1. FR. ROBERT REYES VS.

CA
LEONARDO-DE CASTRO, J.:
For resolution is the Petition for Review under Rule 45 of the Rules of Court, assailing the February 4,
2008 Decision1 of the Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed the petition for
the issuance of the writ of amparo under A.M. No. 07-9-12-SC, as amended. It also assails the CA's
Resolution dated March 25, 2008, denying petitioner's motion for reconsideration of the aforesaid
February 4, 2008 Decision.
The undisputed facts as found by the CA are as follows:
Petitioner was among those arrested in the Manila Peninsula Hotel siege on November 30, 2007. In the
morning of November 30, 2007, petitioner together with fifty (50) others, were brought to Camp
Crame to await inquest proceedings. In the evening of the same day, the Department of Justice (DOJ)
Panel of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz and Aristotle M. Reyes,
conducted inquest proceedings to ascertain whether or not there was probable cause to hold petitioner
and the others for trial on charges of Rebellion and/or Inciting to Rebellion.
On December 1, 2007, upon the request of the Department of Interior and Local Government (DILG),
respondent DOJ Secretary Raul Gonzales issued Hold Departure Order (HDO) No. 45 ordering
respondent Commissioner of Immigration to include in the Hold Departure List of the Bureau of
Immigration and Deportation (BID) the name of petitioner and 49 others relative to the aforementioned
case in the interest of national security and public safety.
On December 2, 2007, after finding probable cause against petitioner and 36 others for the crime of
Rebellion under Article 134 of the Revised Penal Code, the DOJ Panel of Prosecutors filed an
Information docketed as I.S. No. 2007-1045 before the Regional Trial Court, Branch 150 of Makati
City.
On December 7, 2007, petitioner filed a Motion for Judicial Determination of Probable Cause and
Release of the Accused Fr. Reyes Upon Recognizance asserting that the DOJ panel failed to produce
any evidence indicating his specific participation in the crime charged; and that under the Constitution,
the determination of probable cause must be made personally by a judge.
On December 13, 2007, the RTC issued an Order dismissing the charge for Rebellion against petitioner
and 17 others for lack of probable cause. The trial court ratiocinated that the evidence submitted by the
DOJ Panel of Investigating Prosecutors failed to show that petitioner and the other accused-civilians
conspired and confederated with the accused-soldiers in taking arms against the government; that
petitioner and other accused-civilians were arrested because they ignored the call of the police despite
the deadline given to them to come out from the 2nd Floor of the Hotel and submit themselves to the

police authorities; that mere presence at the scene of the crime and expressing one's sentiments on
electoral and political reforms did not make them conspirators absent concrete evidence that the
accused-civilians knew beforehand the intent of the accused-soldiers to commit rebellion; and that the
cooperation which the law penalizes must be one that is knowingly and intentionally rendered.
On December 18, 2007, petitioner's counsel Atty. Francisco L. Chavez wrote the DOJ Secretary
requesting the lifting of HDO No. 45 in view of the dismissal of Criminal Case No. 07-3126.
On even date, Secretary Gonzales replied to petitioner's letter stating that the DOJ could not act on
petitioner's request until Atty. Chavez's right to represent petitioner is settled in view of the fact that a
certain Atty. J. V. Bautista representing himself as counsel of petitioner had also written a letter to the
DOJ.
On January 3, 2008, petitioner filed the instant petition claiming that despite the dismissal of the
rebellion case against petitioner, HDO No. 45 still subsists; that on December 19, 2007, petitioner was
held by BID officials at the NAIA as his name is included in the Hold Departure List; that had it not
been for the timely intervention of petitioner's counsel, petitioner would not have been able to take his
scheduled flight to Hong Kong; that on December 26, 2007, petitioner was able to fly back to the
Philippines from Hong Kong but every time petitioner would present himself at the NAIA for his
flights abroad, he stands to be detained and interrogated by BID officers because of the continued
inclusion of his name in the Hold Departure List; and that the Secretary of Justice has not acted on his
request for the lifting of HDO No. 45. Petitioner further maintained that immediate recourse to the
Supreme Court for the availment of the writ is exigent as the continued restraint on petitioner's right to
travel is illegal.
On January 24, 2008, respondents represented by the Office of the Solicitor General (OSG) filed the
Return of the Writ raising the following affirmative defenses: 1) that the Secretary of Justice is
authorized to issue Hold Departure Orders under the DOJ Circulars No. 17, Series of 19982 and No. 18
Series of 20073 pursuant to his mandate under the Administrative Code of 1987 as ahead of the
principal law agency of the government; 2) that HDO No. 45 dated December 1, 2007 was issued by
the Sec. Gonzales in the course of the preliminary investigation of the case against herein petitioner
upon the request of the DILG; 3) that the lifting of HDO No. 45 is premature in view of public
respondent's pending Motion for Reconsideration dated January 3, 2008 filed by the respondents of the
Order dated December 13, 2007 of the RTC dismissing Criminal Case No. 07-3126 for Rebellion for
lack of probable cause; 4) that petitioner failed to exhaust administrative remedies by filing a motion to
lift HDO No. 45 before the DOJ; and 5) that the constitutionality of Circulars No. 17 and 18 can not be
attacked collaterally in an amparo proceeding.
During the hearing on January 25, 2008 at 10:00 a.m. at the Paras Hall of the Court of Appeals,
counsels for both parties appeared. Petitioner's counsel Atty. Francisco Chavez manifested that

petitioner is currently in Hong Kong; that every time petitioner would leave and return to the country,
the immigration officers at the NAIA detain and interrogate him for several minutes because of the
existing HDO; that the power of the DOJ Secretary to issue HDO has no legal basis; and that petitioner
did not file a motion to lift the HDO before the RTC nor the DOJ because to do so would be
tantamount to recognizing the power of the DOJ Secretary to issue HDO.

THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO INDEPENDENT OF THAT OF THE
REGIONAL TRIAL COURTS, HENCE, PETITIONER CANNOT MERELY RELY ON THE
RESIDUAL POWER OF THE RTC MAKATI IN CRIMINAL CASE NO. 07-3126 TO ASSAIL
SUCH CLAIMED POWER.
III.

For respondents' part, the Office of the Solicitor-General (OSG) maintained that the Secretary of the
DOJ's power to issue HDO springs from its mandate under the Administrative Code to investigate and
prosecute offenders as the principal law agency of the government; that in its ten-year existence, the
constitutionality of DOJ Circular No. 17 has not been challenged except now; and that on January 3,
2008, the DOJ Panel of Investigating Prosecutors had filed a Motion for Reconsideration of the Order
of Dismissal of the trial court.
On February 1, 2008, petitioner filed a Manifestation attaching thereto a copy of the Order dated
January 31, 2008 of the trial court denying respondent DOJ's Motion for Reconsideration for utter lack
of merit. The trial court also observed that the said Motion should be dismissed outright for being filed
out of time.4
The petition for a writ of amparo is anchored on the ground that respondents violated petitioner's
constitutional right to travel. Petitioner argues that the DOJ Secretary has no power to issue a Hold
Departure Order (HDO) and the subject HDO No. 45 has no legal basis since Criminal Case No. 073126 has already been dismissed.
On February 4, 2008, the CA rendered the assailed Decision dismissing the petition and denying the
privilege of the writ of amparo.
Petitioner's Motion for Reconsideration5 thereon was also denied in the assailed Resolution6 dated
March 25, 2008.
Hence, the present petition which is based on the following grounds:
I.
THE DOJ SECRETARY'S ARROGATION OF POWER AND USURPATION OF AUTHORITY TO
ISSUE A HOLD DEPARTURE ORDER CANNOT BE JUSTIFIED THROUGH A RATIONALE
THAT IT HAS SUPPOSEDLY BEEN "REGULARLY EXERCISED IN THE PAST" OR HAS
"NEVER BEEN QUESTIONED (IN THE PAST).
II.

THE UTMOST EXIGENCY OF THE PETITION IS EXEMPLIFIED BY THE CONTINUING

ACTUAL RESTRAINT ON PETITIONER'S RIGHT TO TRAVEL THROUGH
THEMAINTENANCE OF HIS NAME IN THE HDO LIST AND DOES NOT SIMPLY HINGE ON
THE QUESTION OF WHETHER OR NOT PETITIONER WAS ABLE TO TRAVEL DESPITE
SUCH A RESTRAINT.
IV.
DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO STATUTORY BASIS FOR THE DOJ
SECRETARY'S CLAIMED POWER TO ISSUE AN HDO FOR IT IS NOT A STATUTE. THE
CIRCULAR ITSELF APPEARS NOT TO BE BASED ON ANY STATUTE, HENCE, IT DOES NOT
HAVE THE FORCE OF LAW AND NEED NOT BE ATTACKED IN A DIRECT PROCEEDING.7
Petitioner maintains that the writ of amparo does not only exclusively apply to situations of
extrajudicial killings and enforced disappearances but encompasses the whole gamut of liberties
protected by the Constitution. Petitioner argues that "[liberty] includes the right to exist and the right to
be free from arbitrary personal restraint or servitude and includes the right of the citizens to be free to
use his faculties in all lawful ways." Part of the right to liberty guaranteed by the Constitution is the
right of a person to travel.
In their Comment,8 both respondents Secretary Gonzalez and Commissioner Libanan argue that: 1)
HDO No. 45 was validly issued by the Secretary of Justice in accordance with Department of Justice
Circular No. 17, Series of 1998,9 and Circular No. 18, Series of 2007,10 which were issued pursuant to
said Secretary's mandate under the Administrative Code of 1987, as head of the principal law agency
of the government, to investigate the commission of crimes, prosecute offenders, and provide
immigration regulatory services; and; 2) the issue of the constitutionality of the DOJ Secretary's
authority to issue hold departure orders under DOJ Circulars Nos. 17 and 18 is not within the ambit of
a writ of amparo.
The case hinges on the issue as to whether or not petitioner's right to liberty has been violated or
threatened with violation by the issuance of the subject HDO, which would entitle him to the privilege
of the writ of amparo.

The petition must fail.

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission,
or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

Section 1 of the Rule on the Writ of Amparo provides:

Section 1. Petition. - The petition for a writ of amparo is a remedy available to any person whose right
to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances or threats thereof.
The Court, in Secretary of National Defense et al. v. Manalo et al.,11 made a categorical pronouncement
that the Amparo Rule in its present form is confined to these two instances of "extralegal killings" and
"enforced disappearances," or to threats thereof, thus:
x x x As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and
"enforced disappearances," its coverage, in its present form, is confined to these two instances or to
threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without
legal safeguards or judicial proceedings." On the other hand, "enforced disappearances" are "attended
by the following characteristics: an arrest, detention or abduction of a person by a government official
or organized groups or private individuals acting with the direct or indirect acquiescence of the
government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty which places such persons outside the protection of
law."12
In Tapuz v. Del Rosario,13 the Court laid down the basic principle regarding the rule on the writ of
amparo as follows:
To start off with the basics, the writ of amparo was originally conceived as a response to the
extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of
available and effective remedies to address these extraordinary concerns. It is intended to address
violations of or threats to the rights to life, liberty or security, as an extraordinary and independent
remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules.
What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ
that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of
Amparo - in line with the extraordinary character of the writ and the reasonable certainty that its
issuance demands - requires that every petition for the issuance of the writ must be supported by
justifying allegations of fact, to wit:
"(a) The personal circumstances of the petitioner;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by
an unlawful act or omission of the respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of
the investigating authority or individuals, as well as the manner and conduct of the investigation,
together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission;
andcralawlibrary
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs."14
The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate
facts determinable from the supporting affidavits that detail the circumstances of how and to what
extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is
being committed. (Emphasis supplied)cralawlibrary
Here, petitioner invokes this extraordinary remedy of the writ of amparo for the protection of his right
to travel. He insists that he is entitled to the protection covered by the Rule on the Writ of Amparo
because the HDO is a continuing actual restraint on his right to travel. The Court is thus called upon to
rule whether or not the right to travel is covered by the Rule on the Writ of Amparo.
The rights that fall within the protective mantle of the Writ of Amparo under Section 1 of the Rules
thereon are the following: (1) right to life; (2) right to liberty; and (3) right to security.
In Secretary of National Defense et al. v. Manalo et al.,15 the Court explained the concept of right to
life in this wise:
While the right to life under Article III, Section 1 guarantees essentially the right to be alive - upon
which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee
of the secure quality of this life, viz: "The life to which each person has a right is not a life lived in fear
that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived
with the assurance that the government he established and consented to, will protect the security of his

person and property. The ideal of security in life and property' pervades the whole history of man. It
touches every aspect of man's existence." In a broad sense, the right to security of person "emanates in
a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his
reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is
invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment
of life according to the nature, temperament, and lawful desires of the individual."16
The right to liberty, on the other hand, was defined in the City of Manila, et al. v. Hon. Laguio, Jr., 17in
this manner:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist
and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man
to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as
are necessary for the common welfare." x x x

variation of the prolificacy of their imagination, strength of character or past experience with the
stimulus. Thus, in the amparo context, it is more correct to say that the "right to security" is actually
the "freedom from threat." Viewed in this light, the "threatened with violation" Clause in the latter
part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the
earlier part of the provision.
Second, the right to security of person is a guarantee of bodily and psychological integrity or security.
Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one's body cannot be
searched or invaded without a search warrant. Physical injuries inflicted in the context of extralegal
killings and enforced disappearances constitute more than a search or invasion of the body. It may
constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of
physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries
constitute a crime against persons because they are an affront to the bodily integrity or security of a
person.
xxx

Secretary of National Defense et al. v. Manalo et al.18 thoroughly expounded on the import of the right
to security, thus:
A closer look at the right to security of person would yield various permutations of the exercise of this
right.
First, the right to security of person is "freedom from fear." In its "whereas" clauses, the Universal
Declaration of Human Rights (UDHR) enunciates that "a world in which human beings shall enjoy
freedom of speech and belief and freedom from fear and want has been proclaimed as the highest
aspiration of the common people." (emphasis supplied) Some scholars postulate that "freedom from
fear" is not only an aspirational principle, but essentially an individual international human right. It is
the "right to security of person" as the word "security" itself means "freedom from fear." Article 3 of
the UDHR provides, viz:

Third, the right to security of person is a guarantee of protection of one's rights by the government. In
the context of the writ of amparo, this right is built into the guarantees of the right to life and liberty
under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom
from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right
to security of person in this third sense is a corollary of the policy that the State "guarantees full respect
for human rights" under Article II, Section 11 of the 1987 Constitution. As the government is the chief
guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to these rights especially when
they are under threat. Protection includes conducting effective investigations, organization of the
government apparatus to extend protection to victims of extralegal killings or enforced disappearances
(or threats thereof) and/or their families, and bringing offenders to the bar of justice. x x x (emphasis
supplied) 19

The Philippines is a signatory to both the UDHR and the ICCPR.

The right to travel refers to the right to move from one place to another.20 As we have stated in Marcos
v. Sandiganbayan,21 "xxx a person's right to travel is subject to the usual constraints imposed by the
very necessity of safeguarding the system of justice. In such cases, whether the accused should be
permitted to leave the jurisdiction for humanitarian reasons is a matter of the court's sound
discretion." 22

In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the
rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a
stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to wellfounded as people react differently. The degree of fear can vary from one person to another with the

Here, the restriction on petitioner's right to travel as a consequence of the pendency of the criminal
case filed against him was not unlawful. Petitioner has also failed to establish that his right to travel
was impaired in the manner and to the extent that it amounted to a serious violation of his right to life,
liberty and security, for which there exists no readily available legal recourse or remedy.

Everyone has the right to life, liberty and security of person.

xxx

In Canlas et al. v. Napico Homeowners Association I - XIII, Inc. et al.,23 this Court ruled that:
This new remedy of writ of amparo which is made available by this Court is intended for the protection
of the highest possible rights of any person, which is his or her right to life, liberty and security. The
Court will not spare any time or effort on its part in order to give priority to petitions of this nature.
However, the Court will also not waste its precious time and effort on matters not covered by the writ.
We find the direct recourse to this Court inappropriate, considering the provision of Section 22 of the
Rule on the Writ of Amparo which reads:
Section 22. Effect of Filing of a Criminal Action. - When a criminal action has been commenced, no
separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in
the criminal case.

