma1io %oliven,
Napoleon 9. Raa, and 0ose Mari Dele, in :;7<<@#. Raon Mitra, 0r., 3rancisco
Rodrigo, and Napoleon Raa in :;7<<@A. Enri*ue Doltaire 9arcia 22 8deceased= in
:;7<<@(? the petitioners in :;7<<<A, :;7<<A(, :;7<<(", and Ernesto Rondon in :;
7<<(7.
@ Art. D22, %ee. "#8&=,"'7< Constitution.
< %ec. &", 0ones :a) of "'"A.
A Art. 22, %ec. &, par. ", G.%. Constitution.
( 3airan at &7;&<. see also 6o)ell at &7";7&.
$ Cor)in, The President? -ffice and Po)ers, p. &$#.
' +bid, p. 7"$.
"# Cor)in and Moenig, The Presidency Today.
"" Cortes, The Philippine Presidency, p. "<<.
"& Art. D22, %ec. "#8&=, "'7< Philippine Constitution.
"7 2n his report to the Constitutional Convention, 6elegate Mariano 0esus Cuenco,
Chairan of the Coittee on E1ecutive Po)er, stated?
%eFor President? nosotros, los iebros del coite E+ecutivo, teniendo en cuenta
por un lado la fragentacion de nuestro territorio en iles de islas, y, por otro,
las grandes crisis *ue agitan la huanidad, heos procuradoforar un e+eccutivo
fuerte *ue antenga la unidad de la nacion, con suficientes poderes y
proregativas para salvar al pais en los oentos de grandes peligros. Para
conseguir este ob+etivo, nosotros heos provisto *ue el +efe del poder e+ecutivo
sea eligido por el sufragio directo de todos los electores cualificados del pais.
reconoceos su facultad de supervisor los departaentos e+ecutivos, todos los
negociados adinistrativos las provincias y los unicipios. le nobraos central
en +efe del e+ercito y ilicias filipinos. reconoceos su derecho de vetar leyes y
de proponer el nobraientode los altos funcionarios, desde los secretarios
departaentales hasta los eba+adores y consules, y en los oentos de
grandes crisis, cuandola nacion se vea confrontada de algunos peligros coo en
casos de guerra, etc.se reconoce en este proyecto el derecho del +efe del poder
e+ecutivo de proulgar reglas, con fuer,a de ley, para llevar a cabo una politica
nacional. .... 8Proceedings of the Philippine Constitutional Convention, :aurel,
Dol.222, p. &"A, %ession of Nov. "#, "'7@=. 8Ephasis supplied.=
As 6elegate Miguel Cuaderno observed?
... not only aong the ebers of the %ub;coittee of %even, but also )ith a
a+ority of the delegates )as the feeling *uite prevalent that there )as need of
providing for a strong e1ecutive. And in this the lessons of conteporary history
)ere a po)erful influence. 2n ties )hen rulers e1ercising the prerogatives of a
dictator appear to give the last ray of hope to peoples suffering fro chaos, one
could not but entertain the feeling that the safety and )ell;being of our young
nation re*uire a President )ho )ould be unhapered by lac4 of authority, or
ve1atious procrastination of other governental units in case of eergency.
8Cuaderno, The 3raing of the Constitution of the Philippines, p. '#=.
"@ The Philippine Constitution, published by the Phil. :a)yers Association, Dol. 2,
"'A' Ed., p. "$7.
"< 3ederalist No. &7.
"A E1 Parte 0ones, @< :RA 8N.%.= "#@@.
"( 7&# G% '&, '@ 8"'@7=, $( :.ed. "($&.
"$ "" /allace @'7, <#A 8"$(#=.
"' Per Mr. 0ustice 3ran4furter, Ba4er v. Carr, 7A' G.%. "$A, ( :. ed. &d. (&7.
&# Mr. 0ustice 0ac4son, dissenting, Moreatsu v. G.%., 7&7 G.%. &@<, $' :.ed. &"@.
&" BNo court )ill revie) the evidence upon )hich the e1ecutive acted nor set up
its opinion against his.B 8Danderheyden v. Koung H"$"@J "" 0ohns HN.K.J "<#.
