Republic of the Philippines

SUPREME COURT
Manila

BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine Constabulary, respondent.

EN BANC

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF SGT.

FILOMENO M. DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS
C. RABAGO, in his capacity as President of the Conference Delegates Association of the
Philippines (CONDA),petitioner,

G.R. No. L-33964 December 11, 1971

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG
RODOLFO DEL ROSARIO, and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary,
respondent.
G.R. No. L-33965 December 11, 1971

G.R. No. L-34039 December 11, 1971

vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.
G.R. No. L-34265 December 11, 1971

ROGELIO V. ARIENDA, petitioner,

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA, JR.
ANTOLIN ORETA, JR., petitioner,

vs.

vs.

SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL. CONSTABULARY,

respondents.

GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, respondents.

G.R. No. L-33973 December 11, 1971

LUZVIMINDA DAVID, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N. C.
CAMELLO, in his capacity as Chief of Staff, Philippine Constabulary and HON. JUAN
PONCE ENRILE in his capacity as Secretary, Department of National defense,
respondents.
G.R. No. L-33982 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E.
PRUDENTE FELICIDAD G. PRUDENTE, petitioners,
vs.
GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents.
G.R. No. L-34004 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF
GERARDO TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF
DOCUMENTS ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as Chairman,
Committee on Legal Assistance, Philippine Bar Association, petitioner,
vs.
BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE CONSTABULARY,
respondent.
G.R. No. L-34013 December 11, 1971
REYNALDO RIMANDO, petitioner,
vs.

G.R. No. L-34339 December 11, 1971

GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et al.,
respondents.
Ignacio P. Lacsina for petitioners Teodosio Lansang, et al.
Ramon A. Gonzales for petitioner Rogelio V. Arienda.
E. Voltaire Garcia II for petitioner Luzvimindo David.
Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E. Taada, Fortunato de Leon,
R. G. Suntay and Juan T. David for petitioner Felicidad G. Prudente.
Ruben L. Roxas for petitioner Reynaldo Rimando.
Nuez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago, etc.
E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar, etc., et al.
Jose W. Diokno and Juanito R. Remulla for petitioner Antolin Oreta, Jr.
Domingo E. de Lara for and in his own behalf.
Office of the Solicitor General Felix Q. Antonio and Assistant Solicitor General Bernardo
P. Pardo for respondents.
CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the
Philippines was holding a public meeting at Plaza Miranda, Manila, for the presentation
of its candidates in the general elections scheduled for November 8, 1971, two (2) hand
grenades were thrown, one after the other, at the platform where said candidates and
other persons were. As a consequence, eight (8) persons were killed and many more
injured, including practically all of the aforementioned candidates, some of whom

sustained extensive, as well as serious, injuries which could have been fatal had it not
been for the timely medical assistance given to them.
On August 23, soon after noontime, the President of the Philippines announced the
issuance of Proclamation No. 889, dated August 21, 1971, reading as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely established
that lawless elements in the country, which are moved by common or similar ideological
conviction, design and goal and enjoying the active moral and material support of a
foreign power and being guided and directed by a well trained, determined and ruthless
group of men and taking advantage of our constitutional liberties to promote and attain
their ends, have entered into a conspiracy and have in fact joined and banded their
forces together for the avowed purpose of actually staging, undertaking and waging an
armed insurrection and rebellion in order to forcibly seize political power in this country,
overthrow the duly constituted government, and supplant our existing political social,
economic and legal order with an entirely new one whose form of government, whose
system of laws, whose conception of God and religion, whose notion of individual rights
and family relations, and whose political, social and economic precepts are based on the
Marxist-Leninist-Maoist teachings and beliefs;
WHEREAS, these lawless elements, acting in concert through front organizations that
are seemingly innocent and harmless, have continuously and systematically
strengthened and broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our peasantry, laborers,
professionals, intellectuals, students, and mass media personnel, and through such
sustained and careful recruitment and enlistment have succeeded in infiltrating almost
every segment of our society in their ceaseless determination to erode and weaken the
political, social, economic and moral foundations of our existing government and to
influence many peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations against our duly constituted
authorities, against the members of our law enforcement agencies, and worst of all,
against the peaceful members of our society;
WHEREAS, these lawless elements have created a state of lawlessness and disorder
affecting public safety and the security of the State, the latest manifestation of which has
been the dastardly attack on the Liberal Party rally in Manila on August 21, 1971, which
has resulted in the death and serious injury of scores of persons;
WHEREAS, public safety requires that immediate and effective action be taken in order
to maintain peace and order, secure the safety of the people and preserve the authority
of the State;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue
of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the privilege of the writ of habeas corpus, for the
persons presently detained, as well as others who may be hereafter similarly detained for
the crimes of insurrection or rebellion, and all other crimes and offenses committed by
them in furtherance or on the occasion thereof, or incident thereto, or in connection
therewith.
Presently, petitions for writ of habeas corpus were filed, in the above-entitled cases, by
the following persons, who, having been arrested without a warrant therefor and then
detained, upon the authority of said proclamation, assail its validity, as well as that of
their detention, namely:
1.
TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the
petitioners in Case No. L-33964 filed on August 24, 1971 who, on August 22, 1971,
between 8 a.m. and 6 p.m., were "invited" by agents of the Philippine Constabulary
which is under the command of respondent Brig. Gen. Eduardo M. Garcia to go and
did go to the headquarters of the Philippine Constabulary, at Camp Crame, Quezon City,
for interrogation, and thereafter, detained;

2.
ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 filed, also, on
August 24, 1971 who was picked up in his residence, at No. 55 Road, 3, Urduja
Village, Quezon City, by members of the Metrocom and then detained;
3.
Soon after the filing of the petition in Case No. L-33965 or on August 28,
1971 the same was amended to include VICENTE ILAO and JUAN CARANDANG, as
petitioners therein, although, apart from stating that these additional petitioners are
temporarily residing with the original petitioner, Rogelio V. Arienda, the amended
petition alleged nothing whatsoever as regards the circumstances under which said
Vicente Ilao and Juan Carandang are said to be illegally deprived of their liberty;
4.
LUZVIMINDO DAVID, petitioner in Case No. L-33973 filed on August 25,
1971 who was similarly arrested in his residence, at No. 131-B Kamias Road, Quezon
City, and detained by the Constabulary;
5.
Felicidad G. Prudente, who filed the petition in Case No. L-33982 on August
27, 1971 upon the ground that her father, Dr. NEMESIO E. PRUDENTE, had, on
August 22, 1971, at about 8 p.m., been apprehended by Constabulary agents in his
house, at St. Ignatius Village, Quezon City, and then detained at the Camp Crame
stockade, Quezon City;
6.
ANGELO DE LOS REYES, who was allowed on August 30, 1971 to
intervene as one of the petitioners in Cases Nos. L-33964, L-33965 and L-33973, he
having been arrested by members of the Constabulary on August 22, 1971, between 6:30
and 7:30 p.m., in his residence, at 86 Don Manuel Street, Sta. Mesa Heights, Quezon
City, and brought to Camp Crame, Quezon City, where he is detained and restrained of
liberty;
7.
VICTOR FELIPE, who was similarly allowed to intervene as one of the
petitioners in said three (3) cases, upon the ground that, on August 23, 1971, at about 8
a.m., he was, likewise, apprehended at Sta. Rosa, Laguna, by members of the Philippine
Constabulary and brought, first to the Constabulary headquarters at Canlubang, Laguna,
and, then, to Camp Crame, Quezon City, where he is detained and restrained of liberty;
8.
TERESITO SISON, who was, also, allowed to intervene as one of the petitioners
in the same three (3) cases, he having been arrested in his residence, at 318 Lakandula
St., Angeles City, on August 22, 1971, between 6 and 7 p.m., and taken to the PC offices
at Sto. Domingo, Angeles City, then to Camp Olivas, San Fernando, Pampanga, and
eventually to Camp Crame, Quezon City, where he is restrained and deprived of liberty;
9.
GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college
students of St. Louis University, Baguio City, on whose behalf, Domingo E. de Lara in
his capacity as Chairman, Committee on Legal Assistance, Philippine Bar Association
filed on September 3, 1971, the petition in Case No. L-34004, upon the ground that said
Gerardo Tomas had, on August 23, 1971, at about 6 a.m., been arrested by Constabulary
agents, while on his way to school in the City of Baguio, then brought to the
Constabulary premises therein at Camp Holmes, and, thereafter, taken, on August 24,
1971, to Camp Olivas, Pampanga, and thence, on August 25, 1971, to the Constabulary
headquarters at Camp Crame, Quezon City, where he is detained;
10.
REYNALDO RIMANDO, petitioner in Case No. L-34013 filed on September 7,
1971 a 19-year old student of the U.P. College in Baguio city who, while allegedly on
his way home, at Lukban Road, Baguio, on August 23, 1971, at about 1 a.m., was joined
by three (3) men who brought him to the Burnham Park, thence, to Camp Olivas at San
Fernando, Pampanga, and, thereafter, to Camp Crame, Quezon City, where he is
detained;
11.
Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE CASTRO,
on whose behalf Carlos C. Rabago as President of the Conference Delegates
Association of the Philippines (CONDA) filed the petition in Case No. L-34039 on

September 14, 1971 against Gen. Eduardo M. Garcia, alleging that, on August 27,
1971, at about 3 p.m., Mrs. De Castro was arrested, while at Liamzon Subdivision,
Rosario, Pasig, Rizal, by agents of the Constabulary, and taken to the PC headquarters at
Camp Crame, where, later, that same afternoon, her husband was brought, also, by PC
agents and both are detained;
12.
ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 on October
26, 1971 against said Gen. Garcia, as Chief of the Constabulary, and Col. Prospero
Olivas, Chief of the Central Intelligence Service (CIS), Philippine Constabulary, alleging
that, upon invitation from said CIS, he went, on October 20, 1971, to Camp Aguinaldo,
Quezon City, to see Gen. Manuel Yan, Chief of Staff of the Armed Forces of the
Philippines, who referred petitioner to Col. Laroya of the CIS; that the latter, in turn,
referred him to CIS Investigator Atty. Berlin Castillo and another CIS against, whose
name is unknown to the petitioner; and that, after being interrogated by the two (2),
petitioner was detained illegally; and
13.
GARY OLIVAR, petitioner in Case No. L-34339 filed on November 10, 1971
who was apprehended, by agents of the Constabulary, in the evening of November 8,
1941, in Quezon City, and then detained at Camp Crame, in the same City.
Upon the filing of the aforementioned cases, the respondents were forthwith required to
answer the petitions therein, which they did. The return and answer in L-33964 which
was, mutatis mutandis, reproduced substantially or by reference in the other cases,
except L-34265 alleges, inter alia, that the petitioners had been apprehended and
detained "on reasonable belief" that they had "participated in the crime of insurrection
or rebellion;" that "their continued detention is justified due to the suspension of the
privilege of the writ of habeas corpus pursuant to Proclamation No. 889 of the President
of the Philippines;" that there is "a state of insurrection or rebellion" in this country, and
that "public safety and the security of the State required the suspension of the privilege
of the writ of habeas corpus," as "declared by the President of the Philippines in
Proclamation No. 889; that in making said declaration, the "President of the Philippines
acted on relevant facts gathered thru the coordinated efforts of the various intelligence
agents of our government but (of) which the Chief Executive could not at the moment
give a full account and disclosure without risking revelation of highly classified state
secrets vital to its safely and security"; that the determination thus made by the
President is "final and conclusive upon the court and upon all other persons" and
"partake(s) of the nature of political question(s) which cannot be the subject of judicial
inquiry," pursuant to Barcelon v. Baker, 5 Phil. 87, and Montenegro v. Castaeda, 91 Phil.
882; that petitioners "are under detention pending investigation and evaluation of
culpabilities on the reasonable belief" that they "have committed, and are still
committing, individually or in conspiracy with others, engaged in armed struggle,
insurgency and other subversive activities for the overthrow of the Government; that
petitioners cannot raise, in these proceedings for habeas corpus, "the question of their
guilt or innocence"; that the "Chief of Constabulary had petitioners taken into custody on
the basis of the existence of evidence sufficient to afford a reasonable ground to believe
that petitioners come within the coverage of persons to whom the privilege of the writ of
habeas corpus has been suspended"; that the "continuing detention of the petitioners as
an urgent bona fide precautionary and preventive measure demanded by the necessities
of public safety, public welfare and public interest"; that the President of the Philippines
has "undertaken concrete and abundant steps to insure that the constitutional rights and
privileges of the petitioners as well as of the other persons in current confinement
pursuant to Proclamation 889 remain unimpaired and unhampered"; and that
"opportunities or occasions for abuses by peace officers in the implementation of the
proclamation have been greatly minimized, if not completely curtailed, by various
safeguards contained in directives issued by proper authority."
These safeguards are set forth in:
1.
A letter of the President to the Secretary of National Defense, dated August 21,
1971, directing, inter alia, in connection with the arrest or detention of suspects
pursuant to Proclamation No. 889, that, except when caught in flagrante delicto, no

arrest shall be made without warrant authorized in writing by the Secretary of National
Defense; that such authority shall not be granted unless, "on the basis of records and
other evidences," it appears satisfactorily, in accordance with Rule 113, section 6(b), of
the Rules of Court, that the person to be arrested is probably guilty of the acts
mentioned in the proclamation; that, if such person will be charged with a crime subject
to an afflictive penalty under the Anti-Subversion Act, the authorization for his arrest
shall not be issued unless supported by signed intelligence reports citing at least one
reliable witness to the same overt act; that no unnecessary or unreasonable force shall
be used in effecting arrests; and that arrested persons shall not be subject to greater
restraint than is necessary for their detention;
2.
Communications of the Chief of the Constabulary, dated August 23, 27, and 30,
1971, to all units of his command, stating that the privilege of the writ is suspended for
no other persons than those specified in the proclamation; that the same does not involve
material law; that precautionary measures should be taken to forestall violence that may
be precipitated by improper behavior of military personnel; that authority to cause arrest
under the proclamation will be exercised only by the Metrocom, CMA, CIS, and "officers
occupying position in the provinces down to provincial commanders"; that there shall be
no indiscriminate or mass arrests; that arrested persons shall not be harmed and shall be
accorded fair and humane treatment; and that members of the detainee's immediate
family shall be allowed to visit him twice a week;
3.
A memorandum of the Department of National Defense, dated September 2,
1971, directing the Chief of the Constabulary to establish appropriate Complaints and
Action Bodies/Groups to prevent and/or check any abuses in connection with the
suspension of the privilege of the writ; and
4.
Executive Order No. 333, dated August 26, 1971, creating a Presidential
Administrative Assistance Committee to hear complaints regarding abuses committed in
connection with the implementation of Proclamation No. 889.
Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan
Carandang had been released from custody on August 31, 1971, "after it had been found
that the evidence against them was insufficient."
In L-34265, the "Answer and Return" filed by respondents therein traversed some
allegations of fact and conclusions of law made in the petition therein and averred that
Antolin Oreta, Jr., the petitioner therein, had been and is detained "on the basis of a
reasonable ground to believe that he has committed overt acts in furtherance of rebellion
or insurrection against the government" and, accordingly, "comes within the class of
persons as to whom the privilege of the writ of habeas corpus has been suspended by
Proclamation No. 889, as amended," the validity of which is not contested by him.
On August 30, 1971, the President issued Proclamation No. 889-A, amending
Proclamation No. 889, so as to read as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely established
that lawless elements in the country, which are moved by common or similar ideological
conviction, design and goal and enjoying the active moral and material support of a
foreign power and being guided and directed by a well-trained, determined and ruthless
group of men and taking advantage of our constitutional liberties to promote and attain
their ends, have entered into a conspiracy and have in fact joined and banded their
forces together for the avowed purpose of [actually] staging, undertaking, [and] wagging
and are actually engaged in an armed insurrection and rebellion in order to forcibly seize
political power in this country, overthrow the duly constituted government, and supplant
our existing political, social, economic and legal order with an entirely new one whose
form of government, whose system of laws, whose conception of God and religion, whose
notion of individual rights and family relations, and whose political, social and economic
precepts are based on the Marxist-Leninist-Maoist teaching and beliefs;

WHEREAS, these lawless elements, acting in concert through front organizations that
are seemingly innocent and harmless, have continuously and systematically
strengthened and broadened their memberships through sustained and careful
recruiting and enlistment of new adherents from among our peasantly, laborers,
professionals, intellectuals, students, and mass media personnel, and through such
sustained and careful recruitment and enlistment have succeeded in infiltrating almost
every segment of our society in their ceaseless determination to erode and weaken the
political, social, economic and moral foundations of our existing government and
influence many peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations against our duly constituted
authorities, against the members of our law enforcement agencies, and worst of all,
against the peaceful members of our society;

C.

WHEREAS, these lawless elements, by their acts of rebellion and insurrection, have
created a state of lawlessness and disorder affecting public safety and security of the
State, the latest manifestation of which has been the dastardly attack on the Liberal
Party rally in Manila on August 21, 1971, which has resulted in the death and serious
injury of scores of persons;

20.
21.
22.
23.