REMAINED UNPROVED. Up to now, the alleged threats to national security have remained
unproved and consequently, unpersuasive. Our Armed Forces can easily control any possible uprising
or political and military destabilization. In fact, the converse appears to be nearer the truth, that is, if
we do not allow the remains to come, more trouble may be expected.
3. ID.; ID.; RECONCILIATION WOULD BE ACCELERATED IF THE PETITION TO RETURN IS
GRANTED. Reconciliation can proceed at a much faster pace if the petition for the return is
granted. To refuse the request can mean a hardening of resistance against the well-intentioned aim of
the administration. Upon the other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry. The entire world will surely applaud our
governments act of mercy. As Shakespeare once wrote "the quality of mercy is not strained." Surely,
compassion is the better part of government. Remove mercy, and you remove the best reason against
civil strife, which if not abated can turn our country into a mainstream of fiery dissent and in the end,
as one great man has put it, the question will no longer be what is right, but what is left.
PADILLA, J., dissenting:chanrob1es virtual 1aw library

2. MARCOS VS. MANGLAPUS

SYLLABUS
CRUZ, J., dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO TRAVEL AND RETURN TO ONES
COUNTRY; GRANT THEREOF STILL HOLDS. The death of Marcos has not plunged the nation
into paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has been met with only
passing interest if not outright indifference from the people. Clearly, the discredited dictator is in death
no El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip the blood. This
only shows that if he was at all a threat to the national security when he was already moribund, that
feeble threat has died with him. As the government stresses, he has been reduced to a non-person
(which makes me wonder why it is still afraid of him). His cadaver is not even regarded as a symbol of
this or that or whatever except by his fanatical followers. It is only a dead body waiting to be interred
in this country. This is a tempest in a teapot. We have more important things to do than debating over a
corpse that deserves no kinder fate than dissolution and oblivion. I say let it be brought home and,
buried deep and let us be done with it forever.
PARAS, J., dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO TRAVEL AND TO RETURN TO
ONES COUNTRY; CITIZEN THOUGH ALREADY DEAD STILL ENTITLED TO CERTAIN
RIGHTS. The former President, although already dead, is still entitled to certain rights. It is not
correct to say that a dead man, since he is no longer a human being, has ceased to have rights. For
instance, our Revised Penal Code prohibits the commission of libel against a deceased individual. And
even if we were to assume the non-existence anymore of his human rights what about the human rights
of his widow and the other members of his family?
2. ID.; ID.; ID.; PETITION TO RETURN; REASONS FOR THE REFUSAL TO GRANT IT

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO TRAVEL AND TO RETURN TO

ONES COUNTRY; RIGHT OF A CITIZEN TO BE BURIED IN HIS HOMELAND. The first
cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled to
return to, die and be buried in this country." Respondents have succeeded in denying Mr. Marcos the
first two (2) rights, i.e. to return to and die in this country. The remaining right of this Filipino that
cries out for vindication at this late hour is the right to be buried in this country. Will the respondents
be allowed to complete the circle of denying the constitutional and human right of Mr. Marcos to travel
which, as stated in my dissenting opinion, includes the right to return to, die and be buried in this
country? The answer should be in the negative if the Constitution is to still prevail; the answer should
be in the negative if we are to avoid the completely indefensible act of denying a Filipino the last right
to blend his mortal remains with a few square feet of earth in the treasured land of his birth.
2. ID.; ID.; ID.; ID.; A CONSTITUTIONAL RIGHT. The constitutional and human right to be
buried in this country would apply to any Filipino, except Mr. Marcos, because he was a dictator and
he plundered the country. This is the most irrelevant argument that can be raised at this time. For, our
democracy is built on the fundamental assumption (so we believe) that the Constitution and all its
guarantees apply to all Filipinos, whether dictator or pauper, learned or ignorant, religious or agnostic,
as long as he is a Filipino. If a live Marcos returning to this country did not pose a serious threat to
national security, the situation cannot be any worse with a dead Marcos returning.
3. ID.; ID.; ID.; ID.; DENIAL OF RIGHT A THREAT TO NATIONAL SECURITY POSED BY
SUPPORTERS. It is said that, while a dead Marcos has been rendered impotent to threaten national
security, his supporters would pose that threat to national security. This argument is untenable as it is
without merit. As I see it, Marcos supporters pose a greater threat to peace and order, with Marcos
deprived of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are
brought to the country and allowed the burial to which he is constitutionally and humanly entitled,
Marcos supporters would be deprived of an otherwise potent argument so conducive to mass
protests and even violence that their idol has been cruelly denied the right to be buried in his
homeland.

4. ID.; ID.; ID.; ID.; RIGHT TRANSCENDS DAY OF BIRTH UNTIL DAY OF BURIAL. It is also
said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This
contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr. Marcos,
as a Filipino, to be buried in this country, is asserted not for the first time after his death. It was
vigorously asserted long before his death. But, more importantly, the right of every Filipino to be
buried in his country, is part of a continuing right that starts from birth and ends only on the day he is
finally laid to rest in his country. The majority resolution, in effect, bans Mr. Marcos burial in this
country now. Without in any way affecting my respect and regard for my brethren and sisters in the
majority, I am deeply concerned and greatly disturbed that, with their decision banning a dead Marcos
from burial in this country, they have passed an opportunity to defuse a constitutional crisis that, in my
humble assessment, threatens to ignite an already divided nation. Regrettably, they have ignored the
constitutional dimension of the problem rooted in the ageless and finest tradition of our people for
respect and deference to the dead. What predictably follows will be a continuing strife, among our
people, of unending hatred, recriminations and retaliations. God save this country!
5. ID.; ID.; ID.; ID.; IMMEDIATE RETURN AND BURIAL IN THE PHILIPPINES OF FORMER
PRESIDENT FERDINAND E. MARCOS, ENJOINED. The writers vote is for this Court to
ORDER the respondents to allow the immediate return and burial in the Republic of the Philippines of
former President Ferdinand E. Marcos, subject to such conditions as the Philippine government may
impose in the interest of peace and order.
SARMIENTO, J., dissenting:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; EXECUTIVE POWER; LIMITATIONS ON THE SPECIFIC
POWERS, CARRIES WITH IT DIMINUTION OF EXECUTIVE POWER. If the Constitution has
imposed limitations on specific powers of the President, it has, a fortiori, prescribed a diminution of
executive power. The Charter says that the right may only be restricted by: (1) a court order; or (2) by
fiat of law. Had the fundamental law intended a presidential imprimatur, it would have said so. It
would have also completed the symmetry: judicial, congressional, and executive restraints on the right.
No amount of presumed residual executive power can amend the Charter.
2. ID.; BILL OF RIGHTS; NOT ONLY A LIMITATION AGAINST LEGISLATIVE
ENCROACHMENT IN INDIVIDUAL LIBERTIES BUT MORE SO, AGAINST PRESIDENTIAL
INTRUSIONS. It is well to note that the Bill of Rights stands primarily, a limitation not only
against legislative encroachments on individual liberties, but more so, against presidential intrusions.
And especially so, because the President is the caretaker of the military establishment that has, several
times over, been unkind to part of the population it has also sworn to protect.
3. ID.; ID.; RIGHT TO TRAVEL; RIGHT OF A CITIZEN TO BE BURIED IN HIS OWN COUNTRY.
The military has shown no hard evidence that "the return of the Marcoses" would indeed interpose a
threat to national security. And apparently, the majority itself is not convinced ("has been viewed . . .")
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I
submit, reinforce alleged fears of a massive destabilization awaiting the nation. The military has said
over and over that Marcos followers are not capable of successful destabilization effort. And only this
morning (October 27, 1989), media reported the assurances given to foreign investors by no less than

the President, of the political and economic stability of the nation, as well as the Governments
capability to quell forces that menace the gains of EDSA. The President has no power to deny requests
of Marcos relatives to bury Marcos in his homeland. As for the former, let them get their just deserts
here too. And let the matter rest.
R ES OLUTION
PER CURIAM:
In its decision dated September 15, 1989, the Court, by a vote of eight (8) to seven (7), dismissed the
petition, after finding that the President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his family at the present time and under
present circumstances pose a threat to national interest and welfare and in prohibiting their return to the
Philippines. On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a
statement, President Aquino said:chanrob1es virtual 1aw library
In the interest of the safety of those who will take the death of Mr. Marcos in widely and passionately
conflicting ways, and for the tranquility of the state and order of society, the remains of Ferdinand E.
Marcos will not be allowed to be brought to our country until such time as the government, be it under
this administration or the succeeding one, shall otherwise decide. [Motion for Reconsideration, p. 1;
Rollo, p. 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major
arguments:chanrob1es virtual 1aw library
1. to bar former President Marcos and his family from returning to the Philippines is to deny them not
only the inherent right of citizens to return to their country of birth but also the protection of the
Constitution and all of the rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it
arbitrarily; and
3. there is no basis for barring the return of the family of former President Marcos.
Thus, petitioners prayed that the Court reconsider its decision, order respondents to issue the necessary
travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee
M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquinos decision to bar the return of the remains of Mr.
Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the motion for
reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that "the
formal rights being invoked by the Marcoses under the label right to return, including the label

return of Marcos remains, is in reality or substance a right to destabilize the country, a right to hide
the Marcoses incessant shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he
prays that the Motion for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants,
petitioner herein, to show that there are compelling reasons to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of
the view that no compelling reasons have been established by petitioners to warrant a reconsideration
of the Courts decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the
factual scenario under which the Courts decision was rendered. The threats to the government, to
which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown to
have ceased. On the contrary, instead of erasing fears as to the destabilization that will be caused by the
return of the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return when she
called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal"
President of the Philippines, and declared that the matter "should be brought to all the courts of the
world." [Comment, p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive power is
vested, has unstated residual powers which are implied from the grant of executive power and which
are necessary for her to comply with her duties under the Constitution. The powers of the President are
not limited to what are expressly enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members
of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the
President, particularly those relating to the commander-in-chief clause, but not a diminution of the
general grant of executive power.
That the President has powers other than those expressly stated in the Constitution is nothing new. This
is recognized under the U.S. Constitution from which we have patterned the distribution of
governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the United
States of America." In Alexander Hamiltons widely accepted view, this statement cannot be read as
mere shorthand for the specific executive authorizations that follow it in [sections] 2 and 3. Hamilton
stressed the difference between the sweeping language of article II, section 1, and the conditional
language of article I, [section] 1: "All legislative Powers herein granted shall be vested in a Congress
of the United States . . ." Hamilton submitted that" [t]he [article II] enumeration [in sections 2 and 3]
ought therefore to be considered, as intended merely to specify the principal articles implied in the
definition of execution power; leaving the rest to flow from the general grant of that power, interpreted
in comformity with other parts of the Constitution . . ."cralaw virtua1aw library

In Myers v. United States, the Supreme Court accepted Hamiltons proposition, concluding that the
federal executive, unlike the Congress, could exercise power from sources not enumerated, so long as
not forbidden by the constitutional text: "The executive power was given in general terms,
strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct
expressions where limitation was needed . . ." The language of Chief Justice Taft in Myers makes clear
that the constitutional concept of inherent power is not a synonym for power without limit; rather, the
concept suggests only that not all powers granted in the Constitution are themselves exhausted by
internal enumeration, so that, within a sphere properly regarded as one of "executive" power, authority
is implied unless there or elsewhere expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL
LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the Presidents implied or residual
powers is tantamount to setting the stage for another dictatorship. Despite petitioners strained analogy,
the residual powers of the President under the Constitution should not be confused with the power of
the President under the 1973 Constitution to legislate pursuant to Amendment No. 6 which
provides:chanrob1es virtual 1aw library
Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat
or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly
fails or is unable to act adequately on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters
of instruction, which shall form part of the law of the land.
There is no similarity between the residual powers of the President under the 1987 Constitution and the
power of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all,
Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment No. 6 refers
to a grant to the President of the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of
office, is to protect and promote the interest and welfare of the people. Her decision to bar the return of
the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present
circumstances is in compliance with this bounden duty. In the absence of a clear showing that she had
acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will not
enjoin the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."
Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin and Sarmiento, JJ., maintained their dissent. See
separate dissenting opinions.
Separate Opinions
CRUZ, J., dissenting:chanrob1es virtual 1aw library
Nothing important has happened to change my vote for granting the petition. The death of Marcos has
not plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and large, it
has been met with only passing interest if not outright indifference from the people. Clearly, the

discredited dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt of
lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he was already moribund,
that feeble threat has died with him. As the government stresses, he has been reduced to a non-person
(which makes me wonder why it is still afraid of him). His cadaver is not even regarded as a symbol of
this or that or whatever except by his fanatical followers. It is only a dead body waiting to be interred
in this country.
This is a tempest in a teapot. We have more important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let it be brought home and, buried deep and
let us be done with it forever.
PARAS, J., dissenting:chanrob1es virtual 1aw library
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct to
say that a dead man, since he is no longer a human being, has ceased to have rights. For instance, our
Revised Penal Code prohibits the commission of libel against a deceased individual. And even if we
were to assume the non-existence anymore of his human rights what about the human rights of his
widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained unproved and consequently,
unpersuasive. Our Armed Forces can easily control any possible uprising or political and military
destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not allow the
remains to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To
refuse the request can mean a hardening of resistance against the well-intentioned aim of the
administration. Upon the other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.chanrobles.com.ph : virtual law library
Finally, the entire world will surely applaud our governments act of mercy. As Shakespeare once
wrote "the quality of mercy is not strained." Surely, compassion is the better part of government.
Remove mercy, and you remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man has put it, the question will
no longer be what is right, but what is left.
PADILLA, J., dissenting:chanrob1es virtual 1aw library
The death of former President Ferdinand E. Marcos, which supervened after decision in this case had
been rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that the
first cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled
to return to, die and be buried in this country." I have only to add a few statements to that dissenting
opinion.

Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die in
this country. The remaining right of this Filipino that cries out for vindication at this late hour is the
right to be buried in this country. Will the respondents be allowed to complete the circle of denying the
constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should be in the negative
if the Constitution is to still prevail; the answer should be in the negative if we are to avoid the
completely indefensible act of denying a Filipino the last right to blend his mortal remains with a few
square feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded him
now say that the constitutional and human right to be buried in this country would apply to any
Filipino, except Mr. Marcos, because he was a dictator and he plundered the country. This is the most
irrelevant argument that can be raised at this time. For, our democracy is built on the fundamental
assumption (so we believe) that the Constitution and all its guarantees apply to all Filipinos, whether
dictator or pauper, learned or ignorant, religious or agnostic, as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a serious threat to
national security and public safety. What threat? As pointed out in my dissenting opinion, the second
cogent and decisive proposition in this case is that respondents have not presented any "hard evidence"
(factual bases) or convincing proof of such threat. "All we have are general conclusions of national
security and public safety in avoidance of a specific, demandable and enforceable constitutional and
basic human right to return." Recent events have, to my mind, served to confirm the validity of such
dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national security, the situation
cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be buried into
mother earth, where there are no protests, "demos", or even dissents, where the rule that reigns, in the
language of Mr. Justice Jackson in Barnette, is the "unanimity of the graveyard."cralaw virtua1aw
library
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without merit.
As I see it, Marcos supporters pose a greater threat to peace and order, with Marcos deprived of his
right to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to the
country and allowed the burial to which he is constitutionally and humanly entitled, Marcos supporters
would be deprived of an otherwise potent argument so conducive to mass protests and even
violence that their idol has been cruelly denied the right to be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This
contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr. Marcos,
as a Filipino, to be buried in this country, is asserted not for the first time after his death. It was
vigorously asserted long before his death. But, more importantly, the right of every Filipino to be
buried in his country, is part of a continuing right that starts from birth and ends only on the day he is
finally laid to rest in his country.