Martin v. Mott H"$&(J "& /heat. HG.%.J "'. :uther v. Borden H"$@$J ( Co). HG.%.J
". E1 Parte Moore H"$(#J A@ N.C. $#&. Appeal of Cartranft H"$((J $< Pa. %t. @77.
2n re Boyle H"$''J A 2daho A#'. %)eeney v. Coon)ealthH"'#@J ""$ My. '"&.
Barcelon v. Ba4er H"'#<J < Phil., $(, "##. 2n re Moyer H"'#<J 7< Colo. "<'.
3ran4s v. %ith H"'""J "@& My. &7&. E1 Parte Mc6onald, supra, Note "".
&& Aruego, The 3raing of the Philippine Constitution, Dol. 2, p. @7", "'@' Ed.
&7 &($ G.%. 7($;@#@. (( :. ed. 7(<. 6ecided 6eceber "&, "'7&.
&@ 9oh Meng %)ee, the Nature and Appeals of Counis in Non;
CounistAsian Countries, p. @7.
&< 0aes Ae C. 9arvey, Ma1ist;:eninist China? Military and %ocial6octrine,
"'A#, p. &'.
&A B3inally, :in Piao in the sae article, provides us )ith a definition of Mao!s
strategy of )aging revolutionary )arfare, the strategy of people!s )ar, )hich
coprises the follo)ing si1 a+or eleents?
8"= :eadership by a revolutionary counist party )hich )ill properly apply
Mar1is;:eninis in analy,ing the clas character of a colonial or sei;colonial
country, and )hich a forulate correct policy to )age a protracted )ar against
iperialis, feudalsis, and bureaucratic capitalis.
8&= Correct utili,ation of the united front policy to build !the broadest possible!
national united front to !ensure the fullest obili,ation of the basic asses as )ell
as the unity of all the forces than can be united,! in an effort to ta4e over the
leadership of the national revolution and establish the revolution on an alliance of,
first, the )or4ers and peasants and, second, an alliance of the )or4ing peoples
)ith the bourgeoisie and other non;)or4ing people.!
87= Reliance on the peasantry and the establishent of rural bases, because in
agrarian and !sei;feudal! societies the peasants are the great a+ority of the
population. !sub+ected to threefold oppression and e1ploitation by iperialis,
feudalis, and bureaucrat;capitalis,! they )ill provide of the huan and
aterial resources for the revolution. 2n essence, the revolution is a peasant
revolution led by the counist par? !to rely on the peasants, build rural base
areas and use the countryside to encircle and finally capturethe cities such )as
the )ay to victory in the Chinese revolution.!
8@= Creation of a counist party;led ary of a ne) type, for a !universal truth
of Mar1is;:eninis! is that !)ithout a people!s ary the people have nothing.! A
ne) type of counist party;led ary in )hich !politics is the coander! ust
be fored, one )hich focuses on instilling in the inds of the population a
!proletarian revolutionary consciousness and courage and )hich actively see4s the
support and bac4ing of the asses.!
8<= Gse of the strategy and tactics of people!s )ar as interpreted by Mao Tse;tung
in a protracted ared struggle to annihilate the eney and ta4e over state po)er,
based on the support of a obili,ed ass population and the use of guerrilla
)arfare, and ultiately obile and even positional )arfare as the revolution
progresses.
8A= Adherence to a policy of self;reliance, because !revolution or people!sin any
country is the business of the asses in that country and should be carried out
priarily by their o)n effect and there is no other )ay.!B 8Peter Dan Ness,
Revolution and Chinese 3oreign Policy, pp. (#;(&.=
&( BA report of the !Palanan 2ncident! subitted by defense and ilitary
authorities to the Couse coittee on national defense said that no single
incident had done so uch to focus the dangers posed by the !reestablished!
Counist Party of the Philippines and the NPA than the discovery of an
abandoned ship and the subse*uent recovery of ilitary hard)are and docuents
in innocent;loo4ing 6igoyo Bay. The discovery of these !instruents of )ar! )hich
)ere intended for the insurgents )as a cause of deep concern because of its
direct bearing on the national security, the report stated.