WHEREAS, public safety requires that immediate and effective action be taken in order
to maintain peace and order, secure the safety of the people and preserve the authority
of the State;

1. Laog 10. Bacolod

2. Dagupan
11. Bago
3. San Carlos
12. Canlaon
4. Batangas
13. La Carlota
5. Lipa 14. Bais
6. Puerto Princesa 15. Dumaguete
7. San Carlos (Negros
16. Iloilo
Occ.)
17. Roxas
8. Cadiz 18. Tagbilaran
9. Silay 19. Lapu-lapu

A.
1.
2.
3.
4.
5.
6.
7.

On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly
heard and then the parties therein were allowed to file memoranda, which were
submitted from September 3 to September 9, 1971.

B.

A.

PROVINCES:

Cebu 24. Tacloban

Mandaue
25. Ormoc
Danao
26. Calbayog
Toledo

On September 25, 1971, the President issued Proclamation No. 889-C, restoring the
privilege of the writ in the following provinces and cities:

NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue

of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the privilege of the writ of habeas corpus for the
persons presently detained, as well as all others who may be hereafter similarly detained
for the crimes of insurrection or rebellion [,] and [all] other [crimes and offenses] overt
acts committed by them in furtherance [or on the occasion] thereof[,]. [or incident
thereto, or in connection therewith.] 1

Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended
by Proclamation No. 889-B, lifting the suspension of the privilege of the writ of habeas
corpus in the following provinces, sub-provinces and cities of the Philippine, namely:

CITIES:

1.
2.
3.
4.
5.
6.
7.

PROVINCES:
Surigao del Norte
8. Agusan del Sur
Surigao del Sur 9. Misamis Or.
Davao del Norte10. Misamis Occ.
Davao del Sur 11. Zamboanga del Norte
Davao Oriental 12. Basilan
Bukidnon
13. Pagadian
Agusan del Norte
CITIES:
Surigao
8. Tangub
Davao 9. Dapitan
Butuan
10. Dipolog
Cagayan
11. Zamboanga
Gingoong
12. Basilan
Ozamiz
13. Pagadian.
Oroquieta

1. Batanes 15. Negros Occ.

2. Ilocos Norte
16. Negros Or.
3. Ilocos Sur
17. Cebu
4. Abra 18. Bohol
5. Abra 19. Capiz
6. Pangasinan
20. Aklan
7. Batangas
21. Antique
8. Catanduanes
22. Iloilo
9. Masbate
23. Leyte
10. Romblon
24. Leyte del Sur
11. Marinduque 25. Northern Samar
12. Or. Mindoro
26. Eastern Samar
13. Occ. Mindoro 27. Western Samar
14. Palawan.

On October 4, 1971, the suspension of the privilege was further lifted by Proclamation
No. 889-D, in the following places:

B.

As a consequences, the privilege of the writ of habeas corpus is still suspended in the
following eighteen (18) provinces, two (2) sub-provinces and eighteen (18) cities, to wit:

SUB-PROVINCES:

1. Guimaras
2. Biliran

3. Siquior

A.
1.
2.
3.
4.
B.

PROVINCES:
Cagayan
5. Camarines
Cavite 6. Albay
Mountain Province
7. Sorsogon
Kalinga-Apayao
CITIES:

1. Cavite City
2. Tagaytay

A.

3. Trece Martires
4. Legaspi

PROVINCE:

1.
2.
3.
4.
5.
6.
7.
8.
9.

Bataan
10.
Benguet
11.
Bulacan
13.
Camarines Sur 14.
Ifugao 15. Rizal
Isabela
16.
Laguna
17.
Lanao del Norte18.
Lanao del Norte

B.

North Cotabato
Nueva Ecija
Pampanga
Quezon

On October 8, 1971, said four cases were, therefore, heard, once again, but, this time
jointly with cases Nos. L-34004, L-34013, and L-34039, and the parties were then
granted a period to file memoranda, in amplification of their respective oral arguments,
which memoranda were submitted from October 12 to October 21, 1971.

South Cotabato
Tarlac
Zambales

Respondents having expressed, during the oral arguments, on September 1 and October
8, 1971, their willingness to impart to the Court classified information relevant to these
cases, subject to appropriate security measures, the Court met at closed doors, on
October 28 and 29, 1971, and, in the presence of three (3) attorneys for the petitioners,
chosen by the latter, namely, Senator Jose W. Diokno, Senator Salvador H. Laurel, and
Atty. Leopoldo Africa, as well as of the Solicitor General and two (2) members of his staff,
was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines,
Gen. Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo Tanabe, Col. Tagumpay
Nanadiego, Judge Advocate General, JAGS (GSC), and other ranking officers of said
Armed Forces, on said classified information, most of which was contained in reports and
other documents already attached to the records. During the proceedings, the members
of the Court, and, occassionally, counsel for the petitioners, propounded pertinent
questions to said officers of the Armed Forces. Both parties were then granted a period
of time within which to submit their respective observations, which were filed on
November 3, 1971, and complemented by some documents attached to the records on
November 6, 1971, and a summary, submitted on November 15, 1971, of the aforesaid
classified information.

SUB-PROVINCES:

1. Aurora2. Quirino
C. CITIES:
1. Angeles
10. Manila
2. Baguio
11. Marawi
3. Cabanatuan
12. Naga
4. Caloocan
13. Olongapo
5. Cotabato
14. Palayan
6. General Santos 15. Pasay
7. Iligan 16. Quezon
8 Iriga 17. San Jose
9 Lucena 18. San Pablo
The first major question that the Court had to consider was whether it would adhere to
the view taken in Barcelon v. Baker, 2 and reiterated in Montenegro v. Castaeda, 3
pursuant to which, "the authority to decide whether the exigency has arisen requiring
suspension (of the privilege of the writ of habeas corpus) belongs to the President and
his 'decision is final and conclusive' upon the courts and upon all other persons." Indeed,
had said question been decided in the affirmative the main issue in all of these cases,
except
L-34339, would have been settled, and, since the other issues were relatively of minor
importance, said cases could have been readily disposed of. Upon mature deliberation, a
majority of the Members of the Court had, however, reached, although tentatively, a
consensus to the contrary, and decided that the Court had authority to and should
inquire into the existence of the factual bases required by the Constitution for the
suspension of the privilege of the writ; but before proceeding to do so, the Court deemed
it necessary to hear the parties on the nature and extent of the inquiry to be undertaken,
none of them having previously expressed their views thereof. Accordingly, on October 5,
1971, the Court issued, in L-33964, L-33965, L-33973 and L-33982, a resolution stating
in part that
... a majority of the Court having tentatively arrived at a consensus that it may inquire in
order to satisfy itself of the existence of the factual bases for the issuance of Presidential
Proclamations Nos. 889 and 889-A (suspending the privilege of the writ of habeas corpus
for all persons detained or to be detained for the crimes of rebellion or insurrection
throughout the Philippines, which area has lately been reduced to some eighteen
provinces, two subprovinces and eighteen cities with the partial lifting of the suspension
of the privilege effected by Presidential Proclamations Nos. 889-B, 889-C and 889-D) and
thus determine the constitutional sufficiency of such bases in the light of the
requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par. 2, of the
Philippine Constitution; and considering that the members of the Court are not agreed
on the precise scope and nature of the inquiry to be made in the premises, even as all of
them are agreed that the Presidential findings are entitled to great respect, the Court
RESOLVED that these cases be set for rehearing on October 8, 1971 at 9:30 A.M.
xxx

xxx

xxx

In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the
parties therein were heard in oral argument on November 4, and 16, 1971, respectively.
On November 15, 1971, the Solicitor General filed manifestations motions stating that
on November 13, 1971, the following petitioners were:
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)

released from custody:

Teodosio Lansang
-G.R. No. L-33964
Bayani Alcala -" " L-33964
Rogelio Arienda -- " " L-33965
Nemesio Prudente -- " " L-33982
Gerardo Tomas -- " " L-34004
Reynaldo Rimando -- " " L-34013
Filomeno M. de Castro -- " " L-34039
Barcelisa de Castro -- " " L-34039
Antolin Oreta, Jr.
-- " " L-34264.

(b)
charged, together with other persons named in the criminal complaint filed
therefor, with a violation of Republic Act No. 1700 (Anti-Subversion Act), in the City
Fiscal's Office of Quezon City:
(1) Angelo de los Reyes -G.R. No. L-22982 *
(2) Teresito Sison -- " " L-33982 *
(c)
accused, together with many others named in the criminal complaint filed
therefor, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the
Court of First Instance of Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No. 889, as amended, and
praying that the petitions in G.R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and
L-34039 be dismissed, without prejudice to the resolution of the remaining cases. Copy
of the criminal complaint filed, as above stated, with the Court of First Instance of Rizal
and docketed therein as Criminal Case No. Q-1623 of said court which was appended

to said manifestations-motions of the respondent as Annex 2 thereof shows that Gary

Olivar, the petitioner in L-34339, is one of the defendants in said case.
Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L33973, in his comment dated November 23, 1971, urged the Court to rule on the merits
of the petitions in all of these cases, particularly on the constitutionality of Presidential
Proclamation No. 889, as amended, upon the ground that he is still detained and that the
main issue is one of public interest involving as it does the civil liberties of the people.
Angelo de los Reyes, one of the petitioners in L-33964, L-33965 and L-33973, Nemesio E.
Prudente and Gerardo Tomas, for whose respective benefit the petitions in L-33982 and
L-34004 have been filed, maintained that the issue in these cases is not moot, not even
for the detainees who have been released, for, as long as the privilege of the writ
remains suspended, they are in danger of being arrested and detained again without just
cause or valid reason. In his reply, dated and filed on November 29, 1971, the Solicitor
General insisted that the release of the above-named petitioners rendered their
respective petitions moot and academic.
I
Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of
the proclamation suspending the privilege of the writ of habeas corpus. In this
connection, it should be noted that, as originally formulated, Proclamation No. 889 was
contested upon the ground that it did not comply with the pertinent constitutional
provisions, namely, paragraph (14) of section 1, Article III of our Constitution, reading:
The privilege of the writ of habeas corpus shall not be suspended except in cases of
invasion, insurrection, or rebellion, when the public safety requires it, in any way of
which events the same may be suspended wherever during such period the necessity for
such suspension shall exist.
and paragraph (2), section 10, Article VII of the same instrument, which provides that:
The President shall be commander-in-chief of all armed forces of the Philippines, and
whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion,
insurrection, or rebellion, or imminent danger thereof when the public safety requires it,
he may suspend the privileges of the writ of habeas corpus, or place the Philippines or
any part thereof under martial law.
Regardless of whether or not the President may suspend the privilege of the writ of
habeas corpus in case of "imminent danger" of invasion, insurrection or rebellion
which is one of the grounds stated in said paragraph (2), section 10 of Art. VII of the
Constitution, but not mentioned in paragraph (14), section 1 of its Bill of Rights
petitioners maintained that Proclamation No. 889 did not declare the existence of actual
"invasion insurrection or rebellion or imminent danger thereof," and that, consequently,
said Proclamation was invalid. This contention was predicated upon the fact that,
although the first "whereas" in Proclamation No. 889 stated that "lawless elements" had
"entered into a conspiracy and have in fact joined and banded their forces together for
the avowed purpose of actually staging, undertaking and waging an armed insurrection
and rebellion," the actuality so alleged refers to the existence, not of an uprising that
constitutes the essence of a rebellion or insurrection, but of the conspiracy and the
intent to rise in arms.
Whatever may be the merit of this claim, the same has been rendered moot and
academic by Proclamation No. 889-A, issued nine (9) days after the promulgation of the
original proclamation, or on August 30, 1971. Indeed, said Proclamation No. 889-A
amended, inter alia, the first "whereas" of the original proclamation by postulating the
said lawless elements "have entered into a conspiracy and have in fact joined and banded
their forces together for the avowed purpose of staging, undertaking, waging and are
actually engaged in an armed insurrection and rebellion in order to forcibly seize
political power in this country, overthrow the duly constituted government, and supplant

our existing political, social, economic and legal order with an entirely new one ...."
Moreover, the third "whereas" in the original proclamation was, likewise, amended by
alleging therein that said lawless elements, "by their acts of rebellion and insurrection,"
have created a state of lawlessness and disorder affecting public safety and the security
of the State. In other words, apart from adverting to the existence of actual conspiracy
and of the intent to rise in arms to overthrow the government, Proclamation No. 889-A
asserts that the lawless elements "are actually engaged in an armed insurrection and
rebellion" to accomplish their purpose.
It may not be amiss to note, at this juncture, that the very tenor of the original
proclamation and particularly, the circumstances under which it had been issued, clearly
suggest the intent to aver that there was and is, actually, a state of rebellion in the
Philippines, although the language of said proclamation was hardly a felicitous one, it
having in effect, stressed the actuality of the intent to rise in arms, rather than of the
factual existence of the rebellion itself. The pleadings, the oral arguments and the
memoranda of respondents herein have consistently and abundantly emphasized to
justify the suspension of the privilege of the writ of habeas corpus the acts of violence
and subversion committed prior to August 21, 1971, by the lawless elements above
referred to, and the conditions obtaining at the time of the issuance of the original
proclamation. In short, We hold that Proclamation No. 889-A has superseded the original
proclamation and that the flaws attributed thereto are purely formal in nature.
II
Let us now consider the substantive validity of the proclamation, as amended. Pursuant
to the above-quoted provisions of the Constitution, two (2) conditions must concur for
the valid exercise of the authority to suspend the privilege to the writ, to wit: (a) there
must be "invasion, insurrection, or rebellion" or pursuant to paragraph (2), section 10
of Art. VII of the Constitution "imminent danger thereof," and (b) "public safety" must
require the suspension of the privilege. The Presidential Proclamation under
consideration declares that there has been and there is actually a state of rebellion and
that 4 "public safety requires that immediate and effective action be taken in order to
maintain peace and order, secure the safety of the people and preserve the authority of
the State."
Are these findings conclusive upon the Court? Respondents maintain that they are, upon
the authority of Barcelon v. Baker 5 and Montenegro v. Castaeda. 6 Upon the other
hand, petitioners press the negative view and urge a reexamination of the position taken
in said two (2) cases, as well as a reversal thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a)
it relied heavily upon Martin v. Mott 7 involving the U.S. President's power to call out the
militia, which he being the commander-in-chief of all the armed forces may be
exercised to suppress or prevent any lawless violence, even without invasion,
insurrection or rebellion, or imminent danger thereof, and is, accordingly, much broader
than his authority to suspend the privilege of the writ of habeas corpus, jeopardizing as
the latter does individual liberty; and (b) the privilege had been suspended by the
American Governor-General, whose act, as representative of the Sovereign, affecting the
freedom of its subjects, can hardly be equated with that of the President of the
Philippines dealing with the freedom of the Filipino people, in whom sovereignty resides,
and from whom all government authority emanates. The pertinent ruling in the
Montenegro case was based mainly upon the Barcelon case, and hence, cannot have
more weight than the same. Moreover, in the Barcelon case, the Court held that it could
go into the question: "Did the Governor-General" acting under the authority vested in
him by the Congress of the United States, to suspend the privilege of the writ of habeas
corpus under certain conditions "act in conformance with such authority?" In other
words, it did determine whether or not the Chief Executive had acted in accordance with
law. Similarly, in the Montenegro case, the Court held that petitioner therein had "failed
to overcome the presumption of correctness which the judiciary accords to acts of the
Executive ...." In short, the Court considered the question whether or not there really
was are rebellion, as stated in the proclamation therein contested.