This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a
fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply concerned and
greatly disturbed that, with their decision banning a dead Marcos from burial in this country, they have
passed an opportunity to defuse a constitutional crisis that, in my humble assessment, threatens to
ignite an already divided nation. Regrettably, they have ignored the constitutional dimension of the
problem rooted in the ageless and finest tradition of our people for respect and deference to the dead.
What predictably follows will be a continuing strife, among our people, of unending hatred,
recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the
Republic of the Philippines of former President Ferdinand E. Marcos, subject to such conditions as the
Philippine government may impose in the interest of peace and order.
SARMIENTO, J., dissenting:chanrob1es virtual 1aw library
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I
can not allow personal emotions to soften my "hardened impartiality" and deny, as a consequence, the
rights of the ex-Presidents bereaved to bury his remains in his homeland, and for them to return from
exile. As I had, then, voted to grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four corners of the Constitution, by direct grant or by
implication, the Presidents supposed "residual" power to forbid citizens from entering the motherland
reiterated in the resolution of the majority. I have found none.
I am not agreed, that:chanrob1es virtual 1aw library
3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive power is
vested, has unstated residual powers which are implied from the grant of executive power and which
are necessary for her to comply with her duties under the Constitution The powers of the President are
not limited to what are expressly enumerated in the article on the executive Department and in
scattered provisions of the Constitution. This, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President,
particularly those relating to the commander-in-chief clause, but not a diminution of the genera grant
of executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power. The
Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so. It would have also
completed the symmetry: judicial, congressional, and executive restraints on the right. No amount of
presumed residual executive power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And especially so,
because the President is the caretaker of the military establishment that has, several times over, been
unkind to part of the population it has also sworn to protect.
That" [t]he threats to the government, to which the return of the Marcoses has been viewed to provide
a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture, speculation,
and imagination. The military has shown no hard evidence that "the return of the Marcoses" would
indeed interpose a threat to national security. And apparently, the majority itself is not convinced ("has
been viewed . . .")
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I
submit, reinforce alleged fears of a massive destabilization awaiting the nation. The military has said
over and over that Marcos followers are not capable of successful destabilization effort. And only this
morning (October 27, 1989), media reported the assurances given to foreign investors by no less than
the President, of the political and economic stability of the nation, as well as the Governments
capability to quell forces that menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside
the point. I reiterate that the President has no power to deny requests of Marcos relatives to bury
Marcos in his homeland. As for the former, let them get their just deserts here too. And let the matter
rest.
3. SILVERIO VS. CA
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL, DEFINED. "Bail is the security given for
the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his
appearance before any court when so required by the Court or the Rules (1985 Rules on Criminal
Procedure, as amended, Rule 114, Secs. 1 and 2).
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO TRAVEL RESTRICTED BY
CONDITIONS OF BAIL. The condition imposed upon an accused on bail to make himself
available at all times whenever the Court requires his presence operates as a valid restriction of his
right to travel (Manotoc, Jr. v. Court of Appeals, Et Al., No. 62100, 30 May 1986, 142 SCRA 149). A
person facing criminal charges may be restrained by the Court from leaving the country or, if abroad,
compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138).
3. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; A PERSON RELEASED ON BAIL MAY
BE REARRESTED; GROUND. An accused released on bail may be re-arrested without the
necessity of a warrant if he attempts to depart from the Philippines without prior permission of the
Court where the case is pending.
4. ID.; ID.; ID.; LIMITATION ON THE RESTRICTION ON THE RIGHT. Article III, Section 6 of
the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired

even without Court Order, the appropriate executive officers or administrative authorities are not
armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of
"national security, public safety, or public health" and "as may be provided by law," a limitive phrase
which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I, First Edition,
1987, p. 263).

primarily on the Trial Courts finding that since the filing of the Information on 14 October 1985, "the
accused has not yet been arraigned because he has never appeared in Court on the dates scheduled for
his arraignment and there is evidence to show that accused Ricardo C. Silverio, Sr. has left the country
and has gone abroad without the knowledge and permission of this Court" (Rollo, p. 45). Petitioners
Motion for Reconsideration was denied on 28 July 1988.

5. ID.; ID.; ID.; NOT A LIMITATION ON THE INHERENT POWER OF THE COURT TO USE ALL
MEANS TO CARRY THEIR ORDERS INTO EFFECT. Article III, Section 6 of the 1987
Constitution should by no means be construed as delimiting the inherent power of the Courts to use all
means necessary to carry their orders into effect in criminal cases pending before them. When by law
jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means
necessary to carry it into effect may be employed by such Court or officer (Rule 135, Section 6, Rules
of Court).

Petitioners Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990.
Hence, this Petition for Review filed on 30 July 1990.

6. ID.; ID.; ID.; ID.; CASE AT BAR. Holding an accused in a criminal case within the reach of the
Courts by preventing his departure from the Philippines must be considered as a valid restriction on his
right to travel so that he may be dealt with in accordance with law. The offended party in any criminal
proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should
run their course and proceed to finality without undue delay, with an accused holding himself
amenable at all times to Court Orders and processes.

After the respective pleadings required by the Court were filed, we resolved to give due course and to
decide the case.chanrobles virtual lawlibrary
Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court
committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4
April and 28 July 1988, (1) on the basis of facts allegedly patently erroneous, claiming that the
scheduled arraignments could not be held because there was a pending Motion to Quash the
Information; and (2) finding that the right to travel can be impaired upon lawful order of the Court,
even on grounds other than the "interest of national security, public safety or public health."cralaw
virtua1aw library
We perceive no reversible error.

DECISION
MELENCIO-HERRERA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the
Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio v.
Hon. Benigno C. Gaviola, etc., Et Al.," dated 31 January 1990, as well as the Resolution of 29 June
1990 denying reconsideration, be set aside.
On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised Securities
Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time, he posted bail
for his provisional liberty.
On 26 January 1988, or more than two (2) years after the filing of the Information, respondent People
of the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a holddeparture Order against accused-petitioner on the ground that he had gone abroad several times
without the necessary Court approval resulting in postponements of the arraignment and scheduled
hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the
Department of Foreign Affairs to cancel Petitioners passport or to deny his application therefor, and
the Commission on Immigration to prevent Petitioner from leaving the country. This order was based

1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is apparent
that it was filed long after the filing of the Information in 1985 and only after several arraignments had
already been scheduled and cancelled due to Petitioners non-appearance. In fact, said Motion to
Quash was set for hearing only on 19 February 1988. Convincingly shown by the Trial Court and
conformed to by respondent Appellate Court is the concurrence of the following
circumstances:jgc:chanrobles.com.ph
"1. The records will show that the information was filed on October 14, 1985. Until this date (28 July
1988), the case had yet to be arraigned. Several scheduled arraignments were cancelled and reset,
mostly due to the failure of accused Silverio to appear. The reason for accused Silverios failure to
appear had invariably been because he is abroad in the United States of America;
"2. Since the information was filed, until this date, Accused Silverio had never appeared in person
before the Court;
"3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had been
issued against him all for the same reason failure to appear at scheduled arraignments.
In all candidness, the Court makes the observation that it has given accused Silverio more than enough
consideration. The limit had long been reached" (Order, 28 July 1988, Crim. Case No. CBU-6304,
RTC, Cebu, p. 5; Rollo, p. 73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not based
on erroneous facts, as Petitioner would want this Court to believe. To all appearances, the pendency of

a Motion to Quash came about only after several settings for arraignment had been scheduled and
cancelled by reason of Petitioners non-appearance.
2) Petitioners further submission is that respondent Appellate Court "glaringly erred" in finding that
the right to travel can be impaired upon lawful order of the Court, even on grounds other than the
"interest of national security, public safety or public health."cralaw virtua1aw library
To start with, and this has not been controverted by Petitioner, the bail bond he had posted had been
cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of his
failure to appear at scheduled arraignments. Warrants of Arrest having been issued against him for
violation of the conditions of his bail bond, he should be taken into custody. "Bail is the security given
for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his
appearance before any court when so required by the Court or the Rules (1985 Rules on Criminal
Procedure, as amended, Rule 114, Secs. 1 and 2).
The foregoing condition imposed upon an accused to make himself available at all times whenever the
Court requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. v. Court of
Appeals, Et. Al. No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges may be
restrained by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law,
Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may be rearrested without the necessity of a warrant if he attempts to depart from the Philippines without prior
permission of the Court where the case is pending (ibid., Sec. 20 [2nd par.]).
Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the
Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the allowable
impairment of the right to travel only on grounds of interest of national security, public safety or public
health, as compared to the provisions on freedom of movement in the 1935 and 1973 Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision.
Article III, Section 1 (4) thereof reads:chanrobles.com : virtual law library
"The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired."cralaw virtua1aw library
The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel,
thus:jgc:chanrobles.com.ph
"The liberty of abode and of travel shall not be impaired except upon lawful order of the court or when
necessary in the interest of national security, public safety, or public health" (Article IV, Section 5).
The 1987 Constitution has split the two freedoms into two distinct sentences and treats them
differently, to wit:jgc:chanrobles.com.ph
"Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public health, as may be provided by law."cralaw

virtua1aw library
Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on
the grounds of "national security, public safety, or public health."cralaw virtua1aw library
The submission is not well taken.
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of
travel may be impaired even without Court Order, the appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only
on the basis of "national security, public safety, or public health" and "as may be provided by law," a
limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol.
I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to
the ban on international travel imposed under the previous regime when there was a Travel Processing
Center, which issued certificates of eligibility to travel upon application of an interested party (See
Salonga v. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).
Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the
inherent power of the Courts to use all means necessary to carry their orders into effect in criminal
cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all
auxiliary writs, process and other means necessary to carry it into effect may be employed by such
Court or officer (Rule 135, Section 6, Rules of Court).
Petitioners argument that the ruling in Manotoc, Jr., v. Court of Appeals, Et. Al. (supra), to the effect
that the condition imposed upon an accused admitted to bail to make himself available at all times
whenever the Court requires his presence operates as a valid restriction on the right to travel no longer
holds under the 1987 Constitution, is far from tenable. The nature and function of a bail bond has
remained unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides, the Manotoc
ruling on that point was but a re-affirmation of that laid down long before in People v. Uy Tuising, 61
Phil. 404 (1935).
Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by
failing to appear before the Court when required. Warrants for his arrest have been issued. Those
orders and processes would be rendered nugatory if an accused were to be allowed to leave or to
remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a criminal
case within the reach of the Courts by preventing his departure from the Philippines must be
considered as a valid restriction on his right to travel so that he may be dealt with in accordance with
law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best
interest that criminal prosecutions should run their course and proceed to finality without undue delay,
with an accused holding himself amenable at all times to Court Orders and processes.
WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo C.
Silverio.
SO ORDERED.

"March 19, 1987, Pasig, Metro Manila.

Paras, Padilla, Sarmiento and Regalado, JJ., concur.
"FOR THE COMMISSION:chanrob1es virtual 1aw library
READ ALSO:
1. CAUNCA VS. SALAZAR
2. KWONG VS. PCGG

(SGD.) MARY CONCEPCION BAUTISTA

MELENCIO-HERRERA, J.:

Commissioner
(SGD.) RAMON A. DIAZ

In this original action for Mandamus, petitioners pray that respondent Presidential Commission on
Good Government (PCGG, for short) be commanded to lift without delay the Hold-Orders issued
against them by the said entity for being in violation of their right to travel and for having been issued
in grave abuse of authority since they are in no way involved in ill-gotten wealth nor in transactions
connected therewith.
Petitioners are foreign nationals who are the representatives of the Hongkong-Chinese investors who
own 33% of the shares of stock in two domestic garment corporations, namely, De Soleil Apparel
Manufacturing Corporation and American Inter-Fashion Manufacturing Corporation, which firms were
ordered sequestered by the PCGG on 25 March 1986 on the thesis that the Marcoses, through
nominees and dummies, appear to control 67% of the firms shareholdings.
On 13 February 1987 respondent Ramon A. Diaz, then Secretary of the PCGG, wrote the Minister of
Public Information advising the latter that petitioners had been included in the Hold-Order list of the
PCGG (Annex "L," Petition).
On 12 March 1987 petitioners filed before the PCGG an Urgent Motion to Lift Hold-Order with the
request that the Motion be set for hearing on 16 March 1987 (Annex "M," Petition), The Motion,
however, was not calendared for hearing on said date.chanrobles virtual lawlibrary
On 19 March 1987 the PCGG denied the Motion to Lift in an Order reading as
follows:jgc:chanrobles.com.ph
"An Urgent Motion to Lift Hold Order dated March 12, 1987 was filed by Kant Kwong and Yim
Kam Shing. These are the official representatives of the Hongkong investors in these two sequestered
corporations. Based on records/evidence in the possession of the Commission, all made known to their
principals, such as un-explained withholding of documents covering substantial past shipments,
deliberate delay in cashing letters of credit resulting in the lapse thereof, failure to remit payments due
for past shipments, their obvious and unmitigated campaign to obstruct the release of funds needed for
operations of the two garment firms, and orchestrated acts to discredit the Officer-in-Charge of the
garments firms and the Commission and to obstruct the smooth operations of the garment firms, there
is need for their presence in this country to resolve the above-enumerated issues, in order that
operations of the corporations are not obstructed, production will not be delayed and corporate funds
may be released. The Commission therefore denies the motion for lack of merit.
"SO ORDERED.

Secretary"
Hence, the present recourse predicated on the following grounds:jgc:chanrobles.com.ph
"A. The Hold-Order issued against the petitioners is a gross and unlawful violation of their
constitutional right of travel and locomotion.
B. The Hold-Order against the petitioners is not authorized or sanctioned by Executive Orders Nos. 1,
2 and 14, nor by the Rules and Regulations of respondent PCGG.
C. The Hold-Order is an act of harrassment, motivated by ill-will and vindictiveness, and violates the
elementary rules of due process, fair play and human decency.
D. The Hold-Order has caused and is causing damages and sufferings to the petitioners and their
families."cralaw virtua1aw library
On 24 September 1987, acting upon an Urgent Motion filed by petitioner Yim Kam Shing, this Court
lifted, effective immediately, the Hold-Order issued against him for the purpose of allowing him to
leave for Hongkong for urgent medical treatment.
Executive Order No. 1, dated 28 February 1986, created the PCGG and tasked it principally
with:jgc:chanrobles.com.ph
"Section 2. . . . (a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relative, subordinates and close associates, whether located in the
Philippines or abroad, including the takeover or sequestration of all business enterprises and entities
owned or controlled by them during his administration, directly or through nominees, by taking undue
advantage of their public office and/or using their powers, authority, influence, connections or
relationship.
"x

x"

Section 3 of the same Executive Order empowers the PCGG:jgc:chanrobles.com.ph

"(a) To conduct investigation as may be necessary in order to accomplish and carry out the purpose of
this order.

"(b) To sequester or place or cause to be placed under its control or possession any building or office
wherein any ill-gotten wealth or properties may be found, and any records pertaining thereto, in order
to prevent their destruction, concealment or disappearance which would frustrate or hamper the
investigation or otherwise prevent the Commission from accomplishing its task.

respondent Commission from accomplishing its task under Executive Order No. 1 is to state here a
consummate understatement.
"Hence, the issuance of the hold orders against the petitioners remain unassailable." 1
We find merit in the Petition. Petitioners right to travel has, in fact, been impaired.

"x

"(d) To enjoin or restrain any actual or threatened commission of acts by any person or entity that may
render moot and academic, or frustrate, or otherwise make ineffectual the efforts of the Commission to
carry out its task under this order.
"x

"(h) To promulgate such rules and regulations as may be necessary to carry out the purposes of this
order."cralaw virtua1aw library
On 11 April 1986 the PCGG issued its Rules and Regulations, the pertinent section of which
provides:jgc:chanrobles.com.ph
"SECTION 2. Writ of sequestration freeze and hold orders. To enable the Commission to accomplish
its task of recovering ill-gotten wealth, it may issue writs of sequestration and freeze and/or hold
orders."cralaw virtua1aw library

1. The validity of the Hold-Orders issued against petitioners on 13 February 1987 has already expired
pursuant to the Rules and Regulations of the PCGG, which specifically provide:jgc:chanrobles.com.ph
"SECTION 1. . . .
"(D) . . . A hold-order shall be valid only for a maximum period of six months, unless for good
reasons extended by the Commission en banc."cralaw virtua1aw library
The PCGG has not extended the life-span of the Hold-Orders in question nor has it advanced "good
reasons" for doing so.
2. The grounds for the issuance of the Hold-Orders have become stale.
(a) The PCGG Order denying petitioners Motion to Lift the Hold Orders against them states that
"there is need for their presence in this country to resolve the issues (listed hereinbelow), in order that
operations of the corporations are not obstructed, production will not be delayed and corporate funds
may be released." The enumerated issues read:jgc:chanrobles.com.ph

As defined in the same Rules and Regulations, a Hold-Order is:jgc:chanrobles.com.ph

"unexplained withholding of documents covering substantial past shipments,
"D) . . . an order to temporarily prevent a person from leaving the country where his departure will
prejudice, hamper or otherwise obstruct the task of the Commission in the enforcement of Executive
Orders Nos. 1 and 2, because such person is known or suspected to be involved in the properties or
transactions covered by said Executive Orders. . . ."cralaw virtua1aw library
In this case, the justification for the issuance of the Hold-Orders against petitioners has been
summarized by the Solicitor General, thus:jgc:chanrobles.com.ph
". . . Petitioners, instead of cooperating with respondent PCGG in its task of investigating and
recovering ill-gotten wealth of the former President, his immediate family, close relatives, associates or
cronies, frustrated and hampered the investigation or otherwise prevented the Commission from
accomplishing its task, by withholding documents covering substantial past shipments, which hold the
key to the question earlier posed: Where have all the dollars gone? Have they gone a flying one by one
to Switzerland?
"Petitioners likewise deliberately delayed the cashing of letters of credit resulting in the lapse thereof;
failed to remit payments due for past shipments; obstructed the release of funds needed for operations
of the two garment firms, orchestrated acts to discredit the officer-in-charge of the garment firms and
respondent PCGG; and obstructed the smooth operations of the garment firms. To state that all the
above acts of petitioners, in one way or another, frustrated, hampered or otherwise prevented

deliberate delay in cashing letters of credit resulting in the lapse thereof,

failure to remit payments due for past shipments, their obvious and unmitigated campaign to obstruct
the release of funds needed for operations of the two garment firms,
orchestrated acts to discredit the Officer-in-Charge of the garments firms and the Commission and to
obstruct the smooth operations of the garment firms . . ." (Emphasis supplied).
It strikes the Court, however, that although the business malpractices attributed to petitioners may have
furnished sufficient basis for the issuance of the Hold-Orders against them, subsequent developments
have apparently rendered them no longer controlling. Thus, as a result of the sequestration, the PCGG
has already appointed an Officer-in-Charge for the two firms, with full authority to operate and manage
the same (Annex "B", Petitioner); it has taken over the "management and operations of the sequestered
corporations;" 2 it has "initiated changes in the management and operations of the two corporations
aimed at protecting not only the interest of the government but also that of the workers;" 3 and since
the take-over it has been able to accomplish the following:chanrobles virtual lawlibrary
"a. Halted the losses in the operations of the two corporations as declared by the Hongkong investors
during the last two years, by posting a modest profit thereby enabling the corporations to pay the

government some P697,000.00 in taxes i.e. from American Inter-Fashion alone.