Gnder)raps. Before the Maragatan entered the picture, there had been
intelligence reports of increased NPA activities in the ountain areas and
shorelines of Palanan and nearby 6ilasag;Casiguran in Lue,on Province. Military
authorities, for )ell;placed reasons, had 4ept these reports under )raps. But a
fe) of the lea4ed out. 3or instance, a coded dispatch fro Tas4 3orce %aranay
entioned a subarine unloaded soe &## en and )hile off 6inapi*ue Point,
north of Palanan.
/hile s4eptical ne)sen s4ied through the reports, they cae across
recorded instances of actual operations? last May "', a big nuber of NPA!s
arrived and encaped in the vicinity of the 6ivinisa River. -n May &A, a ship
unloaded about &## sac4s of rice, firears and aunition at the vicinity of
6igollorin. %hipside unloading )as effected and cargo ferried aboard sall boats
and bancas.
T)o days later, on May &$, a po)erboat painted red, )hite and blue )ith a
Philippine flag flying astern, reconnoitered fro 6inatado to 6ivinisa
Point.3isheren fro barrio Maligaya, Palanan, )ere aong those forced to
unload food and ilitary supplies. About the second )ee4 of 0une, another
landing of supplies too4 place there.
Progras of action. By this tie, Brig. 9en. Tran*uilino Paranis, %aranay
coander, started to ove soe of his en fro tas4 force head*uarters in
Echague, 2sabela, to the Palanan area. -n 0une "$, a patrol of the tas4 force
encountered a group of NPA!s in barrio Taringsing, Cordon to)n. Cere governent
troops recovered CCP docuents outlining progras of action for "'(&. The
docuents according to ilitary analysts, contained tietables calling for the
intensification of sabotage, violence and attac4s on ilitary cap and other
governent installationd fro 0uly to 6eceber. -n 0uly 7, inforation )as
received that an unidentified vessel had been seen off 6igoyopoint. Paranis
relayed the essage to Brig. 9en. Toas 6ia, at 3irst PC >one head*uarters in
Cap -livas, Papanga. 3ro then on until ary intellegence raided the hoe of
a sister of one of the Maragatan 3ishing Co., in Cainta, Ri,al and stubled on
stac4s of counist propaganda aterials, the Maragatan had e1ploded on the
public face in bold glaring headlines.
/hat bothered ary authorities ost )as not only the actual landing of about
7,### rifles of the M;"@ type of )hich (7( had already been recovered by troops
)ho stored Cill &&< in Palanan and also sei,ed A#,### rounds of aunition
and another 7# bo1es of aunition of roc4et launchers. 2t )as the presence of
the roc4ets theselves. The @# roc4ets are high;e1plosive anti;tan4
)eapons. They appear to be copies of the %oviet RP9;& )hile the roc4et
launchers are prototypes of the %oviet RP9;& anti;tan4 launchers used by the
Dietcong.
The landing of ilitary hard)are in enorous *uantities have ultiplied the
dangers of the CCP;Maoist faction, the ilitary said. Ared high po)ered
)eapons and )ith sufficient aunition, the insurgents have becoe a ore
potent force to contend )ith. This has eboldened the to intensify operations
)ith the use of ne) recruits. The ne) recruits have been trained in the use of
high e1plosives and )ere to he unleashed on the population centers of 9reater
Manila as part of the continuing %epteber;-ctober plan that includes the
bobing of Congress, the Constitutional Convention, City Call, public utilities,
departent stores and ovie houses. The recruits )ere to see4 sanctuary in safe
houses installed for the by the NPA in Caloocan City the ary asserted.B 8Tie;
table for Terror, PACE, Dol. ", No. <&, %epteber, "'(&=.
&$ BThe Counists have no scruples against sabotage, terroris, assassination,
or ob disorder. ... The Counist recogni,es that an established governent in
control of odern technology cannot be overthro)n by force until it is about
ready to fall of its o)n )eight.B Revolution is, therefore. Bnot a sudden episode
but as the consuation of a long process.B 8Per Mr. 0ustice 0ac4son, 6ennis v.
Gnited %tates, 7@" G.%. <A@, <A<, '< :.ed ""$".=
&' The %upree Court and the Coander;in;Chief, "V'<", Cornell Gniversity
Press, p. 7A.