Incidentally, even the American jurisprudence is neither explicit nor clear on the point
under consideration. Although some cases 8 purport to deny the judicial power to
"review" the findings made in the proclamations assailed in said cases, the tenor of the
opinions therein given, considered as a whole, strongly suggests the court's conviction
that the conditions essential for the validity of said proclamations or orders were, in fact,
present therein, just as the opposite view taken in other cases 9 had a backdrop
permeated or characterized by the belief that said conditions were absent. Hence, the
dictum of Chief Justice Taney to the effect that "(e)very case must depend on its own
circumstances." 10 One of the important, if not dominant, factors, in connection
therewith, was intimated in Sterling v. Constantin, 11 in which the Supreme Court of the
United States, speaking through Chief Justice Hughes, declared that:
.... When there is a substantial showing that the exertion of state power has overridden
private rights secured by that Constitution, the subject is necessarily one for judicial
inquiry in an appropriate proceeding directed against the individuals charged with the
transgression. To such a case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to its
exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority of the Court" had
"tentatively arrived at a consensus that it may inquire in order to satisfy itself of the
existence of the factual bases for the issuance of Presidential Proclamations Nos. 889
and 889-A ... and thus determine the constitutional sufficiency of such bases in the light
of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par 2, of the
Philippine Constitution...." Upon further deliberation, the members of the Court are now
unanimous in the conviction that it has the authority to inquire into the existence of said
factual bases in order to determine the constitutional sufficiency thereof.
Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified.
The authority conferred by the Constitution, both under the Bill of Rights and under the
Executive Department, is limited and conditional. The precept in the Bill of Rights
establishes a general rule, as well as an exception thereto. What is more, it postulates
the former in the negative, evidently to stress its importance, by providing that "(t)he
privilege of the writ of habeas corpus shall not be suspended ...." It is only by way of
exception that it permits the suspension of the privilege "in cases of invasion,
insurrection, or rebellion" or, under Art VII of the Constitution, "imminent danger
thereof" "when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such suspension shall exist."
13 For from being full and plenary, the authority to suspend the privilege of the writ is
thus circumscribed, confined and restricted, not only by the prescribed setting or the
conditions essential to its existence, but, also, as regards the time when and the place
where it may be exercised. These factors and the aforementioned setting or conditions
mark, establish and define the extent, the confines and the limits of said power, beyond
which it does not exist. And, like the limitations and restrictions imposed by the
Fundamental Law upon the legislative department, adherence thereto and compliance
therewith may, within proper bounds, be inquired into by courts of justice. Otherwise,
the explicit constitutional provisions thereon would be meaningless. Surely, the framers
of our Constitution could not have intended to engage in such a wasteful exercise in
futility.
Much less may the assumption be indulged in when we bear in mind that our political
system is essentially democratic and republican in character and that the suspension of
the privilege affects the most fundamental element of that system, namely, individual
freedom. Indeed, such freedom includes and connotes, as well as demands, the right of
every single member of our citizenry to freely discuss and dissent from, as well as
criticize and denounce, the views, the policies and the practices of the government and
the party in power that he deems unwise, improper or inimical to the commonwealth,
regardless of whether his own opinion is objectively correct or not. The untrammelled
enjoyment and exercise of such right which, under certain conditions, may be a civic

duty of the highest order is vital to the democratic system and essential to its
successful operation and wholesome growth and development.
Manifestly, however, the liberty guaranteed and protected by our Basic Law is one
enjoyed and exercised, not in derogation thereof, but consistently therewith, and, hence,
within the framework of the social order established by the Constitution and the context
of the Rule of Law. Accordingly, when individual freedom is used to destroy that social
order, by means of force and violence, in defiance of the Rule of Law such as by rising
publicly and taking arms against the government to overthrow the same, thereby
committing the crime of rebellion there emerges a circumstance that may warrant a
limited withdrawal of the aforementioned guarantee or protection, by suspending the
privilege of the writ of habeas corpus, when public safety requires it. Although we must
be forewarned against mistaking mere dissent no matter how emphatic or intemperate
it may be for dissidence amounting to rebellion or insurrection, the Court cannot
hesitate, much less refuse when the existence of such rebellion or insurrection has
been fairly established or cannot reasonably be denied to uphold the finding of the
Executive thereon, without, in effect, encroaching upon a power vested in him by the
Supreme Law of the land and depriving him, to this extent, of such power, and,
therefore, without violating the Constitution and jeopardizing the very Rule of Law the
Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there
must be "invasion, insurrection or rebellion" or pursuant to paragraph (2), section 10
of Art. VII of the Constitution "imminent danger thereof"; and (b) public safety must
require the aforementioned suspension. The President declared in Proclamation No. 889,
as amended, that both conditions are present.
As regards the first condition, our jurisprudence 14 attests abundantly to the Communist
activities in the Philippines, especially in Manila, from the late twenties to the early
thirties, then aimed principally at incitement to sedition or rebellion, as the immediate
objective. Upon the establishment of the Commonwealth of the Philippines, the
movement seemed to have waned notably; but, the outbreak of World War II in the
Pacific and the miseries, the devastation and havoc, and the proliferation of unlicensed
firearms concomitant with the military occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a resurgence of the Communist threat, with
such vigor as to be able to organize and operate in Central Luzon an army called
HUKBALAHAP, during the occupation, and renamed Hukbong Mapagpalaya ng Bayan
(HMP) after liberation which clashed several times with the armed forces of the
Republic. This prompted then President Quirino to issue Proclamation No. 210, dated
October 22, 1950, suspending the privilege of the writ of habeas corpus, the validity of
which was upheld in Montenegro v. Castaeda. 15 Days before the promulgation of said
Proclamation, or on October 18, 1950, members of the Communist Politburo in the
Philippines were apprehended in Manila. Subsequently accused and convicted of the
crime of rebellion, they served their respective sentences. 16
The fifties saw a comparative lull in Communist activities, insofar as peace and order
were concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the AntiSubversion Act, was approved, upon the ground stated in the very preamble of said
statute that.
... the Communist Party of the Philippines, although purportedly a political party, is in
fact an organized conspiracy to overthrow the Government of the Republic of the
Philippines, not only by force and violence but also by deceit, subversion and other
illegal means, for the purpose of establishing in the Philippines a totalitarian regime
subject to alien domination and control;
... the continued existence and activities of the Communist Party of the Philippines
constitutes a clear, present and grave danger to the security of the Philippines; 17 and
... in the face of the organized, systematic and persistent subversion, national in scope
but international in direction, posed by the Communist Party of the Philippines and its

activities, there is urgent need for special legislation to cope with this continuing menace
to the freedom and security of the country....
In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the
Senate Ad Hoc Committee of Seven copy of which Report was filed in these cases by
the petitioners herein
The years following 1963 saw the successive emergence in the country of several mass
organizations, notably the Lapiang Manggagawa (now the Socialist Party of the
Philippines) among the workers; the Malayang Samahan ng mga Magsasaka (MASAKA)
among the peasantry; the Kabataang Makabayan (KM) among the youth/students; and
the Movement for the Advancement of Nationalism (MAN) among the
intellectuals/professionals. The PKP has exerted all-out effort to infiltrate, influence and
utilize these organizations in promoting its radical brand of
nationalism. 18
Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups,
one of which composed mainly of young radicals, constituting the Maoist faction
reorganized the Communist Party of the Philippines early in 1969 and established a New
People's Army. This faction adheres to the Maoist concept of the "Protracted People's
War" or "War of National Liberation." Its "Programme for a People's Democratic
Revolution" states, inter alia:
The Communist Party of the Philippines is determined to implement its general
programme for a people's democratic revolution. All Filipino communists are ready to
sacrifice their lives for the worthy cause of achieving the new type of democracy, of
building a new Philippines that is genuinely and completely independent, democratic,
united, just and prosperous ...
xxx

xxx

xxx

The central task of any revolutionary movement is to seize political power. The
Communist Party of the Philippines assumes this task at a time that both the
international and national situations are favorable of asking the road of armed
revolution ... 19
In the year 1969, the NPA had according to the records of the Department of National
Defense conducted raids, resorted to kidnappings and taken part in other violent
incidents numbering over 230, in which it inflicted 404 casualties, and, in turn, suffered
243 losses. In 1970, its records of violent incidents was about the same, but the NPA
casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the
traditional group or to the Maoist faction, believe that force and violence are
indispensable to the attainment of their main and ultimate objective, and act in
accordance with such belief, although they may disagree on the means to be used at a
given time and in a particular place; and (b) there is a New People's Army, other, of
course, that the arm forces of the Republic and antagonistic thereto. Such New People's
Army is per se proof of the existence of a rebellion, especially considering that its
establishment was announced publicly by the reorganized CPP. Such announcement is in
the nature of a public challenge to the duly constituted authorities and may be likened to
a declaration of war, sufficient to establish a war status or a condition of belligerency,
even before the actual commencement of hostilities.
We entertain, therefore, no doubts about the existence of a sizeable group of men who
have publicly risen in arms to overthrow the government and have thus been and still are
engaged in rebellion against the Government of the Philippines.
In fact, the thrust of petitioners' argument is that the New People's Army proper is too
small, compared with the size of the armed forces of the Government, that the
Communist rebellion or insurrection cannot so endanger public safety as to require the

suspension of the privilege of the writ of habeas corpus. This argument does not negate,
however, the existence of a rebellion, which, from the constitutional and statutory
viewpoint, need not be widespread or attain the magnitude of a civil war. This is
apparent from the very provision of the Revised Penal Code defining the crime of
rebellion, 20 which may be limited in its scope to "any part" of the Philippines, and, also,
from paragraph (14) of section 1, Article III of the Constitution, authorizing the
suspension of the privilege of the writ "wherever" in case of rebellion "the necessity
for such suspension shall exist." In fact, the case of Barcelon v. Baker referred to a
proclamation suspending the privilege in the provinces of Cavite and Batangas only. The
case of In re Boyle 21 involved a valid proclamation suspending the privilege in a smaller
area a country of the state of Idaho.
The magnitude of the rebellion has a bearing on the second condition essential to the
validity of the suspension of the privilege namely, that the suspension be required by
public safety. Before delving, however, into the factual bases of the presidential findings
thereon, let us consider the precise nature of the Court's function in passing upon the
validity of Proclamation No. 889, as amended.
Article VII of the Constitution vests in the Executive the power to suspend the privilege
of the writ of habeas corpus under specified conditions. Pursuant to the principle of
separation of powers underlying our system of government, the Executive is supreme
within his own sphere. However, the separation of powers, under the Constitution, is not
absolute. What is more, it goes hand in hand with the system of checks and balances,
under which the Executive is supreme, as regards the suspension of the privilege, but
only if and when he acts within the sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested in the Judicial
Department, which, in this respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check not to
supplant 22 the Executive, or to ascertain merely whether he had gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. To be sure, the power of the Court to determine the
validity of the contested proclamation is far from being identical to, or even comparable
with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal
from inferior courts, in which cases the appellate court has all of the powers of the court
of origin.
Under the principle of separation of powers and the system of checks and balances, the
judicial authority to review decisions of administrative bodies or agencies is much more
limited, as regards findings of fact made in said decisions. Under the English law, the
reviewing court determines only whether there is some evidentiary basis for the
contested administrative findings; no quantitative examination of the supporting
evidence is undertaken. The administrative findings can be interfered with only if there
is no evidence whatsoever in support thereof, and said finding is, accordingly, arbitrary,
capricious and obviously unauthorized. This view has been adopted by some American
courts. It has, likewise, been adhered to in a number of Philippine cases. Other cases, in
both jurisdictions, have applied the "substantial evidence" rule, which has been
construed to mean "more than a mere scintilla" or "relevant evidence as a reasonable
mind might accept as adequate to support a conclusion," 23 even if other minds equally
reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of administrative determinations
involving the exercise of quasi-judicial functions calling for or entailing the reception of
evidence. It does not and cannot be applied, in its aforesaid form, in testing the validity
of an act of Congress or of the Executive, such as the suspension of the privilege of the
writ of habeas corpus, for, as a general rule, neither body takes evidence in the sense
in which the term is used in judicial proceedings before enacting a legislation or
suspending the writ. Referring to the test of the validity of a statute, the Supreme Court
of the United States, speaking through Mr. Justice Roberts, expressed, in the leading
case of Nebbia v. New York, 24 the view that:

... If the laws passed are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due process
are satisfied, and judicial determination to that effect renders a court functus officio ...
With the wisdom of the policy adopted, with the adequacy or practically of the law
enacted to forward it, the courts are both incompetent and unauthorized to deal ...
Relying upon this view, it is urged by the Solicitor General
... that judicial inquiry into the basis of the questioned proclamation can go no further
than to satisfy the Court not that the President's decision is correct and that public
safety was endanger by the rebellion and justified the suspension of the writ, but that in
suspending the writ, the President did not act arbitrarily.
No cogent reason has been submitted to warrant the rejection of such test. Indeed, the
co-equality of coordinate branches of the Government, under our constitutional system,
seems to demand that the test of the validity of acts of Congress and of those of the
Executive be, mutatis mutandis, fundamentally the same. Hence, counsel for petitioner
Rogelio Arienda admits that the proper standard is not correctness, but arbitrariness.
Did public safety require the suspension of the privilege of the writ of habeas corpus
decreed in Proclamation No. 889, as amended? Petitioners submit a negative answer
upon the ground: (a) that there is no rebellion; (b) that, prior to and at the time of the
suspension of the privilege, the Government was functioning normally, as were the
courts; (c) that no untoward incident, confirmatory of an alleged July-August Plan, has
actually taken place after August 21, 1971; (d) that the President's alleged apprehension,
because of said plan, is non-existent and unjustified; and (e) that the Communist forces
in the Philippines are too small and weak to jeopardize public safety to such extent as to
require the suspension of the privilege of the writ of habeas corpus.
As above indicated, however, the existence of a rebellion is obvious, so much so that
counsel for several petitioners herein have admitted it.
With respect to the normal operation of government, including courts, prior to and at the
time of the suspension of the privilege, suffice it to say that, if the conditions were such
that courts of justice no longer functioned, a suspension of the privilege would have been
unnecessary, there being no courts to issue the writ of habeas corpus. Indeed,
petitioners' reference to the normal operation of courts as a factor indicative of the
illegality of the contested act of the Executive stems, perhaps, from the fact that this
circumstance was adverted to in some American cases to justify the invalidation therein
decreed of said act of the Executive. Said cases involved, however, the conviction by
military courts of members of the civilian population charged with common crimes. It
was manifestly, illegal for military courts to assume jurisdiction over civilians so charged,
when civil courts were functioning normally.
Then, too, the alleged absence of any untoward incident after August 21, 1971, does not
necessarily bear out petitioners' view. What is more, it may have been due precisely to
the suspension of the privilege. To be sure, one of its logical effects is to compel those
connected with the insurrection or rebellion to go into hiding. In fact, most of them could
not be located by the authorities, after August 21, 1971.
The alleged July-August Plan to terrorize Manila is branded as incredible, upon the
theory that, according to Professor Egbal Ahman of Cornell University, "guerrilla use of
terror ... is sociological and psychologically selective," and that the indiscriminate resort
to terrorism is bound to boomerang, for it tends to alienate the people's symphaty and to
deprive the dissidents of much needed mass support. The fact, however, is that the
violence used is some demonstrations held in Manila in 1970 and 1971 tended to
terrorize the bulk of its inhabitants. It would have been highly imprudent, therefore, for
the Executive to discard the possibility of a resort to terrorism, on a much bigger scale,
under the July-August Plan.

We will now address our attention to petitioners' theory to the effect that the New
People's Army of the Communist Party of the Philippines is too small to pose a danger to
public safety of such magnitude as to require the suspension of the privilege of the writ
of habeas corpus. The flaw in petitioners' stand becomes apparent when we consider
that it assumes that the Armed Forces of the Philippines have no other task than to fight
the New People's Army, and that the latter is the only threat and a minor one to our
security. Such assumption is manifestly erroneous.
The records before Us show that, on or before August 21, 1971, the Executive had
information and reports subsequently confirmed, in many respects, by the
abovementioned Report of the Senate Ad-Hoc Committee of Seven 25 to the effect that
the Communist Party of the Philippines does not merely adhere to Lenin's idea of a swift
armed uprising; that it has, also, adopted Ho Chi Minh's terrorist tactics and resorted to
the assassination of uncooperative local official; that, in line with this policy, the
insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of police; that there
were fourteen (14) meaningful bombing incidents in the Greater Manila Area in 1970;
that the Constitutional Convention Hall was bombed on June 12, 1971; that, soon after
the Plaza Miranda incident, the NAWASA main pipe, at the Quezon City-San Juan
boundary, was bombed; that this was followed closely by the bombing of the Manila City
Hall, the COMELEC building, the Congress Building and the MERALCO substation at
Cubao, Quezon City; and that the respective residences of Senator Jose J. Roy and
Congressman Eduardo Cojuangco were, likewise, bombed, as were the MERALCO main
office premises, along Ortigas Avenue, and the Doctor's Pharmaceuticals, Inc. Building,
in Caloocan City.
Petitioners, similarly, fail to take into account that as per said information and reports
the reorganized Communist Party of the Philippines has, moreover, adopted Mao's
concept of protracted people's war, aimed at the paralyzation of the will to resist of the
government, of the political, economic and intellectual leadership, and of the people
themselves; that conformably to such concept, the Party has placed special emphasis
upon a most extensive and intensive program of subversion by the establishment of front
organizations in urban centers, the organization of armed city partisans and the
infiltration in student groups, labor unions, and farmer and professional groups; that the
CPP has managed to infiltrate or establish and control nine (9) major labor
organizations; that it has exploited the youth movement and succeeded in making
Communist fronts of eleven (11) major student or youth organizations; that there are,
accordingly, about thirty (30) mass organizations actively advancing the CPP interests,
among which are the Malayang Samahan ng Magsasaka (MASAKA), the Kabataang
Makabayan (KM), the Movement for the Advancement of Nationalism (MAN), the
Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM) and the
Malayang Pagkakaisa ng Kabataang Pilipino(MPKP); that, as of August, 1971, the KM
had two hundred forty-five (245) operational chapters throughout the Philippines, of
which seventy-three (73) were in the Greater Manila Area, sixty (60) in Northern Luzon,
forty-nine (49) in Central Luzon, forty-two (42) in the Visayas and twenty-one (21) in
Mindanao and Sulu; that in 1970, the Party had recorded two hundred fifty-eight (258)
major demonstrations, of which about thirty-three (33) ended in violence, resulting in
fifteen (15) killed and over five hundred (500) injured; that most of these actions were
organized, coordinated or led by the aforementioned front organizations; that the violent
demonstrations were generally instigated by a small, but well-trained group of armed
agitators; that the number of demonstrations heretofore staged in 1971 has already
exceeded those of 1970; and that twenty-four (24) of these demonstrations were violent,
and resulted in the death of fifteen (15) persons and the injury of many more.
Subsequent events as reported have also proven that petitioners' counsel have
underestimated the threat to public safety posed by the New People's Army. Indeed, it
appears that, since August 21, 1971, it had in Northern Luzon six (6) encounters and
staged one (1) raid, in consequence of which seven (7) soldiers lost their lives and two
(2)others were wounded, whereas the insurgents suffered five (5) casualties; that on
August 26, 1971, a well-armed group of NPA, trained by defector Lt. Victor Corpus,
attacked the very command port of TF LAWIN in Isabela, destroying two (2) helicopters
and one (1) plane, and wounding one (1) soldier; that the NPA had in Central Luzon a