"b. Discontinued the marketing agreement with Ringo Garments-Hongkong and organized a Manilabased marketing and procurement office.
"c. Firmed up new orders through the said local marketing office enough to sustain the full production
of the two companies up to the end of the year at prices 30-50% higher than the orders previously
coursed by the minority Hongkong investors through Ringo Garments, their own conduit company in
Hongkong.
"d. Replaced the highly paid Hongkong-Chinese technicians with qualified, competent and deserving
Filipino technicians who were promoted from the ranks.
"e. Upgraded the wages and benefits of the Filipino workers in the corporations.

"SECTION 6. Procedure for review of writ or order. After due hearing or motu propio for good
cause shown, the Commission may lift the writ or order unconditionally or subject to such conditions
as it may deem necessary, taking into consideration the evidence and the circumstances of the
case. . . ."cralaw virtua1aw library
And yet, the PCGG has not given petitioners any opportunity to contest the Hold-Orders issued against
them. After their issuance, no hearing had been set; a request for the same had been disregarded.
Petitioners Motion to Lift the Hold-Orders was summarily denied. The "issues" spelled out against
petitioners have remained unresolved over a period of nine (9) months. The PCGG must thus be
faulted for a disregard of the requirements of "fairness and due process" expressly mandated by
Executive Order No. 14, reading:chanrobles.com:cralaw:red
"WHEREAS, the overriding considerations of national interest and national survival require that the
Presidential Commission on Good Government achieve its vital task efficiently and effectively, with
due regard to the requirements of fairness and due process (5th Whereas clause).

"f. Instituted cost-saving measures to preserve the assets and to make operations more profitable.
"g. Partially collected from Ringo Garments-Hongkong the amount of US$350,000.00 or P7 million
representing the unpaid export bills due on past shipments. About $437,126.32 remains unpaid despite
the promise of Yim Kang Shing, representing the Hongkong investors to pay same." 4
It would appear, therefore, that with the changes made and the accomplishments achieved, operations
of the sequestered firms are no longer obstructed, production no longer delayed and funding is
available.
Indeed, if petitioners have "obstructed the smooth operations" of the sequestered garment firms and
"discredited their Officer-in-Charge," might it not be preferable that they be out of the country to
ensure the cessation of their acts allegedly inimical to the operations of the sequestered garment firms?
(b) Another reason given for the issuance of the Hold-Orders is that petitioners had "frustrated and
hampered the investigation or otherwise prevented the Commission from accomplishing its task." The
Court takes judicial notice of the fact, however, that Civil Case No. 0002 entitled "Republic of the
Philippines v. Ferdinand E. Marcos, et als.," has been filed by the PCGG before the Sandiganbayan on
16 July 1987. To all appearances, therefore, the PCGGs investigative task relative to the sequestered
garment firms and their involvement, if any, in ill-gotten wealth or in any transactions connected
therewith, has terminated. Another reason, therefore, for petitioners continued presence in the country
has been virtually eliminated.chanrobles.com:cralaw:red
We likewise find that petitioners have been denied the rudiments of fair play. The Rules and
Regulations of the PCGG specifically provide:jgc:chanrobles.com.ph
"SECTION 5. Who may contest. The person against whom a writ of sequestration or freeze or hold
order is directed may request the lifting thereof in writing, either personally or through counsel within
five (5) days from receipt of the writ or order, or in the case of a hold order, from date of knowledge
thereof."cralaw virtua1aw library

Under the environmental circumstances of the case, the Hold-Orders against petitioners preventing
them from leaving the country cannot be prolonged indefinitely. The right to travel and to freedom of
movement is a fundamental right guaranteed by the 1987 Constitution 5 and the Universal Declaration
of Human Rights to which the Philippines is a signatory. 6 That right extends to all residents regardless
of nationality. And "everyone has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the Constitution or by law." 7
While such right is not absolute but must yield to the States inherent police power upon which the
Hold-Orders were premised, no "good reasons" have been advanced which could justify the continued
enforcement of the Hold-Orders.
Petitioners are foreign nationals. Their 33% interest in the sequestered firms is recognized by the
PCGG itself. There is no showing that those interests appear prima facie to be ill-gotten wealth. No
charges have been filed against them before the Sandiganbayan. They face no criminal indictment nor
have they been provisionally released on bail that their right to travel might be
restricted.chanrobles.com : virtual law library
Although, as averred by respondents, the recognized rule is that, in the performance of an official duty
or act involving discretion, the corresponding official can only be directed by Mandamus to act but not
to act one way or the other, "yet it is not accurate to say that the writ will never issue to control his
discretion. There is an exception to the rule if the case is otherwise proper, as in cases of gross abuse of
discretion, manifest injustice, or palpable excess of authority." 8
In this case, for reasons already stated, we find that the PCGG acted with gross abuse of discretion in
maintaining the Hold-Orders against petitioners for an indefinite length of time. By so doing it has
arbitrarily excluded petitioners from the enjoyment of a fundamental right the right to freedom of
movement to which they are entitled. 9 Mandamus lies.
WHEREFORE, in the interest of the early and full restoration of petitioners right to travel, the Court
hereby LIFTS the Hold-Orders issued by respondent Presidential Commission on Good Government

against petitioners, effective immediately, upon the condition that they shall hold themselves available
if and whenever needed by said Commission in the performance of its task.

country, for he would not have filed the motion for permission to leave the country in the first place, if
it were otherwise.

SO ORDERED.

5. ID.; ID.; ID.; SHEPHERD CASE (C.A.-G.R. No. 23505-R, February 13, 1980) DIFFERENTIATED
FROM CASE AT BAR. To support his contention, petitioner places reliance upon the then Court of
Appeals ruling in People v. Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing
the following passage: ". . . The law obliges the bondsmen to produce the person of the appellants at
the pleasure of the Court. . . . The law does not limit such undertaking of the bondsmen as demandable
only when the appellants are in the territorial confines of the Philippines and not demandable if the
appellants are out of the country. Liberty, the most important consequence of bail, albeit provisional, is
indivisible. If granted at all, liberty operates as fully within as without the boundaries of the granting
state. This principle perhaps accounts for the absence of any law or jurisprudence expressly declaring
that liberty under bail does not transcend the territorial boundaries of the country." The faith reposed
by petitioner on the above-quoted opinion of the appellate court is misplaced. The rather broad and
generalized statement suffers from a serious fallacy; for while there is, indeed, neither law nor
jurisprudence expressly declaring that liberty under bail does not transcend the territorial boundaries of
the country, it is not for the reason suggested by the appellate court. Also, petitioners case is not on all
fours with the Shepherd case. In the latter case, the accused was able to show the urgent necessity for
her travel abroad, the duration thereof and the conforme of her sureties to the proposed travel thereby
satisfying the court that she would comply with the conditions of her bail bond. In contrast, petitioner
in this case has not satisfactorily shown any of the above.

Teehankee (C.J.), Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
Paras, J., took no part.
3. MANOTOC VS. CA
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; PROHIBITION AGAINST LEAVING THE
PHILIPPINES, A NECESSARY CONSEQUENCE THEREOF. A court has the power to prohibit a
person admitted to bail from leaving the Philippines. This is a necessary consequence of the nature and
function of a bail bond. The condition imposed upon petitioner to make himself available at all times
whenever the court requires his presence operates as a valid restriction on his right to travel. As we
have held in People v. Uy Tuising, 61 Phil. 404 (1935).." . . the result of the obligation assumed by
appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower
court, was to prohibit said accused from leaving the jurisdiction of the Philippines, because, otherwise,
said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which
they issued does not extend beyond that of the Philippines they would have no binding force outside of
said jurisdiction." Indeed, if the accused were allowed to leave the Philippines without sufficient
reason, he may be placed beyond the reach of the courts.
2. ID.; ID.; ID.; DEFINED. Rule 114, Section 1 of the Rules of Court defines bail as the security
required and given for the release of a person who is in the custody of the law, that he will appear
before any court in which his appearance may be required as stipulated in the bail bond or
recognizance.
3. ID.; ID.; ID.; OBJECT. Its object is to relieve the accused of imprisonment and the state of the
burden of keeping him, pending the trial, and at the same time, to put the accused as much under the
power of the court as if he were in custody of proper officer, and to secure the appearance of the
accused so as to answer the call of the court and do what the law may require of him.
4. ID.; ID.; ID.; EFFECT. The effect of a recognizance or bail bond, when fully executed or filed of
record, and the prisoner released thereunder, is to transfer the custody of the accused from the public
officials who have him in their charge to keepers of his own selection. Such custody has been regarded
merely as a continuation of the original imprisonment. The sureties become invested with full authority
over the person of the principal and have the right to prevent the principal from leaving the state. If the
sureties have the right to prevent the principal from leaving the state, more so then has the court from
which the sureties merely derive such right, and whose jurisdiction over the person of the principal
remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the court is
recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to leave the

6. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; LACK OF GRAVE ABUSE OF DISCRETION

WHERE DENIAL OF MOTION FOR PERMISSION TO LEAVE THE COUNTRY WAS PREMISED
ON THE FAILURE OF PETITIONER TO SATISFY THE TRIAL COURT OF THE URGENCY OF
HIS TRAVEL. As petitioner has failed to satisfy the trial courts and the appellate court of the
urgency of his travel, the duration thereof, as well as the consent of his surety to the proposed travel,
We find no abuse of judicial discretion in their having denied petitioners motion for permission to
leave the country, in much the same way, albeit with contrary results, that We found no reversible error
to have been committed by the appellate court in allowing Shepherd to leave the country after it had
satisfied itself that she would comply with the conditions of her bail bond.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; LIBERTY OF ABODE AND TRAVEL;
IMPAIRED BY ORDER OF THE TRIAL COURT RELEASING PETITIONER ON BAIL. The
constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article IV
of the 1973 Constitution states: "The liberty of abode and of travel shall not be impaired except upon
lawful order of the court, or when necessary in the interest of national security, public safety or public
health." To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful
order as contemplated by the above-quoted constitutional provision.
DECISION
FERNAN, J.:

The issue posed for resolution in this petition for review may be stated thus: Does a person facing a
criminal indictment and provisionally released on bail have an unrestricted right to travel?
Petitioner Ricardo L. Manotoc, Jr., is one of the two principal stockholders of Trans-Insular
Management, Inc. and the Manotoc Securities, Inc., a stock brokerage house. Having transferred the
management of the latter into the hands of professional men, he holds no officer-position in said
business, but acts as president of the former corporation.cralawnad
Following the "run" on stock brokerages caused by stock broker Santamarias flight from this
jurisdiction, Petitioner, who was then in the United States, came home, and together with his costockholders, filed a petition with the Securities and Exchange Commission for the appointment of a
management committee, not only for Manotoc Securities, Inc., but likewise for Trans-Insular
Management, Inc. The petition relative to the Manotoc Securities, Inc., docketed as SEC Case No.
001826, entitled, "In the Matter of the Appointment of a Management Committee for Manotoc
Securities, Inc., Teodoro Kalaw, Jr., Ricardo Manotoc, Jr., Petitioners", was granted and a management
committee was organized and appointed.
Pending disposition of SEC Case No. 001826, the Securities and Exchange Commission requested the
then Commissioner of Immigration, Edmundo Reyes, not to clear petitioner for departure and a
memorandum to this effect was issued by the Commissioner on February 4, 1980 to the Chief of the
Immigration Regulation Division.
When a Torrens title submitted to and accepted by Manotoc Securities, Inc. was suspected to be a fake,
six of its clients filed six separate criminal complaints against petitioner and one Raul Leveriza, Jr., as
president and vice-president, respectively, of Manotoc Securities, Inc. In due course, corresponding
criminal charges for estafa were filed by the investigating fiscal before the then Court of First Instance
of Rizal, docketed as Criminal Cases Nos. 45399 and 45400, assigned to respondent Judge Camilon,
and Criminal Cases Nos. 45542 to 45545, raffled off to Judge Pronove. In all cases, petitioner has been
admitted to bail in the total amount of P105,000.00, with FGU Insurance Corporation as surety.
On March 1, 1982, petitioner filed before each of the trial courts a motion entitled, "motion for
permission to leave the country", stating as ground therefor his desire to go to the United States,
"relative to his business transactions and opportunities." 1 The prosecution opposed said motion and
after due hearing, both trial judges denied the same. The order of Judge Camilon dated March 9, 1982,
reads:jgc:chanrobles.com.ph
"Accused Ricardo Manotoc Jr. desires to leave for the United States on the all embracing ground that
his trip is . . . relative to his business transactions and opportunities.
"The Court sees no urgency from this statement. No matter of any magnitude is discerned to warrant
judicial imprimatur on the proposed trip.
"In view thereof, permission to leave the country is denied Ricardo Manotoc, Jr. now or in the future
until these two (2) cases are terminated." 2

On the other hand, the order of Judge Pronove dated March 26, 1982, reads in
part:jgc:chanrobles.com.ph
"6. Finally, there is also merit in the prosecutions contention that if the Court would allow the
accused to leave the Philippines the surety companies that filed the bail bonds in his behalf might
claim that they could no longer be held liable in their undertakings because it was the Court which
allowed the accused to go outside the territorial jurisdiction of the Philippine Court, should the accused
fail or decide not to return.
"WHEREFORE, the motion of the accused is DENIED." 3
It appears that petitioner likewise wrote the Immigration Commissioner a letter requesting the recall or
withdrawal of the latters memorandum dated February 4, 1980, but said request was also denied in a
letter dated May 27, 1982.
Petitioner thus filed a petition for certiorari and mandamus before the then Court of Appeals 4 seeking
to annul the orders dated March 9 and 26, 1982, of Judges Camilon and Pronove, respectively, as well
as the communication-request of the Securities and Exchange Commission, denying his leave to travel
abroad. He likewise prayed for the issuance of the appropriate writ commanding the Immigration
Commissioner and the Chief of the Aviation Security Command (AVSECOM) to clear him for
departure.
On October 5,1982, the appellate court rendered a decision 5 dismissing the petition for lack of merit.
Dissatisfied with the appellate courts ruling, petitioner filed the instant petition for review
oncertiorari. Pending resolution of the petition to which we gave due course on April 14, 1983 6
petitioner filed on August 15, 1984 a motion for leave to go abroad pendente lite. 7 In his motion,
petitioner stated that his presence in Louisiana, U.S.A. is needed in connection "with the obtention of
foreign investment in Manotoc Securities, Inc." 8 He attached the letter dated August 9, 1984 of the
chief executive officer of the Exploration Company of Louisiana, Inc., Mr. Marsden W. Miller 9
requesting his presence in the United States to "meet the people and companies who would be involved
in its investments." Petitioner, likewise manifested that on August 1, 1984, Criminal Cases Nos. 4933
to 4936 of the Regional Trial Court of Makati (formerly Nos. 45542-45545) had been dismissed as to
him "on motion of the prosecution on the ground that after verification of the records of the Securities
and Exchange Commission . . . (he) was not in any way connected with the Manotoc Securities, Inc. as
of the date of the commission of the offenses imputed to him." 10 Criminal Cases Nos. 45399 and
45400 of the Regional Trial Court of Makati, however, remained pending as Judge Camilon, when
notified of the dismissal of the other cases against petitioner, instead of dismissing the cases before
him, ordered merely the informations amended so as to delete the allegation that petitioner was
president and to substitute that he was "controlling/majority stockholder," 11 of Manotoc Securities,
Inc.chanrobles.com.ph : virtual law library
On September 20, 1984, the Court in a resolution en banc denied petitioners motion for leave to go
abroad pendente lite. 12