7# BNot even the aerial attac4 upon Pearl Carbor close the courts or of its o)n
force deposed the civil adinistration, yet it )ould be coon understanding of
en that those agencies )hich are charged )ith the national defense surely ust
have authority to ta4e on the spot soe easures )hich in noral ties )ould
be ultra vires.B
111 111 111
/hen one considers certain characteristics of odern )ar, obility on land,
surprise fro the air, sabotage, and the preparation of fifth coluns 5 it ust be
apparent that the dictu that !artial rule cannot arise fro a threatened
invasion! is not an ade*uate definition of the e1tent of the )ar po)er of the
Gnited %tates. An Ary today has a dispersion in depth *uite un4no)n in our Civil
/ar. Thus Gnder %ecretary of /ar Patterson, in stressing the need for a state
guard to protect installations in the rear, pointed to !the fact that the )ars of
today 4no) no front line. that a tiny village hundreds of iles behind the
theoretical front ay suddenly becoe the scene of desperate and bla,ing
action.! 2f the proble )ere to arise today it sees fair to assue that the
%upree Court )ould not hold to the letter of 0ustice 6avis! opinion. 0ust as in
the construction of the coerce and other grants of national po)er the Court of
late has notably sought to a4e the ade*uate to the conditions )hich )e face,
alost certainly it )ould so construe the )ar po)er as to include all that is
re*uisite !to )age )ar successfully.!B 8Charles 3airan, :a) of Martial Rule, <<
Carvard :a) Revie), "&$(.=
7" Notes on the Ne) %ociety, pp. &';7#.
7& 6r. Abelardo %aonte, 2naugural Address, G.P. :os BaFos, 0an. "", "'(@.
77 %te)art v. Mahn, "" /allace @'7, <#A.
7@ Polloc4 vs. 3arer!s :oan Q T. Co. 8"$'<= "<( G.%. @&', 7' :. ed. (<'. %ee
also :egal Tender cases 8"$$@= ""# G.%. @&", &$ :. ed. &#@, (# A.:.R. 7#.
7< %tate e1 rel. Miller vs. Taylor 8"'""= && N.6. 7A&, "77 N./. "#@A.
7A 6uring the Civil /ar in the Gnited %tates, the )rit of habeas corpus )as
suspended and any thousands of persons suspected of disloyalty to the Gnion
)ere interned. 80. Randall Q 6. 6onald, The Civil /ar and Reconstruction, 7#"
H"'A"J=. 2t ust be noted that the 1abeas Corpus Act of "$A7 of the Gnited
%tates re*uired that lists of political prisoners be furnished to the +udges of the
federal courts. liited the duration of detention to one session of the grand +ury,
at the end of )hich courts )ere to order the release of those prisoners )ho had
not been indicted for a crie. Co)ever, during the Civil /ar the Cabeas Corpus
Act )as virtually ignored by President :incoln, and the arrest, confineent, and
release of prisoners continued as if it had not been passed. 8:ee 0. Randall Q 6.
6onald, supra, p. 7#A=.
7( There are three reasons advanced )hy this )as found necessary. B3irst, the
evidence to satisfy the re*uireents of legal procedure )ill blo) the cover of
police agents )ho have penetrated Counist open;front organi,ations. 3urther,
the possibility of prosecution assues that participation in Counist
conspiratorial activities is a legal offense, )hich it is not in ost countries. Third,
to )ait for the Counist activists to engage in overtly illegal action, for
e1aple, riots and other sorts of violence before prosecution, )ill give the a
political advantage )hich fe) governents of the ne) states of Asia can afford.
3or by then the political situation )ould have deteriorated to a state of acute
instability, )hich in turn )ould probably have caused econoic decline due to loss
of confidence. %hould political instability becoe endeic serious doubts )ill
creep into en!s inds as to )ho )ould erge the )inner. This can a4e the
proble of control of subversion, for )hich public confidence and co;operation are
iportant, a very acute one.