total of four (4) encounters, with two (2) killed and three (3) wounded on the side of the
Government, one (1) BSDU killed and three (3) NPA casualties; that in an encounter at
Botolan, Zambales, one (1) KM-SDK leader, an unidentified dissident, and Commander
Panchito, leader of the dissident group were killed; that on August 26, 1971, there was
an encounter in the barrio of San Pedro. Iriga City, Camarines Sur, between the PC and
the NPA, in which a PC and two (2) KM members were killed; that the current
disturbances in Cotabato and the Lanao provinces have been rendered more complex by
the involvement of the CPP/NPA, for, in mid-1971, a KM group, headed by Jovencio
Esparagoza, contacted the Higa-onan tribes, in their settlement in Magsaysay, Misamis
Oriental, and offered them books, pamphlets and brochures of Mao Tse Tung, as well as
conducted teach-ins in the reservation; that Esparagoza an operation of the PC in said
reservation; and that there are now two (2) NPA cadres in Mindanao.
It should, also, be noted that adherents of the CPP and its front organizations are,
according to intelligence findings, definitely capable of preparing powerful explosives
out of locally available materials; that the bomb used in the Constitutional Convention
Hall was a "clay-more" mine, a powerful explosive device used by the U.S. Army, believed
to have been one of many pilfered from the Subic Naval Base a few days before; that the
President had received intelligence information to the effect that there was a July-August
Plan involving a wave of assassinations, kidnappings, terrorism and mass destruction of
property and that an extraordinary occurence would signal the beginning of said event;
that the rather serious condition of peace and order in Mindanao, particularly in
Cotabato and Lanao, demanded the presence therein of forces sufficient to cope with the
situation; that a sizeable part of our armed forces discharge other functions; and that the
expansion of the CPP activities from Central Luzon to other parts of the country,
particularly Manila and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna,
Quezon and Bicol Region, required that the rest of our armed forces be spread thin over
a wide area.
Considering that the President was in possession of the above data except those
related to events that happened after August 21, 1971 when the Plaza Miranda
bombing took place, the Court is not prepared to hold that the Executive had acted
arbitrarily or gravely abused his discretion when he then concluded that public safety
and national security required the suspension of the privilege of the writ, particularly if
the NPA were to strike simultaneously with violent demonstrations staged by the two
hundred forty-five (245) KM chapters, all over the Philippines, with the assistance and
cooperation of the dozens of CPP front organizations, and the bombing or water mains
and conduits, as well as electric power plants and installations a possibility which, no
matter how remote, he was bound to forestall, and a danger he was under obligation to
anticipate and arrest.
He had consulted his advisers and sought their views. He had reason to feel that the
situation was critical as, indeed, it was and demanded immediate action. This he
took believing in good faith that public safety required it. And, in the light of the
circumstances adverted to above, he had substantial grounds to entertain such belief.
Petitioners insist that, nevertheless, the President had no authority to suspend the
privilege in the entire Philippines, even if he may have been justified in doing so in some
provinces or cities thereof. At the time of the issuance of Proclamation No. 889, he could
not be reasonably certain, however, about the placed to be excluded from the operation
of the proclamation. He needed some time to find out how it worked, and as he did so, he
caused the suspension to be gradually lifted, first, on September 18, 1971, in twentyseven (27) provinces, three (3) sub-provinces and twenty six (26) cities; then, on
September 25, 1971, in order fourteen (14) provinces and thirteen (13) cities; and, still
later, on October 4, 1971, in seven (7) additional provinces and four (4) cities, or a total
of forty-eight (48) provinces, three (3) sub-provinces and forth-three (43) cities, within a
period of forty-five (45) days from August 21, 1971.
Neither should We overlook the significance of another fact. The President could have
declared a general suspension of the privilege. Instead, Proclamation No. 889 limited the
suspension to persons detained "for crimes of insurrection or rebellion, and all other

crimes and offenses committed by them in furtherance or on the occasion thereof, or

incident thereto, or in connection therewith." Even this was further limited by
Proclamation No. 889-A, which withdrew from the coverage of the suspension persons
detained for other crimes and offenses committed "on the occasion" of the insurrection
or rebellion, or "incident thereto, in or connection therewith." In fact, the petitioners in
L-33964, L-33982 and L-34004 concede that the President had acted in good faith.
In case of invasion, insurrection or rebellion or imminent danger thereof, the President
has, under the Constitution, three (3) courses of action open to him, namely: (a) to call
out the armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to
place the Philippines or any part thereof under martial law. He had, already, called out
the armed forces, which measure, however, proved inadequate to attain the desired
result. Of the two (2)other alternatives, the suspension of the privilege is the least harsh.
In view of the foregoing, it does not appear that the President has acted arbitrary in
issuing Proclamation No. 889, as amended, nor that the same is unconstitutional.
III
The next question for determination is whether petitioners herein are covered by said
Proclamation, as amended. In other words, do petitioners herein belong to the class of
persons as to whom privilege of the writ of habeas corpus has been suspended?
In this connection, it appears that Bayani Alcala, one of the petitioners in L-33964,
Gerardo Tomas, petitioner in L-34004, and Reynaldo Rimando, petitioner in L-34013,
were, on November 13, 1971, released "permanently" meaning, perhaps, without any
intention to prosecute them upon the ground that, although there was reasonable
ground to believe that they had committed an offense related to subversion, the evidence
against them is insufficient to warrant their prosecution; that Teodosio Lansang, one of
the petitioners in L-33964, Rogelio Arienda, petitioner in L-33965, Nemesio Prudente,
petitioner in L-33982, Filomeno de Castro and Barcelisa C. de Castro, for whose benefit
the petition in L-34039 was filed, and Antolin Oreta, Jr., petitioner in L-34265, were, on
said date, "temporarily released"; that Rodolfo del Rosario, one of the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-33973, as well as
Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, are still
under detention and, hence, deprived of their liberty, they together with over forty
(40) other persons, who are at large having been accused, in the Court of First
Instance of Rizal, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion
Act); and that Angelo delos Reyes and Teresito Sison, intervenors in said L-33964, L33965 and
L-33973, are, likewise, still detained and have been charged together with over fifteen
(15) other persons, who are, also, at large with another violation of said Act, in a
criminal complaint filed with the City Fiscal's Office of Quezon City.
With respect to Vicente Ilao and Juan Carandang petitioners in L-33965 who were
released as early as August 31, 1971, as well as to petitioners Nemesio Prudente,
Teodosio Lansang, Rogelio Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa C.
de Castro, Reynaldo Rimando, Gerardo Tomas and Bayani Alcala, who were released on
November 13, 1971, and are no longer deprived of their liberty, their respective petitions
have, thereby, become moot and academic, as far as their prayer for release is
concerned, and should, accordingly, be dismissed, despite the opposition thereto of
counsel for Nemesio Prudente and Gerardo Tomas who maintain that, as long as the
privilege of the writ remains suspended, these petitioners might be arrested and
detained again, without just cause, and that, accordingly, the issue raised in their
respective petitions is not moot. In any event, the common constitutional and legal issues
raised in these cases have, in fact, been decided in this joint decision.
Must we order the release of Rodolfo del Rosario, one of the petitioners in
L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, intervenors in L-33964,
L-33965 and L-33973, Luzvimindo David, petitioner in L-33973, and Gary Olivar,
petitioner in L-34339, who are still detained? The suspension of the privilege of the writ

was decreed by Proclamation No. 889, as amended, for persons detained "for the crimes
of insurrection or rebellion and other overt acts committed by them in furtherance
thereof."
The records shows that petitioners Luzvimindo David, Rodolfo del Rosario, Victor Felipe,
Angelo de los Reyes, Teresito Sison and Gary Olivar are accused in Criminal Case No. Q1623 of the Court of First Instance of Rizal with a violation of the Anti-Subversion Act
and that the similar charge against petitioners Angelo de los Reyes and Teresito Sison in
a criminal complaint, originally filed with the City Fiscal of Quezon City, has, also, been
filed with said court. Do the offenses so charged constitute one of the crimes or overt
acts mentioned in Proclamation No. 889, as amended?
In the complaint in said Criminal Case No. 1623, it is alleged:

b.
That some of the overt acts were committed in the Palace of the Chief
Executive;
c.

That craft, fraud, or disguise was employed;

d.

That the offense was committed with the aid of armed men;

e.
old.

That the offense was committed with the aid of persons under fifteen(15) years

Identical allegations are made in the complaint filed with the City Fiscal of Quezon City,
except that the second paragraph thereof is slightly more elaborate than that of the
complaint filed with the CFI, although substantially the same. 26

That in or about the year 1968 and for sometime prior thereto and thereafter up to and
including August 21, 1971, in the city of Quezon, Philippines, and elsewhere in the
Philippines, within the jurisdiction of this Honorable Court, the above-named accused
knowingly, wilfully and by overt acts became officers and/or ranking leaders of the
Communist Party of the Philippines, a subversive association as defined by Republic Act
No. 1700, which is an organized conspiracy to overthrow the government of the Republic
of the Philippines by force, violence, deceit, subversion and other illegal means, for the
purpose of establishing in the Philippines a communist totalitarian regime subject to
alien domination and control;

In both complaints, the acts imputed to the defendants herein constitute rebellion and
subversion, of in the language of the proclamation "other overt acts committed ... in
furtherance" of said rebellion, both of which are covered by the proclamation suspending
the privilege of the writ. It is clear, therefore, that the crime for which the detained
petitioners are held and deprived of their liberty are among those for which the privilege
of the writ of habeas corpus has been suspended.

That all the above-named accused, as such officers and/or ranking leaders of the
Communist Party of the Philippines conspiring, confederating and mutual helping one
another, did then and there knowingly, wilfully, and feloniously and by overt acts
committed subversive acts all intended to overthrow the government of the Republic of
the Philippines, as follows:

After finding that Proclamation No. 889, as amended, is not invalid and that petitioners
Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario
and Teresito Sison are detained for and actually accused of an offense for which the
privilege of the writ has been suspended by said proclamation, our next step would have
been the following: The Court, or a commissioner designated by it, would have received
evidence on whether as stated in respondents' "Answer and Return" said petitioners
had been apprehended and detained "on reasonable belief" that they had "participated in
the crime of insurrection or rebellion."

1.
By rising publicly and taking arms against the forces of the government,
engaging in war against the forces of the government, destroying property or committing
serious violence, exacting contributions or diverting public lands or property from the
law purposes for which they have been appropriated;
2.
By engaging by subversion thru expansion and requirement activities not only
of the Communist Party of the Philippines but also of the united front organizations of
the Communist Party of the Philippines as the Kabataang Makabayan (KM), Movement
for the Democratic Philippines (MDP), Samahang Demokratikong Kabataan (SDK),
Students' Alliance for National Democracy (STAND), MASAKA Olalia-faction, Student
Cultural Association of the University of the Philippines (SCAUP), KASAMA, Pagkakaisa
ng Magbubukid ng Pilipinas (PMP) and many others; thru agitation promoted by rallies,
demonstration and strikes some of them violent in nature, intended to create social
discontent, discredit those in power and weaken the people's confidence in the
government; thru consistent propaganda by publications, writing, posters, leaflets of
similar means; speeches, teach-ins, messages, lectures or other similar means; or thru
the media as the TV, radio or newspapers, all intended to promote the Communist
pattern of subversion;
3.
Thru urban guerilla warfare characterized by assassinations, bombings,
sabotage, kidnapping and arson, intended to advertise the movement, build up its morale
and prestige, discredit and demoralize the authorities to use harsh and repressive
measures, demoralize the people and weaken their confidence in the government and to
weaken the will of the government to resist.
That the following aggravating circumstances attended the commission of the offense:
a.
That the offense was committed in contempt of and with insult to the public
authorities;

Up to this point, the Members of the Court are unanimous on the legal principles
enunciated.

It is so happened, however, that on November 13, 1971 or two (2) days before the
proceedings relative to the briefing held on October 28 and 29, 1971, had been
completed by the filing 27 of the summary of the matters then taken up the
aforementioned criminal complaints were filed against said petitioners. What is more,
the preliminary examination and/or investigation of the charges contained in said
complaints has already begun. The next question, therefore, is: Shall We now order, in
the cases at hand, the release of said petitioners herein, despite the formal and
substantial validity of the proclamation suspending the privilege, despite the fact that
they are actually charged with offenses covered by said proclamation and despite the
aforementioned criminal complaints against them and the preliminary examination
and/or investigations being conducted therein?
The Members of the Court, with the exception of Mr. Justice Fernando, are of the
opinion, and, so hold, that, instead of this Court or its Commissioner taking the evidence
adverted to above, it is best to let said preliminary examination and/or investigation to be
completed, so that petitioners' released could be ordered by the court of first instance,
should it find that there is no probable cause against them, or a warrant for their arrest
could be issued, should a probable cause be established against them. Such course of
action is more favorable to the petitioners, inasmuch as the preliminary examination or
investigation requires a greater quantum of proof than that needed to establish that the
Executive had not acted arbitrary in causing the petitioners to be apprehended and
detained upon the ground that they had participated in the commission of the crime of
insurrection or rebellion. And, it is mainly for the reason that the Court has opted to
allow the Court of First Instance of Rizal to proceed with the determination of the
existence of probable cause, although ordinarily the Court would have merely
determined the existence of the substantial evidence of petitioners' connection with the
crime of rebellion. Besides, the latter alternative would require the reception of evidence
by this Court and thus duplicate the proceedings now taking place in the court of first

instance. What is more, since the evidence involved in the same proceedings would be
substantially the same and the presentation of such evidence cannot be made
simultaneously, each proceeding would tend to delay the other.
Mr. Justice Fernando is of the opinion in line with the view of Mr. Justice Tuason, in
Nava v. Gatmaitan, 28 to the effect that "... if and when formal complaint is presented,
the court steps in and the executive steps out. The detention ceases to be an executive
and becomes a judicial concern ..." that the filing of the above-mentioned complaint
against the six (6) detained petitioners herein, has the effect of the Executive giving up
his authority to continue holding them pursuant to Proclamation No. 889, as amended,
even if he did not so intend, and to place them fully under the authority of courts of
justice, just like any other person, who, as such, cannot be deprived of his liberty without
lawful warrant, which has not, as yet, been issued against anyone of them, and that,
accordingly, We should order their immediate release. Despite the humanitarian and
libertarian spirit with which this view had been espoused, the other Members of the
Court are unable to accept it because:
(a)
If the proclamation suspending the privilege of the writ of habeas corpus is
valid and We so hold it to be and the detainee is covered by the proclamation, the
filing of a complaint or information against him does not affect the suspension of said
privilege, and, consequently, his release may not be ordered by Us;
(b)
Inasmuch as the filing of a formal complaint or information does not detract
from the validity and efficacy of the suspension of the privilege, it would be more
reasonable to construe the filing of said formal charges with the court of first instance as
an expression of the President's belief that there are sufficient evidence to convict the
petitioners so charged and that hey should not be released, therefore, unless and until
said court after conducting the corresponding preliminary examination and/or
investigation shall find that the prosecution has not established the existence of a
probable cause. Otherwise, the Executive would have released said accused, as were the
other petitioners herein;
(c)
From a long-range viewpoint, this interpretation of the act of the President in
having said formal charges filed is, We believe, more beneficial to the detainees than
that favored by Mr. Justice Fernando. His view particularly the theory that the
detainees should be released immediately, without bail, even before the completion of
said preliminary examination and/or investigation would tend to induce the Executive
to refrain from filing formal charges as long as it may be possible. Manifestly, We should
encourage the early filing of said charges, so that courts of justice could assume
jurisdiction over the detainees and extend to them effective protection.
Although some of the petitioners in these cases pray that the Court decide whether the
constitutional right to bail is affected by the suspension of the privilege of the writ of
habeas corpus, We do not deem it proper to pass upon such question, the same not
having been sufficiently discussed by the parties herein. Besides, there is no point in
settling said question with respect to petitioners herein who have been released. Neither
is necessary to express our view thereon, as regards those still detained, inasmuch as
their release without bail might still be decreed by the court of first instance, should it
hold that there is no probable cause against them. At any rate, should an actual issue on
the right to bail arise later, the same may be brought up in appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1.
Declaring that the President did not act arbitrarily in issuing Proclamation No.
889, as amended, and that, accordingly, the same is not unconstitutional;
2.
Dismissing the petitions in L-33964, L-33965, L-33982, L-34004, L-34013, L34039 and L-34265, insofar as petitioners Teodosio Lansang, Bayani Alcala, Rogelio
Arienda, Vicentellao, Juan Carandang, Nemesio E. Prudente, Gerardo Tomas, Reynaldo
Rimando, Filomeno M. de Castro, Barcelisa C. de Castro and Antolin Oreta, Jr. are
concerned;

3.
The Court of First Instance of Rizal is hereby directed to act with utmost
dispatch in conducting the preliminary examination and/or investigation of the charges
for violation of the Anti-Subversion Act filed against herein petitioners Luzvimindo David,
Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison,
and to issue the corresponding warrants of arrest, if probable cause is found to exist
against them, or, otherwise, to order their release; and
4.
Should there be undue delay, for any reason whatsoever, either in the
completion of the aforementioned preliminary examination and/or investigation, or in the
issuance of the proper orders or resolution in connection therewith, the parties may by
motion seek in these proceedings the proper relief.
5.