Petitioner contends that having been admitted to bail as a matter of right, neither the courts which
granted him bail nor the Securities and Exchange Commission which has no jurisdiction over his
liberty, could prevent him from exercising his constitutional right to travel.
Petitioners contention is untenable.
A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a
necessary consequence of the nature and function of a bail bond.
Rule 114, Section 1 of the Rules of Court defines bail as the security required and given for the release
of a person who is in the custody of the law, that he will appear before any court in which his
appearance may be required as stipulated in the bail bond or recognizance.
"Its object is to relieve the accused of imprisonment and the state of the burden of keeping him,
pending the trial, and at the same time, to put the accused as much under the power of the court as if he
were in custody of the proper officer, and to secure the appearance of the accused so as to answer the
call of the court and do what the law may require of him." 13
The condition imposed upon petitioner to make himself available at all times whenever the court
requires his presence operates as a valid restriction on his right to travel. As we have held in People v.
Uy Tuising, 61 Phil. 404 (1935).
". . . the result of the obligation assumed by appellee (surety) to hold the accused amenable at all times
to the orders and processes of the lower court, was to prohibit said accused from leaving the
jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and
inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of the
Philippines they would have no binding force outside of said jurisdiction."cralaw virtua1aw library
Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be
placed beyond the reach of the courts.
"The effect of a recognizance or bail bond, when fully executed or filed of record, and the prisoner
released thereunder, is to transfer the custody of the accused from the public officials who have him in
their charge to keepers of his own selection. Such custody has been regarded merely as a continuation
of the original imprisonment. The sureties become invested with full authority over the person of the
principal and have the right to prevent the principal from leaving the state." 14

passage:jgc:chanrobles.com.ph
". . . The law obliges the bondsmen to produce the person of the appellants at the pleasure of the Court.
. . . The law does not limit such undertaking of the bondsmen as demandable only when the appellants
are in the territorial confines of the Philippines and not demandable if the appellants are out of the
country. Liberty, the most important consequence of bail, albeit provisional is indivisible. If granted at
all, liberty operates as fully within as without the boundaries of the granting state. This principle
perhaps accounts for the absence of any law or jurisprudence expressly declaring that liberty under bail
does not transcend the territorial boundaries of the country."cralaw virtua1aw library
The faith reposed by petitioner on the above-quoted opinion of the appellate court is misplaced. The
rather broad and generalized statement suffers from a serious fallacy; for while there is, indeed, neither
law nor jurisprudence expressly declaring that liberty under bail does not transcend the territorial
boundaries of the country, it is not for the reason suggested by the appellate court.
Also, petitioners case is not on all fours with the Shepherd case. In the latter case, the accused was
able to show the urgent necessity for her travel abroad, the duration thereof and the conforme of her
sureties to the proposed travel thereby satisfying the court that she would comply with the conditions
of her bail bond. In contrast, petitioner in this case has not satisfactorily shown any of the above. As
aptly observed by the Solicitor General in his comment:jgc:chanrobles.com.ph
"A perusal of petitioners Motion for Permission to Leave the Country will show that it is solely
predicated on petitioners wish to travel to the United States where he will, allegedly attend to some
business transactions and search for business opportunities. From the tenor and import of petitioners
motion, no urgent or compelling reason can be discerned to justify the grant of judicial imprimatur
thereto. Petitioner has not sufficiently shown that there is absolute necessity for him to travel abroad.
Petitioners motion bears no indication that the alleged business transactions could not be undertaken
by any other person in his behalf. Neither is there any hint that petitioners absence from the United
States would absolutely preclude him from taking advantage of business opportunities therein, nor is
there any showing that petitioners non-presence in the United States would cause him irreparable
damage or prejudice." 15

If the sureties have the right to prevent the principal from leaving the state, more so then has the court
from which the sureties merely derive such right, and whose jurisdiction over the person of the
principal remains unaffected despite the grant of bail to the latter. In fact, this inherent right of the
court is recognized by petitioner himself, notwithstanding his allegation that he is at total liberty to
leave the country, for he would not have filed the motion for permission to leave the country in the first
place, if it were otherwise.

Petitioner has not specified the duration of the proposed travel or shown that his surety has agreed to it.
Petitioner merely alleges that his surety has agreed to his plans as he had posted cash indemnities. The
court cannot allow the accused to leave the country without the assent of the surety because in
accepting a bail bond or recognizance, the government impliedly agrees "that it will not take any
proceedings with the principal that will increase the risks of the sureties or affect their remedies against
him. Under this rule, the surety on a bail bond or recognizance may be discharged by a stipulation
inconsistent with the conditions thereof, which is made without his assent. This result has been reached
as to a stipulation or agreement to postpone the trial until after the final disposition of other cases, or to
permit the principal to leave the state or country." 16 Thus, although the order of March 26, 1982
issued by Judge Pronove has been rendered moot and academic by the dismissal as to petitioner of the
criminal cases pending before said judge, We see the rationale behind said order.

To support his contention, petitioner places reliance upon the then Court of Appeals ruling in People v.
Shepherd (C.A.-G.R. No. 23505-R, February 13, 1980) particularly citing the following

As petitioner has failed to satisfy the trial courts and the appellate court of the urgency of his travel, the
duration thereof, as well as the consent of his surety to the proposed travel, We find no abuse of

judicial discretion in their having denied petitioners motion for permission to leave the country, in
much the same way, albeit with contrary results, that We found no reversible error to have been
committed by the appellate court in allowing Shepherd to leave the country after it had satisfied itself
that she would comply with the conditions of her bail bond.
The constitutional right to travel being invoked by petitioner is not an absolute right. Section 5, Article
IV of the 1973 Constitution states:jgc:chanrobles.com.ph
"The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety or public health."cralaw virtua1aw
library
To our mind, the order of the trial court releasing petitioner on bail constitutes such lawful order as
contemplated by the above-quoted constitutional provision.
Finding the decision of the appellate court to be in accordance with law and jurisprudence, the Court
finds that no gainful purpose will be served in discussing the other issues raised by petitioner.
WHEREFORE, the petition for review is hereby dismissed, with costs against petitioner.

3. ID.; ID.; ID.; ID. These women, despite their being in a sense lepers of society, are nevertheless
not chattles, but Philippine citizens protected by the same constitutional guaranties as are other
citizens.
4. ID.; ID. The privilege of domicile is a principle often protected by constitutions and deeply
imbedded in American jurisprudence.
5. HABEAS CORPUS; NATURE. The writ of habeas corpus was devised and exists as a speedy
and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient
defense of personal freedom.
6. ID.; PARTIES. Where it is impossible for a party to sign an application for the writ of habeas
corpus, it is proper for the writ to be submitted by some person in his behalf.
7. ID.; JURISDICTION. It is a general rule of good practice that, to avoid unnecessary expense and
inconvenience, petitions for habeas corpus should be presented to the nearest judge of the Court of
First Instance.
8. ID.; ID. The writ of habeas corpus may be granted by the Supreme Court or any judge thereof
enforcible anywhere in the Philippine Islands.

SO ORDERED.
Teehankee, C.J., Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz and
Paras, JJ., concur.
Feria, J., no part.
4. VILLAVICENCIO VS. LUKBAN
SYLLABUS
1. CONSTITUTIONAL LAW; RIGHT OF DOMICILE; LIBERTY; HABEAS CORPUS;
CONTEMPT. One hundred and seventy women, who had lived in the segregated district for women
of ill repute in the city of Manila, were by orders of the Mayor of the city of Manila and the chief of
police of that city isolated from society and then at night, without their consent and without any
opportunity to consult with friends or to defend their rights, were forcibly hustled on board steamers
for transportation to regions unknown. No law, order, or regulation authorized the Mayor of the city of
Manila or the chief of the police of that city to force citizens of the Philippine Islands to change their
domicile from Manila to another locality. Held: That the writ of habeas corpus was properly granted,
and that the Mayor of the city of Manila who was primarily responsible for the deportation, is in
contempt of court for his failure to comply with the order of the court.
2. ID.; ID.; ID.; ID. The remedies of the unhappy victims of official oppression are three: (1) Civil
action; (2) criminal action, and (3) habeas corpus. A civil action was never intended effectively and
promptly to meet a situation in which there is restraint of liberty. That the act may be a crime and that
the person may be proceeded against is also no bar to the institution of habeas corpusproceedings.
Habeas corpus is the proper remedy.

9. ID.; ID. Whether the writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the particular circumstances.
10. ID.; RESTRAINT OF LIBERTY. A prime specification of an application for a writ of habeas
corpusis restraint of liberty. The essential objects and purpose of the writ of habeas corpus is to inquire
into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient.
11. ID.; ID. The forcible taking of these women from Manila by officials of that city, who handed
them over to other parties, who deposited them in a distant region, deprived these women of freedom
of locomotion just as effectively as if they had been imprisoned. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely
and truly waived this right.
12. ID.; ID. The true principle should be that if the respondent is within the jurisdiction of the court
and has it in his power to obey the order of the court, and thus to undo the wrong that he has inflicted,
he should be compelled to do so.
13. ID.; ID. Even if the party to whom the writ is addressed has illegally parted with the custody of
a person before the application for the writ, is no reason why the writ should not issue.
14. ID.; ID. The place of confinement is not important to the relief if the guilty party is within the
reach of process so that by the power of the court he can be compelled to release his grasp.
15. ID.; COMPLIANCE WITH WRIT. For respondents to fulfill the order of the court granting the

writ of habeas corpus, three courses were open: (1) They could have produced the bodies of the
persons according to the command of the writ; (2) they could have shown by affidavit that on account
of sickness or infirmity these persons could not safely be brought before the Court; or (3) they could
have presented affidavits to show that the parties in question or their attorney waived the right to be
present. (Code of Criminal Procedure, Sec. 87.)
16. CONTEMPT OF COURT. The power to punish for contempt of court should be exercised on
the preservative and not on the vindictive principle. Only occasionally should a court invoke its
inherent power in order to retain that respect without which the administration of justice must falter or
fail.
17. ID. When one is commanded to produce a certain person and does not do so, and does not offer
a valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt,
and must order him either imprisoned or fined.
18. ID. An officers failure to produce the body of a person in obedience to a writ of habeas corpus,
when he has power to do so, is contempt committed in the face of the court.
19. GOVERNMENT OF THE PHILIPPINE ISLANDS; A GOVERNMENT OF LAWS. The
Government of the Philippine Islands is a government of laws. The court will assist in retaining it as a
government of laws and not of men.
20. ID.; ID. No official, however high, is above the law.
21. ID.; ID. The courts are the forum which functionate to safeguard individual liberty and to
punish official transgressors.
DECISION
MALCOLM, J. :
The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application for habeas corpus submits for decision. While hardly to be expected to be met with in this
modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is
kept in the forefront of our minds the basic principles of popular government, and if we give
expression to the paramount purpose for which the courts, as an independent power of such a
government, were constituted. The primary question is Shall the judiciary permit a government of
men instead of a government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of the city
of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district
for women of ill repute, which had been permitted for a number of years in the city of Manila, closed.

Between October 16 and October 25, 1918, the women were kept confined to their houses in the
district by the police. Presumably, during this period, the city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with
some government office for the use of the coastguard cutters Corregidor and Negros, and with the
Constabulary for a guard of soldiers, At any rate, about midnight of October 25, the police, acting
pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo
Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them
aboard the steamers that awaited their arrival. The women were given no opportunity to collect their
belongings, and apparently were under the impression that they were being taken to a police station for
an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not
been asked if they wished to depart from that region and had neither directly nor indirectly given their
consent to the deportation. The involuntary guests were received on board the steamers by a
representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers
with their unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed and receipted
for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael
Castillo. The governor and the hacendero Yigo, who appear as parties in the case, had no previous
notification that the women were prostitutes who had been expelled from the city of Manila. The
further happenings to these women and the serious charges growing out of alleged ill-treatment are of
public interest, but are not essential to the disposition of this case. Suffice it to say, generally, that some
of the women married, others assumed more or less clandestine relations with men, others went to
work in different capacities, others assumed a life unknown and disappeared, and a goodly portion
found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends of a considerable number of the deportees presented
an application for habeas corpus to a member of the Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include all of the women who were sent away from
Manila to Davao and, as the same questions concerned them all, the application will be considered as
including them. The application set forth the salient facts, which need not be repeated, and alleged that
the women were illegally re- strained of their liberty by Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was
made returnable before the full court. The city fiscal appeared for the respondents, Lukban and
Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ
should not be granted because the petitioners were not proper parties, because the action should have
been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the
respondents did not have any of the women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit
attached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on
the hacienda of Yigo and Governor Sales. In open court, the fiscal admitted, in answer to a question
of a member of the court, that these women had been sent out of Manila without their consent. The
court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the
province of Davao, and Feliciano Yigo, an hacendero of Davao, to bring before the court the persons
therein named, alleged to be deprived of their liberty, on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On
motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court
sitting as commissioner. On the day named in the order, December 2nd, 1918, none of the persons in
whose behalf the writ was issued were produced in court by the respondents. It has since been shown
that three of those who had been able to come back to Manila through their own efforts, were notified
by the police and the secret service to appear before the court. The fiscal appeared, repeated the facts
more comprehensively, reiterated the stand taken by him when pleading to the original petition copied
a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer
thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau
then in Davao, and offered certain affidavits showing that the women were contented with their life in
Mindanao and did not wish to return to Manila. Respondent Sales answered alleging that it was not
possible to fulfill the order of the Supreme Court because the women had never been under his control,
because they were at liberty in the Province of Davao, and because they had married or signed
contracts as laborers. Respondent Yigo answered alleging that he did not have any of the women
under his control and that therefore it was impossible for him to obey the mandate. The court, after due
deliberation, on December 10, 1918, promulgated a second order, which related that the respondents
had not complied with the original order to the satisfaction of the court nor explained their failure to do
so, and therefore directed that those of the women not in Manila be brought before the court by
respondents Lukban, Hohmann, Sales, and Yigo on January 13, 1919, unless the women should, in
written statements voluntarily made before the judge of first instance of Davao or the clerk of that
court, renounce the right, or unless the respondents should demonstrate some other legal motives that
made compliance impossible. It was further stated that the question of whether the respondents were in
con- tempt of court would later be decided and the reasons for the order announced in the final
decision.
Before January 13, 1919, further testimony including that of a number of the women, of certain
detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting in
the same capacity. On January 13, 1919, the respondents technically presented before the Court the
women who had returned to the city through their own efforts and eight others who had been brought
to Manila by the respondents. Attorneys for the respondents, by their returns, once again recounted the
facts and further endeavored to account for all of the persons involved in the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had succeeded in
bringing from Davao with their consent eight women; that eighty-one women were found in Davao
who, on notice that if they desired they could return to Manila, transportation free, renounced the right
through sworn statements; that fifty- nine had already returned to Manila by other means, and that
despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and the
city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila Jose
Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano Yigo, an
hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal
of the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de
los recurridos, (reply to respondents memorandum) dated January 25, 1919, be struck from the
record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the
final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled these one hundred and seventy women were isolated
from society, and then at night, without their consent and without any opportunity to consult with
friends or to defend their rights, were forcibly hustled on board steamers for transportation to regions
unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that such was
not the case is shown by the mere fact that the presence of the police and the constabulary was deemed
necessary and that these officers of the law chose the shades of night to cloak their secret and stealthy
acts. Indeed, this is a fact impossible to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question By authority of what law did
the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to
another distant locality within the Philippine Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of Congress.
The Governor- General can order the eviction of undesirable aliens after a hearing from the Islands.
Act No. 519 of the Philippine Commission and Section 733 of the Revised Ordinances of the city of
Manila provide for the conviction and punishment by a court of justice of any person who is common
prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may have been
convicted of vagrancy, to the homeland. New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of being common prostitutes. Always a law!
Even when the health authorities compel vaccination. or establish a quarantine, or place a leprous
person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain
for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the
chief of police of that city to force citizens of the Philippine Islands and these women despite their
being in a sense lepers of society are nevertheless not chattels but Philippine citizens protected by the
same constitutional guaranties as are other citizens to change their domicile from Manila to another
locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be
found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as not
even to require a constitutional sanction. Even the Governor-General of the Philippine Islands even the
President of the United States, who has often been said to exercise more power than any king or
potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore, has the
executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief
of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of
the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of
the Philippines have the same privilege. If these officials can take to themselves such power, then any
other official can do the same. And if any official can exercise the power, then all persons would have
just as much right to do so. And if a prostitute could be sent against her wishes and under no law from
one locality to another within the country, then officialdom can hold the same club over the head of
any citizen.