The po)er of arrest and detention )ithout trial is, therefore, a necessary )eapon
in the fight against Counists in the ne)ly established Asian states. 2t is,
ho)ever, of the utost iportance that the highest standards of conduct on the
part of the secret police are aintained. There should be chec4s, in the for of
revie) coittees consisting of la)yers and professional en, on the actions of
the police. These chec4s should be real and not perfunctory easures. Nothing
)ould be ore favorable to the gro)th of Counist influence than e1tensive
and indiscriinate use of the po)ers of detention. 3or this )ill generally cause
)idespread resentent against the authorities, )hich the Counist
underground can use to sto4e the fires of revolution. 3urther, it is iportant that
police action is liited to really )orth)hile targets the thin4ers and the planners,
the able propagandists and the organi,ation en. Ninety;nine per cent of those
)ho engage in Counist open;front activities are not )orth detaining, not even
the second echelon activists and the uscleen on )ho the Counists
depend to discipline their follo)ers. They are the e1pendables and can be
replaced )ithout uch difficulty, unli4e the thin4er and the plotter, and their
detention serves no purpose beyond creating unnecessary disaffection aong
their failies.B 89oh Meng %)ee? Minister of 6efense of the 2nterior in %ingapore,
The Nature and Appeal of Counis in Non;Counist Asia Countries.=
7$ 6evelopents;National %ecurity, Dol. $<, Carvard :a) Revie), March "'(&,
No. <, p. "7"7.
7' >eel v. Rus4, 7$" G.%. " H"'A<J upheld the constitutionality of the Cuba area
restriction.
@# Charles 3airan, Martial Rule and the %uppression of 2nsurrection.
@" Miguel Cuaderno, %r., Martial :a) and the National Econoy, "'(@ Ed.
6elegate to the "'7@ and "'(" Constitutional Conventions, eber of the %ub;
Coittee of %even that finali,ed the draft of the "'7< Constitution.
@& Modern Political Constitutions, p. <<.
@7 Dol. 2, The Philippine Constitution, 6ebates on the 3irst 6raft of the
Constitution, p. "<(.
3ERNAN6E>, 0.?
" 9eneral -rder No. & reads as follo)s?
Pursuant to Proclaation No. "#$", dated %epteber &", "'(&, and in y
capacity as Coander;in;Chief of all the Ared 3orces of the Philippines and for
being active participants in the conspiracy to sei,e political and state po)er in the
country and to ta4e over the 9overnent by force, the e1tent of )hich has no)
assued the proportion of an actual )ar against our people and their legitiate
iniical or in+urious to our people, the 9overnent and our national interest, 2
the arrest and ta4e into custody the individuals naed in the attached list and to
hold the until other)ise so ordered by e or by y designated representative.
B:i4e)ise, 2 do hereby order you to arrest or cause the arrest and ta4e into
authori,ed representative, such persons as ay have coitted cries and
offenses in furtherance on the occasion of or incident to or in connection )ith the
cries of insurrection or rebellion, as )ell as persons )ho have coitted cries
against national security and the la) of nations, cries against the fundaental
la)s of the state, cries against public order, cries involving usurpation of
authority, title, iproper use of nae, unifor and insignia, including persons
guilty of cries as public officers, as )ell as those people )ho ay have violated
any decree or order prooted by e personally or proulgated upon y
direction.B
O -n the issue of )ithdra)al, BpetitionerB refers to forer %enator 0ose /. 6io4no
and not any of the other petitioners.
OO Although this Rule "( falls under BProcedure in Courts of 3irst 2nstance,B it
ay also serve as a guide to this Court in resolving a *uestion of this nature. 2n
the Court of Appeals, and in the %upree Court, BAn appeal )ay be )ithdra)n as
of right at any tie before filing of appellee!s brief. After that brief is filed the
)ithdra)al ay be allo)ed by the Court in its discretion ....B 8%ection @, Rule <#.
%ection ", Rule <A=.
" 8&= The President shall be coander;in;chief of all ared forces of the
forces to prevent or suppress la)less violence, invasion, insurrection, or rebellion,
or iinent danger thereof, )hen the public safety re*uires it, he ay suspend
the privelege of the )rit of habeas corpus# or place the Philippines or any part
thereof under artial. 8Par. &, %ec. "#, Art. D22, "'7< Constitution=.