Without special pronouncement as to costs. It is so ordered.

EN BANC
[G.R. No. 141284. August 15, 2000]

4. MISSION:

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B. ZAMORA,

GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES,
respondents.
DECISION
KAPUNAN, J.:

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM
visibility patrols to keep Metro Manila streets crime-free, through a sustained street
patrolling to minimize or eradicate all forms of high-profile crimes especially those
perpetrated by organized crime syndicates whose members include those that are welltrained, disciplined and well-armed active or former PNP/Military personnel.

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines
(the Marines) to join the Philippine National Police (the PNP) in visibility patrols around
the metropolis.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

In view of the alarming increase in violent crimes in Metro Manila, like robberies,
kidnappings and carnappings, the President, in a verbal directive, ordered the PNP and
the Marines to conduct joint visibility patrols for the purpose of crime prevention and
suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of
the Philippines (the AFP), the Chief of the PNP and the Secretary of the Interior and
Local Government were tasked to execute and implement the said order. In compliance
with the presidential mandate, the PNP Chief, through Police Chief Superintendent
Edgar B. Aglipay, formulated Letter of Instruction 02/2000[1] (the LOI) which detailed
the manner by which the joint visibility patrols, called Task Force Tulungan, would be
conducted.[2] Task Force Tulungan was placed under the leadership of the Police Chief
of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the
Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the
AFP and the PNP Chief.[3] In the Memorandum, the President expressed his desire to
improve the peace and order situation in Metro Manila through a more effective crime
prevention program including increased police patrols.[4] The President further stated
that to heighten police visibility in the metropolis, augmentation from the AFP is
necessary.[5] Invoking his powers as Commander-in-Chief under Section 18, Article VII
of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to
coordinate with each other for the proper deployment and utilization of the Marines to
assist the PNP in preventing or suppressing criminal or lawless violence.[6] Finally, the
President declared that the services of the Marines in the anti-crime campaign are
merely temporary in nature and for a reasonable period only, until such time when the
situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the
Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the
suppression of crime prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals
but also by organized syndicates whose members include active and former
police/military personnel whose training, skill, discipline and firepower prove well-above
the present capability of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will
reduce the incidence of crimes specially those perpetrated by active or former
police/military personnel.

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila
and to preserve the internal security of the state against insurgents and other serious
threat to national security, although the primary responsibility over Internal Security
Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of highprofile crimes perpetrated by organized crime syndicates operating in Metro Manila.
This concept requires the military and police to work cohesively and unify efforts to
ensure a focused, effective and holistic approach in addressing crime prevention. Along
this line, the role of the military and police aside from neutralizing crime syndicates is to
bring a wholesome atmosphere wherein delivery of basic services to the people and
development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines
visibility patrols, local Police Units are responsible for the maintenance of peace and
order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force
TULUNGAN shall be organized to provide the mechanism, structure, and procedures for
the integrated planning, coordinating, monitoring and assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM
City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center,
LRT/MRT Stations and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines,
null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE
OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY,
EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT
WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3
OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY
IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN
DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE
MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II

IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION

IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT
SHOULD REALLY BE UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the bounden
duty to uphold the rule of law and the Constitution, the IBP questions the validity of the
deployment and utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,[11] dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President
in deploying the Marines, contending, among others, that petitioner has no legal
standing; that the question of deployment of the Marines is not proper for judicial
scrutiny since the same involves a political question; that the organization and conduct
of police visibility patrols, which feature the team-up of one police officer and one
Philippine Marine soldier, does not violate the civilian supremacy clause in the
Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the Presidents factual determination of the necessity of
calling the armed forces is subject to judicial review; and, (3) Whether or not the calling
of the armed forces to assist the PNP in joint visibility patrols violates the constitutional
provisions on civilian supremacy over the military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of
standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to
wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely: (1)
the existence of an actual and appropriate case; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is pleaded
at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.
[12]
The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial interest in
the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged.[13] The term interest means a material
interest, an interest in issue affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest.[14] The gist of the question of
standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of

issues upon which the court depends for illumination of difficult constitutional questions.
[15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration, however, the
IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP
of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. Based on the standards above-stated, the
IBP has failed to present a specific and substantial interest in the resolution of the case.
Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to
elevate the standards of the law profession and to improve the administration of justice
is alien to, and cannot be affected by the deployment of the Marines. It should also be
noted that the interest of the National President of the IBP who signed the petition, is his
alone, absent a formal board resolution authorizing him to file the present action. To be
sure, members of the BAR, those in the judiciary included, have varying opinions on the
issue. Moreover, the IBP, assuming that it has duly authorized the National President to
file the petition, has not shown any specific injury which it has suffered or may suffer by
virtue of the questioned governmental act. Indeed, none of its members, whom the IBP
purportedly represents, has sustained any form of injury as a result of the operation of
the joint visibility patrols. Neither is it alleged that any of its members has been arrested
or that their civil liberties have been violated by the deployment of the Marines. What
the IBP projects as injurious is the supposed militarization of law enforcement which
might threaten Philippine democratic institutions and may cause more harm than good in
the long run. Not only is the presumed injury not personal in character, it is likewise too
vague, highly speculative and uncertain to satisfy the requirement of standing. Since
petitioner has not successfully established a direct and personal injury as a consequence
of the questioned act, it does not possess the personality to assail the validity of the
deployment of the Marines. This Court, however, does not categorically rule that the IBP
has absolutely no standing to raise constitutional issues now or in the future. The IBP
must, by way of allegations and proof, satisfy this Court that it has sufficient stake to
obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to
take cognizance of a suit which does not satisfy the requirement of legal standing when
paramount interest is involved.[16] In not a few cases, the Court has adopted a liberal
attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people.[17] Thus, when the issues raised are of
paramount importance to the public, the Court may brush aside technicalities of
procedure.[18] In this case, a reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Moreover, because peace and order are
under constant threat and lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal controversy raised in the
petition almost certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now, rather
than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid the
PNP in visibility patrols. In this regard, the IBP admits that the deployment of the
military personnel falls under the Commander-in-Chief powers of the President as stated
in Section 18, Article VII of the Constitution, specifically, the power to call out the armed
forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that

this Court review the sufficiency of the factual basis for said troop [Marine] deployment.
[19]
The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review
powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and
limits, and the extent of judicial review. But, while this Court gives considerable weight
to the parties formulation of the issues, the resolution of the controversy may warrant a
creative approach that goes beyond the narrow confines of the issues raised. Thus, while
the parties are in agreement that the power exercised by the President is the power to
call out the armed forces, the Court is of the view that the power involved may be no
more than the maintenance of peace and order and promotion of the general welfare.
[20] For one, the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought
upon the citizenry, a point discussed in the latter part of this decision. In the words of the
late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as protector of
the peace. [Rossiter, The American Presidency]. The power of the President to keep the
peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its existence.
The President is not only clothed with extraordinary powers in times of emergency, but is
also tasked with attending to the day-to-day problems of maintaining peace and order
and ensuring domestic tranquility in times when no foreign foe appears on the horizon.
Wide discretion, within the bounds of law, in fulfilling presidential duties in times of
peace is not in any way diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the Presidents exercising as
Commander-in-Chief powers short of the calling of the armed forces, or suspending the
privilege of the writ of habeas corpus or declaring martial law, in order to keep the
peace, and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power to
call out the armed forces to prevent or suppress lawless violence, invasion or rebellion,
the resolution of the controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review.[22] It pertains to issues which are inherently susceptible of
being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even
in instances that are ripe for resolution. One class of cases wherein the Court hesitates
to rule on are political questions. The reason is that political questions are concerned
with issues dependent upon the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a function of the separation of
powers, the courts will not normally interfere with the workings of another co-equal
branch unless the case shows a clear need for the courts to step in to uphold the law and
the Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the legislative or executive
branch of government. Thus, if an issue is clearly identified by the text of the

Constitution as matters for discretionary action by a particular branch of government or

to the people themselves then it is held to be a political question. In the classic
formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on the surface of any
case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a courts undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarassment from multifarious pronouncements by various departments on the one
question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he
Judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.[25] Under this definition, the Court cannot agree with the Solicitor General
that the issue involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has been
given to this Court.[27] When political questions are involved, the Constitution limits the
determination as to whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the official whose action is being
questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion
or hostility.[29] Under this definition, a court is without power to directly decide matters
over which full discretionary authority has been delegated. But while this Court has no
power to substitute its judgment for that of Congress or of the President, it may look into
the question of whether such exercise has been made in grave abuse of discretion.[30] A
showing that plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to
justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the constitutional intent to give
the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the Presidents decision is
totally bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the military.
In the performance of this Courts duty of purposeful hesitation[32] before declaring an
act of another branch as unconstitutional, only where such grave abuse of discretion is
clearly shown shall the Court interfere with the Presidents judgment. To doubt is to
sustain.

There is a clear textual commitment under the Constitution to bestow on the President
full discretionary power to call out the armed forces and to determine the necessity for
the exercise of such power. Section 18, Article VII of the Constitution, which embodies
the powers of the President as Commander-in-Chief, provides in part:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power
of the President as Commander-in-Chief. First, he can call out such Armed Forces as may
be necessary to suppress lawless violence; then he can suspend the privilege of the writ
of habeas corpus, then he can impose martial law. This is a graduated sequence.

The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus, or place the Philippines or any part thereof under
martial law.

When he judges that it is necessary to impose martial law or suspend the privilege of the
writ of habeas corpus, his judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by the National Assembly. But
when he exercises this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by anybody.

xxx
The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of
Section 18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of
all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension
and the Court may review the sufficiency of the factual basis thereof. However, there is
no such equivalent provision dealing with the revocation or review of the Presidents
action to call out the armed forces. The distinction places the calling out power in a
different category from the power to declare martial law and the power to suspend the
privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would
have simply lumped together the three powers and provided for their revocation and
review without any qualification. Expressio unius est exclusio alterius. Where the terms
are expressly limited to certain matters, it may not, by interpretation or construction, be
extended to other matters.[33] That the intent of the Constitution is exactly what its
letter says, i.e., that the power to call is fully discretionary to the President, is extant in
the deliberation of the Constitutional Commission, to wit:

xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can
be handled by the first sentence: The President may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. So we feel that that is
sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the
matter can be handled by the First Sentence: The President....may call out such Armed
Forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that
is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing
martial law or suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers highlights
the intent to grant the President the widest leeway and broadest discretion in using the
power to call out because it is considered as the lesser and more benign power
compared to the power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power
to suspend the privilege of the writ of habeas corpus or to impose martial law, two
conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public
safety must require it. These conditions are not required in the case of the power to call
out the armed forces. The only criterion is that whenever it becomes necessary, the
President may call the armed forces to prevent or suppress lawless violence, invasion or
rebellion." The implication is that the President is given full discretion and wide latitude
in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted
without factual basis, then this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters considered for satisfying
the same is a combination of several factors which are not always accessible to the
courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to verify, or
wholly unavailable to the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the armed forces may be of a
nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network
to gather information, some of which may be classified as highly confidential or affecting
the security of the state. In the exercise of the power to call, on-the-spot decisions may
be imperatively necessary in emergency situations to avert great loss of human lives and

mass destruction of property. Indeed, the decision to call out the military to prevent or
suppress lawless violence must be done swiftly and decisively if it were to have any
effect at all. Such a scenario is not farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over the other parts of the country.
The determination of the necessity for the calling out power if subjected to unfettered
judicial scrutiny could be a veritable prescription for disaster, as such power may be
unduly straitjacketed by an injunction or a temporary restraining order every time it is
exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the Presidents exercise of judgment deserves to be accorded
respect from this Court.

Considering the above circumstances, the Marines render nothing more than assistance
required in conducting the patrols. As such, there can be no insidious incursion of the
military in civilian affairs nor can there be a violation of the civilian supremacy clause in
the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms
persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse
to requesting the assistance of the military in the implementation and execution of
certain traditionally civil functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has been rendered, exemplifying
the activities that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;[42]

The President has already determined the necessity and factual basis for calling the
armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like
bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro
Manila...[35] We do not doubt the veracity of the Presidents assessment of the situation,
especially in the light of present developments. The Court takes judicial notice of the
recent bombings perpetrated by lawless elements in the shopping malls, public utilities,
and other public places. These are among the areas of deployment described in the LOI
2000. Considering all these facts, we hold that the President has sufficient factual basis
to call for military aid in law enforcement and in the exercise of this constitutional power.

2. Administration of the Philippine National Red Cross;[43]

The deployment of the Marines does not violate the civilian supremacy clause nor does it
infringe the civilian character of the police force.

7. Implementation of the agrarian reform program;[48]

Prescinding from its argument that no emergency situation exists to justify the calling of
the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of
law enforcement is militarized in violation of Section 3, Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of
military assets for civilian law enforcement. The participation of the Marines in the
conduct of joint visibility patrols is appropriately circumscribed. The limited participation
of the Marines is evident in the provisions of the LOI itself, which sufficiently provides
the metes and bounds of the Marines authority. It is noteworthy that the local police
forces are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the
PNP-Philippine Marines joint visibility patrols.[37] Under the LOI, the police forces are
tasked to brief or orient the soldiers on police patrol procedures.[38] It is their
responsibility to direct and manage the deployment of the Marines.[39] It is, likewise,
their duty to provide the necessary equipment to the Marines and render logistical
support to these soldiers.[40] In view of the foregoing, it cannot be properly argued that
military authority is supreme over civilian authority. Moreover, the deployment of the
Marines to assist the PNP does not unmake the civilian character of the police force.
Neither does it amount to an insidious incursion of the military in the task of law
enforcement in violation of Section 5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the
AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed
to a civilian post in derogation of the aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP,
and not with the military. Such being the case, it does not matter whether the AFP Chief
actually participates in the Task Force Tulungan since he does not exercise any authority
or control over the same. Since none of the Marines was incorporated or enlisted as
members of the PNP, there can be no appointment to civilian position to speak of. Hence,
the deployment of the Marines in the joint visibility patrols does not destroy the civilian
character of the PNP.

3. Relief and rescue operations during calamities and disasters;[44]

4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]

8. Enforcement of customs laws;[49]

9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]
This unquestionably constitutes a gloss on executive power resulting from a systematic,
unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never
before questioned.[59] What we have here is mutual support and cooperation between
the military and civilian authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of
military force for domestic purposes has persisted,[60] and whose Constitution, unlike
ours, does not expressly provide for the power to call, the use of military personnel by
civilian law enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines. Under the Posse
Comitatus Act[61] of the US, the use of the military in civilian law enforcement is
generally prohibited, except in certain allowable circumstances. A provision of the Act
states:

1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as
posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or
imprisoned not more than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at
Wounded Knee in such a manner that the military personnel subjected the citizens to the
exercise of military power which was regulatory, proscriptive, or compulsory[64] George
Washington Law Review, pp. 404-433 (1986), which discusses the four divergent
standards for assessing acceptable involvement of military personnel in civil law
enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY
TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152,
1973. 64 in nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to mean that
military involvement, even when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or
compels some conduct on the part of those claiming relief. A mere threat of some future
injury would be insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enforcement,
the conclusion is inevitable that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory,
proscriptive, or compulsory military power. First, the soldiers do not control or direct the
operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These
soldiers, second, also have no power to prohibit or condemn. In No. 9(d)[69] of Annex A,
all arrested persons are brought to the nearest police stations for proper disposition. And
last, these soldiers apply no coercive force. The materials or equipment issued to them,
as shown in No. 8(c)[70] of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or compulsory
military power, the deployment of a handful of Philippine Marines constitutes no
impermissible use of military power for civilian law enforcement.[71]
It appears that the present petition is anchored on fear that once the armed forces are
deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed
forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it
has not, that in the deployment of the Marines, the President has violated the
fundamental law, exceeded his authority or jeopardized the civil liberties of the people,
this Court is not inclined to overrule the Presidents determination of the factual basis for
the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a
single citizen has complained that his political or civil rights have been violated as a
result of the deployment of the Marines. It was precisely to safeguard peace, tranquility
and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in
the streets, not when the shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

2) The Provincial Government shall identify the Local Government Units which shall
participate in the operations and to propose them for the approval of the parties to this
agreement;

EN BANC

3) The Provincial Government shall ensure that there will be no unilateral action(s) by
the CEF without the knowledge and approval by both parties.