Law defines power. Centuries ago Magna Charta decreed that "No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or
any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his
peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either
justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 Eng. Stat. at Large, 7.) No official, no
matter how high, is above the law. The courts are the forum which functionate to safeguard individual
liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion of the
Supreme Court of the United States, "is the only supreme power in our system of government, and
every man who by accepting office participates in its functions is only the more strongly bound to
submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the
authority which it gives." (U.S. v. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice
Matthews of the same high tribunal in another case, "that one man may be compelled to hold his life,
or the means of living, or any material right essential to the enjoyment of life, at the mere will of
another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery
itself." (Yick Wo v. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the
writ of habeas corpus, and makes clear why we said in the very beginning that the primary question
was whether the courts should permit a government of men or a government of laws to be established
in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never intended
effectively and promptly to meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands
provides:jgc:chanrobles.com.ph
"Any public officer not thereunto authorized by law or by regulations of a general character in force in
the Philippines who shall banish any person to a place more than two hundred kilometers distant from
his domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less
than three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.
"Any public officer not thereunto expressly authorized by law or by regulation of a general character in
force in the Philippines who shall compel any person to change his domicile or residence shall suffer
the penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas." (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any
public officer has violated this provision of law, these prosecutors will institute and press a criminal
prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that
the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the
instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to "It
would be a monstrous anomaly in the law if to an application by one unlawfully confined, to be
restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore

might be continued indefinitely until the guilty party was tried and punished therefor by the slow
process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ
of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from
unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights
of the parties are left untouched by decision on the writ, whose principal purpose is to set the
individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to
its issuance in this instance. The fiscal has argued (1) that there is a defect in parties petitioners, (2) that
the Supreme Court should not assume jurisdiction, and (3) that the persons in question are not
restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor
and the chief of police of the city of Manila only extends to the city limits and that perforce they could
not bring the women from Davao.
The first defense was not pressed with any vigor by counsel. The petitioners were relatives and friends
of the deportees. The way the expulsion was conducted by the city officials made it impossible for the
women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by
persons in their behalf. (Code of Criminal Procedure, Sec. 78; Code of Civil Procedure, Sec. 527.) The
law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ
of habeas corpus if there is evidence that within the courts jurisdiction a person is unjustly imprisoned
or restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, Sec.
93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of First Instance of
Davao or should have been made returnable before that court. It is a general rule of good practice that,
to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be presented to
the nearest judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas
corpus may be granted by the Supreme Court or any judge thereof enforcible anywhere in the
Philippine Islands. (Code of Criminal Procedure, Sec. 79; Code of Civil Procedure, Sec. 526.) Whether
the writ shall be made returnable before the Supreme Court or before an inferior court rests in the
discretion of the Supreme Court and is dependent on the particular circumstances. In this instance it
was not shown that the Court of First Instance of Davao was in session, or that the women had any
means by which to advance their plea before that court. On the other hand, it was shown that the
petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it
was shown that the case involved parties situated in different parts of the Islands; it was shown that the
women might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate court.
The failure of the superior court to consider the application and then to grant the writ would have
amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed
for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is
claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend
beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of
such dictum is found to be perversive of the first principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint
which will preclude freedom of action is sufficient. The forcible taking of these women from Manila
by officials of that city, who handed them over to other parties, who deposited them in a distant region,
deprived these women of freedom of locomotion just as effectively as if they had been imprisoned.
Placed in Davao without either money or personal belongings, they were prevented from exercising the
liberty of going when and where they pleased. The restraint of liberty which began in Manila continued
until the aggrieved parties were returned to Manila and released or until they freely and truly waived
this right.
Consider for a moment what an agreement with such a defense would mean. The chief executive of
any municipality in the Philippines could forcibly and illegally take a private citizen and place him
beyond the boundaries of the municipality, and then, when called upon to defend his official action,
could calmly fold his hands and claim that the person was under no restraint and that he, the official,
had no jurisdiction over this other municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in his power to obey the order of the court
and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to
whom the writ is addressed has illegally parted with the custody of a person before the application for
the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under
no authority of law, could deport these women from the city of Manila to Davao, these same officials
must necessarily have the same means to return them from Davao to Manila. The respondents, within
the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to
change her domicile and to avow the act with impunity in the courts, while the person who has lost her
birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any
analogous case. Certain decisions of respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to whether or
not a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction of
the State to bring into the State a minor child under guardianship in the State, who has been and
continues to be detained in another State. The membership of the Michigan Supreme Court at this time
was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices.
On the question presented the court was equally divided. Campbell, J., with whom concurred
Martin, C.J., held that the writ should be quashed. Cooley, J., one of the most distinguished American
judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the
opinion of Justice Campbell was predicated to a large extent on his conception of the English
decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the
following eloquent passages from the opinion of Justice Cooley are quoted:jgc:chanrobles.com.ph
"I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the
petition which was laid before us. . . .
"It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been

expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many
confirmations, until Coke could declare in his speech on the petition of right that Magna Charta was
such a fellow that he will have no sovereign, and after the extension of its benefits and securities by
the petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of
that great clause for the protection of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay,
that the legislature may apply the proper remedy, as I can not doubt they would, on the subject being
brought to their notice. . . .
"The second proposition that the statutory provisions are confined to the case of imprisonment
within the state seems to me to be based upon a misconception as to the source of our jurisdiction. It
was never the case in England that the court of kings bench derived its jurisdiction to issue and
enforce this writ from the statute. Statutes were not passed to give the right, but to compel the
observance of rights which existed. . . .
"The important fact to be observed in regard to the mode of procedure upon this writ is, that it is
directed to and served upon, not the person confined, but his jailor. It does not reach the former except
through the latter. The officer or person who serves it does not unbar the prison doors, and set the
prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The
whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted
to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording
relief, and if any other means are resorted to, they are only auxiliary to those which are usual. The
place of confinement is, therefore, not important to. the relief, if the guilty party is within reach of
process, so that by the power of the court he can be compelled to release his grasp. The difficulty of
affording redress is not increased by the confinement being beyond the limits of the state, except as
greater distance may affect it. The important question is, where is the power of control exercised? And
I am aware of no other remedy." (In the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers v.
Mitchell [1881], 57 Iowa, 193; Breene v. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young
[1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had been taken out of
England by the Respondent. A writ of habeas corpus was issued by the Queens Bench Division upon
the application of the mother and her husband directing the defendant to produce the child. The judge
at chambers gave defendant until a certain date to produce the child, but he did not do so. His return
stated that the child before the issuance of the writ had been handed over by him to another; that it was
no longer in his custody or control, and that it was impossible for him to obey the writ. He was found
in contempt of court. On appeal, the court, through Lord Esher, M. R., said:jgc:chanrobles.com.ph
"A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded
the defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice
immediately after the receipt of the writ, together with the cause of her being taken and detained. That
is a command to bring the child before the judge and must be obeyed, unless some lawful reason can
be shown to excuse the nonproduction of the child. If it could be shown that by reason of his having
lawfully parted with the possession of the child before the issuing of the writ, the defendant had no

longer power to produce the child, that might be an answer; but in the absence of any lawful reason he
is bound to produce the child, and, if he does not, he is in contempt of the Court for not obeying the
writ without lawful excuse. Many efforts have been made in argument to shift the question of contempt
to some anterior period for the purpose of showing that what was done at some time prior to the writ
cannot be a contempt. But the question is not as to what was done before the issue of the writ. The
question is whether there has been a contempt in disobeying the writ after it was issued by not
producing the child in obedience to its commands." (The Queen v. Barnardo [1889], 23 Q. B. D., 305.
See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N.S. ], 233; The
Queen v. Barnardo, Gossages Case [1890], 24 Q. B. D., 283.)

question or their attorney waived the right to be present. (Code of Criminal Procedure, Sec. 87.) They
did not produce the bodies of the persons in whose behalf the writ was granted; they did not show
impossibility of performance; and they did not present writings that waived the right to be present by
those interested. Instead a few stereotyped affidavits purporting to show that the women were
contented with their life in Davao, some of which have since been repudiated by the signers, were
appended to the return. That through ordinary diligence a considerable number of the women, at least
sixty, could have been brought back to Manila is demonstrated by the fact that during this time they
were easily to be found in the municipality of Davao, and that about this number either returned at
their own expense or were produced at the second hearing by the respondents.

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the
defendant to have before the circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the
negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that they were then beyond
his control and out of his custody. The evidence tended to show that Davis had removed the negroes
because he suspected they would apply for a writ of habeas corpus. The court held the return to be
evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present in
court, and refusing to produce them, ordered that he be committed to the custody of the marshall until
he should produce the negroes, or be otherwise discharged in due course of law. The court afterwards
ordered that Davis be released upon the production of two of the negroes, for one of the negroes had
run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of the
term. (United States v. Davis [1839], 5 Cranch C. C., 622, Fed. Cas. No. 14926. See also Robb v.
Connolly [1883], 111 U. S., 624; Church on Habeas Corpus, 2nd ed., p. 170.)

The court, at the time the return to its first order was made, would have been warranted summarily in
finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far from sufficient. The authorities
cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude ahabeas
corpus writ must be fulfilled. For example, in Gossages case, supra, the Magistrate in referring to an
earlier decision of the Court, said: "We thought that, having brought about that state of things by his
own illegal act, he must take the consequences; and we said that he was bound to use every effort to
get the child back; that he must do much more than write letters for the purpose; that he must advertise
in America, and even if necessary himself go after the child, and do everything that mortal man could
do in the matter; and that the court would only accept clear proof of an absolute impossibility by way
of excuse." In other words, the return did not show that every possible effort to produce the women
was made by the respondents. That the court forebore at this time to take drastic action was because it
did not wish to see presented to the public gaze the spectacle of a clash between executive officials and
the judiciary, and because it desired to give the respondents another chance to demonstrate their good
faith and to mitigate their wrong.

We find, therefore, both on reason and authority, that no one of the defenses offered by the respondents
constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondents complied with the two orders of the Supreme
Court awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt
should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited
until the 21st of November before sending a telegram to the provincial governor of Davao. According
to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then in
Davao women who desired to return to Manila, but who should not be permitted to do so because of
having contracted debts. The half-hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named.
For the respondents to have fulfilled the courts order, three optional courses were open: (1) They
could have produced the bodies of the persons according to the command of the writ; or (2) they could
have shown by affidavit that on account of sickness or infirmity those persons could not safely be
brought before the court; or (3) they could have presented affidavits to show ,that the parties in

In response to the second order of the court, the respondents appear to have become more zealous and
to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in such a bitterly contested
case are to be expected, and while a critical reading of the record might reveal a failure of literal
fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. Our
finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident
finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive
investigation. If any particular individual is still restrained of her liberty, it can be made the object of
separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it, nothing
further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city
of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando
Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau
of Labor, Feliciano Yigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and not on the

vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that
respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court
must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him
either imprisoned or fined. An officers failure to produce the body of a person in obedience to a writ
of habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex
parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we
cannot say that any of the respondents, with the possible exception of the first named, has flatly
disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax,
and Joaquin only followed the orders of their chiefs, and while, under the law of public officers, this
does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero
Yigo appears to have been drawn into the case through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his
duty as the legal representative of the city government. Finding him innocent of any disrespect to the
court, his counter-motion to strike from the record the memorandum of attorney for the petitioners,
which brings him into this undesirable position, must be granted. When all is said and done, as far as
this record discloses, the official who was primarily responsible for the unlawful deportation, who
ordered the police to accomplish the same, who made arrangements for the steamers and the
constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as the head of
the city government, had it within his power to facilitate the return of the unfortunate women to
Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil
was commendable. His methods were unlawful. His regard for the writ ofhabeas corpus issued by the
court was only tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of Section 546 of the Code of Civil Procedure, which
relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to
forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of pesos,
and in addition to deal with him as for a contempt. Some members of the court are inclined to this stern
view. It would also be possible to find that since respondent Lukban did comply substantially with the
second order of the court, he has purged his contempt of the first order. Some members of the court are
inclined to this merciful view. Between the two extremes appears to lie the correct finding. The failure
of respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the
administration of justice to such an extent that his later activity may be considered only as extenuating
his conduct. A nominal fine will at once command such respect without being unduly oppressive
such an amount is P100.
In resume as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of
court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the
Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal of the
city of Manila to strike from the record the Replica al Memorandum de los Recurridos of January 25,
1919, is granted. Costs shall be taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this

decision may serve to bulwark the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:chanrob1es virtual 1aw library
The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpus proceeding against Justo Lukban, the mayor of this city.
There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great
number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses
of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more than one
hundred and fifty women were assembled and placed aboard a steamer and transported to Davao,
considering that the existence of the said houses of prostitution has been tolerated for so long a time, it
is undeniable that the mayor of the city, in proceeding in the manner shown, acted without authority of
any legal provision which constitutes an exception to the laws guaranteeing the liberty and the
individual rights of the residents of the city of Manila.
We do not believe in the pomp and ostentation of force displayed by the police in complying with the
order of the mayor of the city; neither do we believe in the necessity of taking them to the distant
district of Davao. The said governmental authority, in carrying out his intention to suppress the
segregated district or the community formed by those women in Gardenia Street, could have obliged
the said women to return to their former residences in this city or in the provinces, without the
necessity of transporting them to Mindanao; hence the said official is obliged to bring back the women
who are still in Davao so that they may return to the places in which they lived prior to their becoming
inmates of certain houses in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court, we do not find any
apparent disobedience and marked absence of respect in the steps taken by the mayor of the city and
his subordinates, if we take into account the difficulties encountered in bringing the said women who
were free at Davao and presenting them before this court within the time fixed, inasmuch as it does not
appear that the said women were living together in a given place. It was not because they were really
detained, but because on the first days there were no houses in which they could live with a relative
independent from one another, and as a proof that they were free a number of them returned to Manila
and the others succeeded in living separate from their companions who continued living together.
To determine whether or not the mayor acted with a good purpose and legal object and whether he has
acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to oblige

them to change their domicile, it is necessary to consider not only the rights and interests of the said
women and especially of the patrons who have been directing and conducting such a reproachable
enterprise and shameful business in one of the suburbs of this city, but also the rights and interests of
the very numerous people of Manila where relatively a few transients accidentally and for some days
reside, the inhabitants thereof being more than three hundred thousand (300,000) who can not, with
indifference and without repugnance, live in the same place with so many unfortunate women
dedicated to prostitution.
If the material and moral interests of the community as well as the demands of social morality are to be
taken into account, it is not possible to sustain that it is legal and permissible to establish a house of
pandering or prostitution in the midst of an enlightened population, for, although there were no positive
laws prohibiting the existence of such houses within a district of Manila, the dictates of common sense
and dictates of conscience of its inhabitants are sufficient to warrant the public administration, acting
correctly, in exercising the inevitable duty of ordering the closing and abandonment of a house of
prostitution ostensibly open to the public, and of obliging the inmates thereof to leave it, although such
a house is inhabited by its true owner who invokes in his behalf the protection of the constitutional law
guaranteeing his liberty, his individual rights, and his right to property.
A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke in
his favor the constitutional law which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or concentration in a certain island or
distant point in order to free from contagion the great majority of the inhabitants of the country who
fortunately do not have such diseases. The same reasons exist or stand good with respect to the
unfortunate women dedicated to prostitution, and such reasons become stronger because the first
persons named have contracted their diseases without their knowledge and even against their will,
whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously
accepted all its consequences, knowing positively that their constant intercourse with men of all
classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to the
spread or multiplication of the disease known as syphilis, a venereal disease, which, although it
constitutes a secret disease among men and women, is still prejudicial to the human species in the same
degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other contagious
diseases which produce great mortality and very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give
her sufficient remuneration for her subsistence, prefers to put herself under the will of another woman
who is usually older than she is and who is the manager or owner of a house of prostitution, or
spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily and
with her own knowledge renounces her liberty and individual rights guaranteed by the Constitution,
because it is evident that she can not join the society of decent women nor can she expect to get the
same respect that is due to the latter, nor is it possible for her to live within the community or society
with the same liberty and rights enjoyed by every citizen. Considering her dishonorable conduct and
life, she should therefore be comprised within that class which is always subject to the police and
sanitary regulations conducive to the maintenance of public decency and morality and to the
conservation of public health, and for this reason it should not be permitted that the unfortunate women
dedicated to prostitution evade the just orders and resolutions adopted by the administrative
authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but those who have
been worrying so much about the prejudice resulting from a governmental measure, which being a
very drastic remedy may be considered arbitrary, have failed to consider with due reflection the
interests of the inhabitants of this city in general and particularly the duties and responsibilities
weighing upon the authorities which administer and govern it; they have forgotten that many of those
who criticize and censure the mayor are fathers of families and are in duty bound to take care of their
children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal
life they assumed, were obliged to change their residence not by a private citizen but by the mayor of
the city who is directly responsible for the conservation of public health and social morality, the latter
could take the step he had taken, availing himself of the services of the police in good faith and only
with the purpose of protecting the immense majority of the population from the social evils and
diseases which the houses of prostitution situated in Gardenia Street have been producing, which
houses have been constituting for years a true center for the propagation of venereal diseases and other
evils derived therefrom. Hence, in ordering the dissolution and abandonment of the said houses of
prostitution and the change of the domicile of the inmates thereof, the mayor did not in bad faith
violate the constitutional law which guarantees the liberty and the individual rights of every Filipino,
inasmuch as the women petitioners do not absolutely enjoy the said liberty and rights, the exercise of
which they have voluntarily renounced in exchange for the free practice of their shameful profession.
In very highly advanced and civilized countries, there have been adopted by the administrative
authorities similar measures, more or less rigorous, respecting prostitutes, considering them prejudicial
to the people, although it is true that in the execution of such measures more humane and less drastic
procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures have always had
in view the ultimate object of the Government for the sake of the community, that is, putting an end to
the living together in a certain place of women dedicated to prostitution and changing their domicile,
with the problematical hope that they adopt another manner of living which is better and more useful
to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is
obliged to take back and restore the said women who are at present found in Davao, and who desire to
return to their former respective residences, not in Gardenia Street, Sampaloc District, with the
exception of the prostitutes who should expressly make known to the clerk of court their preference to
reside in Davao, which manifestation must be made under oath. This resolution must be transmitted to
the mayor within the shortest time possible for its due compliance. The costs shall be charged de
officio.
ARAULLO, J., dissenting in part:chanrob1es virtual 1aw library
I regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed, according to
the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition upon
him of a nominal fine of P100.