%ec. "&. The Prie Minister shall be coander;in;chief or the Philippines and,
insurrection, or rebellion, or iinent danger thereof, )hen the public safety
re*uires it, he ay suspend the privelege of the )rit of habeas corpus# or place
the Philippines or any part thereof under artial la). 8%ec. "&, Art. 2I, Ne)
Constitution.=
MGW-> PA:MA, 0.?
" 6io4no!s petition for habeas corpus )as filed on %epteber &7, "'(&, the third
day after the signing of Proclaation No. "#$". 2n 0avellana vs. The E1ecutive
%ecretary, :;7A"@&, March 7", "'(7, and allied cases, called the Ratification
Cases, this Court in its dispositive portion stated? Bthere is no further +udicial
obstacle to the Ne) Constitution being considered in force and effectB. -n
-ctober &@, "'(7, President 3erdinand E. Marcos s)ore into office the Con.
Luerube C. Ma4alintal as Chief 0ustice, and -ctober &', Associate 0ustices?
Cali1to -. >aldivar, 3red Rui, Castro. Enri*ue M. 3ernando, Claudio Teehan4ee,
Antonio P. Barredo, 3eli1 D. Ma4asiar, 3eli1 L. Antonio, and %alvador D. Esguerra
too4 their -ath under the ne) Constitution together )ith ne) appointees,
0ustices Estanislao 3ernande,, Cecilia MuFo, Pala and Raon A*uino.
& Eight votes )ere considered by the Court necessary to grant the otion, and of
the t)elve 0ustices, only seven finally voted to grant the )ithdra)al of the
petition, naely? Chief 0ustice Ma4alintal, Associate 0ustices >aldivar, 3ernando,
Teehan4ee, Barredo, MuFo, Pala, and A*uino. the rest voted to deny the
otion.
7 9eneral -rder No. & )as aended as 9eneral -rder No. &;A dated %epteber
&A, "'(&.
@ There )ere nine separate Petitions filed, to )it, in chronological order? 9.R.
Nos. :;7<<7$, 7<<7', 7<<@#, 7<<@A, 7<<@(, 7<<<A, 7<<A(, 7<<(", and 7<<(7,
the last having been doc4eted on -ctober 7, "'(&. -f the nine petitions, only si1
are no) being decided because :;7<<@(, Doltaire 9arcia 22, petitioner, becae
oot upon the death of the petitioner on March &, "'(7, )hile on conditional
release. Tan Chin Cian and Deronica :. Kuyitung petitioners, )as )ithdra)n )ith
the approval of the Court on the ground that petitioners had been released fro
custody. and :;7<<(", Bren 9uiao, petitioner, )as li4e)ise )ithdra)n )ith the
approval of the Court. Although there )ere originally 7& petitioners only "$
reain and they are as enuerated in the caption of these si1 cases under
consideration. -f these "$ petitioners, three )ere ebers of the Philippine
%enate at the tie of their arrest, naely? 0ose /. 6io4no, Benigno %. A*uino, 0r.,
and Raon D. Mitra, 0r.. t)o )ere delegates to the Constitutional Convention of
"'(", naely? 0ose Mari Dele, and Napoleon 9. Raa )hile the rest are )ell;
4no)n +ournalists and en of the ass edia.
< Dillavicencio vs. :u4ban, 7' Phil. (($, ('#, cited in 0. 9. Bernas, %.0.,
Constitutional Rights and 6uties, Dol. ", "'(@ Ed., p. &A&. .
A 0ustice E. 3ernando, The Bill of Rights, "'(& Ed., p. &'A.
( Bernas, supra, p. &A&.
$ /illoughby on the Constitution, Dol. 7, p. "A"& 8"'&'= *uoted in 3ernando,
supra.
' & %tory, Const. *uoted in Blac4!s Constitutional :a), & Ed. p. <''.
"# Art. 222, %ec. " par. ", Philippine Constitution of "'7< provides?
BNo person shall be deprived of life, liberty, or property )ithout due process of
la), nor shall any person be denied the e*ual protection of the la)s.B This
provision is adopted verbati in Art. 2D, %ec. ", Constitution of "'(7.
The Preable of the 3rench Constitution of "'<$, Art. " provides? BMen are born
and reain free and e*ual in respect of rights ...B and Art. ( states? BNo one shall
be accused, arrested, or iprisoned, save in the cases deterined by la), and
according to the fors )hich it has prescribed 8Ta4en fro Co)ard and
%uers, :a) its nature, functions, and liits, p. &<(= .