G.R. No. 187298

July 03, 2012

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI, JULHAJAN

AWADI, and SPO1 SATTAL H. JADJULI, Petitioners,
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO SABAN,
COL. EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT. BIENVENIDO G.
LATAG, in their capacity as officers of the Phil. Marines and Phil. National Police,
respectively, Respondents.
DECISION
SERENO, J.:
On 15 January 2009, three members from the International Committee of the Red Cross
(ICRC) were kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu.1 Andres
Notter, a Swiss national and head of the ICRC in Zamboanga City, Eugenio Vagni, an
Italian national and ICRC delegate, and Marie Jean Lacaba, a Filipino engineer, were
purportedly inspecting a water and sanitation project for the Sulu Provincial Jail when
inspecting a water and sanitation project for the Sulu Provincial Jail when they were
seized by three armed men who were later confirmed to be members of the Abu Sayyaf
Group (ASG).2 The leader of the alleged kidnappers was identified as Raden Abu, a
former guard at the Sulu Provincial Jail. News reports linked Abu to Albader Parad, one
of the known leaders of the Abu Sayyaf.
On 21 January 2009, a task force was created by the ICRC and the Philippine National
Police (PNP), which then organized a parallel local group known as the Local Crisis
Committee.3 The local group, later renamed Sulu Crisis Management Committee,
convened under the leadership of respondent Abdusakur Mahail Tan, the Provincial
Governor of Sulu. Its armed forces component was headed by respondents General
Juancho Saban, and his deputy, Colonel Eugenio Clemen. The PNP component was
headed by respondent Police Superintendent Bienvenido G. Latag, the Police Deputy
Director for Operations of the Autonomous Region of Muslim Mindanao (ARMM).4
Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male
civilians coming from different municipalities, who were redeployed to surrounding areas
of Patikul.5 The organization of the CEF was embodied in a "Memorandum of
Understanding"6 entered into
between three parties: the provincial government of Sulu, represented by Governor Tan;
the Armed Forces of the Philippines, represented by Gen. Saban; and the Philippine
National Police, represented by P/SUPT. Latag. The Whereas clauses of the
Memorandum alluded to the extraordinary situation in Sulu, and the willingness of
civilian supporters of the municipal mayors to offer their services in order that "the early
and safe rescue of the hostages may be achieved."7
This Memorandum, which was labeled secret on its all pages, also outlined the
responsibilities of each of the party signatories, as follows:
Responsibilities of the Provincial Government:
1) The Provincial Government shall source the funds and logistics needed for the
activation of the CEF;

Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):

1) The AFP/PNP shall remain the authority as prescribed by law in military operations
and law enforcement;
2) The AFP/PNP shall ensure the orderly deployment of the CEF in the performance of
their assigned task(s);
3) The AFP/PNP shall ensure the safe movements of the CEF in identified areas of
operation(s);
4) The AFP/PNP shall provide the necessary support and/or assistance as called for in
the course of operation(s)/movements of the CEF.8
Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local
Government, announced to the media that government troops had cornered some one
hundred and twenty (120) Abu Sayyaf members along with the three (3) hostages.9
However, the ASG made
contact with the authorities and demanded that the military pull its troops back from the
jungle area.10 The government troops yielded and went back to their barracks; the
Philippine Marines withdrew to their camp, while police and civilian forces pulled back
from the terrorists stronghold by ten (10) to fifteen (15) kilometers. Threatening that
one of the hostages will be beheaded, the ASG further demanded the evacuation of the
military camps and bases in the different barangays in Jolo.11 The authorities were given
no later than 2:00 oclock in the afternoon of 31 March 2009 to comply.12
On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009
(Proclamation 1-09), declaring a state of emergency in the province of Sulu.13 It cited
the kidnapping incident as a ground for the said declaration, describing it as a terrorist
act pursuant to the Human Security
Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A.
7160), which bestows on the Provincial Governor the power to carry out emergency
measures during man-made and natural disasters and calamities, and to call upon the
appropriate national law enforcement agencies to suppress disorder and lawless
violence.
In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up
checkpoints and chokepoints, conduct general search and seizures including arrests, and
other actions necessary to ensure public safety. The pertinent portion of the
proclamation states:
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I,
ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY
DECLARE A STATE OF EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE
PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE ARMED FORCES OF
THE PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE
FOLLOWING:
1. The setting-up of checkpoints and chokepoints in the province;
2. The imposition of curfew for the entire province subject to such Guidelines as may be
issued by proper authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of the
kidnappers and their supporters; and
4. To conduct such other actions or police operations as may be necessary to ensure
public safety.
DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS
31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14
On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to
respondent P/SUPT. Julasirim Kasim.15 Upon arriving at the police station, he was
booked, and interviewed about his relationship to Musin, Jaiton, and Julamin, who were
all his deceased relatives. Upon admitting that he was indeed related to the three, he
was detained. After a few hours, former Punong Barangay Juljahan Awadi, Hadji Hadjirul
Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi Ismula,
Punong Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani, were also
arrested.16 The affidavit17 of the apprehending officer alleged that they were suspected
ASG supporters and were being arrested under Proclamation 1-09. The following day, 2
April 2009, the hostage Mary Jane Lacaba was released by the ASG.
On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of
the "Guidelines for the Implementation of Proclamation No. 1, Series of 2009 Declaring a
State of Emergency in the Province of Sulu."18 These Guidelines suspended all Permits
to Carry
Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and allowed
civilians to seek exemption from the gun ban only by applying to the Office of the
Governor and obtaining the appropriate identification cards. The said guidelines also
allowed general searches and seizures in designated checkpoints and chokepoints.
On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop Ismi,
Ahajan Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the present
Petition for Certiorari and Prohibition,19 claiming that Proclamation 1-09 was issued
with grave abuse of discretion amounting to lack or excess of jurisdiction, as it
threatened fundamental freedoms guaranteed under Article III of the 1987 Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were
issued ultra vires, and thus null and void, for violating Sections 1 and 18, Article VII of
the Constitution, which grants the President sole authority to exercise emergency
powers and calling-out powers as the chief executive of the Republic and commander-inchief of the armed forces.20 Additionally, petitioners claim that the Provincial Governor
is not authorized by any law to create civilian armed forces under his command, nor
regulate and limit the issuances of PTCFORs to his own private army.
In his Comment, Governor Tan contended that petitioners violated the doctrine on
hierarchy of courts when they filed the instant petition directly in the court of last resort,
even if both the Court of Appeals (CA) and the Regional Trial Courts (RTC) possessed
concurrent jurisdiction with the
Supreme Court under Rule 65.21 This is the only procedural defense raised by
respondent Tan. Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT.
Julasirim Kasim, and P/SUPT. Bienvenido Latag did not file their respective
Comments.1wphi1
On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra
vires, as Governor Tan allegedly acted pursuant to Sections 16 and 465 of the Local
Government Code, which empowers the Provincial Governor to carry out emergency
measures during calamities and disasters, and to call upon the appropriate national law
enforcement agencies to suppress disorder, riot, lawless violence, rebellion or

sedition.22 Furthermore, the Sangguniang Panlalawigan of Sulu authorized the

declaration of a state of emergency as evidenced by Resolution No. 4, Series of 2009
issued on 31 March 2009 during its regular session.23
The threshold issue in the present case is whether or not Section 465, in relation to
Section 16, of the Local Government Code authorizes the respondent governor to declare
a state of emergency, and exercise the powers enumerated under Proclamation 1-09,
specifically the conduct of general searches and seizures. Subsumed herein is the
secondary question of whether or not the provincial governor is similarly clothed with
authority to convene the CEF under the said provisions.
We grant the petition.
I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy
of Courts
We first dispose of respondents invocation of the doctrine of hierarchy of courts which
allegedly prevents judicial review by this Court in the present case, citing for this
specific purpose, Montes v. Court of Appeals and Purok Bagong Silang Association, Inc. v.
Yuipco.24 Simply put, the
doctrine provides that where the issuance of an extraordinary writ is also within the
competence of the CA or the RTC, it is in either of these courts and not in the Supreme
Court, that the specific action for the issuance of such writ must be sought unless special
and important laws are clearly and specifically set forth in the petition. The reason for
this is that this Court is a court of last resort and must so remain if it is to perform the
functions assigned to it by the Constitution and immemorial tradition. It cannot be
burdened with deciding cases in the first instance.25
The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court
stated:
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly
from the Court. The principle of hierarchy of courts applies generally to cases involving
factual questions. As it is not a trier of facts, the Court cannot entertain cases involving
factual issues. The instant case, however, raises constitutional questions of
transcendental importance to the public. The Court can resolve this case without
determining any factual issue related to the case. Also, the instant case is a petition for
mandamus which falls under the original jurisdiction of the Court under Section 5,
Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the
instant case.27
The instant case stems from a petition for certiorari and prohibition, over which the
Supreme Court possesses original jurisdiction.28 More crucially, this case involves acts
of a public official which pertain to restrictive custody, and is thus impressed with
transcendental public importance that would warrant the relaxation of the general rule.
The Court would be remiss in its constitutional duties were it to dismiss the present
petition solely due to claims of judicial hierarchy.
In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public
importance involved in cases that concern restrictive custody, because judicial review in
these cases serves as "a manifestation of the crucial defense of civilians in police power
cases due to the diminution of their basic liberties under the guise of a state of
emergency."30 Otherwise, the importance of the high tribunal as the court of last resort
would be put to naught, considering the nature of "emergency" cases, wherein the
proclamations and issuances are inherently short-lived. In finally disposing of the claim
that the issue had become moot and academic, the Court also cited transcendental
public importance as an exception, stating:
Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na
pangangalaga (restrictive custody) at pagmonitor ng galaw (monitoring of movements)

ng nagpepetisyon, dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng

madla na nakapaloob dito,

ii. The exceptional character of Commander-in-Chief powers dictate that they are
exercised by one president

(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang
maturuan ang kapulisan tungkol dito.

Springing from the well-entrenched constitutional precept of One President is the notion
that there are certain acts which, by their very nature, may only be performed by the
president as the Head of the State. One of these acts or prerogatives is the bundle of
Commander-in-Chief powers to which the "calling-out" powers constitutes a portion. The
Presidents Emergency Powers, on the other hand, is balanced only by the legislative act
of Congress, as embodied in the second paragraph of Section 23, Article 6 of the
Constitution:

The moot and academic principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; second, the exceptional
character of the situation and the paramount public interest is involved; third, when
[the] constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public; and fourth, the case is capable of repetition yet
evading review.
There is no question that the issues being raised affect the public interest, involving as
they do the peoples basic rights to freedom of expression, of assembly and of the press.
Moreover, the
Court has the duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench and the bar, and
in the present petitions, the military and the police, on the extent of the protection given
by constitutional guarantees. And lastly, respondents contested actions are capable of
repetition. Certainly, the petitions are subject to judicial review.
Evidently, the triple reasons We advanced at the start of Our ruling are justified under
the foregoing exceptions. Every bad, unusual incident where police officers figure in
generates public interest and people watch what will be done or not done to them. Lack
of disciplinary steps taken against them erode public confidence in the police institution.
As petitioners themselves assert, the restrictive custody of policemen under investigation
is an existing practice, hence, the issue is bound to crop up every now and then. The
matter is capable of repetition or susceptible of recurrence. It better be resolved now for
the education and guidance of all concerned.31 (Emphasis supplied)
Hence, the instant petition is given due course, impressed as it is with transcendental
public importance.
II. Only the President is vested with calling-out powers, as the commander-in-chief of the
Republic
i. One executive, one commander-in-chief
As early as Villena v. Secretary of Interior,32 it has already been established that there is
one repository of executive powers, and that is the President of the Republic. This means
that when Section 1, Article VII of the Constitution speaks of executive power, it is
granted to the President and no one else.33 As emphasized by Justice Jose P. Laurel, in
his ponencia in Villena:
With reference to the Executive Department of the government, there is one purpose
which is crystal-clear and is readily visible without the projection of judicial searchlight,
and that is the establishment of a single, not plural, Executive. The first section of Article
VII of the Constitution, dealing with the Executive Department, begins with the
enunciation of the principle that "The executive power shall be vested in a President of
the Philippines." This means that the President of the Philippines is the Executive of the
Government of the Philippines, and no other.34
Corollarily, it is only the President, as Executive, who is authorized to exercise
emergency powers as provided under Section 23, Article VI, of the Constitution, as well
as what became known as the calling-out powers under Section 7, Article VII thereof.

Article 6, Sec 23(2). In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such restrictions as it
may prescribe, to exercise powers necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease
upon the next adjournment thereof.35
Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a
call.36
The power to declare a state of martial law is subject to the Supreme Courts authority to
review the factual basis thereof. 37 By constitutional fiat, the calling-out powers, which
is of lesser gravity than the power to declare martial law, is bestowed upon the President
alone. As noted in Villena, "(t)here are certain constitutional powers and prerogatives of
the Chief Executive of the Nation which must be exercised by him in person and no
amount of approval or ratification will validate the exercise of any of those powers by any
other person. Such, for instance, is his power to suspend the writ of habeas corpus and
proclaim martial law x x x.38
Indeed, while the President is still a civilian, Article II, Section 339 of the Constitution
mandates that civilian authority is, at all times, supreme over the military, making the
civilian president the nations supreme military leader. The net effect of Article II,
Section 3, when read with Article VII,
Section 18, is that a civilian President is the ceremonial, legal and administrative head of
the armed forces. The Constitution does not require that the President must be
possessed of military training and talents, but as Commander-in-Chief, he has the power
to direct military operations and to determine military strategy. Normally, he would be
expected to delegate the actual command of the armed forces to military experts; but the
ultimate power is his.40 As Commander-in-Chief, he is authorized to direct the
movements of the naval and military forces placed by law at his command, and to employ
them in the manner he may deem most effectual.41
In the case of Integrated Bar of the Philippines v. Zamora,42 the Court had occasion to
rule that the calling-out powers belong solely to the President as commander-in-chief:

When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the constitutional intent to give
the President full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the Presidents decision is
totally bereft of factual basis.
There is a clear textual commitment under the Constitution to bestow on the President
full discretionary power to call out the armed forces and to determine the necessity for
the exercise of such power.43 (Emphasis supplied)
Under the foregoing provisions, Congress may revoke such proclamation or suspension
and the Court may review the sufficiency of the factual basis thereof. However, there is
no such equivalent provision dealing with the revocation or review of the Presidents
action to call out the armed forces. The distinction places the calling out power in a
different category from the power to declare martial law and the power to suspend the
privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would
have simply lumped together the three powers and provided for their revocation and
review without any qualification.44

if exercised, would involve the suspension of fundamental freedoms, or at least call for
the supersedence of executive prerogatives over those exercised by co-equal branches of
government. The declaration of martial law, the suspension of the writ of habeas corpus,
and the exercise of the pardoning power, notwithstanding the judicial determination of
guilt of the accused, all fall within this special class that demands the exclusive exercise
by the President of the constitutionally vested power. The list is by no means exclusive,
but there must be a showing that the executive power in question is of similar gravitas
and exceptional import.47
In addition to being the commander-in-chief of the armed forces, the President also acts
as the leader of the countrys police forces, under the mandate of Section 17, Article VII
of the Constitution, which provides that, "The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed." During the deliberations of the Constitutional Commission on the framing of
this provision, Fr. Bernas defended the retention of the word "control," employing the
same rationale of singularity of the office of the president, as the only Executive under
the presidential form of government.48
Regarding the countrys police force, Section 6, Article XVI of the Constitution states
that: "The State shall establish and maintain one police force, which shall be national in
scope and civilian in character, to be administered and controlled by a national police
commission. The authority of local executives over the police units in their jurisdiction
shall be provided by law."49

That the power to call upon the armed forces is discretionary on the president is clear
from the deliberation of the Constitutional Commission:

A local chief executive, such as the provincial governor, exercises operational supervision
over the police,50 and may exercise control only in day-to-day operations, viz:

FR. BERNAS. It will not make any difference. I may add that there is a graduated power
of the President as Commander-in-Chief. First, he can call out such Armed Forces as may
be necessary to suppress lawless violence; then he can suspend the privilege of the writ
of habeas corpus, then he can impose martial law. This is a graduated sequence.

Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or

by law full control of the police by the local chief executive and local executives, the
mayors. By our experience, this has spawned warlordism, bossism and sanctuaries for
vices and abuses. If the national government does not have a mechanism to supervise
these 1,500 legally, technically separate police forces, plus 61 city police forces,
fragmented police system, we will have a lot of difficulty in presenting a modern
professional police force. So that a certain amount of supervision and control will have to
be exercised by the national government.

When he judges that it is necessary to impose martial law or suspend the privilege of the
writ of habeas corpus, his judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by the National Assembly. But
when he exercises this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by anybody.
xxx

xxx

xxx

MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review.
The reason for the difference in the treatment of the aforementioned powers highlights
the intent to grant the President the widest leeway and broadest discretion in using the
power to call out because it is considered as the lesser and more benign power
compared to the power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion.45 (Emphasis Supplied)
In the more recent case of Constantino, Jr. v. Cuisia,46 the Court characterized these
powers as exclusive to the President, precisely because they are of exceptional import:
These distinctions hold true to this day as they remain embodied in our fundamental law.
There are certain presidential powers which arise out of exceptional circumstances, and

For example, if a local government, a town cannot handle its peace and order problems
or police problems, such as riots, conflagrations or organized crime, the national
government may come in, especially if requested by the local executives. Under that
situation, if they come in under such an extraordinary situation, they will be in control.
But if the day-to-day business of police investigation of crime, crime prevention,
activities, traffic control, is all lodged in the mayors, and if they are in complete
operational control of the day-to-day business of police service, what the national
government would control would be the administrative aspect.
xxx

xxx

xxx

Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual
duties being performed by the ordinary policemen, will be under the supervision of the
local executives?
Mr. Natividad: Yes, Madam President.
xxx

xxx

xxx

Mr. de los Reyes: But in exceptional cases, even the operational control can be taken
over by the National Police Commission?
Mr. Natividad: If the situation is beyond the capacity of the local governments.51
(Emphases supplied)

Furthermore according to the framers, it is still the President who is authorized to

exercise supervision and control over the police, through the National Police
Commission:
Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander-inChief of all the armed forces.
Mr. Natividad: Yes, Madam President.
Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not
suppose they come under the Commander-in-Chief powers of the President of the
Philippines.
Mr. Natividad: They do, Madam President. By law, they are under the supervision and
control of the President of the Philippines.
Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national police.
Mr. Natividad: He is the President.
Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision that
the President is the Commander-in-Chief of all the armed forces.
Mr. Natividad: No, not under the Commander-in-Chief provision.
Mr. Rodrigo: There are two other powers of the President. The
President has control over ministries, bureaus and offices, and supervision over local
governments. Under which does the police fall, under control or under supervision?
Mr. Natividad: Both, Madam President.
Mr. Rodrigo: Control and supervision.
Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the
President.52
In the discussions of the Constitutional Commission regarding the above provision it is
clear that the framers never intended for local chief executives to exercise unbridled
control over the police in emergency situations. This is without prejudice to their
authority over police units in their jurisdiction as provided by law, and their prerogative
to seek assistance from the police in day to day situations, as contemplated by the
Constitutional Commission. But as a civilian agency of the government, the police,
through the NAPOLCOM, properly comes within, and is subject to, the exercise by the
President of the power of executive control.53
iii. The provincial governor does not possess the same calling-out powers as the
President
Given the foregoing, respondent provincial governor is not endowed with the power to
call upon the armed forces at his own bidding. In issuing the assailed proclamation,
Governor Tan exceeded his authority when he declared a state of emergency and called
upon the Armed Forces, the police, and his own Civilian Emergency Force. The callingout powers contemplated under the Constitution is exclusive to the President. An
exercise by another official, even if he is the local chief executive, is ultra vires, and may
not be justified by the invocation of Section 465 of the Local Government Code, as will be
discussed subsequently.
Respondents, however, justify this stance by stating that nowhere in the seminal case of
David v. Arroyo, which dealt squarely with the issue of the declaration of a state of
emergency, does it limit the said authority to the President alone. Respondents contend

that the ruling in David expressly limits the authority to declare a national emergency, a
condition which covers the entire country, and does not include emergency situations in
local government units.54 This claim is belied by the clear intent of the framers that in
all situations involving threats to security, such as lawless violence, invasion or rebellion,
even in localized areas, it is still the President who possesses the sole authority to
exercise calling-out powers. As reflected in the Journal of the Constitutional Commission:
Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC DISORDER
in lieu of "invasion or rebellion." Mr. Sumulong stated that the committee could not
accept the amendment because under the first section of Section 15, the President may
call out and make use of the armed forces to prevent or suppress not only lawless
violence but even invasion or rebellion without declaring martial law. He observed that
by deleting "invasion or rebellion" and substituting PUBLIC DISORDER, the President
would have to declare martial law before he can make use of the armed forces to prevent
or suppress lawless invasion or rebellion.
Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter
situation where there is some lawless violence in a small portion of the country or public
disorder in another at which times, the armed forces can be called to prevent or
suppress these incidents. He noted that the Commander-in-Chief can do so in a minor
degree but he can also exercise such powers should the situation worsen. The words
"invasion or rebellion" to be eliminated on line 14 are covered by the following sentence
which provides for "invasion or rebellion." He maintained that the proposed amendment
does not mean that under such circumstances, the President cannot call on the armed
forces to prevent or suppress the same.55 (Emphasis supplied)
III. Section 465 of the Local
Government Code cannot be invoked to justify the powers enumerated under
Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC workers as a
terroristic act, and used this incident to justify the exercise of the powers enumerated
under Proclamation 1-09.56 He invokes Section 465, in relation to Section 16, of the
Local Government Code, which purportedly allows the governor to carry out emergency
measures and call upon the appropriate national law enforcement agencies for
assistance. But a closer look at the said proclamation shows that there is no provision in
the Local Government Code nor in any law on which the broad and unwarranted powers
granted to the Governor may be based.
Petitioners cite the implementation of "General Search and Seizure including arrests in
the pursuit of the kidnappers and their supporters,"57 as being violative of the
constitutional proscription on general search warrants and general seizures. Petitioners
rightly assert that this alone would be sufficient to render the proclamation void, as
general searches and seizures are proscribed, for being violative of the rights enshrined
in the Bill of Rights, particularly:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.58
In fact, respondent governor has arrogated unto himself powers exceeding even the
martial law powers of the President, because as the Constitution itself declares, "A state
of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
the jurisdiction on military courts and agencies over civilians where civil courts are able
to function, nor automatically suspend the privilege of the writ."59

We find, and so hold, that there is nothing in the Local Government Code which justifies
the acts sanctioned under the said Proclamation. Not even Section 465 of the said Code,
in relation to Section 16, which states:
Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.
xxx

xxx

xxx

(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the province and its inhabitants pursuant to Section 16 of this Code,
the provincial governor shall:
(1) Exercise general supervision and control over all programs, projects, services, and
activities of the provincial government, and in this connection, shall:
xxx

xxx

xxx

(vii) Carry out such emergency measures as may be necessary during and in the
aftermath of man-made and natural disasters and calamities;
(2) Enforce all laws and ordinances relative to the governance of the province and the
exercise of the appropriate corporate powers provided for under Section 22 of this Code,
implement all approved policies, programs, projects, services and activities of the
province and, in addition to the foregoing, shall:
xxx

xxx

xxx

(vi) Call upon the appropriate national law enforcement agencies to suppress disorder,
riot, lawless violence, rebellion or sedition or to apprehend violators of the law when
public interest so requires and the police forces of the component city or municipality
where the disorder or violation is happening are inadequate to cope with the situation or
the violators.
Section 16. General Welfare. - Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of
the people to a balanced ecology, encourage and support the development of appropriate
and self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their
inhabitants. (Emphases supplied)
Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the
said provision expressly refers to calamities and disasters, whether man-made or natural.
The governor, as local chief executive of the province, is certainly empowered to enact
and implement emergency measures during these occurrences. But the kidnapping
incident in the case at bar cannot be considered as a calamity or a disaster. Respondents
cannot find any legal mooring under this provision to justify their actions.
Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two
reasons. First, the Armed Forces of the Philippines does not fall under the category of a
"national law enforcement agency," to which the National Police Commission
(NAPOLCOM) and its departments belong.
Its mandate is to uphold the sovereignty of the Philippines, support the Constitution, and
defend the Republic against all enemies, foreign and domestic. Its aim is also to secure
the integrity of the national territory.60

Second, there was no evidence or even an allegation on record that the local police
forces were inadequate to cope with the situation or apprehend the violators. If they
were inadequate, the recourse of the provincial governor was to ask the assistance of the
Secretary of Interior and Local Government, or such other authorized officials, for the
assistance of national law enforcement agencies.
The Local Government Code does not involve the diminution of central powers inherently
vested in the National Government, especially not the prerogatives solely granted by the
Constitution to the President in matters of security and defense.
The intent behind the powers granted to local government units is fiscal, economic, and
administrative in nature.1wphi1 The Code is concerned only with powers that would
make the delivery of basic services more effective to the constituents,61 and should not
be unduly stretched to confer calling-out powers on local executives.
In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of
powers is a step towards the autonomy of local government units (LGUs), and is actually
an experiment whose success heavily relies on the power of taxation of the LGUs. The
underpinnings of the Code can be found in Section 5, Article II of the 1973 Constitution,
which allowed LGUs to create their own sources of revenue.62 During the interpellation
made by Mr. Tirol addressed to Mr. de Pedro, the latter emphasized that
"Decentralization is an administrative concept and the process of shifting and delegating
power from a central point to subordinate levels to promote independence, responsibility,
and quicker decision-making. (I)t does not involve any transfer of final authority from
the national to field levels, nor diminution of central office powers and responsibilities.
Certain government agencies, including the police force, are exempted from the
decentralization process because their functions are not inherent in local government
units."63
IV. Provincial governor is not authorized to convene CEF
Pursuant to the national policy to establish one police force, the organization of private
citizen armies is proscribed. Section 24 of Article XVIII of the Constitution mandates
that:
Private armies and other armed groups not recognized by duly constituted authority
shall be dismantled. All paramilitary forces including Civilian Home Defense Forces
(CHDF) not consistent with the citizen armed force established in this Constitution, shall
be dissolved or, where appropriate, converted into the regular force.
Additionally, Section 21of Article XI states that, "The preservation of peace and order
within the regions shall be the responsibility of the local police agencies which shall be
organized, maintained, supervised, and utilized in accordance with applicable laws. The
defense and security of the regions shall be the responsibility of the National
Government."
Taken in conjunction with each other, it becomes clear that the Constitution does not
authorize the organization of private armed groups similar to the CEF convened by the
respondent Governor. The framers of the Constitution were themselves wary of armed
citizens groups, as shown in the following proceedings:
MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary
force operating under the cloak, under the mantle of legality is creating a lot of problems
precisely by being able to operate as an independent private army for many regional
warlords. And at the same time, this I think has been the thrust, the intent of many of the
discussions and objections to the paramilitary units and the armed groups.
MR. PADILLA: My proposal covers two parts: the private armies of political warlords and
other armed torces not recognized by constituted authority which shall be dismantled
and dissolved. In my trips to the provinces, I heard of many abuses committed by the
CHDF (Civilian Home Defense Forces), specially in Escalante, Negros Occidental. But I

do not know whether a particular CHDF is approved or authorized by competent

authority. If it is not authorized, then the CHDF will have to be dismantled. If some
CHDFs, say in other provinces, are authorized by constituted authority, by the Armed
Forces of the Philippines, through the Chief of Staff or the Minister of National Defense,
if they are recognized and authorized, then they will not be dismantled. But I cannot give
a categorical answer to any specific CHDF unit, only the principle that if they are armed
forces which are not authorized, then they should be dismantled. 64 (Emphasis supplied)
Thus, with the discussions in the Constitutional Commission as guide, the creation of the
Civilian Emergency Force (CEF) in the present case, is also invalid.
WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding
respondents to desist from further proceedings m implementing Proclamation No. 1,
Series of 2009, and its Implementing Guidelines. The said proclamation and guidelines
are hereby declared NULL and VOID for having been issued in grave abuse of discretion,
amounting to lack or excess of jurisdiction.
SO ORDERED.

EN BANC
[G.R. No. 122156. February 3, 1997]
MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and
OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.
DECISION
BELLOSILLO, J.:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights,
privileges, and concessions covering the national economy and patrimony, the State shall
give preference to qualified Filipinos,[1] is invoked by petitioner in its bid to acquire 51%
of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila
Hotel. Opposing, respondents maintain that the provision is not self-executing but
requires an implementing legislation for its enforcement. Corollarily, they ask whether
the 51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS),
pursuant to the privatization program of the Philippine Government under Proclamation
No. 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the
issued and outstanding shares of respondent MHC. The winning bidder, or the eventual
strategic partner, is to provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and
performance of the Manila Hotel.[2] In a close bidding held on 18 September 1995 only
two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator,
which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid
of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1. The Highest Bidder must comply with the conditions set forth below by October 23,
1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to purchase
the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified
Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management
Contract, International Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x
xxx
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995
(reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC
(Office of the Government Corporate Counsel) are obtained.[3]
Pending the declaration of Renong Berhard as the winning bidder/strategic partner and
the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated
28 September 1995 matched the bid price of P44.00 per share tendered by Renong

Berhad.[4] In a subsequent letter dated 10 October 1995 petitioner sent a managers

check issued by Philtrust Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid
Security to match the bid of the Malaysian Group, Messrs. Renong Berhad x x x x[5]
which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the
tender of the matching bid and that the sale of 51% of the MHC may be hastened by
respondent GSIS and consummated with Renong Berhad, petitioner came to this Court
on prohibition and mandamus. On 18 October 1995 the Court issued a temporary
restraining order enjoining respondents from perfecting and consummating the sale to
the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was
referred to it by the First Division. The case was then set for oral arguments with former
Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution
and submits that the Manila Hotel has been identified with the Filipino nation and has
practically become a historical monument which reflects the vibrancy of Philippine
heritage and culture. It is a proud legacy of an earlier generation of Filipinos who
believed in the nobility and sacredness of independence and its power and capacity to
release the full potential of the Filipino people. To all intents and purposes, it has
become a part of the national patrimony.[6] Petitioner also argues that since 51% of the
shares of the MHC carries with it the ownership of the business of the hotel which is
owned by respondent GSIS, a government-owned and controlled corporation, the hotel
business of respondent GSIS being a part of the tourism industry is unquestionably a
part of the national economy. Thus, any transaction involving 51% of the shares of stock
of the MHC is clearly covered by the term national economy, to which Sec. 10, second
par., Art. XII, 1987 Constitution, applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony
and its business also unquestionably part of the national economy petitioner should be
preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules
mandate that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are willing to match the highest bid in terms
of price per share.[8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing
provision and requires implementing legislation(s) x x x x Thus, for the said provision to
operate, there must be existing laws to lay down conditions under which business may
be done.[9]
Second, granting that this provision is self-executing, Manila Hotel does not fall under
the term national patrimony which only refers to lands of the public domain, waters,
minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and
exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII,
1987 Constitution. According to respondents, while petitioner speaks of the guests who
have slept in the hotel and the events that have transpired therein which make the hotel
historic, these alone do not make the hotel fall under the patrimony of the nation. What
is more, the mandate of the Constitution is addressed to the State, not to respondent
GSIS which possesses a personality of its own separate and distinct from the Philippines
as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is only 51%
of the outstanding shares of the corporation, not the hotel building nor the land upon
which the building stands. Certainly, 51% of the equity of the MHC cannot be considered
part of the national patrimony. Moreover, if the disposition of the shares of the MHC is

really contrary to the Constitution, petitioner should have questioned it right from the
beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which
provides that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are willing to match the highest bid in terms
of price per share, is misplaced. Respondents postulate that the privilege of submitting a
matching bid has not yet arisen since it only takes place if for any reason, the Highest
Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a
matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a
matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since
respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if
ever it did abuse its discretion it was not so patent and gross as to amount to an evasion
of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the
petition for mandamus should fail as petitioner has no clear legal right to what it
demands and respondents do not have an imperative duty to perform the act required of
them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by
the authority from which it emanates. It has been defined as the fundamental and
paramount law of the nation.[10] It prescribes the permanent framework of a system of
government, assigns to the different departments their respective powers and duties,
and establishes certain fixed principles on which government is founded. The
fundamental conception in other words is that it is a supreme law to which all other laws
must conform and in accordance with which all private rights must be determined and
all public authority administered.[11] Under the doctrine of constitutional supremacy, if a
law or contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by private
persons for private purposes is null and void and without any force and effect. Thus,
since the Constitution is the fundamental, paramount and supreme law of the nation, it is
deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their
provisions command the legislature to enact laws and carry out the purposes of the
framers who merely establish an outline of government providing for the different
departments of the governmental machinery and securing certain fundamental and
inalienable rights of citizens.[12] A provision which lays down a general principle, such
as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means of
which the right it grants may be enjoyed or protected, is self-executing. Thus a
constitutional provision is self-executing if the nature and extent of the right conferred
and the liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action.[13]
As against constitutions of the past, modern constitutions have been generally drafted
upon a different principle and have often become in effect extensive codes of laws
intended to operate directly upon the people in a manner similar to that of statutory
enactments, and the function of constitutional conventions has evolved into one more
like that of a legislative body. Hence, unless it is expressly provided that a legislative act
is necessary to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the constitutional provisions are
treated as requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law.[14] This can
be cataclysmic. That is why the prevailing view is, as it has always been, that -