In the said decision, it is said:jgc:chanrobles.com.ph

"The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses, the mayor of the city of Manila waited
until the 21st of November before sending a telegram to the provincial governor of Davao. According
to the response of the Attorney for the Bureau of Labor to the telegram of his chief, there were then in
Davao women who desired to return to Manila, but who should not be permitted to do so because of
having contracted debts. The half-hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named."cralaw virtua1aw library
In accordance with Section 87 of General Orders No. 58, as is said in the same decision, the
respondents, for the purpose of complying with the order of the court, could have, (1) produced the
bodies of the persons according to the command of the writ; (2) shown by affidavits that on account of
sickness or infirmity the said women could not safely be brought before this court; and (3) presented
affidavits to show that the parties in question or their lawyers waived their right to be present.
According to the same decision, the said respondents." . . did not produce the bodies of the persons in
whose behalf the writ was granted; did not show impossibility of performance; and did not present
writings that waived the right to be present by those interested. Instead, a few stereotyped affidavits
purporting to show that the women were contented with their life in Davao, some of which have since
been repudiated by the signers, were appended to the return. That through ordinary diligence a
considerable number of the women, at least sixty, could have been brought back to Manila is
demonstrated by the fact that during this time they were easily to be found in the municipality of
Davao, and that about this number either returned at their own expense or were produced at the second
hearing by the respondents."cralaw virtua1aw library
The majority opinion also recognized that, "The court, at the time the return to its first order was made,
would have been warranted summarily in finding the respondent guilty of contempt of court, and in
sending them to jail until they obeyed the order. Their excuses for the non production of the persons
were far from sufficient." To corroborate this, the majority decision cites the case of the Queen v.
Barnardo, Gossages Case ([1890], 24 Q. B. D., 283) and added "that the return did not show that
every possible effort to produce the women was made by the respondents."cralaw virtua1aw library
When the said return by the respondents was made to this court in banc and the case discussed, my
opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless, a
second order referred to in the decision was issued on December 10, 1918, requiring the respondents to
produce before the court, on January 13, 1919, the women who were not in Manila, unless they could
show that it was impossible to comply with the said order on the two grounds previously mentioned.
With respect to this second order, the same decision has the following to say:jgc:chanrobles.com.ph
"In response to the second order of the court, the respondents appear to have become more zealous and
to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and countercharges in such a bitterly contested
case are to be expected, and while a critical reading of the record might reveal a failure of literal

fulfillment with our mandate, we come to conclude that there is a substantial compliance with
it."cralaw virtua1aw library
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the
issuance of the first order on November 4th till the 21st of the same month before taking the first step
for compliance with the mandate of the said order; he waited till the 21st of November, as the decision
says, before he sent a telegram to the provincial governor of Davao and naturally this half-hearted
effort, as is so qualified in the decision, resulted in that none of the women appeared before this court
on December 2nd. Thus, the said order was not complied with, and in addition to this noncompliance
there was the circumstance that seven of the said women having returned to Manila at their own
expense before the said second day of December and being in the antechamber of the court room,
which fact was known to Chief of Police Hohmann, who was then present at the trial and to the
attorney for the respondents, were not produced before the court by the respondents nor did the latter
show any effort to present them, in spite of the fact that their attention was called to this particular by
the undersigned.
The result of the said second order was, as is said in the same decision, that the respondents, on
January 13th, the day fixed for the production of the women before this court, presented technically the
seven (7) women above-mentioned who had returned to the city at their own expense and the other
eight (8) women whom the respondents themselves brought to Manila, alleging moreover that their
agents and subordinates succeeded in bringing them from Davao with their consent; that in Davao they
found eighty-one (81) women who, when asked if they desired to return to Manila with free
transportation, renounced such a right, as is shown in the affidavits presented by the respondents to this
effect; that, through other means, fifty-nine (59) women have already returned to Manila, but
notwithstanding the efforts made to find them it was not possible to locate the whereabouts of twentysix (26) of them. Thus, in short, out of the one hundred and eighty-one (181) women who, as has been
previously said, have been illegally detained by Mayor Lukban and Chief of Police Hohmann and
transported to Davao against their will, only eight (8) have been brought to Manila and presented
before this court by the respondents in compliance with the said two orders. Fifty-nine (59) of them
have returned to Manila through other means not furnished by the respondents, twenty-six of whom
were brought by the attorney for the petitioners, Mendoza, on his return from Davao. The said attorney
paid out of his own pocket the transportation of the said twenty-six women. Adding to these numbers
the other seven (7) women who returned to this city at their own expense before January 13 we have a
total of sixty-six (66), which evidently proves, on the one hand, the falsity of the allegation by the
respondents in their first answer at the trial of December 2, 1918, giving as one of the reasons for their
inability to present any of the said women that the latter were content with their life in Mindanao and
did not desire to return to Manila; and, on the other, that the respondents, especially the first named,
that is Mayor Justo Lukban, who acted as chief and principal in all that refers to the compliance with
the orders issued by this court, could bring before December 2d, the date of the first hearing of the
case, as well as before January 13th, the date fixed for the compliance with the second order, if not the
seventy-four (74) women already indicated, at least a great number of them, or at least sixty (60) of
them, as is said in the majority decision, inasmuch as the said respondent could count upon the aid of
the Constabulary forces and the municipal police, and had transportation facilities for the purpose. But
the said respondent mayor brought only eight (8) of the women before this court on January 13th. This

fact can not, in my judgment, with due respect to the majority opinion, justify the conclusion that the
said respondent has substantially complied with the second order of this court, but on the other hand
demonstrates that he has not complied with the mandate of this court in its first and second orders; that
neither of the said orders has been complied with by the respondent Justo Lukban, Mayor of the city of
Manila, who is, according to the majority decision, principally responsible for the contempt, to which
conclusion I agree. The conduct of the said respondent with respect to the second order confirms the
contempt committed by non-compliance with the first order and constitutes a new contempt because of
non-compliance with the second, because the production of only eight (8) of the one hundred and
eighty-one (181) women who have been illegally detained by virtue of his order and transported to
Davao against their will, committing the twenty-six (26) women who could not be found in Davao,
demonstrates in my opinion that, notwithstanding the nature of the case which deals with the remedy
of habeas corpus, presented by the petitioners and involving the question whether they should or not
be granted their liberty, the respondent has not given due attention to the same nor has he made any
effort to comply with the second order. In other words, he has disobeyed the said two orders; has
despised the authority of this court; has failed to give the respect due to justice; and lastly, he has
created and placed obstacles to the administration of justice in the said habeas corpusproceeding, thus
preventing, because of his notorious disobedience, the resolution of the said proceeding with the
promptness which the nature of the same required.
"Contempt of court has keen defined as a despising of the authority, justice, or dignity of the court; and
he is guilty of contempt whose conduct is such as tends to bring the authority and administration of the
law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)
"It is a general principle that a disobedience of any valid order of the court constitutes contempt, unless
the defendant is unable to comply therewith." (Ruling Case Law, vol. 6, p. 502.)
"It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt to
obstruct the service of legal process. If a person hinders or prevents the service of process by deceiving
the officer or circumventing him by any means, the result is the same as though he had obstructed by
some direct means." (Ruling Case Law, vol. 6, p. 503.)
"While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for
the law and for the means it has provided in civilized communities for establishing justice, since true
respect never comes in that way, it is apparent nevertheless that the power to enforce decorum in the
courts and obedience to their orders and just measures is so essentially a part of the life of the courts
that it would be difficult to conceive of their usefulness or efficiency as existing without it. Therefore it
may be said generally that where due respect for the courts as ministers of the law is wanting, a
necessity arises for the use of compulsion, not, however, so much to excite individual respect as to
compel obedience or to remove an unlawful or unwarranted interference with the administration of
justice." (Ruling Case Law, vol. 6, p. 487.)
"The power to punish for contempt is as old as the law itself, and has been exercised from the earliest
times. In England it has been exerted when the contempt consisted of scandalizing the sovereign or his
ministers, the law-making power, or the courts. In the American states the power to punish for
contempt, so far as the executive department and the ministers of state are concerned, and in some
degree so far as the legislative department is concerned, is obsolete. but it has been almost universally

preserved so far as regards the judicial department. The power which the courts have of vindicating
their own authority is a necessary incident to every court of justice, whether of record or not; and the
authority for issuing attachments in a proper case for contempts out of court, it has been declared,
stands upon the same immemorial usage as supports the whole fabric of the common law. . . ." (Ruling
Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss of the
prestige of the authority of the court which issued the said orders, which loss might have been caused
by noncompliance with the, same orders on the part of the respondent Justo Lukban; the damages
which might have been suffered by some of the women illegally detained, in view of the fact that they
were not brought to Manila by the respondents to be presented before the court and of the further fact
that some of them were obliged to come to this city at their own expense while still others were
brought to Manila by the attorney for the petitioners, who paid out of his own pocket the transportation
of the said women; and the delay which was necessarily incurred in the resolution of the petition
interposed by the said petitioners and which was due to the fact that the said orders were not
opportunely and duly obeyed and complied with, are circumstances which should be taken into
account in imposing upon the respondent Justo Lukban the penalty corresponding to the contempt
committed by him, a penalty which, according to section 236 of the Code of Civil Procedure, should
consist of a fine not exceeding P1,000 or imprisonment not exceeding six months, or both such fine
and imprisonment. In the imposition of the penalty, there should also be taken into consideration the
special circumstance that the contempt was committed by a public authority, the mayor of the city of
Manila, the first executive authority of the city, and consequently, the person obliged to be the first in
giving an example of obedience and respect for the laws and the valid and just orders of the duly
constituted authorities as well as for the orders emanating from the courts of justice, and in giving help
and aid to the said courts in order that justice may be administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed upon
the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged
against him. Lastly I believe it to be my duty to state here that the records of this proceeding should be
transmitted to the Attorney General in order that, after a study of the same and deduction from the
testimony which he may deem necessary, and the proper transmittal of the same to the fiscal of the city
of Manila and to the provincial fiscal of Davao, both the latter shall present the corresponding
information for the prosecution and punishment of the crimes which have been committed on the
occasion when the illegal detention of the women was carried into effect by Mayor Justo Lukban of the
city of Manila and Chief of Police Anton Hohmann, and also of those crimes committed by reason of
the same detention and while the women were in Davao. This will be one of the means whereby the
just hope expressed in the majority decision will be realized, that is, that in the Philippine Islands there
should exist a government of laws and not a government of men and that this decision may serve to
bulwark the fortifications of an orderly Government of laws and to protect individual liberty from
illegal encroachments.
Writ granted.
5. ROAN VS. GONZALES
SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF ACCUSED AGAINST ILLEGAL

SEARCH AND SEIZURE; REQUISITES FOR VALIDITY OF SEARCH WARRANT. To be valid,
a search warrant must be supported by probable cause to be determined by the judge or some other
authorized officer after examining the complainant and the witnesses he may produce. No less
important, there must be a specific description of the place to be searched and the things to be seized,
to prevent arbitrary and indiscriminate use of the warrant. Probable cause was described by Justice
Escolin in Burgos v. Chief of Staff as referring to "such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been committed and that the objects
sought in connection with the offense are in the place sought to be searched." As held in a long line of
decisions, the probable cause must refer to only one specific offense.
2. ID.; ID.; ID.; ID.; LACK OF PROBING AND EXHAUSTIVE EXAMINATION OF APPLICANT.
The applicant was asking for the issuance of the search warrant on the basis of mere hearsay and not
of information personally known to him, as required by settled jurisprudence. The rationale of the
requirement, of course, is to provide a ground for a prosecution for perjury in case the applicants
declarations are found to be false. His application, standing alone, was insufficient to justify the
issuance of the warrant sought. It was therefore necessary for the witnesses themselves, by their own
personal information, to establish the applicants claims. Even assuming then that it would have
sufficed to take the depositions only of the witnesses and not of the applicant himself, there is still the
question of the sufficiency of their depositions. It is axiomatic that the examination must be probing
and exhaustive, not merely routinary or proforms, if the claimed probable cause is to be established.
The examining magistrate must not simply rehash the contents of the affidavit but must make his own
inquiry on the intent and justification of the application.
3. ID.; ID.; ID.; ID.; ID.; DEFFECTS RENDERED SEARCH WARRANT INVALID. A study of
the depositions taken from witnesses Esmael Morada and Jesus Tohilida, who both claimed to be
"intelligence informers," shows that they were in the main a mere restatement of their allegations in
their affidavits, except that they were made in the form of answers to the questions put to them by the
respondent judge. Significantly, the meaningful remark made by Tohilida that they were suspicious of
the petitioner because he was a follower of the opposition candidate in the forthcoming election (a
"Lecarista") did not excite the respondent judges own suspicion. This should have put him on guard as
to the motivations of the witnesses and alerted him to possible misrepresentations from them. The
respondent judge almost unquestioningly received the witnesses statement that they saw eight men
deliver arms to the petitioner in his house on May 2, 1984. This was supposedly done overtly in the full
view of the witnesses. The declarations of the witnesses were readily accepted and the search warrant
sought was issued forthwith. The above-discussed defects have rendered the search warrant invalid.
Nonetheless, the Solicitor General argues that whatever defect there was, was waived when the
petitioner voluntarily submitted to the search and manifested his conformity in writing. We do not
agree. What we see here is pressure exerted by the military authorities, who practically coerced the
petitioner to sign the supposed waiver as a guaranty against a possible challenge later to the validity of
the search they were conducting. Confronted with the armed presence of the military and the
presumptive authority of a judicial writ, the petitioner had no choice but to submit.
4. ID.; ID.; ID.; PROHIBITED ARTICLES SEIZED WITHOUT ANY SEARCH WARRANT

INADMISSIBLE AS EVIDENCE. The respondents also argue that the Colt Magnum pistol and the
eighteen live bullets seized from the petitioner were illegal per se and therefore could have been taken
by the military authorities even without a warrant. Possession of the said articles, it is urged, was
violative of P.D. 1866 and considered malum prohibitum. Hence, the illegal articles could be taken
even without a warrant. Prohibited articles may be seized but only as long as the search is valid. In this
case, it was not because: 1) there was no valid search warrant; and 2) absent such a warrant, the right
thereto was not validly waived by the petitioner. In short, the military officers who entered the
petitioners premises had no right to be there and therefore had no right either to seize the pistol and
bullets. It does not follow that because an offense is malum prohibitum, the subject thereof is
necessarily illegal per se. Motive is immaterial in mala prohibita, but the subjects of this kind of
offense may not be summarily seized simply because they are prohibited. A search warrant is still
necessary.
5. ID.; ID.; ID.; INSTANCES WHEN SEARCH AND SEIZURE MAY BE MADE WITHOUT
WARRANT: CASE AT BAR. It is true that there are certain instances when a search may be validly
made without warrant and articles may be taken validly as a result of that search. For example, a
warrantless search may be made incidental to a lawful arrest, as when the person being arrested is
frisked for weapons he may otherwise be able to use against the arresting officer. Motor cars may be
inspected at borders to prevent smuggling of aliens and contraband and even in the interior upon a
showing of probable cause. Vessels and aircraft are also traditionally removed from the operation of
the rule because of their mobility and their relative ease in fleeing the states jurisdiction. The
individual may knowingly agree to be searched or waive objections to an illegal search. And it has also
been held that prohibited articles may be taken without warrant if they are open to eye and hand and
the peace officer comes upon them inadvertently. Clearly, though, the instant case does not come under
any of the accepted exceptions. Hence, the rule having been violated and no exception being
applicable, the conclusion is that the petitioners pistol and bullets were confiscated illegally and
therefore are protected by the exclusionary principle.
6. REMEDIAL LAW; PROCEDURAL FLAW DISREGARDED DUE TO URGENCY OF
CONSTITUTIONAL ISSUES. It is true that the petitioner should have, before coming to this
Court, filed a motion for the quashal of the search warrant by the respondent judge in accordance with
the normal procedure. But as we said and did in Burgos, "this procedural flaw notwithstanding, we
take cognizance of this petition in view of the seriousness and urgency of the constitutional issues
raised."
DECISION
CRUZ, J.:
Once again we are asked to annul a search warrant on the ground that it violates the Constitution. As
we can do no less if we are to be true to the mandate of the fundamental law, we do annul.
One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy

of his own house. That right has ancient roots, dating back through the mists of history to the mighty
English kings in their fortresses of power. Even then, the lowly subject had his own castle where he
was monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign
lord and all the forces of the Crown.
That right has endured through the ages albeit only in a few libertarian regimes. Their number,
regrettably, continues to dwindle against the onslaughts of authoritarianism. We are among the
fortunate few, able again to enjoy this right after the ordeal of the past despotism. We must cherish and
protect it all the more now because it is like a prodigal son returning.
That right is guaranteed in the following provisions of Article IV of the 1973
Constitution:jgc:chanrobles.com.ph

specific offense. 7
The inclusion of the requirement for the "examination under oath or affirmation of the complainant and
the witnesses he may produce" was a refinement proposed by Delegate Vicente J. Francisco in the
1934 Constitutional Convention. His purpose was the strengthening of the guaranty against
unreasonable searches and seizures. Although the condition did not appear in the corresponding
provision of the federal Constitution of the United States which served as our model, it was then
already embodied in the Code of Criminal Procedure. Nevertheless, Delegate Jose P. Laurel, Chairman
of the Committee on the Bill of Rights of that body, readily accepted the proposal and it was thereafter,
following a brief debate, approved by the Convention. 8
Implementing this requirement, the Rules of Court provided in what was then Rule
126:jgc:chanrobles.com.ph

"SEC. 3. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing the place
to be searched, and the persons or things to be seized.