The Constitution of the Gnion of %oviet %ocialist Republics. "'7A, Art. "&(
provides? BCiti,ens of the G%%R are guaranteed inviolability of the person. No
person ay be placed under arrest e1cept by decision of a court or )ith the
sanction of a procurator 8ibid, p. &<'= .
%ec. ", Art. I2D, Gnited %tates Constitution reads BNo state shall a4e or enforce
any la) )hich shall abridge the privileges or iunities of citi,ens of the Gnited
%tates. nor shall any %tate deprive any person of life, liberty, or property, )ithout
due process of la). nor deny to any person )ithin its +urisdiction the e*ual
protection of the la)s.B 8Blac4!s, supra, II2D=
"" see Meorandu of Respondents dated Noveber "(, "'(&, pp. @;<.
"& Ans)er to %uppleental Petition and Motion for 2ediate Release, dated 0uly
&A, "'(7, p. &7, :;7<<7'.
"7 Meorandu for Petitioners dated Noveber ', "'(&, pp. A, &7, (", '(.
"@ %uppleental Petition and Motion for 2ediate Release dated 0une &', "'(7,
pp. @<;<", A7;'@.
"< Reference is ade to the "'7< constitution.
"A Moran, Rules of Court, Dol. 7. "'(# Ed. p. A"<. Cloro1 Co. vs. 6irector of
Patents, et al., :;"'<7", August "#, "'A(, &# %CRA 'A<, '(#, Pala vs. Con.
-reta, et al., 7@ %CRA.
"AO :;77'A@, 6eceber "", "'(", @& %CRA @@$.
"( %ae as %ec. "&, Art. 2I Constitution of "'(7, e1cept the ter BPresidentB is
no) BPrie MinisterB.
"$ The Ba4er case involved the suspension of the privilege of the )rit of habeas
corpus in the provinces of Batangas and Cavite by the 9overnor;9eneral pursuant
to a Resolution of the Philippine Coission dated 0anuary 7", "'#A, )hile the
Montenegro case involved Proclaation &"# by Pres. Elpidio Luirino on -ctober
&&, "'<#, suspending the privilege of the )rit of Pursuant to Art. D22, %ection "#,
paragraph & of the Constitution.
"' p. @(7, supra.
"'O see Bill of Rights, Art. 222, "'7< Constitution. Bill of Rights, Art. 2D, "'(7
Constitution. .
B"7 /hen )ere, seeingly, ta4en fro the seventh paragraph of %ection 7, and
%ection &" of the 0ones :a) 8Act of Congress of the G.%. of August &', "'"A=.
The only provision thereon in the G.%. Constitution is found in %ection '8&= of Art.
" thereon 5 on the :egislative Po)er 5 )hich provides that !the privilege of the
)rit of habeas shall not be suspended, unless in cases of rebellion or invasion the
public safety ay re*uire it.!B 8footnote inside *uotation=
&# Meorandu of Respondents, supra pp. 7A;@#.
&" %upra, pp. @(A;@((, @$@.
&& The ter !Cu4s! refers to an ary or group of en organi,ed and operating in
Central :u,on for counistic activities. 83ootnote && inside *uotation=
:a) Luarterly Revie), ID222, "<&. 3or an oppositive vie), see Edinburgh Revie),
0anuary, "'#&.
&7 Art. 222, %ec. "8@=, "'7< Constitution?
)hich events the sae ay be suspended )herever during such period the
necessity for such suppression shall e1ist.
Art. 2D, %ec. "<, "'(7 Constitution?
The privilege of the )rit of habeas corpus shall not be suspended in cases of
invasion, insurrection, rebellion, or iinent danger thereof, )hen the public
safety re*uires it.
&@ President 3erdinand E. Marcos, Notes on the Ne) %ociety of the Philippines,
"'(7. p. 7(.
&< +bid.

Aquino Vs Enrile

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Aquino Vs Enrile

Transféré par

Droits d'auteur :

Formats disponibles

Republic of the PhilippinesSUPREME COURTManila

Vous aimerez peut-être aussi