x x x x in case of doubt, the Constitution should be considered self-executing rather than

non-self-executing x x x x Unless the contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking body, which could make
them entirely meaningless by simply refusing to pass the needed implementing statute.
[15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly
not self-executing, as they quote from discussions on the floor of the 1986 Constitutional
Commission MR. RODRIGO. Madam President, I am asking this question as the Chairman of the
Committee on Style. If the wording of PREFERENCE is given to QUALIFIED FILIPINOS,
can it be understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not
qualified. So, why do we not make it clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the
word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom?
As against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
QUALIFIED because the existing laws or prospective laws will always lay down
conditions under which business may be done. For example, qualifications on capital,
qualifications on the setting up of other financial structures, et cetera (underscoring
supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make
it appear that it is non-self-executing but simply for purposes of style. But, certainly, the
legislature is not precluded from enacting further laws to enforce the constitutional
provision so long as the contemplated statute squares with the Constitution. Minor
details may be left to the legislature without impairing the self-executing nature of
constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to
facilitate the exercise of powers directly granted by the constitution, further the
operation of such a provision, prescribe a practice to be used for its enforcement,
provide a convenient remedy for the protection of the rights secured or the
determination thereof, or place reasonable safeguards around the exercise of the right.
The mere fact that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a provision
ineffective in the absence of such legislation. The omission from a constitution of any
express provision for a remedy for enforcing a right or liability is not necessarily an
indication that it was not intended to be self-executing. The rule is that a self-executing
provision of the constitution does not necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with the constitution, further the
exercise of constitutional right and make it more available.[17] Subsequent legislation
however does not necessarily mean that the subject constitutional provision is not, by
itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art.
XII is implied from the tenor of the first and third paragraphs of the same section which
undoubtedly are not self-executing.[18] The argument is flawed. If the first and third
paragraphs are not self-executing because Congress is still to enact measures to

encourage the formation and operation of enterprises fully owned by Filipinos, as in the
first paragraph, and the State still needs legislation to regulate and exercise authority
over foreign investments within its national jurisdiction, as in the third paragraph, then a
fortiori, by the same logic, the second paragraph can only be self-executing as it does not
by its language require any legislation in order to give preference to qualified Filipinos in
the grant of rights, privileges and concessions covering the national economy and
patrimony. A constitutional provision may be self-executing in one part and non-selfexecuting in another.[19]
Even the cases cited by respondents holding that certain constitutional provisions are
merely statements of principles and policies, which are basically not self-executing and
only placed in the Constitution as moral incentives to legislation, not as judicially
enforceable rights - are simply not in point. Basco v. Philippine Amusements and Gaming
Corporation[20] speaks of constitutional provisions on personal dignity,[21] the sanctity
of family life,[22] the vital role of the youth in nation-building,[23] the promotion of
social justice,[24] and the values of education.[25] Tolentino v. Secretary of Finance[26]
refers to constitutional provisions on social justice and human rights[27] and on
education.[28] Lastly, Kilosbayan, Inc. v. Morato[29] cites provisions on the promotion of
general welfare,[30] the sanctity of family life,[31] the vital role of the youth in nationbuilding[32] and the promotion of total human liberation and development.[33] A reading
of these provisions indeed clearly shows that they are not judicially enforceable
constitutional rights but merely guidelines for legislation. The very terms of the
provisions manifest that they are only principles upon which legislations must be based.
Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very words the provision does
not require any legislation to put it in operation. It is per se judicially enforceable. When
our Constitution mandates that [i]n the grant of rights, privileges, and concessions
covering national economy and patrimony, the State shall give preference to qualified
Filipinos, it means just that - qualified Filipinos shall be preferred. And when our
Constitution declares that a right exists in certain specified circumstances an action may
be maintained to enforce such right notwithstanding the absence of any legislation on
the subject; consequently, if there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent potency and puissance,
and from which all legislations must take their bearings. Where there is a right there is a
remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission[34]
explains The patrimony of the Nation that should be conserved and developed refers not only to
our rich natural resources but also to the cultural heritage of our race. It also refers to
our intelligence in arts, sciences and letters. Therefore, we should develop not only our
lands, forests, mines and other natural resources but also the mental ability or faculty of
our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.
[35] When the Constitution speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very well used the term
natural resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it
was restrictively an American hotel when it first opened in 1912, it immediately evolved
to be truly Filipino. Formerly a concourse for the elite, it has since then become the
venue of various significant events which have shaped Philippine history. It was called
the Cultural Center of the 1930s. It was the site of the festivities during the inauguration
of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine
Government it plays host to dignitaries and official visitors who are accorded the
traditional Philippine hospitality.[36]

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and
Memory of a City.[37] During World War II the hotel was converted by the Japanese
Military Administration into a military headquarters. When the American forces returned
to recapture Manila the hotel was selected by the Japanese together with Intramuros as
the two (2) places for their final stand. Thereafter, in the 1950s and 1960s, the hotel
became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped numerous
international recognitions, an acknowledgment of the Filipino talent and ingenuity. In
1986 the hotel was the site of a failed coup d etat where an aspirant for vice-president
was proclaimed President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and
failures, loves and frustrations of the Filipinos; its existence is impressed with public
interest; its own historicity associated with our struggle for sovereignty, independence
and nationhood. Verily, Manila Hotel has become part of our national economy and
patrimony. For sure, 51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock, so that anyone
who acquires or owns the 51% will have actual control and management of the hotel. In
this instance, 51% of the MHC cannot be disassociated from the hotel and the land on
which the hotel edifice stands. Consequently, we cannot sustain respondents claim that
the Filipino First Policy provision is not applicable since what is being sold is only 51% of
the outstanding shares of the corporation, not the Hotel building nor the land upon
which the building stands.[38]
The argument is pure sophistry. The term qualified Filipinos as used in our Constitution
also includes corporations at least 60% of which is owned by Filipinos. This is very clear
from the proceedings of the 1986 Constitutional Commission THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And
the amendment would consist in substituting the words QUALIFIED FILIPINOS with the
following: CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to
raise a question. Suppose it is a corporation that is 80-percent Filipino, do we not give it
preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about
a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference
should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may refer
only to individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the amendment be read again.

MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word Filipinos
here, as intended by the proponents, will include not only individual Filipinos but also
Filipino-controlled entities or entities fully-controlled by Filipinos.[40]
The phrase preference to qualified Filipinos was explained thus MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please
restate his amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a
Filipino enterprise is also qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise,
will the Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision Commissioner Nolledo
continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called
Filipino First policy. That means that Filipinos should be given preference in the grant of
concessions, privileges and rights covering the national patrimony.[42]
The exchange of views in the sessions of the Constitutional Commission regarding the
subject provision was still further clarified by Commissioner Nolledo[43] Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic
concerns. It is better known as the FILIPINO FIRST Policy x x x x This provision was
never found in previous Constitutions x x x x
The term qualified Filipinos simply means that preference shall be given to those citizens
who can make a viable contribution to the common good, because of credible
competence and efficiency. It certainly does NOT mandate the pampering and
preferential treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counterproductive and
inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to be
made between a qualified foreigner and a qualified Filipino, the latter shall be chosen
over the former.
Lastly, the word qualified is also determinable. Petitioner was so considered by
respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by
respondent GSIS in accordance with its own guidelines so that the sole inference here is
that petitioner has been found to be possessed of proven management expertise in the
hotel industry, or it has significant equity ownership in another hotel company, or it has
an overall management and marketing proficiency to successfully operate the Manila
Hotel.[44]

The penchant to try to whittle away the mandate of the Constitution by arguing that the
subject provision is not self-executory and requires implementing legislation is quite
disturbing. The attempt to violate a clear constitutional provision - by the government
itself - is only too distressing. To adopt such a line of reasoning is to renounce the duty to
ensure faithfulness to the Constitution. For, even some of the provisions of the
Constitution which evidently need implementing legislation have juridical life of their
own and can be the source of a judicial remedy. We cannot simply afford the government
a defense that arises out of the failure to enact further enabling, implementing or
guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional
government is apt The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts - provided that there are discoverable legal
standards for executive action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws. The responsibility
for reading and understanding the Constitution and the laws is not the sole prerogative
of Congress. If it were, the executive would have to ask Congress, or perhaps the Court,
for an interpretation every time the executive is confronted by a constitutional command.
That is not how constitutional government operates.[45]
Respondents further argue that the constitutional provision is addressed to the State, not
to respondent GSIS which by itself possesses a separate and distinct personality. This
argument again is at best specious. It is undisputed that the sale of 51% of the MHC
could only be carried out with the prior approval of the State acting through respondent
Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this
fact alone makes the sale of the assets of respondents GSIS and MHC a state action. In
constitutional jurisprudence, the acts of persons distinct from the government are
considered state action covered by the Constitution (1) when the activity it engages in is
a public function; (2) when the government is so significantly involved with the private
actor as to make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that the act of
respondent GSIS in selling 51% of its share in respondent MHC comes under the second
and third categories of state action. Without doubt therefore the transaction, although
entered into by respondent GSIS, is in fact a transaction of the State and therefore
subject to the constitutional command.[46]
When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3)
divisions of power - legislative, executive and judicial. Accordingly, a constitutional
mandate directed to the State is correspondingly directed to the three (3) branches of
government. It is undeniable that in this case the subject constitutional injunction is
addressed among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the
winning bidder. The bidding rules expressly provide that the highest bidder shall only be
declared the winning bidder after it has negotiated and executed the necessary
contracts, and secured the requisite approvals. Since the Filipino First Policy provision of
the Constitution bestows preference on qualified Filipinos the mere tending of the
highest bid is not an assurance that the highest bidder will be declared the winning
bidder. Resultantly, respondents are not bound to make the award yet, nor are they
under obligation to enter into one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987 Constitution the
provisions of which are presumed to be known to all the bidders and other interested
parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision
is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest
the bidding rules be nullified for being violative of the Constitution. It is a basic principle

in constitutional law that all laws and contracts must conform with the fundamental law
of the land. Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders
that have validly submitted bids provided that these Qualified Bidders are willing to
match the highest bid in terms of price per share.[47] Certainly, the constitutional
mandate itself is reason enough not to award the block of shares immediately to the
foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In
fact, we cannot conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national economy
and patrimony, thereby exceeding the bid of a Filipino, there is no question that the
Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino
matches the bid of a foreign firm the award should go to the Filipino. It must be so if we
are to give life and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is omnipresent to be simply disregarded. To ignore it
would be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign
investors. But the Constitution and laws of the Philippines are understood to be always
open to public scrutiny. These are given factors which investors must consider when
venturing into business in a foreign jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its agencies or instrumentalities is presumed to
know his rights and obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale
to Renong Berhad since petitioner was well aware from the beginning that a foreigner
could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike
were invited to the bidding. But foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign
entity. In the case before us, while petitioner was already preferred at the inception of
the bidding because of the constitutional mandate, petitioner had not yet matched the
bid offered by Renong Berhad. Thus it did not have the right or personality then to
compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the
bid of the foreign firm and the apparent disregard by respondent GSIS of petitioners
matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps
the award has been finally made. To insist on selling the Manila Hotel to foreigners when
there is a Filipino group willing to match the bid of the foreign group is to insist that
government be treated as any other ordinary market player, and bound by its mistakes or
gross errors of judgment, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we would rather remedy the
indiscretion while there is still an opportunity to do so than let the government develop
the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant
to the bidding rules, respondent GSIS is left with no alternative but to award to
petitioner the block of shares of MHC and to execute the necessary agreements and
documents to effect the sale in accordance not only with the bidding guidelines and
procedures but with the Constitution as well. The refusal of respondent GSIS to execute
the corresponding documents with petitioner as provided in the bidding rules after the
latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of
discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987
Constitution not merely to be used as a guideline for future legislation but primarily to

be enforced; so must it be enforced. This Court as the ultimate guardian of the

Constitution will never shun, under any reasonable circumstance, the duty of upholding
the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that
it is not the intention of this Court to impede and diminish, much less undermine, the
influx of foreign investments. Far from it, the Court encourages and welcomes more
business opportunities but avowedly sanctions the preference for Filipinos whenever
such preference is ordained by the Constitution. The position of the Court on this matter
could have not been more appropriately articulated by Chief Justice Narvasa As scrupulously as it has tried to observe that it is not its function to substitute its
judgment for that of the legislature or the executive about the wisdom and feasibility of
legislation economic in nature, the Supreme Court has not been spared criticism for
decisions perceived as obstacles to economic progress and development x x x x in
connection with a temporary injunction issued by the Courts First Division against the
sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were
published in a major daily to the effect that that injunction again demonstrates that the
Philippine legal system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to
intervene in contracts of the kind referred to or set itself up as the judge of whether they
are viable or attainable, it is its bounden duty to make sure that they do not violate the
Constitution or the laws, or are not adopted or implemented with grave abuse of
discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no
matter how buffeted by winds of unfair and ill-informed criticism.[48]
Privatization of a business asset for purposes of enhancing its business viability and
preventing further losses, regardless of the character of the asset, should not take
precedence over non-material values. A commercial, nay even a budgetary, objective
should not be pursued at the expense of national pride and dignity. For the Constitution
enshrines higher and nobler non-material values. Indeed, the Court will always defer to
the Constitution in the proper governance of a free society; after all, there is nothing so
sacrosanct in any economic policy as to draw itself beyond judicial review when the
Constitution is involved.[49]
Nationalism is inherent in the very concept of the Philippines being a democratic and
republican state, with sovereignty residing in the Filipino people and from whom all
government authority emanates. In nationalism, the happiness and welfare of the people
must be the goal. The nation-state can have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept. Protection of foreign
investments, while laudible, is merely a policy. It cannot override the demands of
nationalism.[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be
sold to the highest bidder solely for the sake of privatization. We are not talking about an
ordinary piece of property in a commercial district. We are talking about a historic relic
that has hosted many of the most important events in the short history of the Philippines
as a nation. We are talking about a hotel where heads of states would prefer to be
housed as a strong manifestation of their desire to cloak the dignity of the highest state
function to their official visits to the Philippines. Thus the Manila Hotel has played and
continues to play a significant role as an authentic repository of twentieth century
Philippine history and culture. In this sense, it has become truly a reflection of the
Filipino soul - a place with a history of grandeur; a most historical setting that has played
a part in the shaping of a country.[51]
This Court cannot extract rhyme nor reason from the determined efforts of respondents
to sell the historical landmark - this Grand Old Dame of hotels in Asia - to a total
stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to alien
hands cannot be less than mephistophelian for it is, in whatever manner viewed, a
veritable alienation of a nations soul for some pieces of foreign silver. And so we ask:
What advantage, which cannot be equally drawn from a qualified Filipino, can be gained
by the Filipinos if Manila Hotel - and all that it stands for - is sold to a non-Filipino? How

much of national pride will vanish if the nations cultural heritage is entrusted to a
foreign entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-meaning
Filipino? This is the plain and simple meaning of the Filipino First Policy provision of the
Philippine Constitution. And this Court, heeding the clarion call of the Constitution and
accepting the duty of being the elderly watchman of the nation, will continue to respect
and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling
51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per
share and thereafter to execute the necessary agreements and documents to effect the
sale, to issue the necessary clearances and to do such other acts and deeds as may be
necessary for the purpose. SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14639

March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
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 the 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 restrained 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 haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in
answer to 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 commissioners. 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 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 contained with their life in Mindanao and did
not wish to return to Manila. Respondents 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
contempt 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 fee, 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 a 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. vs. 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 vs. 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:
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, ta 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 (l) that there is a defect
in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and
(3) that the person 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 presented 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 court's 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 his 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, the 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:
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 king's
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 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 vs. Mitchell [1881], 57 Iowa, 193; Breene vs. 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 English by the respondent. A writ of habeas corpus was issued by the
Queen's 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:
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 it was issued by not producing the child
in obedience to its commands. (The Queen vs. Bernardo [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 vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
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 vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb
vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by
the respondents constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent 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 court's 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 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 contended 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 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.
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 a habeas corpus writ must be fulfilled. For
example, in Gossage's 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.
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 officer's 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 of habeas 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.