"SEC. 4. Examination of the applicant. The municipal or city judge must, before issuing the
warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce
and take their depositions in writing, and attach them to the record, in addition to any affidavits
presented to him."cralaw virtua1aw library

"SEC. 4. (1) The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety and order require otherwise.

The petitioner claims that no depositions were taken by the respondent judge in accordance with the
above rule, but this is not entirely true. As a matter of fact, depositions were taken of the complainants
two witnesses in addition to the affidavit executed by them. 9 It is correct to say, however, that the
complainant himself was not subjected to a similar interrogation.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding."cralaw virtua1aw library
Invoking these provisions, the petitioner claims he was the victim of an illegal search and seizure
conducted by the military authorities. The articles seized from him are sought to be used as evidence in
his prosecution for illegal possession of firearms. He asks that their admission be temporarily
restrained (which we have) 1 and thereafter permanently enjoined.
The challenged search warrant was issued by the respondent judge on May 10, 1984. 2 The petitioners
house was searched two days later but none of the articles listed in the warrant was discovered. 3
However, the officers conducting the search found in the premises one Colt Magnum revolver and
eighteen live bullets which they confiscated. They are now the bases of the charge against the
petitioner. 4
To be valid, a search warrant must be supported by probable cause to be determined by the judge or
some other authorized officer after examining the complainant and the witnesses he may produce. No
less important, there must be a specific description of the place to be searched and the things to be
seized, to prevent arbitrary and indiscriminate use of the warrant. 5
Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as referring to "such
facts and circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed and that the objects sought in connection with the offense are in the place
sought to be searched." As held in a long line of decisions, the probable cause must refer to only one

Commenting on this matter, the respondent judge declared:jgc:chanrobles.com.ph

"The truth is that when PC Capt. Mauro P. Quillosa personally filed his application for a search warrant
on May 10, 1984, he appeared before me in the company of his two (2) witnesses, Esmael Morada and
Jesus Tohilida, both of whom likewise presented to me their respective affidavits taken by Pat. Josue V.
Lining, a police investigator assigned to the PC-INP command at Camp Col. Maximo Abad. As the
application was not yet subscribed and sworn to, I proceeded to examine Captain Quillosa on the
contents thereof to ascertain, among others, if he knew and understood the same. Afterwards, he
subscribed and swore to the same before me." 10
By his own account, all he did was question Captain Quillosa on the contents of his affidavit only "to
ascertain, among others, if he knew and understood the same," and only because "the application was
not yet subscribed and sworn to." The suggestion is that he would not have asked any questions at all if
the affidavit had already been completed when it was submitted to him. In any case, he did not ask his
own searching questions. He limited himself to the contents of the affidavit. He did not take the
applicants deposition in writing and attach them to the record, together with the affidavit presented to
him.chanrobles law library : red
As this Court held in Mata v. Bayona: 11
"Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has
to take depositions in writing of the complainant and the witnesses he may produce and attach them to

the record. Such written deposition is necessary in order that the Judge may be able to properly
determine the existence or non-existence of the probable cause, to hold liable for perjury the person
giving it if it will be found later that his declarations are false.
"We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to
conform with the essential requisites of taking the depositions in writing and attaching them to the
record, rendering the search warrant invalid."cralaw virtua1aw library
The respondent judge also declared that he "saw no need to have applicant Quillosas deposition taken
considering that he was applying for a search warrant on the basis of the information provided by the
aforenamed witnesses whose depositions as aforementioned had already been taken by the
undersigned." 12
In other words, the applicant was asking for the issuance of the search warrant on the basis of mere
hearsay and not of information personally known to him, as required by settled jurisprudence. 13 The
rationale of the requirement, of course, is to provide a ground for a prosecution for perjury in case the
applicants declarations are found to be false. His application, standing alone, was insufficient to justify
the issuance of the warrant sought. It was therefore necessary for the witnesses themselves, by their
own personal information, to establish the applicants claims. 14
Even assuming then that it would have sufficed to take the depositions only of the witnesses and not of
the applicant himself, there is still the question of the sufficiency of their depositions.
It is axiomatic that the examination must be probing and exhaustive, not merely routinary or proforma, if the claimed probable cause is to be established. The examining magistrate must not simply
rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the
application. 15
A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida, who both claimed
to be "intelligence informers," shows that they were in the main a mere restatement of their allegations
in their affidavits, except that they were made in the form of answers to the questions put to them by
the respondent judge. Significantly, the meaningful remark made by Tohilida that they were suspicious
of the petitioner because he was a follower of the opposition candidate in the forthcoming election (a
"Lecarista") 16 did not excite the respondent judges own suspicions. This should have put him on
guard as to the motivations of the witnesses and alerted him to possible misrepresentations from them.
The respondent judge almost unquestioningly received the witnesses statement that they saw eight
men deliver arms to the petitioner in his house on May 2, 1984. 17 This was supposedly done overtly,
and Tohilida said he saw everything through an open window of the house while he was near the gate.
18 He could even positively say that six of the weapons were .45 caliber pistols and two were .38
caliber revolvers. 19
One may well wonder why it did not occur to the respondent judge to ask how the witness could be so
certain even as to the caliber of the guns, or how far he was from the window, or whether it was on the
first floor or a second floor, or why his presence was not noticed at all, or if the acts related were really
done openly, in the full view of the witnesses, considering that these acts were against the law. These

would have been judicious questions but they were injudiciously omitted. Instead, the declarations of
the witnesses were readily accepted and the search warrant sought was issued forthwith.
The above-discussed defects have rendered the search warrant invalid. Nonetheless, the Solicitor
General argues that whatever defect there was, was waived when the petitioner voluntarily submitted
to the search and manifested his conformity in writing. 20
We do not agree. What we see here is pressure exerted by the military authorities, who practically
coerced the petitioner to sign the supposed waiver as a guaranty against a possible challenge later to
the validity of the search they were conducting. Confronted with the armed presence of the military
and the presumptive authority of a judicial writ, the petitioner had no choice but to submit. This was
not, as we held in a previous case, 21 the manifestation merely of our traditional Filipino hospitality
and respect for authority. Given the repressive atmosphere of the Marcos regime, there was here, as we
see it, an intimidation that the petitioner could not resist.
The respondents also argue that the Colt Magnum pistol and the eighteen live bullets seized from the
petitioner were illegal per se and therefore could have been taken by the military authorities even
without a warrant. Possession of the said articles, it is urged, was violative of P.D. 1866 and considered
malum prohibitum. Hence, the illegal articles could be taken even without a warrant.
Prohibited articles may be seized but only as long as the search is valid. In this case, it was not
because: 1) there was no valid search warrant; and 2) absent such a warrant, the right thereto was not
validly waived by the petitioner. In short, the military officers who entered the petitioners premises
had no right to be there and therefore had no right either to seize the pistol and bullets.chanrobles.com :
virtual law library
It does not follow that because an offense is malum prohibitum, the subject thereof is necessarily
illegal per se. Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not
be summarily seized simply because they are prohibited. A search warrant is still necessary. If the rule
were otherwise, then the military authorities could have just entered the premises and looked for the
guns reportedly kept by the petitioner without bothering to first secure a search warrant. The fact that
they did bother to do so indicates that they themselves recognized the necessity of such a warrant for
the seizure of the weapons the petitioner was suspected of possessing.
It is true that there are certain instances when a search may be validly made without warrant and
articles may be taken validly as a result of that search. For example, a warrantless search may be made
incidental to a lawful arrest, 22 as when the person being arrested is frished for weapons he may
otherwise be able to use against the arresting officer. Motor cars may be inspected at borders to prevent
smuggling of aliens and contraband 23 and even in the interior upon a showing of probable cause. 24
Vessels and aircraft are also traditionally removed from the operation of the rule because of their
mobility and their relative ease in fleeing the states jurisdiction. 25 The individual may knowingly
agree to be searched or waive objections to an illegal search. 26 And it has also been held that
prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer
comes upon them inadvertently. 27
Clearly, though, the instant case does not come under any of the accepted exceptions. The respondents

cannot even claim that they stumbled upon the pistol and bullets for the fact is that these things were
deliberately sought and were not in plain view when they were taken. Hence, the rule having been
violated and no exception being applicable, the conclusion is that the petitioners pistol and bullets
were confiscated illegally and therefore are protected by the exclusionary principle.

The pistol and bullets cannot, of course, be used as evidence against the petitioner in the criminal
action against him for illegal possession of firearms. Pending resolution of that case, however, the said
articles must remain in custodia legis.chanrobles virtual lawlibrary

the right to travel. One of the highlights of the keynote address of President Marcos in the Manila
World Law Conference in celebration of the World Peace Through Law Day on August 21, 1977 was
the lifting of the ban on international travel. There should be fidelity to such a pronouncement. It is
the experience of the undersigned in his lectures abroad the last few years, in the United States as well
as in Malaysia, Singapore and Australia, that respect accorded constitutional rights under the present
emergency regime had elicited the commendation of members of the bench, the bar, and the academe
in foreign lands. It is likewise worthy of notice that in his keynote address to the International Law
Association, President Marcos made reference to martial law being instituted in accordance with law
and that the Constitution had been applied in appropriate cases. As an agency of the executive branch,
therefore, the Travel Processing Center should ever be on its guard, lest the impression be created that
such declarations amount, to paraphrase Justice Jackson, to no more than munificent bequests in a
paupers will. Petitioner, to my mind, is justified, the more so in the light of the Answer of Acting
Solicitor General Vicente Mendoza, to an affirmative response to his prayer in his Manifestation and
Reply that under the circumstances mentioned in the Petition, Petitioner is entitled to travel abroad,
and that it is in recognition of this right that Respondents have issued his Certificate of Eligibility to
Travel, as mentioned in the Answer." 2

Finally, it is true that the petitioner should have, before coming to this Court, filed a motion for the
quashal of the search warrant by the respondent judge in accordance with the normal procedure. But as
we said and did in Burgos, "this procedural flaw notwithstanding, we take cognizance of this petition
in view of the seriousness and urgency of the constitutional issues raised." 28

The present petition is likewise impressed with a moot and academic aspect. In the motion to dismiss
of the Solicitor General dated April 21, 1980, it was stated that the certificate of eligibility to travel had
been granted petitioner. A xeroxed copy was enclosed. A resolution for dismissal is, therefore, in
order.chanrobles virtual lawlibrary

WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10, 1984, is hereby
declared null and void and accordingly set aside. Our restraining order of August 6, 1985, is made
permanent. No costs.

From the docket of this Court, it appears that other petitions of this character had been filed in the past,
namely, Santos v. The Special Committee on Travel Abroad, 3 Pimentel v. Travel Processing Center, 4
and Gonzales v. Special Committee on Travel. 5 In the aforesaid cases, as in this and the earlier
Salonga petition, there was no occasion to pass on the merits of the controversy as the certificates of
eligibility to travel were granted. The necessity for any ruling was thus obviated. Nonetheless, in view
of the likelihood that in the future this Court may be faced again with a situation like the present which
takes up its time and energy needlessly, it is desirable that respondent Travel Processing Center should
exercise the utmost care to avoid the impression that certain citizens desirous of exercising their
constitutional right to travel could be subjected to inconvenience or annoyance. In the address of
President and Prime Minister Ferdinand E. Marcos before the American Newspaper Publishers
Association last Tuesday April 22, 1980, he emphasized anew the respect accorded constitutional
rights. The freedom to travel is certainly one of the most cherished. He cited with approval the ringing
affirmation of Willoughby, who, as he noted was "partial to the claims of liberty." 6 Burdick 7 and
Willis, 8 both of whom were equally convinced that there be no erosion to human rights even in times
of martial law, likewise received from President Marcos the accolade of his approval. It would appear,
therefore, that in case of doubt of the Officer-in-Charge of the Travel Processing Center, the view of
General Fabian Ver should immediately be sought. It goes without saying that the petition for such
certificate of eligibility to travel be filed at the earliest opportunity to facilitate the granting thereof and
preclude any disclaimer as to the person desiring to travel being in any way responsible for any delay.

Stonehill v. Diokno established this rule which was later expressly affirmed in the 1973 Constitution.
While conceding that there may be occasions when the criminal might be allowed to go free because
"the constable has blundered," Chief Justice Concepcion observed that the exclusionary rule was
nonetheless "the only practical means of enforcing the constitutional injunction" against abuse. The
decision cited Judge Learned Hands justification that "only in case the prosecution which itself
controls the seizing officials, know that it cannot profit by their wrong, will the wrong be
repressed."cralaw virtua1aw library

SO ORDERED.
Teehankee, C.J., Feria, Yap, Fernan, Melencio-Herrera, Alampay, Gutierrez, Jr. and Paras, JJ., concur.
Narvasa and Feliciano, JJ., concur in the result.
6. SALONGA VS. HERMOSO
FERNANDO, C.J.:
This is not the first time petitioner Jovito R. Salonga came to this Tribunal by way of a mandamus
proceeding to compel the issuance to him of a certificate of eligibility to travel. In the first case,
Salonga v. Madella, 1 the case became moot and academic as the Office of the Solicitor General, in its
answer to the petition, stated that the travel eligibility certificate was not denied and, as a matter of
fact, had been granted. Nonetheless, a brief separate opinion was filed, concurring in the resolution,
and worded thus: "Clearly this petition had assumed a moot and academic character. Its dismissal is
thus indicated. May I just add these few words as my response to the plea of petitioner in his
Manifestation and Reply dated October 28, 1978. This is how I would view the matter not only where
petitioner is concerned but in all other similar cases. Respondent Travel Processing Center should
discharge its function conformably to the mandate of the Universal Declaration of Human Rights on

WHEREFORE, the petition is dismissed for being moot and academic.

Barredo, Makasiar, Aquino, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro and
Melencio-Herrera, JJ., concur.

Antonio, J., is on leave.

Separate Opinions
TEEHANKEE, J., concurring:chanrob1es virtual 1aw library
In Salonga v. Medalla * after the therein public respondents in charge of the Travel Processing Center
had issued in 1978 to herein petitioner the corresponding travel permit or certificate, I remarked "that
the issuance of the travel certificate necessarily is a recognition of petitioners right to travel under the
present circumstances."cralaw virtua1aw library
The circumstances have not changed in any manner. Petitioner is the holder of a Philippine passport
issued on March 3, 1980 and valid up to March 1982 and has urgent medical appointments and official
engagements as the only Filipino member of the Board of Trustees of the United Board for Higher
Christian Education in Asia based in New York. His last trip abroad was from February 21, 1980
March 15, 1980 without any complaint from any government agency. There seems no valid basis for
the the delay in the issuance of petitioners travel permit (which he had long applied for on April 1,
1980) and for his representative to have had to follow up in vain daily from the scheduled release date

of April 11, 1980 until he was constrained to file the present petition on April 18th as his scheduled trip
on April 23rd was in jeopardy (while all other applications had already been long acted upon
favorably).cralawnad
As the Chief Justice stresses in the Courts resolution "it is desirable that respondent Travel Processing
Center should exercise the utmost care to avoid the impression that certain citizens desirous of
exercising their constitutional right to travel could be subjected to inconvenience or annoyance." Under
the antecedents, with petitioner having previously established his right to travel as sanctioned by the
Ministry of Foreign Affairs which duly issued him his passport, petitioner has cause to complain that
he should not be placed by respondents on their "watch list", without benefit of previous notice and
hearing so as to be afforded the opportunity to rebut whatever adverse information might have been
compiled or given in secret against him.
Finally, it is not amiss to call the attention of the public officials concerned to the provisions of Article
27 of the Civil Code that "Any person suffering material or moral loss because a public servant or
employee refuses or neglects, without just cause, to perform his official duty may file an action for
damages and other relief against the latter, without prejudice to any disciplinary administrative action
that may be taken."cralaw virtua1aw library